Statutory classifications that distinguish between males and
females are subject to scrutiny under the Equal Protection
Requirements to withstand an Equal Protection Challenge
Classifications by gender must serve important governmental
objectives and must be substantially related to achievement of
Administrative ease and convenience Not sufficient objective
Administrative ease and convenience are not sufficiently
important objectives to justify gender-based classifications.
Gender cannot serve as a proxy
Gender cannot serve as a proxy for other, more germane bases of
Statistical evidence is weak
The statistical evidence offered by the state does not support
the conclusion that the gender-based distinction serves the
objective of enhancing traffic safety closely enough to
withstand an equal protection challenge.
Prior Statistical Cases were rejected that had a FAR more
While the difference between 0.18% and 2.0% may have statistical
significance, it can hardly form the basis for employment of a
gender line as a classifying devise.
Prior cases have consistently rejected the use of sex as a
decision-making factor even on far more predictive empirical
relationships than this.
Statistical evidence has problems
Moreover, the statistical evidence has its own problems.
Women are chivalrously escorted home
The very social stereotypes that caused the Oklahoma Legislature
to pass the challenged law are likely to distort the accuracy of
these comparative statistics so that
young men who drink and drive
are arrested while young women are "chivalrously" escorted home.
Does not measure the dangerousness of 3.2% beer
In addition, none of the statistics measures the dangerousness
of 3.2% beer (which the Oklahoma legislature considered to be
non-intoxicating) as opposed to alcohol generally.
Moreover, considering that the statute only prohibits the sale
of 3.2% beer to the young men and not its consumption by them,
the relationship between
gender and traffic safety becomes far too tenuous to satisfy the
requirement that the gender-based difference be substantially
related to achievement of the statutory objective.
Therefore, this gender-based differential is a denial of equal
protection to males aged 18-20.
DISSENT Justice Rehnquist
Rehnquist objects to the Court's opinion on two grounds.
First is the Court's conclusion that men who challenge a
gender-based classification may invoke a more stringent review
than most other types of classifications.
Second is the Court's enunciation of a new standard, without
citation to any source - that gender-based classifications must
be substantially related to important governmental objectives.
How are the males disadvantaged?
They are not subject to systematic discrimination.
This law only needs a rational review AND is CONSTITUTIONAL
believe that the law here need only pass a rational review
analysis, and that it is constitutional under that analysis.
Before today no decision has ever applied an elevated level of
scrutiny against statutory discrimination that is harmful to
males, and the Court should not have done so today.
Comes out of thin air
The Court's standard of review, requiring a substantial relation
to an important governmental objective, apparently comes out of
The standard is so diaphanous
[transparent or translucent] and elastic as to
invite subjective judicial preferences or prejudices
masquerading as judicial judgments.
Rational Review Legislature is entitled to great deference
believe that traditional rational basis scrutiny was warranted
in this case.
Legislatures are entitled to great deference in their
Clear difference between drinking-driving habits of men and
Males were arrested 18 times as must as females between 18 20,
which is a ratio of 10 to 1.
The legislature could reasonably infer the incidence of drunk
driving is a good deal higher than the incidence of arrest.
The statistics suggest a clear difference between the drinking
and driving habits of young men and young women, and that
difference is enough that the
legislature could reasonably conclude that young males pose a
far greater drunk-driving hazard than females.
The gender-based difference in treatment is therefore not