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Intermediate scrutiny

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When faced with statutes or government actions that assigns rights or responsibilities based on gender, the Supreme Court and federal courts apply the intermediate scrutiny standard. While less exacting than strict scrutiny, this standard is significantly more strenuous than rational basis review. To satisfy intermediate scrutiny, a law which discriminates on the basis of gender must be "exceedingly persuasive," and should be "substantially related" to an "important government objective."[1]

Doctrinal history[edit]

Women's rights lawyers, in the decades leading up to the 1970s, attempted to push for strict scrutiny review of classifications on the basis of gender. The court for some time denied any elevated legal protection to women, upholding discriminatory laws even if only pretextually related to a government objective. However, in Reed v. Reed,[2] the court for the first time invalidated a gender-based law. The matter at bar was an Idaho law, stating that men are preferred as executors of their child's estate, women being less disposed to this sort of financial task. Invalidating the law, the Supreme Court held that discrimination without any cause (merely on the basis of a perceived stereotype) was a type of governmental action forbidden to governments. Although purporting to use rational basis review to strike down this classification, the court used language indicating a slightly higher standard of review - perhaps a form of rational basis that nonetheless would not uphold stereotyping actions.[3]

Shortly thereafter, in Frontiero v. Richardson, a plurality of the Court for the first time used strict scrutiny to invalidate a gender classification.[4] As a plurality opinion, this decision did not become controlling, however.

Modern American jurisprudence rests somewhere in between these two extremes, applying "intermediate scrutiny" as essentially strict scrutiny, but with one major distinction: while there are, as a matter of law, no differences between races, there are "real differences" between men and women that intermediate scrutiny allows judges to take notice of when deciding discrimination cases. Intermediate scrutiny jurisprudence is therefore founded largely on the idea of stereotypes: courts will never uphold a law which is over-broad, and classifies women[5] or men[6] based only on assumptions about gender. However, courts may uphold a law based on a real difference.[7]

Intent standard[edit]

Like race, a law will only be adjudged as discriminatory if it classifies for the purpose of discriminating on the basis of gender. If incidental discrimination (proceeding in spite of a disparate impact) occurs, the law is not unconstitutional, although it may run afoul of state or local regulations.[8]


  1. U.S. v. Virginia, 518 U.S. 515, c.f. Loving v. Virginia, 338 U.S. 1 (enumerating the strict scrutiny standard).
  2. 404 U.S. 71.
  3. This type of review is called "rational basis with teeth." Used only in two cases - Reed v. Reed and Romer v. Evans - some commentators see it as a halfway point, indicating the court's position that stereotypes have no meaning, but evincing caution in dealing with a "hot button" issue. For women, "rational basis with teeth" quickly became intermediate scrutiny. Thus, lawyers interested in gay rights point out that Romer (which struck down under "rational basis with teeth" as a Colorado law discriminating against homosexuals) may be the Reed of the gay rights movement. Perhaps the court is becoming more sympathetic, and moving towards iterating a strict scrutiny standard for anti-gay legislation.
  4. 411 U.S. 677.
  5. U.S. v. Virginia, 518 U.S. 515.
  6. Craig v. Boren, 429 U.S. 190
  7. Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (upholding a law punishing men more harshly than women in statutory rape situations, as one "real difference" between the genders is that men are more likely to engage in this forbidden conduct).
  8. Personnel Administrator of Massachussettes v. Feeney, 442 U.S. 256 (upholding a law giving increased benefits to veteran soldiers as non-discriminatory: although no women would be benefited by this rule, as a result of the fact that prior to 1950 no women were allowed in the military, this sort of discriminatory impact was incidental, and was thus "substantially related" to an "important government objective").