On May 14, 1973, the Supreme Court issued its decision in Frontiero v. Richardson, a case that furthered the cause of gender equality within the U.S. military and, indeed, the United States.
In the early 1970s, Air Force lieutenant Sharron Frontiero sued the U.S. Secretary of Defense—Melvin Laird at first, later replaced by Eliot Richardson—in federal district court after she was denied spousal benefits for her husband. At the time, members of the military were “entitled to an increased basic allowance for quarters” and “comprehensive medical and dental care” for their dependents. However, for a husband to be considered a “dependent,” at least half of his material support had to come from his wife. This criterion did not apply to male service members with wives.
Frontiero claimed that the statute “deprived servicewomen of due process” and violated the equality guarantee of the Due Process Clause of the Fifth Amendment. The district court ruled in favor of the Secretary of Defense; Frontiero appeared her case directly to the Supreme Court. In January 1973, the Court heard oral arguments, and the case was decided four months later.
In an 8-1 decision, the Court found in favor of Frontiero. In Justice William Brennan’s plurality opinion, he argued that the differential treatment of men and women in the armed services simply for “administrative convenience” amounted to discrimination against female members and did not pass constitutional muster.
While noting with approval the Court’s 1971 decision in Reed v. Reed – which struck down an Idaho statute that favored males over females in appointment as administrator of an estate as a violation of the Equal Protection Clause of the Fourteenth Amendment – Justice Brennan took things a step further. Considering the long history of sex discrimination in the United States, as well as the observation that sex is an “immutable characteristic determined solely by the accident of birth,” classifications based on sex – like the Defense Department policy at issue – are “inherently suspect, and must therefore be subjected to close judicial scrutiny.” Saving money was not a compelling enough reason to make such a distinction.
In their opinions, both Brennan and Justice Lewis Powell, who filed a concurrence, looked to popular constitutional developments in support of their reasoning. Brennan noted that Congress had shown “an increasing sensitivity to sex-based classifications,” citing the Equal Pay Act of 1963 and the Civil Rights Act of 1964 as laws in which discrimination on the basis of sex is explicitly outlawed. And both Brennan and Powell noted Congress’s passage of the Equal Rights Amendment, which declared “equality of rights under the law shall not be denied or abridged … on account of sex.”
Yet Justice Powell reached a different conclusion. While he agreed with Brennan that the Defense policy was unconstitutional, he did not support Brennan’s move to make all sex-based classifications subject to strict scrutiny, instead citing Reed as enough grounds to make a decision. In the passage of the ERA, Powell saw good reason to avoid a more sweeping ruling in Frontiero:
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.
Because of the division among the Justices, including a very brief dissent from Justice William Rehnquist, the level of judicial scrutiny for sex-based classifications was left unsettled. But just a few years later, the Court applied intermediate scrutiny in Craig v. Boren (1976), a standard that persists to this day.
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