Oklahoma had a Statute that
set the drinking age at 21 for males, but only 18 for females. Several
males sued, claiming that the law amounted to gender discrimination, and was therefore a violation of the Equal
Protection Clause of the 14th
Oklahoma argued that there
was a rational basis for their
Statute, namely a statistically analysis of drunk driving laws that said
males were more likely to drive drunk than females.
See Reed v. Reed (404 U.S. 71 (1971)), which held that the
proper level of judicial review for gender discrimination
was rational basis review.
The male drinkers argued
that the vague statistical analysis could not support a strict
scrutiny review, as used in Frontiero
v. Richardson (411 U.S. 677 (1973)).
The US Supreme Court found the
Oklahoma law an unconstitutional violation of due process.
The US Supreme Court found
that in cases of gender discrimination, neither strict scrutiny nor rational basis
was the proper level of review.
Instead, the Court decided
to use intermediate scrutiny.
Intermediate scrutiny asks if a regulation involves important
governmental interests that are furthered by substantially related
The Court found that the
statistics weren't related substantially enough to the Statute to
withstand intermediate scrutiny.
This case set the standard
that intermediate scrutiny is the
proper level of judicial review for cases of gender
Intermediate Scrutiny is used because the Justices weren't ready to
state that gender is a suspect classification, but they wanted to acknowledge that gender
discrimination is pervasive and based on immutable characteristics, and
so deserved more than just rational basis review.