Litigating Women: The Path to Intermediate Scrutiny in American Law

Abstract

In the 1970s, the Supreme Court pronounced a new test for laws that treated the two sexes differently. This test, known as “intermediate scrutiny,” was stricter than the Court’s usual standard (the “rational basis” test), but not as stringent as the test used for cases involving racial distinction (the “strict scrutiny” test). It only applies to sex-based discrimination litigation. This work tracks and analyzes the jurisprudence in the Supreme Court that led to the implementation of intermediate scrutiny through examining different cases. These are Muller v. Oregon (1908); Goesaert v. Cleary (1948); Reed v. Reed (1971); Frontiero v. Richardson (1973); Weinberger v. Wiesenfeld (1975); and Craig v. Boren (1976). Muller and Goesaert demonstrate how the Court employed the rational basis test in sex-based discrimination cases during the first half of the Twentieth century. Reed, Frontiero, and Weinberger detail litigator and activist Ruth Bader Ginsburg’s efforts to persuade the court to establish a test specifically for evaluating these cases. Craig explains the monumental case that finally convinced the Court to pronounce intermediate scrutiny. Together, these six cases provide a cohesive narrative of the jurisprudence and socio-cultural history that clearly articulated the path to intermediate scrutiny.