Lee Epstein
Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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Published in 2004. In the inaugural issue of the Tennessee Journal of Law and Policy 1 (1): 11-68.

Lee Epstein
Andrew D. Martin
Lisa Baldez
Tasina Nitzschke

Nearly thirty years have elapsed since the U.S. Supreme Court decided Craig v. Boren, a landmark in its constitutional sex discrimination jurisprudence. In Craig, the justices pronounced that they would apply neither the lowest level of scrutiny—rational basis—nor the highest level—strict scrutiny—to evaluate claims of sex discrimination. Rather, they would invoke a standard “in between” the two, known now as intermediate or heightened scrutiny. Under this approach, the Court asks whether a law challenged on equal protection grounds is substantially related to the achievement of an important objective.

Certainly Craig’s intermediate approach has its supporters; indeed, influential legal scholars are now advocating that courts adopt it to evaluate laws discriminating against gays and lesbians. But to many analysts Craig (and its progeny) was and remains highly problematic. Among their claims is that the standard it instantiated is so “loose” and “amorphous” that it produces unpredictable results.

In this article we seek to bring some empirical teeth to this debate by exploring patterns in sex discrimination litigation in the U.S. Supreme Court and in state courts of last resort. Our chief finding is that the critics of heightened scrutiny probably have the better case. At the very least, the Craig standard—while generating outcomes more favorable to parties alleging sex discrimination than did the traditional rational basis test—does, in fact, lead to far less predictable results than either rational basis or strict scrutiny: courts are, for reasons that may have little to do with the standard itself, just as likely to uphold sex-based classifications as they are to eradicate them.

This finding has important implications for the future of sex discrimination litigation, as well as for the advancement of legal rights for gays and lesbians. As to the former, our results underscore the importance of elevating the standard used to adjudicate sex discrimination claims—a goal, as we demonstrate, that could be achieved in several distinct ways. As to gays and lesbians, our findings identify the possible costs and benefits associated with a litigation strategy designed to place their claims of discrimination in the intermediate scrutiny basket.

Click here for the article (.pdf).