F, Frontiero v. Richardson,
Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman
Edited By: Kermit L. Hall
Frontiero v. Richardson,
411 U.S. 677 (1973), argued 17 Jan. 1973, decided 14 May, 1973 by vote of 8 to 1; Brennan for plurality, Powell, Burger, Blackmun, and Stewart concurring; Rehnquist in dissent. This case presented a constitutional challenge to a federal law that awarded a salary supplement in the form of an extra housing allowance and extra medical benefits to every married male in the “uniformed services” of the United States. A married female in the military, however, received the supplement only if she could prove she paid more than half of her husband’s living costs. The suit was brought by Sharron Frontiero, an Air Force lieutenant who paid slightly under half of her husband’s living costs. Her challenge relied on the *equal protection concept implied in the *Fifth Amendment Due Process Clause.
Frontiero’s lawyers argued that while there might be some reason for the differential treatment, that should not be enough to sustain the statute, because gender discrimination like race discrimination should be viewed as constitutionally “suspect” and upheld only if the government proves “compelling” justification. This argument had been tried two years earlier in *Reed v. Reed (1971), but the Court’s opinion had ignored it, relying instead on the rational basis test to strike down the statute. In Frontiero the justices exhumed and dissected Reed.
Justice William *Brennan’s opinion for the plurality of four argued that the Reed result made no sense under the rational basis test. The statute in that case had preferred males to females as estate administrators; there was some reason for this, since males in 1971 were more conversant than females with the world of business. Brennan insisted that Reed’s result implied that gender classifications are, like race, suspect and therefore (p. 369) demand strict scrutiny, which requires proof that the classification is “necessary for attaining a compelling government interest.” They argued that this test is appropriate for four reasons: (1) sex like, race is an “immutable” accident of birth, which is generally irrelevant to the purpose of a statute; (2) like race, it has long been the basis of invidious discrimination in the United States; (3) like race, it is a highly visible trait; and (4) Congress, by proposing the Equal Rights Amendment (E.R.A.) and sending it to the states for ratification, had endorsed the idea that sex classifications are “inherently invidious” (p. 687) or “suspect” (p. 688). Respect for a “coequal branch of government” thus counseled treating sex as a suspect classification.
Justice Lewis *Powell agreed that the classification was unconstitutional, but argued to the contrary that respect for other branches of government and for the constitutional amending process counseled delay in making gender a suspect classification, for that change was precisely the point of the E.R.A. (At the time of this decision, thirty states of the required thirty-eight had ratified the E.R.A., and six years remained of the initial seven-year ratification period.) Powell reminded the Court that Reed had struck down the sex discrimination in question without invoking strict scrutiny and insisted that the Reed standard would “abundantly” support Frontiero’s challenge as well. Stewart’s lone concurrence avoided all these issues and was simply a one-sentence statement that the law challenged here worked an “invidious discrimination” and was thus unconstitutional on the authority of Reed.
Justice William *Rehnquist’s dissent simply cited as its foundation the reasoning of the district court judge, whose opinion had employed the rational basis test and had argued that the savings accrued in not requiring married servicemen to document actual financial dependency of their wives, when more than a million cases were involved and when only a small fraction was likely to be ineligible for the benefit, amply satisfied the test. Judge Rives mentioned in a footnote that Reed, too, had employed the rational basis test.
Thus, although the Court upheld Frontiero’s claim and invalidated the law by an 8-to-1 vote, there was no majority for establishing sex as a *suspect classification. That issue was not explicitly addressed again by the Supreme Court until *Craig v. Boren (1976), in which the justices adopted a test somewhere between strict scrutiny and the rational basis test, known variously as “heightened” or “intermediate” scrutiny.
Leslie Friedman Goldstein