Frontiero v. Richardson

views updated Jun 11 2018


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.

further readings

Cole, David 1984. "Strategies of Difference: Litigating for Women's Rights in a Man's World." Law & Inequality: A Journal of Theory and Practice 2 (February): 33–96.

Matthews, Donna Meredith. 1998. "Avoiding Gender Equality." Women's Rights Law Reporter 19 (winter): 127–154.

Stephens, Otis H., Jr., and John M. Scheb III. 1993. American Constitutional Law. St. Paul, Minn.: West.


Women's Rights.

Frontiero v. Richardson

views updated May 08 2018


FRONTIERO V. RICHARDSON, 411 U.S. 677 (1973), was a Supreme Court decision that held that the due process clause of the Fifth Amendment required the armed forces to provide equal family benefits for women and men. Sharron Frontiero, an air force lieutenant, challenged the regulation that allowed married women in the military to receive dependency benefits for their husband only if the wife paid more than half of her husband's living costs, although married men automatically received these benefits for their wife. William Frontiero was an unemployed college student, but his veterans' benefits made Sharron ineligible for a housing allowance and extra medical benefits that a man in her situation would have received. The Supreme Court had already indicated in Reed v. Reed (1971) that it might subject sex discrimination to more exacting scrutiny than it had in the past, but the lower court that heard Frontiero decided the case by the traditional rational basis test and upheld the regulation. The lower court found the discrimination on the basis of sex less important than the military's effort to cut costs by basing policy on the fact that wives were more likely to be financially dependent on their husbands than vice versa.

The Supreme Court, however, reversed the lower court's decision. Only Justice William Rehnquist voted to affirm the lower court. The other eight justices agreed that the law was unconstitutional but split on the grounds for decision. Justice William Brennan, writing for a plurality of four, argued that courts should review sex-based discrimination by the same tests used for race discrimination, meaning that sex, like race, was an inherently suspect classification. In effect, judges should presume that laws discriminating by sex were unconstitutional and subject them to strict scrutiny under the equal protection clause of the Fourteenth Amendment, upholding them only if the government could show a compelling justification. Brennan based this conclusion on three points. First, laws based on "gross, stereotyped distinctions between the sexes" had historically relegated women to a status "comparable to that of blacks under the pre–Civil War slave codes." Second, sex, like race, was "an immutable characteristic determined solely by the accident of birth"; therefore, sex was an unacceptable legal basis for imposing burdens. Third, sex was similar to "the recognized suspect criteria" because it "frequently bears no relation to ability to perform or contribute to society."

Four other justices agreed with these conclusions but dissented on the question of their applicability to the judges' task of constitutional adjudication. Both Justices Potter Stewart and Lewis Powell cited Reed as controlling authority. Powell, in an opinion joined by two other justices, indicated he was willing to go no further while the Equal Rights Amendment was still before the state legislatures. He chided the plurality for "reaching out to preempt a major political decision which is currently in process of resolution." In fact, the Court had come within one vote of rendering the amendment superfluous. Brennan's opinion, however, just as many dissents and concurrences, remains what one judge called an appeal to the "brooding spirit" of future generations.


Goldstein, Leslie Friedman. The Constitutional Rights of Women. Madison: University of Wisconsin Press, 1988.

Hoff, Joan. Law, Gender, and Injustice. New York: New York University Press, 1991.

Judith A.Baer/a. r.

See alsoCraig v. Boren ; Discrimination: Sex ; Equal Rights Amendment ; Reed v. Reed .