Cite as: 518 U. S. 515 (1996)
Scalia, J., dissenting
stantially related to an important governmental objective." Ibid. See, e. g., Heckler v. Mathews, 465 U. S. 728, 744 (1984); Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142, 150 (1980); Craig v. Boren, 429 U. S., at 197.
Before I proceed to apply this standard to VMI, I must comment upon the manner in which the Court avoids doing so. Notwithstanding our above-described precedents and their " 'firmly established principles,' " Heckler, supra, at 744 (quoting Hogan, supra, at 723), the United States urged us to hold in this litigation "that strict scrutiny is the correct constitutional standard for evaluating classifications that deny opportunities to individuals based on their sex." Brief for United States in No. 94-2107, p. 16. (This was in flat contradiction of the Government's position below, which was, in its own words, to "stat[e] unequivocally that the appropriate standard in this case is 'intermediate scrutiny.' " 2 Record, Doc. No. 88, p. 3 (emphasis added).) The Court, while making no reference to the Government's argument, effectively accepts it.
Although the Court in two places recites the test as stated in Hogan, see ante, at 524, 532-533, which asks whether the State has demonstrated "that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives," 458 U. S., at 724 (internal quotation marks omitted), the Court never answers the question presented in anything resembling that form. When it engages in analysis, the Court instead prefers the phrase "exceedingly persuasive justification" from Hogan. The Court's nine invocations of that phrase, see ante, at 524, 529, 530, 531, 533, 534, 545, 546, 556, and even its fanciful description of that imponderable as "the core instruction" of the Court's decisions in J. E. B. v. Alabama ex rel. T. B., supra, and Hogan, supra, see ante, at 531, would be unobjectionable if the Court acknowledged that whether a "justification" is "exceedingly persuasive" must be assessed by asking
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