Frontiero v. Richardson

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Frontiero v. Richardson

Argued January 17, 1973
Decided May 14, 1973

Full case name:	Sharron A. Frontiero and Joseph Frontiero v. Elliot L. Richardson, Secretary of Defense, et al.

Citations:	411 U.S. 677; 93 S. Ct. 1764; 36 L. Ed. 2d 583; 1973 U.S. LEXIS 153; 9 Fair Empl. Prac. Cas. (BNA) 1253; 5 Empl. Prac. Dec. (CCH) P8609

Prior history:	Frontiero v. Laird, 341 F. Supp. 201 (M.D. Ala.), probable jurisdiction noted, 409 U.S. 840 (1972)

Subsequent history:	None

Holding

The United States military cannot differentiate benefits based on gender.

Court membership

Chief Justice: Warren E. Burger
Associate Justices: William O. Douglas, William J. Brennan, Jr., Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis F. Powell, Jr., William Rehnquist

Case opinions

Plurality by: Brennan
Joined by: Douglas, White, Marshall
Concurrence by: Stewart
Concurrence by: Powell
Joined by: Burger, Blackmun
Dissent by: Rehnquist

Laws applied

U.S. Const. amend. XIV; 37 U.S.C. §§ 401, 403; 10 U.S.C. §§ 1072, 1076

Frontiero v. Richardson, 411 U.S. 677 (1973), was an Equal Protection case¹ in which the Supreme Court decided that benefits given by the United States military to the family of service members cannot be given out differently because of gender.

Sharron Frontiero, a lieutenant in the United States Air Force, applied for housing and medical benefits for her husband, Joseph, whom she claimed as a "dependent." While servicemen could claim their wives as dependents and get benefits for them automatically, servicewomen had to prove that their husbands were dependent on them for more than half their support. Joseph did not qualify under this rule, and therefore could not get benefits. Sharron sued, and the case was appealed up to the Supreme Court. Lt. Frontiero was represented by Joseph J. Levin, Jr., of the Southern Poverty Law Center, who argued the case before the Court on her behalf. Future Justice Ruth Bader Ginsburg, representing the ACLU as amicus curiae, was also permitted by the Court to argue in favor of Frontiero.

A plurality of the Court (Justices Douglas, White, Marshall and Brennan, who wrote the plurality's opinion) found the military's benefit policy unconstitutional, because there was no reason why military wives needed benefits any more than similarly situated military husbands. The Air Force argued that the policy was intended to save administrative costs by not forcing the military bureaucracy to determine that every wife was in fact a dependent. Justice Brennan dismissed this argument, saying that, although as an empirical matter more wives than husbands are dependent for support on their spouses, still, by automatically granting benefits to wives who might not truly be dependents, the Air Force might be actually be losing money because of this policy—and the Air Force had not presented evidence to the contrary.

More importantly, the plurality argued for a strict standard of judicial scrutiny for those laws and regulations that classified on the basis of sex, instead of mere rational basis review. (See the appropriate section of the Equal Protection Clause article for more information on the different levels of Equal Protection scrutiny.) A heightened standard of review, the plurality argued, was needed due to America's "long and unfortunate history of sex discrimination":

[T]he sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members. [Citations omitted.]

The plurality's application of "strict scrutiny" was not adopted in subsequent cases for evaluating gender discrimination claims; instead, so-called "intermediate scrutiny" was adopted in Craig v. Boren (1976).

Justices Stewart, Blackmun and Powell, and Chief Justice Burger concurred in the result, but did not think the time was right to declare a heightened standard of review for sex classifications, as the nation was then engaged in a debate over the Equal Rights Amendment. Justice Rehnquist dissented. Thus Mrs. Frontiero won her case by an 8 to 1 vote.

[edit] Note

Note 1: Technically, the case was decided under the Fifth Amendment's Due Process Clause, not under the Equal Protection Clause, since the latter applies not to the federal government but to the states. However, because Bolling v. Sharpe, through reverse incorporation, had made the standards of the Equal Protection Clause applicable to the federal government, it was for practical purposes an addition not to due process, but rather to equal protection jurisprudence.