United States v. Virgina: Skeptical scrutiny and the future of gender discrimination law

St. John's Law Review, Fall 1996 by Gleason, Christina

This Comment examines whether Justice Ginsburg's opinion for the Court established a new, stricter test for gender discrimination.33 It is submitted that Justice Ginsburg did not adopt the strict scrutiny standard, but rather attempted to strengthen the intermediate scrutiny test and move the Court closer toward the eventual acceptance of strict scrutiny in gender discrimination. Part I examines past gender discrimination decisions in search for a sound basis for a new skeptical scrutiny standard. Part II analyzes the flaws in Justice Scalia's argument that skeptical scrutiny is the equivalent of strict scrutiny. Finally, Part III looks to the impact of United States v. Virginia on future gender discrimination cases.

I. FROM RATIONAL RELATIONSHIP TO SKEPTICAL SCRUTINY

A. Extending Equal Protection Guarantees to Gender Classifications

When the Fourteenth Amendment to the United States Constitution was ratified in 1868, it was not expected that the application of the Equal Protection Clause would extend beyond the bounds of racial discrimination.34 Discrimination based on sex was not considered within the perview of equal protection scrutiny until 1971 when the Supreme Court, in Reed v. Reed,35 first applied equal protection scrutiny to gender discrimination.36 The Court analyzed equal protection guarantees in light of the strict scrutiny and the less stringent rational relationship tests. Originally, it chose to apply the rational relationship test to classifications based on sex.37

The Supreme Court temporarily changed course during the following term when, in the plurality opinion of Frontiero v. Richardson,38 Justice Brennan applied the strict scrutiny standard to a case where the husbands of service members were denied dependency benefits given to wives.39 While Justice Brennan was never able to persuade a majority of the Court to hold that gender was a suspect class, the Supreme Court eventually created the intermediate scrutiny standard for cases involving gender discrimination.40

B. The Supreme Court's Creation of Intermediate Scrutiny Through Prior Decisions

In Craig v. Boren,41 the Court turned to the language of prior decisions in support of its creation of the intermediate standard of review.42 Justice Rehnquist, writing for the dissent, took issue with the lack of precedent to support the "important government interest" standard, and argued that the less demanding rational relationship test was appropriate in gender discrimination cases.43 Despite Justice Rehnquist's misgivings about intermediate scrutiny, the Court later applied the test to eliminate double standards in applying for workers' compensation benefits,44 granting survivors' benefits,45 and assigning alimony payments.46 The intermediate scrutiny test remained in effect for twenty years; its reign ended with the Supreme Court's decision in United States v. Virginia.47

C. Strengthening Intermediate Scrutiny Through the Creation of Skeptical Scrutiny

After re-examining several cases concerning equal protection analysis,48 Justice Ginsburg chose to redefine the meaning of intermediate scrutiny and, in the process, replace it with a tougher test.49 Justice Ginsburg did not cite specific cases to support the change from the intermediate scrutiny test to the skeptical scrutiny language; however, Justice Ginsburg, using tactics similar to those used by the Court in Craig v. Boren, adopted language from landmark decisions in gender equity law.50