Supreme Court decision
By: William Brennan Jr. and Lewis Powell
Date: May 14, 1973
Source: Brennan Jr., William and Lewis Powell. Frontiero v. Richardson. 411 U.S. 677 (1973). Available online at http://laws.findlaw.com/us/411/677.html; website home page: http://www.findlaw.com (accessed April 16, 2003).
About the Authors: William Brennan Jr. (1906–1997), the son of Irish immigrants, went to the University of Pennsylvania for his undergraduate degree and Harvard University for his law degree. In 1957, Brennan was appointed to the U.S. Supreme Court.
Lewis Powell (1907–1998) graduated from Harvard Law School. He was president of the American Bar Association in 1964, and championed legal services for the poor. He was nominated to the Supreme Court in 1971 and served until 1987.
Discrimination on the basis of sex has long been a part of American history. Women were allowed to vote in a few places, but soon after the nation's founding, most states removed that right from women. In the nineteenth century, women were expected to protect the home and to elevate the morals of the home.
However, in the early part of the twentieth century the barriers to women being involved outside the home began to be lowered. In 1920, the Nineteenth Amendment provided that the right to vote would not be denied on the basis of sex. And even though women served in the armed forces and auxiliary units in World War I (1914–1918) and World War II (1939–1945), they were generally not accepted as full military members in those conflicts.
The 1960s brought about many changes in women's rights. Many of the crusaders for civil rights applied the lessons that they had learned in that struggle to battle for equal rights for women. The Civil Rights Act (1964) outlawed discrimination on the basis of sex, and several educational institutions, such as law and medical schools, became coeducational. Many institutions still had discriminatory policies, including the armed forces, which automatically denied male spouses of female members of the armed services dependent benefits, unless they could prove they were dependent on their spouse for over half their support, while automatically granting female spouses benefits. After being denied benefits for her spouse, Sharron Frontiero, a female U.S. Air Force lieutenant, sued.
Frontiero won her case, since the only justification the armed forces had was that this classification was an administrative convenience. In the armed forces' way of thinking, most women would be dependent on their male spouses, unlike most men, which meant that this classification was the easiest way to do it.
The Court held that convenience was no excuse for discrimination. However, the Court split on the reasoning. Four of the members held that sex-based classifications should be viewed as "inherently suspect," similar to race-based classifications, and could only be justified by a compelling state interest that cannot be achieved any other way. One member held that the classification was discriminatory, and three others held that the classification was discriminatory but that sex-based classifications should not be "inherently suspect." The ninth member of the court, Justice William Rehnquist, upheld the classification.
Since Frontiero, sex-based classifications have sometimes been upheld and have been generally subjected to an intermediate level of review, where the government must prove that the classification used is substantially related to a governmental interest. In the military, women are now allowed to go to all of the service academies and to hold most jobs, except for those that are directly involved in combat. Sex still plays a role in the military though, as homosexuals are technically banned from participation and are sometimes discharged from the military. The level of witch-hunting for gays and lesbians, particularly since President Bill Clinton's (served 1992–2000) "don't ask, don't tell" policy, varies with whom one speaks.
In the civilian world, the Equal Rights Amendment (ERA) pushed by women in the 1960s and 1970s failed, but most colleges, including previously all-male schools such as the Virginia Military Institute, now admit women. Some progress has been made, but full equality still has not been reached.
Primary Source: Frontiero v. Richardson [excerpt]
SYNOPSIS: Justice William Brennan Jr. first notes the nature of the disagreement and the basis on which benefits were awarded. He then details the history of sex discrimination, arguing that it still exists, and concludes that sex-based classifications are inherently suspect. Justice Lewis Powell, although agreeing that the classification is unconstitutional, holds that sex-based classifications are not inherently suspect. Powell comments that the ERA may soon make the question moot.
Mr. Justice Brennan announced the judgment of the Court and an opinion in which Mr. Justice Douglas, Mr. Justice White, and Mr. Justice Marshall join.
The question before us concerns the right of a female member of the uniformed services to claim her spouse as a "dependent" for the purposes of obtaining increased quarters allowances and medical and dental benefits … on an equal footing with male members. Under these statutes, a serviceman may claim his wife as a "dependent" without regard to whether she is in fact dependent upon him for any part of her support.… A servicewoman, on the other hand, may not claim her husband as a "dependent" under these programs unless he is in fact dependent upon her for over one-half of his support.… Thus, the question for decision is whether this difference in treatment constitutes an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment.…
In an effort to attract career personnel through reenlistment, Congress established … a scheme for the provision of fringe benefits to members of the uniformed services on a competitive basis with business and industry. Thus … a member of the uniformed services with dependents is entitled to anincreased "basic allowance for quarters" and … a member's dependents are provided comprehensive medical and dental care.
Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, appellant Joseph Frontiero, on the ground that he was her "dependent." Although such benefits would automatically have been granted with respect to the wife of a male member of the uniformed services, appellant's application was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support. Appellants then commenced this suit, contending that, by making this distinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment. In essence, appellants asserted that the discriminatory impact of the statutes is twofold: first, as a procedural matter, a female member is required to demonstrate her spouse's dependency, while no such burden is imposed upon male members; and, second, as a substantive matter, a male member who does not provide more than one-half of his wife's support receives benefits, while a similarly situated female member is denied such benefits. Appellants therefore sought a permanent injunction against the continued enforcement of these statutes and an order directing the appellees to provide Lieutenant Frontiero with the same housing and medical benefits that a similarly situated male member would receive.…
At the outset, appellants contend that classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny.…
There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which, in practical effect, put women, not on a pedestal, but in a cage.…
As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre–Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children.… And although blacks were guaranteed the right to vote in 1870, women were denied even that right—which is itself "preservative of other basic civil and political rights"—until adoption of the Nineteenth Amendment half a century later.
It is true, of course, that the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.…
Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, … statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.
We might also note that, over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications.…
With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid.
The sole basis of the classification established in the challenged statutes is the sex of the individuals involved.…
Moreover, the Government concedes that the differential treatment accorded men and women under these statutes serves no purpose other than mere "administrative convenience." In essence, the Government maintains that, as an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands rarely are dependent upon their wives. Thus, the Government argues that Congress might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact.
The Government offers no concrete evidence, however, tending to support its view that such differential treatment in fact saves the Government any money. In order to satisfy the demands of strict judicial scrutiny, the Government must demonstrate, for example, that it is actually cheaper to grant increased benefits with respect to all male members, than it is to determine which male members are in fact entitled to such benefits and to grant increased benefits only to those members whose wives actually meet the dependency requirement. Here, however, there is substantial evidence that, if put to the test, many of the wives of male members would fail to qualify for benefits. And in light of the fact that the dependency determination with respect to the husbands of female members is presently made solely on the basis of affidavits, rather than through the more costly hearing process, the Government's explanation of the statutory scheme is, to say the least, questionable.
In any case, our prior decisions make clear that, although efficacious administration of governmental programs is not without some importance, "the Constitution recognizes higher values than speed and efficiency." … And when we enter the realm of "strict judicial scrutiny," there can be no doubt that "administrative convenience" is not a shibboleth, the mere recitation of which dictates constitutionality.… On the contrary, any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands "dissimilar treatment for men and women who are … similarly situated," and therefore involves the "very kind of arbitrary legislative choice forbidden by the [Constitution].…" … We therefore conclude that, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.
Mr. Justice Powell, with whom The Chief Justice and Mr. Justice Blackmun join, concurring in the judgment.
I agree that the challenged statutes constitute an unconstitutional discrimination against service-women in violation of the Due Process Clause of the Fifth Amendment, but I cannot join the opinion of Mr. Justice Brennan, which would hold that all classifications based upon sex, "like classifications based upon race, alienage, and national origin," are "inherently suspect and must therefore be subjected to close judicial scrutiny." … It is unnecessary for the Court in this case to characterize sex as a suspect classification, with all of the far-reaching implications of such a holding. Reed v. Reed … which abundantly supports our decision today, did not add sex to the narrowly limited group of classifications which are inherently suspect. In my view, we can and should decide this case on the authority of Reed and reserve for the future any expansion of its rationale.
There is another, and I find compelling, reason for deferring a general categorizing of sex classifications as invoking the strictest test of judicial scrutiny. The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment. It seems to me that this reaching out to pre-empt by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes.
There are times when this Court, under our system, cannot avoid a constitutional decision on issues which normally should be resolved by the elected representatives of the people. But democratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes.
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"Frontiero v. Richardson." Your Constitutional Rights, ACLU Montana. Available online at ; website home page: http://www.aclumontana.org/rights/ (accessed April 16, 2003).