[2] Stewart recognized the need for intermediate scrutiny in gender-based discrimination cases: "any state law overtly or covertly designed to prefer males over females in public employment would require an exceedingly persuasive justification to withstand a constitutional challenge under the Equal Protection Clause of the Fourteenth Amendment.

"[2] The Court cited Arlington Heights v. Metropolitan Housing Corp. to apply a heightened form of review, a two-part test: "When a statute gender-neutral on its face is challenged on the ground that its effects upon women are disproportionably adverse, a twofold inquiry is thus appropriate.

Marshall further states that "[t]o discern the purposes underlying facially neutral policies, this Court has therefore considered the degree, inevitability, and foreseeability of any disproportionate impact, as well as the alternatives reasonably available.

The District Court found that, as a practical matter, this preference supplants test results as the determinant of upper level civil service appointments.

Because less than 2% of the women in Massachusetts are veterans, the absolute preference formula has rendered desirable state civil service employment an almost exclusively male prerogative.