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

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

Even if the United States had insisted on strict scrutiny, it was clear from the transcript of the oral argument that a majority of the Court would have been unwilling to take that step in the VMI case.67 Legal analysts and "Supreme Court watchers" observed a reluctance among some members of the Court to accept the government's position and adopt the strict scrutiny standard.68 Justice Ginsburg made it clear in her opinion for the Court that strict scrutiny was not adopted in the VMI case.69It is clear to legal analysts that Justice Ginsburg could not risk making strict scrutiny the issue because such a drastic step would not have received majority support,70 thus, any move to accept strict scrutiny would have jeopardized the outcome of the VMI case itself.

B. Skeptical Scrutiny is not Strict Scrutiny Justice Scalia focuses most of his attention on opposing Justice Ginsburg's de facto adoption of the strict scrutiny test for sex discrimination cases.71It appears that Justice Scalia's worries are, at least for the moment, misplaced. Although skeptical scrutiny does significantly strengthen the ability of women's groups to challenge state actions as violative of equal protection guarantees, this new test does not equal the strict scrutiny review employed in cases of racial discrimination.72 The skeptical scrutiny test neither purports to reach the level of scrutiny applied by the Court in Frontiero v. Richardson,73 nor borrows any of the language used repeatedly by the Court when applying strict scrutiny.74

The easiest way to uncover the differences between strict scrutiny and skeptical scrutiny is through an examination of the language of both tests. Skeptical scrutiny, like strict scrutiny, places a heavy burden on the state to prove constitutionality instead of forcing others to prove a constitutional violation.75 Outside of the burden placed by these two standards, however, the tests are noticeably different. The acceptance of strict scrutiny would imply that all Justices signing onto a Court's opinion had accepted gender as an inherently suspect classification. In this regard, it is important to remember that the Court has never firmly held that gender is an inherently suspect classification.76

Most importantly, in defining the parameters of the strict scrutiny test, the Court refers to the "compelling state interest" which must be proven.77 On its face, it appears that proving a state interest "compelling" is more difficult than proving that a governmental objective is "important," which is the basic requirement needed to probe that the justification is "exceedingly persuasive."78 The language of the two standards makes clear that no matter how tough the skeptical scrutiny standard may be to prove, it is certainly an easier burden than strict scrutiny. Therefore, it is asserted that Justice Scalia had little reason to worry about de facto recognition of strict scrutiny by the Court in the VMI case.

III. CAN STRICT SCRUTINY SUCCEED FOLLOWING UNITED STATES V. VIRGINIA? Although the aforementioned fears of Justice Scalia regarding the Court's analysis in United States v. Virginia are unfounded, opponents of the strict scrutiny standard have reasons to be concerned.79 By creating a skeptical scrutiny standard and moving more slowly in the direction of strict scrutiny, Justice Ginsburg has helped prevent another Frontiero decision form occurring.80 Justice Ginsburg's skeptical scrutiny test helps to promote the eventual adoption of strict scrutiny by giving other Justices time to adjust to tougher standards in sex discrimination cases, while reminding legal practitioners and scholars that the issue of strict scrutiny in these cases is not dead.