Frontiero v. Richardson

On 14 May 1973, the Court--with only Justice Rehnquist dissenting--overturned the federal statute. Four of the justices-- Brennan, Douglas, Marshall, and White--agreed that laws discriminating because of sex were inherently suspect and subject to strict judicial scrutiny. Brennan detailed the historical similarities in race and sex discrimination in America, and the "accident of birth" common to each person's identity insofar as race and national origin:

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 would 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 . . . until adoption of the Nineteenth Amendment half a century later . . . Nevertheless, . . . women still face pervasive, although at times more subtle, discrimination . . . Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex would seem to violate the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . . statutory distinctions between the sexes often have the effect of relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.

Justice Stewart agreed that the challenged statutes "work an invidious discrimination in violation of the Constitution," but did not address the scrutiny issue. Powell, joined by Burger and Blackmun, also agreed "that the challenged statutes constitute an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment." However, Powell specifically added that he could not agree that classifications based upon sex were "inherently suspect" like those based on race, alienage, and national origin. Therefore, "strict scrutiny" was not to be a standard for the Court. Not until 1976 did the Court employ a mid-level test known as "heightened scrutiny."