The Supreme Court's "Exceedingly [Un]Persuasive" Application of Intermediate Scrutiny in United States v. Virginia
The Supreme Court's decision in the case of United States v. Virginia in June of 1996 was a landmark decision that could change how future courts approach and resolve gender-based equal protection claims. The Supreme Court held that the Virginia Military Institute (VMI) could no longer continue its male-only admissions policy as a state-funded institution of higher education. The Court's apparent heightening of the level of scrutiny applied to gender-based classifications from the previously used intermediate scrutiny to an ambiguous standard either somewhere between the traditional intermediate scrutiny and strict scrutiny, or, in effect, a standard equivalent to strict scrutiny, will further inhibit legislatures from classifying or treating individuals differently based upon their gender. While many have praised the Court's specific holding, disallowing VMI's practice of preventing female applicants from enrolling in the school, the Court's application of a new form of intermediate scrutiny may cause state and local governments to refrain from providing beneficial single-gender institutions or services. However, because the Supreme Court never acknowledged that it was not applying the traditional intermediate scrutiny test, United States v. Virginia's precedential effect is questionable and needs more clarification before lower courts can uniformly apply a scrutiny test to gender-based equal protection claims.
Jeffrey A. Barnes,
The Supreme Court's "Exceedingly [Un]Persuasive" Application of Intermediate Scrutiny in United States v. Virginia,
U. Rich. L. Rev.
Available at: https://scholarship.richmond.edu/lawreview/vol31/iss2/7