Frontiero v. Richardson, 411 U.S. 677 (1973)
• Military benefits plan gave increased allowance for quarters and increased benefits (dental and medical care) to dependents of military service people. To qualify for the program a man could claim his wife as a dependent even if she wasn't actually dependent on him for any support, whereas a woman could only claim her husband as a dependent if she supplied more than half of his support.
• Sharron Frontiero's application to the program was denied under the claim that she failed to demonstrate that her husband was dependent on her for more than 50% of his support.
• Frontiero sued, claiming that by making the distinction between male and female applicants, "the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment."
• Discriminatory impact of the distinction
o Placed an unfair burden on females to prove that their husbands were dependents
o A male member who does not provide more than ½ of his wife's support receives benefits, while a woman in the same situation would not.
• Are classifications based upon sex, like ones based upon race, alienage and national origin, inherently suspect and subject to strict scrutiny?
• Does the statute violate the Due Process Clause of the 5th Amendment?
• Yes. It violates the fifth. Increased government efficiency is not enough to allow for disparate treatment of men and women.
• Yes. Classifications based on these distinctions are allowable only if they provide a necessary government function and if they pass strict scrutiny; this distinction did not.
• This statute commanded "dissimilar treatment for men and women who are...similarly situated", which is unconstitutional.
• Justice Brennan, joined by Douglas, White and Marshall.
• Looking at recent history, Reed v. Reed, the court has held that distinctions and classifications based purely on sex were unconstitutional. By giving mandatory preference to male over females with no regard to their qualifications violated the Equal Protection Clause of the 14th.
• Traditional equal protection analysis allows for legislative classifications to be made as long as it serves a legitimate government interest.
o In the court's finding in Reed the Supreme Court rejected the claim that men were inherently better-suited and more qualified to handle interests of business and government interaction. Women and men had to be considered as equals in all spheres.
• Title VI of the Civil Rights Act of 1964:
o No employer, labor union or other organization subject to the provisions of the Act shall discriminate against any individual on the basis of "race, color, religion, sex, or national origin."
• "Any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administration 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]..." (1192)
V. Concurring and Dissenting Opinions
• Justice Powell, joined by Burger and Blackmun
o Agrees that the challenged statute violates the Due Process Clause, but doesn't believe that all classifications based upon sex, like those based on race and religion, are inherently suspect to strict scrutiny.
• Unnecessary for the court to characterize sex as a suspect classification.
o Want the people to decide. If they accept the Equal Rights Amendment then the people will have shown that it is their will for all to be equal, but does not believe this decision should be made by the Court.
o By passing this decision the Court has virtually taken the debate out of the legislature where they were determining the validity of the ERA at that time.
o "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." (1193)
• Justice Rehnquist dissents (for same reasons as given by Judge Rives in Frontiero v. Laird (District Court case)
o Given a letter he wrote to Nixon's aid, Garment, it is clear Rehnquist still believed in the inherent differences and capabilities of men and women. "Within this movement [ERA] a virtually fantastical desire to obscure not only legal differentiations between men and women, but insofar as possible, physical distinctions between the sexes." (1197)
• Made stereotyping unconstitutional: The argument that all men are the primary supporters of their family and that all of their wives are dependent on them, while at the same time forcing women to prove their position as the primary bread-winner relies to heavily on preconceptions of sex and gender inequality.
• Argument for strict scrutiny made a linkage between discrimination based on race and discrimination based on sex.
• Raises the issue of discrimination: how do you determine discrimination based on traits of competence (strength of vision vs. eye color)?