Intermediate scrutiny
CLEP American Government, Chapter 24
Intermediate scrutiny
Intermediate scrutiny ordinarily governs government classifications based on sex. Government must offer an exceedingly persuasive justification: the objective must be important, and the sex classification must be substantially related to achieving it. This test demands evidence and fit rather than a merely plausible story. Broad assumptions that women are natural caregivers, men are natural leaders, or members of either sex uniformly prefer one role cannot substitute for analysis. In United States v. Virginia, generalized claims about the abilities and educational preferences of women could not justify reserving a distinctive public military education exclusively for men. Tradition alone is not an important objective; a practice does not become constitutional merely because government has followed it for a long time.
Real biological differences can matter when they are relevant to the actual policy, but the classification still must fit the important objective rather than serve as a convenient stereotype. Suppose a state bars women from a public engineering program because officials believe most women will prefer other careers. The generalization does not substantially relate each applicant's sex to ability and is unlikely to satisfy the test. A sex-neutral physical requirement tied to the tasks students must perform presents a different question because it evaluates the relevant ability directly. In the equal-protection sequence, identify an express or purposeful sex classification before selecting intermediate scrutiny. Do not substitute strict scrutiny's compelling-interest and narrow-tailoring formula. Intermediate scrutiny is demanding, but its terms are an important objective and a substantial relationship, defended through the government's actual justification rather than a rationale invented after litigation begins.
Video lesson: Equal Protection: Crash Course Government and Politics #29
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