Frontiero v. Richardson

The fight to end gender discrimination in the U.S. began in the nineteenth century with the women's suffrage movement and the enactment of laws that protected the property that women brought into marriages. By the 1960s, the focus had shifted to ending pay and benefit discrimination based on gender. By the early 1970s, Congress had passed the EQUAL RIGHTS AMENDMENT (ERA) of the U.S. Constitution, which proclaimed equality between the genders. Ratification appeared close by 1973, as 38 states had ratified the ERA. The court system also became an arena for the issue of gender discrimination. The U.S. Supreme Court began to consider cases of gender discrimination but hesitated to place gender in the same category as race or ethnicity as a SUSPECT CLASSIFICATION inviting the most rigorous constitutional review. However, a plurality of the court endorsed gender as a suspect classification in Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed.2d 583 (1973). This important case pushed the Court, and society in general, to recognize the legal disabilities that women had lived with for centuries. Though not a landmark decision, Frontiero signaled the willingness of the high court to take gender issues seriously.

The facts of the case illustrated the disparate treatment built into U.S. society concerning the role of women. Sharron Frontiero was a U.S. Air Force officer who was married to Joseph Frontiero, a full-time student at a college near the Alabama base where Sharron was stationed. Congress had passed a law that provided fringe benefits to members of the armed forces in the hopes that they would re-enlist and pursue a military career. Under this law, a member of the armed forces with dependents was entitled to an increased housing allowance and comprehensive dependent medical and dental care. However, the law made a distinction between male and female members. A serviceman could claim his wife as a dependent simply by certifying that they were married. A servicewomen like Frontiero, however, could not claim her husband as a dependent unless she proved that he was dependent upon her for more than one-half of his support. Joseph Frontiero's living expenses totaled $354 per month, but he received $250 per month in veteran's benefits. Therefore, he was not dependent on his wife for more than one-half of his support. Based on these calculations, the Air Force denied Sharron Fronteiro the additional benefits.

Frontiero sued the Air Force, alleging that the difference in treatment was unconstitutional discrimination under the Fifth Amendment's DUE PROCESS CLAUSE. A three-judge panel from the U.S. Court for the Middle District of Alabama rejected this claim, with one judge dissenting. Frontiero, with the help of the AMERICAN CIVIL LIBERTIES UNION (ACLU) and its attorney, RUTH BADER GINSBURG, took the case to the U.S. Supreme Court.

The Court, in an 8–1 decision, overturned the lower ruling and held that the salary supplement law violated the Due Process Clause. However, the justices could not agree on the constitutional standard of review that should be applied to allegations of gender discrimination. In a plurality opinion for four justices, Justice WILLIAM BRENNAN concluded that gender, like race, was a suspect classification. The suspect classification standard holds that laws which classify people according to race, ethnicity, or religion are inherently suspect and that they are subject to the STRICT SCRUTINY test of JUDICIAL REVIEW. Strict scrutiny requires the state to provide a compelling interest for the challenged law and to demonstrate that the law has been narrowly tailored to achieve its purpose. If a suspect classification is not involved, the Court will apply the RATIONAL BASIS TEST, which requires the state to provide any type of reasonable ground for the legislation. Under strict scrutiny, the government has a difficult burden to meet, while under the rational basis test, most laws will be upheld.

In 1971, the Court, in Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed.2d 225, extended the application of the EQUAL PROTECTION CLAUSE of the FOURTEENTH AMENDMENT to gender-based discrimination. However, the Court had used the rational basis test. Nevertheless, Justice Brennan argued that Reed implied that gender was a suspect classification and that strict scrutiny should apply. There were four reasons in his view for making gender a suspect class. First, gender was, like race, an "immutable" accident of birth that was irrelevant to the purpose of the federal law. Second, Brennan pointed to the long history in the U.S. of discrimination based on gender. He noted that statute books had been filled with "gross, stereotyped distinctions between the sexes." Although women had seen their lot improve in modern America, they still faced "pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena." In addition, gender, like race, was a highly visible trait. Finally, Brennan acknowledged the ERA, which made clear that gender classifications were "inherently invidious."

Based on these factors, Brennan had no trouble ruling the law unconstitutional. The government could not show a compelling interest for the benefit discrimination. It claimed that administrative efficiency justified the law, as most members of the armed forces were men. It would have cost more to process applications required from Frontiero and the small percentage of women in uniform. This was not a compelling interest for Brennan and the plurality.

Justice LEWIS POWELL, in a concurring opinion joined by Chief Justice WARREN BURGER and Justice HARRY BLACKMUN, agreed that the law was unconstitutional. Powell disagreed with the plurality's conclusion that strict scrutiny was warranted. He contended that the Court should not make that conclusion while the ratification of the ERA was pending. By declaring gender a suspect clarification, the judicial branch would, in effect, trump the ERA. In his view, it was better to allow the states to determine whether gender should be regarded as a suspect class. The seven-year ratification period had run for just one year, so the Court should refrain from ruling. Powell concluded that the rational basis test applied in Reed worked in this case as well. The government did not have a reasonable justification for unequal treatment of service members.

Justice WILLIAM REHNQUIST dissented, citing the reasoning of the lower court to show that the administrative savings from not requiring men to justify dependent benefit eligibility provided a rational basis for the law.

By failing to gain a majority, the court did not establish gender as a suspect classification requiring strict scrutiny. By the end of the decade, the ERA was losing support. The time period for ratification was extended until 1982, but that deadline passed and the ERA died. The Court, in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed.2d 397 (1976), settled on an "intermediate scrutiny" standard for gender discrimination. Therefore, classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives.