In her recent witty and informative book, Girly Drinks: A World History of Women and Alcohol, Mallory O’Meara touches on a sex discrimination case that also involved alcohol regulation. Craig v. Boren - a case out of the Supreme Court of the United States about an Oklahoma beer law - is cited by many as the source for “intermediate scrutiny”, the judge-made standard applied in cases where the government discriminates on the basis of sex. When you look to see which judge came up with the term, however, you won’t find his name appended to the majority opinion. And though the case was technically a win for the young female attorney who argued it before a Supreme Court composed of nine male justices, it wasn’t exactly the win she was looking for. After all, this was a case about beer thought-up by fraternity brothers, and she was the preeminent women’s rights attorney of her generation. To fully understand the circumstances that birthed this legal standard, we must visit a Southern fraternity house in the early 1970’s.
By 1971, the annual Lambda Chi Alpha Hobo Party was being touted in the Oklahoma State University yearbook as “the oldest social event on campus.”[1] The fraternity’s yearbook page that year shows the Lambda Chi Alpha house pictured with a stately porch framed by four Tuscan columns, in well-kept condition, with not a stray beer can in sight. The same could not be said for the following year. In 1972, the fraternity was given a two-page spread in the yearbook, which also featured the house, this time in the aftermath of the hobo party. The brothers are pictured strewn across the front lawn in their hobo best surrounded by empty beer cans littering the yard in a photo that could have inspired a movie poster for National Lampoon’s Animal House. Below this photo are the brothers’ individual portraits in alphabetical order. Fourth from last on the second page of the spread is the young man behind Craig v. Boren, Lambda Chi Alpha fraternity brother Mark Lee Walker.[2]
Walker was under 21 years old in 1972, so he had to rely on older brothers to procure his brew if he wanted to drink. His female classmates, however, could buy beer once they were 18.[3] The Oklahoma state legislature adopted the law the year prior on the basis that young men drink, drive, and get into car crashes more than young women. The policy was also consistent with prevailing custom because people at the time thought that “women needed to be able to bring home beer for their husbands and families to drink”.[4]
Walker, who would have had to register for the military draft, thought that if 18-year-old men could be sent to Vietnam for war, they should be able to buy beer. He convinced Carolyn Whitener to join the case. She was the owner of the Honk’n Holler, a drive-through convenience store selling beer in the small campus town of Stillwater, Oklahoma. Walker and Whitener joined forces to challenge the discriminatory law in federal court. By the time the case made its way into the hands of Ruth Bader Ginsburg at the ACLU Women’s Rights Project, Walker turned 21 and no longer had standing to challenge the law. His younger fraternity brother, Curtis Craig, became the lead plaintiff. Craig v. Boren was apparently “something of an embarrassment” for RBG, but she took the case to the Supreme Court anyway.[5]
For several years, Ginsburg had been working at getting the Supreme Court to accept her legal theory that the Equal Protection Clause of the 14th Amendment to the US Constitution protects against sex discrimination by a state. She was successful in this endeavor but had so far been unable to convince the Supreme Court to apply the same level of scrutiny to sex discrimination as it did to racial discrimination. Now she had a clear case of sex discrimination that might appeal to the all-male court. It worked, sort of. In the end, the justices were not keen on treating sex-based discrimination like racial discrimination, which required the Court to apply “strict scrutiny” to the discriminatory government action. A majority of the justices also could not bring themselves to apply a “rational basis” standard, which is used for discrimination not based on a suspect class. Instead, they opted for somewhere in the middle, but the majority opinion failed to give this standard a name. Whatever it was, this “intermediate scrutiny” as it would come to be called, was apparently just right for sex-based claims of discrimination.
Craig v. Boren is often credited with establishing “intermediate scrutiny” even though that term does not appear in the Court’s majority opinion. Justice William Rehnquist in dissent, joined by Chief Justice Warren Burger, coined the term “intermediate scrutiny” in a chiding remark accusing the majority opinion of further complicating matters by adding a third, in-between, standard to an evolving judge-made test.[6]
The origins of intermediate scrutiny may have become blurred in the present legal memory, but they are worth revisiting and remembering, especially in a time when new legal theories presenting as existing ones, such as the “independent state legislature theory”, begin to creep into our jurisprudence. “Where did this legal principle come from?” is always a question worth asking and investigating.
[1] Oklahoma State University Yearbook, p. 314 (1971) https://dc.library.okstate.edu/digital/collection/OYearbook/id/29398/rec/31
[2] Oklahoma State University Yearbook, p. 272-273 (p 276-277 on digitized version) (1972) https://dc.library.okstate.edu/digital/collection/OYearbook/id/29866/rec/32
[3] Craig v. Boren, 429 U.S. 190 (1976)
[4] Mallory O’Meara, Girly Drinks: A World History of Women and Alcohol, p. 311 (2021).
[5] Irin Carmon & Shana Knizhnik, Notorious RBG: The Life and Times of Ruth Bader Ginsburg, p. 75 (2015).
[6] Craig v. Boren, 429 U.S. 190, 218 (1976) (J. Rehnquist dissenting).