Nguyen v. INS and the Application of Intermediate Scrutiny to Gender Classifications: Theory, Practice, and Reality

The Supreme Court has articulated three theoretically different standards of review for determining whether government action has denied any person equal protection of the laws: rational basis, intermediate scrutiny, and strict scrutiny. One area of this tri-level jurisprudence that continues to be troublesome in practice is the application of intermediate scrutiny to gender classifications. Nguyen v. INS is significant because it is the first case in which all nine Justices unequivocally applied that standard in such a case. Nonetheless, the application of the standard remains problematic since the Court split five to four on its application to the facts.

This article analyzes the gender cases and concludes, perhaps not surprisingly, that the verbalization of the standard intermediate scrutiny has had little effect on the decisions in the gender cases. In reality, the outcomes of the cases turn on how the individual Justices view the underlying facts. Those who view the classification as being based on legitimate differences between the genders generally vote to uphold it; those who view the classification as being based on stereotypical “overbroad generalizations about the talents, capacities, or preferences of males and females” generally vote to strike it down. In this regard the application of intermediate scrutiny in gender cases is in reality a form of rational basis review.