Frontiero v. Richardson

The Court heard arguments on 17 January 1973. Samuel Huntington, representing the federal government, argued that, in the uniformed services, men and women were treated differently by the law for "administrative convenience." He said that American wives were usually dependent upon their husbands, but that American husbands were not usually dependent upon their wives.

For this reason, Congress had reasonably decided that it was cost-effective simply to view all wives as financially dependent without requiring all the male members of the uniformed services to document that fact. In contrast, if most men were not dependent upon their wives, it was cost-effective and not administratively burdensome to review each female member's documentation of a husband's actual dependency.

Levin argued that the statute unreasonably discriminated because of sex, which was in violation of the Fifth Amendment. He argued that it was discriminatory "as a procedural matter" to require documentation of spousal dependency from women but not from men. In addition, and as a substantive matter, he also pointed out that it was unfair that a male member who provided less than one-half of a wife's living expenses received spousal benefits, while a "similarly situated" female member obtained none.

Ginsburg focused on the level of judicious scrutiny applied in sex discrimination cases. The Court viewed all laws discriminating because of race, religion, or national origin as "inherently suspect" and subject to "strict judicial scrutiny." To withstand a constitutional challenge, such laws needed to serve a necessary relationship to a compelling state interest. Ginsburg asked the Court to find sex discrimination as inherently suspect as discrimination based on race, religion, or national origin, and to apply strict judicial scrutiny in this and future sex discrimination cases.