Craig v. Boren
Does an Oklahoma law that permits women to purchase 3.2% beer at age 18 but prohibits men from purchasing it until age 21 violate the Equal Protection Clause of the Fourteenth Amendment?
The Decision
7-2 decision · Opinion by William J. Brennan Jr. · 1976
Majority Opinion— William J. Brennan Jr.concurring ↓dissent ↓
In a 7–2 decision authored by Justice William J. Brennan Jr., the Supreme Court struck down the Oklahoma law, holding that it violated the Equal Protection Clause. In doing so, the Court formally established a new and important standard of constitutional review: classifications based on sex must serve 'important governmental objectives' and must be 'substantially related to achievement of those objectives.' This standard — which came to be known as 'intermediate scrutiny' — was stricter than the lenient 'rational basis' test used for ordinary economic legislation, but less demanding than the 'strict scrutiny' applied to racial classifications.
The majority acknowledged that traffic safety is undeniably an important governmental objective. The critical question, however, was whether Oklahoma's sex-based drinking age was substantially related to achieving that goal. Brennan and the majority concluded it was not. They carefully examined the statistical evidence Oklahoma relied upon and found it far too weak to support a gender-based classification. Even accepting the state's own figures, the data showed that the overwhelming majority of young men aged 18 to 20 — over 98% — did not drive drunk. The small statistical gap between male and female arrest rates, the Court reasoned, was not a strong enough foundation on which to build a law that treated all young men differently from all young women.
The Court also pointed out the logical flaws in Oklahoma's approach. The law only regulated the purchase of 3.2% beer — not its consumption. A young man under 21 could still legally drink the beer; he just could not buy it himself. This meant a female friend or family member could purchase it and hand it to him. This gap between what the law actually did and what it claimed to accomplish further undermined the state's argument that the classification was substantially related to the goal of reducing drunk driving. The law was both overinclusive (it penalized all young men, the vast majority of whom did not drink and drive) and underinclusive (it did not actually prevent young men from obtaining or consuming the beer).
The majority also rejected the argument that the Twenty-first Amendment gave states virtually unchecked power to regulate alcohol free from equal protection scrutiny. While that amendment did return significant regulatory authority to the states, the Court held that it did not override the Fourteenth Amendment's guarantee of equal protection under the law. States could not use alcohol regulation as a license to engage in unconstitutional sex discrimination.
Craig v. Boren became one of the most important equal protection decisions of the twentieth century. By establishing intermediate scrutiny as the governing standard for sex-based classifications, the Court created a durable framework that subsequent courts would use to evaluate laws that treat men and women differently. The decision made clear that while governments could still draw distinctions between the sexes in some circumstances, they needed a much stronger justification than casual stereotypes or modest statistical correlations.
Concurring Opinions
Several justices wrote separately to explain their views. Justice Powell concurred but expressed caution about rigidly defined tiers of scrutiny, preferring a more flexible approach. Justice Stevens concurred, arguing that the level of scrutiny should depend on the nature of the classification and the importance of the individual interest at stake, rather than fitting neatly into fixed categories. Justice Stewart concurred in the judgment, agreeing the law was unconstitutional but expressing reservations about the specific intermediate scrutiny framework. Justice Blackmun also filed a brief concurrence.
Dissenting Opinions
Warren E. Burger
Chief Justice Burger dissented, arguing that the Court was wrong to second-guess Oklahoma's legislative judgment on a matter of traffic safety and alcohol regulation. He believed the statistical evidence presented by the state was sufficient to justify the modest gender-based distinction and that the Court was improperly substituting its own policy preferences for those of the state legislature.
- The statistical evidence showing significantly higher rates of drunk driving arrests among young men provided a rational basis for the state's decision to draw a gender-based line in its alcohol regulations.
- The Court should afford greater deference to state legislatures in matters involving public safety and alcohol regulation, particularly given the broad authority granted to states by the Twenty-first Amendment.
William H. Rehnquist
Justice Rehnquist wrote a forceful dissent arguing that the majority had invented a new and unworkable level of constitutional scrutiny without proper justification. He contended that the traditional rational basis test was the correct standard for evaluating this kind of classification, and under that standard the Oklahoma law should have been upheld.
- The Equal Protection Clause does not require the heightened 'intermediate scrutiny' standard the majority created; the rational basis test has long been the appropriate standard for reviewing legislative classifications that do not involve suspect classes like race.
- The majority's new standard was vague and subjective — terms like 'important' governmental objectives and 'substantially related' gave judges too much discretion and too little guidance, inviting unprincipled judicial decision-making.
- The case involved a gender-based distinction that actually disadvantaged men, not women, and Rehnquist questioned whether the same level of scrutiny was warranted when the group affected was not a historically disadvantaged minority.
Background & Facts
In the mid-1970s, Oklahoma had a law that drew a line between young men and young women when it came to buying low-alcohol beer (sometimes called '3.2 beer' because it was 3.2% alcohol by weight). Under Oklahoma Statutes Title 37, sections 241 and 245, women could legally purchase this beer at age 18, but men had to wait until they turned 21. The state defended this difference by arguing that young men posed a greater traffic safety risk when it came to drunk driving. This was the backdrop for a legal challenge that would reshape American constitutional law.
The case was brought by Curtis Craig, a young man between the ages of 18 and 21 who wanted to buy 3.2% beer but was legally barred from doing so, and Carolyn Whitener, a licensed vendor of the beer who wanted to sell to young male customers without fear of losing her license. They sued David Boren, then the Governor of Oklahoma, arguing that the sex-based age distinction violated the Equal Protection Clause of the Fourteenth Amendment, which generally requires the government to treat similarly situated people equally under the law.
The case was initially heard by a three-judge federal district court, as was standard at the time for constitutional challenges to state statutes. That court upheld the Oklahoma law, finding that the state's statistical evidence about male and female arrest rates for drunk driving was sufficient to justify treating the sexes differently. The district court concluded that the gender classification was rationally related to the state's goal of promoting traffic safety.
Craig and Whitener appealed directly to the United States Supreme Court, which noted probable jurisdiction — meaning the Court agreed to hear the case. Notably, Curtis Craig himself turned 21 during the course of the litigation, which rendered his personal claim moot. However, the Court found that Carolyn Whitener, as a beer vendor, had independent standing to challenge the law. She faced a real economic injury — the loss of business from male customers aged 18 to 20 — and could assert the equal protection rights of those young men as a third party. This allowed the case to proceed on the merits.
The Supreme Court took the case because it presented an important and unresolved question about how courts should evaluate laws that classify people based on sex. At the time, the Court had been grappling with what standard of review to apply to sex-based distinctions. Some justices had argued for 'strict scrutiny,' the most demanding standard, while others thought a lighter touch was appropriate. Craig v. Boren gave the Court an opportunity to clarify the rules.
The Arguments
The Oklahoma law unconstitutionally discriminated on the basis of sex by imposing different minimum drinking ages for men and women. There was no adequate justification for treating young men and young women differently when it came to purchasing low-alcohol beer, and the law violated the Equal Protection Clause of the Fourteenth Amendment.
- The law drew an explicit classification based on sex, treating men and women differently for no sufficient reason, which is the essence of sex discrimination forbidden by the Equal Protection Clause.
- The statistical evidence offered by Oklahoma — showing slightly higher arrest rates for young men — was far too weak and tenuous to justify a blanket gender-based legal distinction affecting all young men.
- Carolyn Whitener, as a licensed vendor, suffered concrete economic harm from being unable to sell beer to an entire class of willing customers, and she had standing to assert the constitutional rights of young men aged 18 to 20.
Oklahoma's gender-based age difference for purchasing 3.2% beer was a rational and constitutionally permissible way for the state to address the real problem of traffic safety among young people. Because young men were statistically far more likely to be involved in alcohol-related driving incidents, the state had a legitimate basis for the distinction.
- Statistical evidence showed that 2% of males aged 18 to 20 were arrested for driving under the influence of alcohol, compared to only 0.18% of females in the same age group — a tenfold difference that demonstrated a real and measurable distinction between the sexes.
- The state has broad authority under its police power to regulate the sale of alcoholic beverages and to make reasonable classifications in pursuit of public safety.
- The Twenty-first Amendment, which ended Prohibition and returned alcohol regulation to the states, gave Oklahoma even wider latitude to enact laws governing the sale of alcohol, including laws drawing demographic distinctions.