r 9/8/72 __ .... ... , "' 1 ' - . 'f (rl;- No, 71-1694 tr/. - Frontiero v. Laird • Appeal from dissenting) 3 judge ct, DISCRIMINATION Petrs are a female officer in the Air Force and her husband. • ... ...... ... awaA twa ,.. ....... They challenge as a denial of equal protection a statutory scnme for of housing and medical Under the scheme, a member of the armed forces is entitled to dependency benefits(including an • increased basic allowance for quarters, medical and dental care) for dependents as defined by 37 USC 401 and 10 USC 1072. Dependents include(a) the wife -=- ..... of any male member and (b) the g usb . and of any female member if the husband is in fact dependent on the member for more than - - - of his support. In short , the male officer automatically
Transcript
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No, 71-1694 1'~ tr/. - v~....l.(p,_)~ Frontiero v. Laird ~~~~~- • Appeal from M.D.Ala: (~i~~)(Johnson dissenting) 3 judge ct,
S~ DISCRIMINATION
Petrs are a female officer in the Air Force and her husband. • ... ...... ... awaA twa ,.. .......
They challenge as a denial of equal protection a statutory
scnme for the1 ~llotment of housing and medical benefits~ Under the scheme, a member of the armed forces is entitled to
dependency benefits(including an • increased basic allowance for
quarters, medical and dental care) for dependents as defined
by 37 USC 401 and 10 USC 1072. Dependents include(a) the wife -=- .....
of any male member and (b) the gusb.and of any female member
if the husband is in fact dependent on the member for more than -- -one~half of his support. In short , the male officer automatically
-2-
receives dependency benefits while the female officer obtains
them only if she provides more than half of her husband's
support. In the present case·~ the female officer provides (r \ J~
less than half of her husban~~support. He is a student, and ~ r~~ives
7
~~nefits whichl 8*fgij~omewhat more than half of
his expenses.
The lower court upheld the constitutionality of the statute
on the ground that the classification was reasonable. I agree
with Judge Johnson and the petrs that this case is close to
the recent case of Reed v. Reed, 404 US 71(1971), in which the c ,,., •'".J ·,v• 1 CT struck down an Idaho~ 9 g presumption that the father of
a deceased child is more suitable than the mother to serve as
administrator of a childvs estate. The state's argument there
was that men tend to be better administrators than do women
and that they may therefore be preferred because the need to
make an individual determination in each case would be administratively
burdensome. The Ct answered that argument in the following waya
To give a mandatory preference to members of either sex over members of the other , merely to accomplish the elimination of hearings on the merits , is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause • • • •
Here, the government argues that the statute merely provides
a windfall for some .... servicemen whose wives are not in fact - -- - -dependent on them. Such a statute does norqJ .. ~ .I .... ••••J so the argument
continues, deprive servicewomen of anything. But this does not ,
as I see it , remove the disparity of treatment. And the only
justification offered for the disparity in treatment is the
greater likelihood that a wife will be dependent than that a husband
...
-3-
will be dependent, a justification which is inadequate under
the language quoted above from Reed v. Reed.
One difference between this case and Reed is that there
the state was choosing between a male and a female--only one
person could administer the estate--while here the government
is simply affording different treatment to women than ---to men WLth the possibility that both could receive benefits.
I attach no significance to the difference, however.
In sum, I think that the decision below was wrong and recomma.nd
that the case be noted.
NOTE
No. 71-1694 FRONTIERO v. LAIRD Argued 1/17/73
~ (?-JL~) ( u~~J 5~~~~~~ ~~G>7~s(~ tV~~~~ . /~~
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~~~-r~~1 I S:::.- - - . . . ._.._ , . · ~~ ~ h ~ ~!Lt_, d :JlL
As you will note, I have structured this opinion along the lines which reflect what I understood was our agreement at conference. That is, without reaching the question whether sex constitutes a "suspect criterion" calling for "strict scrutiny, " the challenged provisions must fall for the reasons stated in Reed. I do feel however that this case would provide an appropriate vehicle for us to recognize sex as a "suspect criterion." And in light of Potter's "Equal Protection Memo" circulated last week, perhaps there is a Court for such an approach. If so, I'd have no difficulty in writing the opinion along those lines.
W. J. B. Jr.
.. To: The Chief Justice
Mr. Justice Douglas Mr. Justice Stewart Mr. Justice WhitA Kr. Justice Marshall Mr. Justice Blackmun
~r. Justice Powell ur. Justice RehnQuist
1st DRAFT From: Brennan, J.
SUPREME COURT OF THE UNITED STA<f~ad:--=-l.--- ~~ t_, 1_;__3-
Recirculated: ________ _
No. 71-1694
Sharron A. Frontiero and Joseph Frontiero,
Appellants, v.
Melvin R. Laird, Secretary of Defense, et al.
On Appeal from the United States District Court for the Middle District of Alabama.
rFebruary -, 1973]
MR. JusTICE BRENNAN delivered the opinion of the Court.
The question before us concerns the right of a female member of the uniformed services 1 to claim her spouse as a "dependent" for the purposes of obtaining increased quarters allowances and medical and dental benefits under 37 U. S. C. §§ 401, 403, and 10 U. S. C. §§ 1072, 1076, on an equal footing with male members. Under these statutes, a serviceman may claim his wife as a "dependent" without regard to whether she is in fact dependent upon him for any part of her support. 37 U. S. C. § 401 (1); 10 U. S. C. § 1072 (A). A servicewoman, on the other hand, may not claim her husband as a "dependent" under these programs unless he is in fact dependent upon her for over one-half of his sup-
1 The "uniformed services" include the Army, -:\a1·y, Air Force, Marine Corps, Coast Guard, Environmental Science Services Administration, and Public Health Service. 37 U. S. C. § 101 (3); 10 U. S. C. § 1072 (1).
71-1094-0PIN"ION
FHONTIERO v. LAIRD
port. 37 U. S. C. ~ 401; 10 U. S. C. ~ 1072 (2) (C).2
Thus, the question for decision is whether this difference in treatment constitutes an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment. A three-judge District Court for the Middle District of Alabama, one .i udge dissenting, rejected this contention and sustained the constitutionality of the provisions of the statutes making this distinction. 341 F. Supp. 201 ( 1972). We noted probable jurisdiction. 409 U.S.- (1972). We reverse.
1
In an effort to attract career personnel through reenlistment, Congress established, in 37 U. S. C. ~ 401 et seq., and 10 U. S. C. § 1071 et seq., a scheme for the provision of fringe benefits to members of the uniformed services on a competitive basis with business and industry." Thus, under 37 U. S. C. § 403, a member of the uniformed services with dependents is entitled to an
"a7 U. s. C. § 401 proYides in pertinent part: "In thi~ chaJ>l<'r, 'depcndcnl,' with r!'cipeet to :t meml)('r of a
unifornwd srrvicc, means-" ( 1) hi~ :-;puuse:
"How!'Yer, a prr~on is not a dependent of a femnl<' memlwr uni<'~R he is in fact dependent on her for over one-half of his ,;up port. ... "
10 U. S. C. § 1072 (2) prO\·idcs in pertinent part: "'Dependent,' with respect to a member .. . of a uniform!'d
Hen·irc, menns-"(A) the wife;
"(C) the hu~h;md. if he i~ in fad dqwndent on thr member .. . for owr onc-hnl f of his support .... "
7662 (Cong. Kilda~· ), 7664 (Cong. Rhort), 7666 (Cong. Ha ,·rnnC'f'). 7667 (Cong. Bntrs), 7671 (Cong. Price). Sec also 10 U.S. C . § 1071.
71 -Hi!J-l-OPI~IOX
FHONTIERO 1•. LATHD
increased "basic allowance for quarters" and, under 10 U. S. C'. ~ 107G, a member's dependents arc provided comprehensive medical and dental care.
Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, appellant Joseph Fronticro, on the ground that he was her "dependent." Although such benefits would automatically have been granted with respect to the wife of a male member of the uniformed services, appellant's application was denied because she failed to demonstrate that her husband was dependent on her for more than onehalf of his support:' Appellants then commenced this suit, co11temling that, by making this distinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment." In essence, appellants asserted that the discriminatory impact of the statutes is tvm-fold: first, as a procedural matter, a female member is required to demonstrate her spouse's dependency, while no such burden is imposed upon male members; and second, as a substantive matter, a male member who does not provide more than one-half of his wife's support receives benefits, while a similarly situated female member is denied such benefits. Appellants therefore sought a permanent in-
., Appellant Joseph Front iero i~ a full-time ~tudcnt nt Huntingdon Colle~e in ~Iontgomer~·, Al:lhama. Acrordin~ to 1 he a~ reed ~tipulation of facts, his liYing expen~es, includin~ hi~ ~hare of the hou~ehold expen~es, totnl approximate!,\· 8354 per month. Sinf'e he rerPi\·es $205 per month in wternns' benefit;;, it i~ dear thnt he i~ not dependent upon appellant Sharron Front iero for more than one-half of hi;; support.
" 'TW]hilc the Fifth Amendme11t contains no equnl protection f'lau~e, it doc~ forbid discrimination that is 'so un.instifiable as to be Yiolatiw of due proce;;;;;.'" Srhneider \'. Rusk, 3i7 U. S. 163, 168 (1964); sec Shapiro v. Thmn]Json, 394 U. S. 61 , 641-642 (1969); Bollin(! \'.Sharpe, 847 U.S. 497 (1954).
71-1694-0PINlOK
4 FRONTlERO v. LAIRD
junction against the continued enforcement of these statutes and an order directing the appellees to provide Lieutenant Frontiero with the same housing and medical benefits that a similarly situated male member would receive.
Although the legislative history of these statutes sheds virtually no light on the purposes underlying the differential treatment accorded male and female members,6
a majority of the three-judge District Court surmised that Congress might reasonably have concluded that, since the husband in our society is generally the "breadwinner" in the family-and the wife typically the "dependent" partner-"it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members." 341 F. Supp .. at 207. Indeed, given the fact that approximately 99%• of all members of the uniformed services are male, the District
u The housing provisions, set set forth in 37 U. S. C. § 701 et seq., were enacted as part of the Career Compensation Act of 1949, which established a uniform pattern of military pay aucl allowances, consolidating and revising the piecemeal legislation that had been dcvcloprd over the previous 40 years. See H. R. Rep. No. 779, 81st Cong., 1st Sess.; S. Rep. No. 733, 81st Cong., 1st Scss. The Act apparrntly retained in substance the dependency definitions of § 4 of the Pay Readjustment Act of 1942 (56 Stat. 361), as amended by § 6 of the Act of September 7, 1944 (58 Stat. 730), which required a female member of the service to demonstrate her spouse's dependency. It appears that this provision was itself derivrd from unspecified earlier enactments. Sec S. Rep. No. 917, 78th Cong., 2d Sess., ·1.
The medical benefits legisbtion, 47 U. S. C. § 401 et seq., was rnacted as the Dependents' Medical Care Act of 1956. As such, it was designed to revise and make uniform the cxi~ting law relating to medical services for military personnel. It, too, appears to have carried forward, without explanation, the dependency provisions found in other military pay and allowance legislation. Sec II. R. Rep. No. 1805, 84th Cong., 2d Scss.; S. Rep. No. 1878, 84th Cong., 2d Sess.
71-1()94-0PINION
FRONTIERO v. LAIRD 5
Court speculated that such differential treatment might conceivably lead to a "considerable saving of administrative expense and manpower." Ibid.
II
At the outset, appellants contend that sex, like race/ alienage,8 and national origin,9 constitutes a "suspect criterion," and that a classification based upon sex must therefore be deemed unconstitutional unless necessary to promote a compelling governmental interest. We need not, and therefore do not, decide this question, however, for we conclude that the instant statutes cannot pass constitutional muster under even the more "lenient" standard of review implicit in our unanimous decision only last Term in Reed v. Reed, 404 U. S. 71 (1971).
In Reed, we considered the constitutionality of an Idaho statute providing that, when two individuals are otherwise equally entitled to appointment as administratrix of an estate, the male applicant must be preferred to the female. Appellant, the mother of the deceased, and appellee, the father, filed competing petitions for appointment as administratrix of their son's estate. Since the parties, as parents of the deceased, were members of the same entitlement class, the statutory preference was invoked and the father's petition was therefore granted. Appellant claimed that this statute, by giving a mandatory preference to males over females without regard to their individual qualifications, violated the Equal Protection Clause of the Fourteenth Amendment.
7 See Loving v. Yirginia, 388 U. S. 1, 11 (1967); McLaurJhlin '"· Florida, 379 U. S. 184, 191-192 (1964); Botting v. Sharpe, 347 U.S. 497, 499 (1954).
8 See Graham v. Richardson, 403 U. S. 365, 372 (1971). 0 See Oyama v. California, 332 U. S. 633, 644--646 (1948);
Korematsu v. United States, 323 U. S. 214, 216 (1944); Ilirabayashi v. United States, 320 U. S. 81, 100 (1943).
71-11i94-0PINION
() FHO.\TTIERO v. LAIRD
At the outset, \ove noted that the Idaho statute "provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause." 404 U. S., at 75. We then explained that, in order to satisfy the demands of the Constitution, "[a] classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair aud substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920)." Id., at 76.
In an effort to meet this standard, appellee contended that the statutory scheme was a reasonable measure designed to reduce the workload on probate courts by eliminating one class of contests. Moreover, appellee argued that the mandatory preference for male applicants was in itself reasonable since "men [are] as a rule more conversant with business affairs than ... women." 10
Indeed, appellee maintained that "it is a matter of common knowledge, that women still are not engaged in politics, the professions, business or industry to the extent that men are." 11 And the Idaho Supreme Court, in upholding the constitutionality of this statute, suggested that the Idaho Legislature might reasonably have "concluded that in general men are better qualified to act as an administrator than are women." 12
Although recognizing that the State's interest in achieving administrative efficiency "is not without some legitimacy," we held that, by ignoring the individual qualifications of particular applicants, the challenged statute necessarily provided "dissimilar treatment for men and women who are ... similarly situated." Id.,
10 Bl'icf of Apprlke, at 12, Reed v. Reed, 404 U. S. 71 (1971). 11 ld., at 12-13. 12 Reed \". Reed, 93 Idaho 511, 514, 465 P. 2d 635, 638 ( 1970).
71- lfi9-!-0PL'HON
FTWNTIERO v. LAIRD 7
at 76, 77. Indeed. "[flo give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits is to make the very kind of arbitrary legislative choice forbidden by the [Constitution] .... " I d., at 76.
In terms of the constitutional challenge, the situation here is virtually identical to Reed. Here, as in Reed, the sole basis of the classification established in the challenged statutes is the sex of the individuals involved. Thus, under 37 U. S. C. §§ 401, 403, and 10 U. S. C. §§ 1072, 1076, a female member of the uniformed services seeking to obtain housing and medical benefits for her spouse must prove his dependency in fact, whereas no such burden is imposed upon male members. In addition, the statutes operate so as to deny benefits to a female member, such as appellant Sharron Frontiero, 'Yho provides less than one-half of her spouse's support, while at the same time granting such benefits to a male member v;ho likewise provides less than one-half of his spouse's support. Thus. to this extent at least, it may fairly be said that these statutes command "dissimilar treatment for men and women who are ... similarly situated." Reed v. Reed, supra, at 77.
Moreover, and again as in Reed, the Government concedes that the differential trea.tmen t accorded men and women under these statutes serves no purpose other than mere "administrative convenience." In essence, the Government maintains that, as an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands rarely arc dependent upon their wives. With these considerations in mind, a.ncl given the fact that approximately 991o of all members of the uniformed services are male, the Government contends that Congt·ess might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially
71-1694-0PINION
8 FRONTIERO v. LAIRD
dependent upon their husbands, while burdening female members \Yith the task of establishing dependency in fact.
Our prior decisions make clear, however, that although efficacious administration of governmental programs is not without some importance, "the Constitution recognizes higher values than speed and efficiency." Stanley v. Illinois, 405 U. S. 645, 656 (1972); cf. Carrington v. Rash, 380 U. S. 89, 96 (1965). And Reed itself stands for the proposition that, in cases such as these, "administrative convenience" is not a shibboleth, the mere recitation of which dictates constitutionality. On the contrary, Reed establishes that any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily involves "the very kind of arbitrary legislative choice forbidden by the [Constitution] .... " Reed v. Reed, supra, at 76. We therefore hold that. by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.13 See Reed v. Reed, supra; cf. Stanley v. Illinois, supra.
Reversed.
ta As noted earlier, the basic purpose of these statutes was to provide fringe benefits to members of the uniformed services in ordrr to establish a compensation pattern which would attract career personnel through re-enlistment. See n. 3, supra, and accompanying text. Our holding in no wisr invalidates the statutory schemes except inRofar a;; they require a female member Lo pro\·e the dependency of her spouse. See Weber v. Aetna Casualty cC: Surety Co., 406 U. S. 164 (1972); Levy Y. Louisiana, 391 U. S. 68 (1968); Moritz v. Cornrnissioner of lntemal Revenue, - F. 2d - (CAlO' 1972). See also 1 U. S. C. § 1.
To: The Chief Justice Mr. Justice Douglas Mr. Justice Stewart Mr. Justice WhitA Mr. Justice Marshall Mr. Justice Blackmun ~r. Justice Powell
Mr. Justice Rehnquist
From: Brennan, J. 3rd DRAFT
Circulated: ______ ~--r----
SUPREME COURT 0~~ THE UNITED ~!~!mated: ;/J-~213 No. 71-1694
Sharron A. Frontiero and Joseph Frontiero,
Appellants, v.
Elliot L. Richardson, Secretary of Defense, et al.
On Appeal from the United States District Court for the Middle District of Alabama.
[March -. 19731
MR. JusTICE BRENNAN delivered the opnuon of the Court.
The question before us concerns the right of a female member of the uniformed services 1 to claim her spouse as a "dependent" for the purposes of obtaining increased quarters allowances and medical and dental benefits under 37 U. S. C. §§ 401, 403, and 10 U. S. C. §§ 1072, 1076, on an equal footing with male members. Under these statutes. a serviceman may claim his wife as a "dependent" without regard to whether she is in fact dependent upon him for any part of her support. 37 U. S. C. § 401 (1); 10 U. S. C. § 1072 (A). A service-woman, on the other hand, may not claim her husband as a "dependent" under these programs unless he is in fact dependent upon her for over one-half of his sup-
1 The "uniformed services" include the Army, NaYy, Air Force, Marine Corps, Coast Guard, Environmental Science Services Administration, and Public Health Service. 37 U. S. C. § 101 (3); 10 U. S. C. § 1072 (1).
71-1G94-0 PINlON
FRONTIEHO v. RICHARDSON
port. 37 U. S. C. ~ 401; 10 U. S. C. ~ 1072 (2) (C).~ Thus, the question for decision is whether this difference in treatment constitutes an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment. A three-judge District Court for the Middle District of Alabama, one judge dissenting, rejected this contention and sustained the constitutionality of the provisions of the statutes making this distinction. 341 F. Supp. 201 (1972). We noted probable jurisdiction. 409 U.S.- (1972). We reverse.
I
In an effort to attract career personnel through reenlistment, Congress established, in 37 U. S. C. ~ 401 et seq., and 10 U. S. C. ~ 1071 et seq., a scheme for the provision of fringe benefits to members of the uniformed services on a competitive basis with business and industry.3 Thus, under 37 U. S. C. § 403, a member of the uniformed services with dependents is entitled to an
"37 U. S. C. § -+01 proviJr~ in pert inrnt part: .. In this rhaplrr, 'drprndl'nt ,' with rl'~Jl<'<'t to :1 nwmiJC'r of a
uniformed sen·icr, mru11~-.. ( 1) hi~ ~pou:-;e;
" However, a pcr:-;on i:-; not a deprndrnt of a frm:lie mrmbl'r un[pss he i~ in fact dr]1eudent on her for over onr-ha lf of hiH ~upporl .... "
10 U. S. C. § 1072 (2) provides in pcrtinrnt part: "'Drpendrnt ,' with re~pe('l to a mcmbrr ... of a uniformed
srrTice, mran,~-" (A) the wifr;
"(C) the hu~hancl. if hr i:-; in f:1cl drprndrnt on the membrr ... for O\·er onr-half of hi~ ~u pporl. ... " "~ee 102 Cong. Rer. , R-+t h Cong .. 2cl ~r~s., :38 ~9-3850 (C'ong.
increased "basic allo\\·ance for quarters" and, under 10 U. S. C'. ~ 1076, a member 's dependents arc provided comprehensive medical and dental care.
Appellant Sharron Fronticro, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, appellant Joseph Frontiero, on the ground that he was her "dependent." Although such benefits "·ould automatically have been granted with respect to the wife of a male member of the uniformed services, appellant 's application was denied because she failed to demonstrate that her husband "·as dependent on her for more than onehalf of his support:' Appellants then commenced this suit, contending that, by making this distinction , the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment." In essence, appellants asserted that the discriminatory impact of the statutes is two-fold: first, as a procedural matter, a female member is required to demonstrate her spouse's dependency, ·while no such burden is imposed upon male members; and second, as a substantive matter, a male member who does not provide more than one-half of his wife's support receives benefits, while a similarly situated female member is denied such benefits. A11pellants therefore sought a permanent in-
• Apprllant .To~rph Frontirro i~ a full-timr ~tudrnt at Iluntin~don Collrgr in l\J ont gonu)r~·. Ala hama. A rrorcling to t hr ng;rrrd ~~ ipnlfltion of fact~, hi~ li1·ing; rxprn~rs, including; hi,.; ~h:ur of thr hou~rholcl rxprn,;r,;, total approximatrl~· $354 prr month. Siner hr rrePil·r, $:205 prr month in wtrran,.;' lwnrfit~, it i~ elr:n th:1t he i~ not clrprndrnt upon npprll:1nt Sh:1rron Fronti(•ro for morr than onr-half of his support.
" "I W]hilf: thr Fifth Amrndmrnt rontnin~ no rqunl protrrtion clause, it doC'~ forbid discrimination that i~ ':,;o tm.iu~tifiablr as to bn Yiohti\'C' of dur ])l'OCC'~~.'" Sr·hncider , .. 1?-~tsk. :~77 U. S. 16~ , 168 (1964); srr Sha7Jiro "· Thompson. ;)9-! U. S. 618, 6-!1-642 (1969) ; Bolling "· Sharpe, 347 U. S. 497 ( 195-!).
71-169-1-0PINION
4 FIW~TIEHO v. RICHARDSO~
junction against the continued enforcement of these statutes and an order directing the appellees to provide Lieutenant Frontiero with the same housing and medical benefits that a similarly situated male member would receive.
Although the legislative history of these statutes sheds virtually no light on the purposes underlying the differential treatment accorded male and female members,G a majority of the three-judge District Court surmised that Congress might reasonably have concluded that, since the husband in our society is generally the "breadwinner" in the family-and the wife typically the "dependent" partner-"it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members." 341 F. Supp., at 207. Indeed, given the fact that approximately 99% of all members of the uniformed services are male, the District
n The houE>ing provisions, set set forth in 37 U. S. C. § 701 el ,~rq.,
were en::tctrd as part of the Career Campen ·ation Act of 1949, which rstablisbed a uniform pattern of military pay and allowancr~, consolidating and revi~ing the piecemeal legislation that had bren developed over the previous 40 years. Sec H. R. Rep. No. 779, 81st Cong., 1st Scss.; S. Rep. No. 733, 81st Cong., 1st Sess. The Act apparently retained in substance the dependency drfinition. of § 4 of the Pay Readjustment Act of 1942 (56 Stat. 361), as amrnded by § 6 of the Act of Septrmbcr 7, 1944 (58 Stat. 730), which required a female member of the service to demom;tratc hrr spouse's dependency. It appears that this provision was itself drrivrd from unspecified earlier enactments. See S. Rep. No. 917, 78th Cong., 2d Sess., 4.
The medical benefits legi~lntion, 47 U. S. C. § 401 et seq., was enacted as the Dependents' Medical Care Art of 1956. As Hnch, it was designed to revise and make uniform the existing l:tw relating to medical services for military personnrl. It, too, appear~ to have carried forward, without cxplanat ion, the drpendenr~· pr01·isions found in other military pay and nllowanrc lrgislation. See II. R. Rep. No. 1805, 84th Cong., 2d Sess.; S. Rep. No. 1878, 84th Cong., 2d Se~s.
71-1694-0PI:XIO:l\
:FRONTIERO v. RICHARDSON 5
Court speculated that such differential treatment might conceivably lead to a "considerable saving of administrative expense and manpower." Ibid.
II
At the outset, appellants contend that classifications based upon sex, like classifications based upon race/ alienage,8 and national origin,0 are inherently suspect and must therefore be subjected to close judicial scrutiny .. We agree and, indeed, find at least implicit support for such an approach in our unanimous decision only last Term in Reed v. Reed, 404 U.S. 71 (1971).
In Reed, we considered the constitutionality of an Idaho statute providing that, when two individuals are otherwise equally entitled to appointment as administrator of an estate, the male applicant must be preferred to the female. Appellant, the mother of the deceased, and appellee, the father, filed competing petitions for appointment as administrator of their son's estate. Since the parties, as parents of the deceased, were members of the same entitlement class, the statutory preference was invoked and the father's petition was therefore granted. Appellant claimed that this statute, by giving a mandatory preference to males over females without regard to their individual qualifications, violated the Equal Protection Clause of the Fourteenth Amendment.
We noted that the Idaho statute "provides that different treatment be accorded to the applicants on the· basis of their sex; it thus establishes a classification sub-
7 See Loving Y. Virginia, 388 U. S. 1, 11 (1967) ; McLaughlin Y.
Florida, 379 U. S. 184, 191-192 (1964); Bolling , .. Sharpe, 347 U. S. 497, 499 (1954).
& Sec Graham Y. Richardson, 403 U. S. :365, 37:2 (1971). 9 Sec Oyama Y. Califoruia, 332 U. S. 6:~:3, 644-646 (19-!S);
Korematsu v. United States, 32:3 U. S. 214, 216 (1944); llirabayashi v. United States, 320 U. S. 81, 100 (1943) .
71-W94-0l'INION
6 FHONTlEHO v. RICHAHDSON
ject to scrutiny under the Equal Protection Clause.'' 404 U.S., at 75. Under "traditional" equal protection analysis, a legislative classification must be sustained unless it is "patently arbitrary" and bears no rational relationship to a legitimate governmental interest. See Jefferson v. Hackney, 406 U. S. 535, 546 (1972); Richardso11 v. Belcher, 404 U.S. 78,81 (1971); Flemming v. Nestor, 363 U. S. 603, 611 (1960); McGowan v. Maryland, 366 U.S. 420, 426 (1961); Dandridge v. Williams, 397 U. S. 471, 485 (1970).
In an effort to meet this standard, appellee contended that the statutory scheme was a reasonable measure designed to reduce the workload on probate courts by eliminating one class of contests. Moreover, appellee argued that the mandatory preference for male applica.nts was in itself reasonable since "men ,[arc] as a rule more conversant with business affairs than ... women." 10
Indeed, appellee maintained that "it is a matter of common knowledge, that " ·omen still are not engaged in politics, the professions, business or industry to the extent that men arc." n And the Idaho Supreme Court, in upholding the constitutionality of this statute, suggested that the Idaho Legislature might reasonably have "concluded tha.t in general men are better qualified to act as a.n administrator than are women."'"
Despite these contentions, however, we held the statutory preference for male applicants unconstitutional. In reaching this result, we implicitly rejected appellee's apparently rational explanation of the statutory scheme, and concluded that, by ignoring the individual qualifications of particular applicants, the challenged statute provided "dissimilar treatment for men and women who are ... similarly situated." Reed v. Reed, supra, at
10 Brief of Apprll<•r, at 12, Reed'"· Reed, ·W+ U.S. 71 (1971). IJ Jd., fit 12-13. 1 " Reed v. Reed. 93 Idaho fill , 514, 46.'5 P . 2d 635, 6:~s (1970).
71-Hl94-0PJ~ION
FRO::\'TIEIW v. RTCITAHDSO~ 7
77. \Ye therefore held that, even though the State's interest in achieving administrative efficiency "is not without some legitimacy," "[t]o give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the [Constitution] .... " I d., at 76. As we shall see, this departure from "traditional" rational basis analysis with respect to sex-based classifications is clearly justified.
There ca.n be no doubt that our Nation has had a long and unfortunate history of sex discrimi11ation."' Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which. in practical efi'ect, put women not on a pedestal, but in a cage. Indeed. this paternalistic attitude became so firmly rooted in our national consciousness that, exactly 100 years ago, a distinguished member of this Court was able to proclaim:
"Man is. or should be. woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. Tbe constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things. indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony. not to say identity, of interests and vie,Ys which belong, or should belong, to the family institution is repugnant to the ideas of a woman adopting a distinct and
• ~ Tndcwl, thr po~ition of womrn in thi~ rountry at it~ inrrption i ~ rdlrctrd in thr Yirw cxprr~~rcl b~· Thoma~ .Trffrr~o n thnt wnmrn ~hould br nPithC'r SC'C'11 nor hrard in socirt~··~ dccisionmakinp; councils. Ser l\1. GrubC'rg, ·womrn in AmC'rirnn Politic~ 4 (196R). SC'r al so A. dr TorquC'\·illC'. DC'mocrary in Amrrira , pt . 2 (RC'cvr~ ir. 1840), in 'Vorld's Clas~ic SNirs 400 (Gahxy eel. 1947).
8
71-1G04-0PINION
FRO:\'TIF.RO v. RICHARDSO~
independent career from that of her husband. " ... The paramount destiny and mission of
woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator." Bradwell v. Illinois, 83 U. S. [16 Wall.] 130, 141 ( 1873) (Bradley, J., concurring).
As a result of notions such as these, our statute books gradually became laden with gross, stereotypical 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 could 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. See generally, L. Kantowitz, Women and the Law: The Unfinished Revolution 5-6 (1969); G. Mydral, An American Dilemna 1073 (2d eel. 1962). And although blacks were guaranteed the right to vote in 1870, women were denied even that right-which is itself "preservative of other basic civil and political rights" 14-until adoption on the Nineteenth Amendment half a century later.
It is true, of course, that the position of women in America has improved markedly in recent decades. 1
"
14 Reynolds v. Sims, 377 U. S. 533, 562 (1964); H't> Dunn Y.
Blumstein, 405 U. S. 330, :336 (1972); Kramer v. Union Free School District, 395 U.S. 621, 626 (1969); Yick Wo v. Ilopkins, 118 U.S. 356, 370 ( 1886).
1 " Ser generallr, The Prrsidrnt';; Tai<k Forrr on Womrn',; Rights ::md Responsibilities, A Matter of Simple .Justice (1970) ; L. Kanto"·itz, Women and the Law: The Unfinished Revolution (1969); A. Montague, Man':-; l\1o::;t Dangerous Myth (4th t>d. 1964); The Prt>sidrnt';; Commi~sion on the Status of Women, AmNiran Women (1963).
71- 1694-0PINION
FRONTIERO v. RICHARDSON 9·
Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic/a. women still face pervasive, although at times more subtle, discrimination in our educational institutions, on the jobmarket and, perhaps most conspicuously, in the political arena. 1 7 See generally, K. Amundsen, The Silenced Majority: Women and American Democracy (1971); The President's Task Force on Women's Rights and Responsibilities, A Matter of Simple Justice ( 1970).
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 because of their sex would seem to violate "the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . . ." Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 175 (1972). And what differentiates sex from such nonsuspect statutes as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sox characteristic frequently bears no relation to ability to perform or contribute to society.18 As a result, statutory distinc-
16 See, e. g., Note, Sex Discrimination and Equal Protection : Do We Need a Constitutional Amendment'?, 84 Harv. L. ReY. 1499, 1507 ( 1971) .
17 It is t rue, of course, that when viewed in the abst ract, women do not const itute a small and powerless minority. Neverthelc ·s, in part because of past discrimination, women arc vastly underrepresented in this Nation's dccisionmaking council~:~. There has never been a female P resident, nor a female member of t his Court . Not a single women presently sits in t he United State::; Senate, and only 14 women hold scats in t he Hou ·e of Rcpreseuta tivcR. And, as appellants point out, this underrepre;:entation i ~ present throughout all level::; of our Sta te and Fcdernl Government. See Join t Heply Brief of Appel hmt~:~ and American Civil Liber t ics Union (Amicus Curiae) 9.
Jb Sec, e. g., DcYclopments in the Law-Equal Protection, 82 llm·v_ L. ReY. 1065, 1173-1174 (1969).
71-1694-0 PINION
10 FHONTIEHO v. H.ICH.\HDSON
tions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actua.l capabilties of its individual members.
We might also note that, over the past decade. Congress has itself manifested an increasing sensitivity to sex-based classifications. In Tit. VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the Act shall discriminate against any individual on the basis of "race. color, religion , sex, or national origin." HI Similarly, the Equal Pay Act of 1963 provides that no employer covered by the Act "shall discriminate ... between employees on the basis of sex." ~o And ~ 1 of the Equal Rights Amendment, passed by Congress on March 22. 1972, and submitted to the legislatures of the States for ratification, declares that "[e]quality of rights under the law shall not be denied or abridged by the United States or by any States on account of sex." 2
' Thus. Congrm;s has itself concluded that classifications based upon sex are inherently invicliou~. and this conclusion of a coequal
19 47 U. 8. C. ~~2000r-2 (a), (h).(<-). (Empha~i,; ndded.) Sec ~rncrall~·, Sapr & Hart, Titlr VII Hr(·on~iclrrrd: Thr Equnl Emplo)·mcnt Opportnnit)· Art of Hl72, 40 Gro. Wa~h. L. H(•,·. ~2-+ (1972): Dc,·r\opmrnts in 1 hP Law-Emplo)·mpnt Di~c·rimin:il ion and Titlr \'II of thr CiYil Hip;hts Art of Hl64, 84 Han·. L. Hr,·. 1109 ( 1971).
~0 29 U. S. C. ,[ 206 (d). (Emphasis addrd). S('(• ~rnN:Ill)·,
:\1urphy, Frmnlr Wagr Di:-rrimination: A Stud)· of thr Equnl P:1y Art 1963-1970, ag U. Cin. L. Rr,·. 615 ( 1970).
~ 1 H. J. Rrs. Xo. 20~. 02d Cong .. 2d Sr~~. (1072). In ronfonnit~· with thr.';r prinriplr~, Congrr~~ in rrrrnt .\·r:n" h:1s nmrndrd Ynricn;; stntntor:.· srhcmC'H ~imilar to tho~r prr~rnt I)· undN <'On~idC'ra t ion ;;o as 1 o rliminatc thr c\iffrrrntial trC'a tmrnl of tllC'Il and womrn. Bre 5 U. 8. C. ~ 2108, as amrndrd, 85 Stat. 64-+: 5 U. S. C. ~ 7152, a~ :mwndrd, 85 Stat. 6H; .5 U.S. C.~ ~:141, a~ amrndPd. R4 Slat. H)()J; :~s U. S. C. § 102 (b), as amrnclcd, ~6 Stat. 1074.
71- Hl\J-l-0 PINIOX
FRONTIEIW v. RTCIIARDSOl\ 11
branch of Government is not without significance to the question presently under consideration. Cf. Oregon v. Mitchell, 400 r. S. 112, 240. 248- 249 (1970); Katzenbach v. Morgan , 384 U. S. 641, 648- 649 (1966).
\Vith these considerations in mind, we hold today that classifications based upon sex, like classifications based upon race, alienage, or national origin , are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, we can only conclude that the statutory scheme now before us is constitutionally invalid.
III
The sole basis of the classification established in the challenged statutes is the sex of the individuals involved. Thus, under 37 U. S. C. §§ 401 , 403, and 10 U. S. C. ~ ~ 2072. 2076. a female member of the uniformed services seeking to obtain housing and medical benefits for her spouse must prove his dependency in fact, whereas no such burden is imposed upon male members. In addition. the statutes operate so as to deny benefits to a female member, such as appellant Sharron Frontiero, who provides less than one-half of her spouse's support, while at the same time granting such benefits to a male member who likewise provides less than one-half of his spouse's support. Thus, to this extent at least, it may fairly be said that these statutes command "dissimilar treatment for men and women who are . . . similarly situated." Reed v. Reed, supra, at 77.
Moreover, the Government concedes that the differential treatment accorded men and women under these statutes serves no purpose other than mere "administrative convenience." In essence, the Government maintains that, as an empirical matter. wives in our society frequently are dependent upon their husbands, while hus-
71-1694-0PINION
12 FRONTIERO v. RICHARDSON
bands rarely are dependent upon their wives. Thus. the Government argues that Congress might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact.~~
The Government offers no concrete evidence. however, tending to support its view that such differential treatment in fact saves the Government any money. In order to satisfy the demands of strict judicial scrutiny, the Government must demonstrate, for example, that it is actually cheaper to grant increased benefits with respect to all male members, than it is to determine which male members are in fact entitled to such benefits and to grant increased benefits only to those members whose wives actually meet the dependency requirement. Here, hO\vever, there is substantial evidence that. if put to the test, many of the wives of male members ·would fail to qualify for benefits.~'1 And in light of the fact that the
22 It should be noted that these statutes arc not in an~· scn~c
designed to rertif~· the effects of pa~t di~crimination againRt women. ~co Gruenwald Y. Gardner, 390 F. 2d 591 (CA2 1968), cert. denied, 39:~ U. S. 982 (1968); cf. Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968): South Carolina v. Katzenbach, 383 U. S. 301 (1966). On the contrary, these sta tutes seize upon a group-wome11-who have historically suffered discrimination in employment, and rely on the effects of this past cli~crimination as a justification for heaping on additional economic disadvantages. Cf. United States Y. Gaston County, 395 U. S. 285, 296-297 (1969).
23 In 1971, 43% of all women over the age of 16 were in the labor force, and 18% of all women worked full-time 12 months per year. Sec U. S. Women'R Bureau, Dept. of Labor, Highli~~:hts of Women's Employment & Education 1 (W. B. Pub. No. 71-191, March 1972). Moreover, 41.5% of all married women arc employed. See U. S. Bureau of Labor Statistic::;, Drpt. of Labor, Work Experience of the Populn.tion in 1971 4 (Summar~· Special Labor Force Hcport, August 1972). It is also noteworthy that, while the median income of a
71-1694-0PINION
FRONTIERO v. RICHARDSON 13
dependency determ.ination with respect to the husbands of female members is presently made soley on the basis of affidavits, rather than through the more costly hearing process/' the Government's explanation of the statutory scheme is, to say the least, questionnable.
In any caf2e, our prior decisions make clear that, although efficacious administration of govern men tal programs is not without some importance, "the Constitution recognizes higher values than speed and efficiency." Stanley v. Illinois, 405 U.S. 645, 656 (1972). And when we enter the realm of "strict judicial scrutiny," there can be no doubt that "administrative convenience" is not a shibboleth, the mere recitation of which dictates constitutionality. See Shapiro v. Thompson, 394 U. S. 618 (1969); Carrington v. Rash, 380 U. S. 89 (1965). On the contrary, any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands "dissimilar treatment for men and women who are ... similarly situated," and therefore involves the "very kind of arbitrary legislative choice forbidden by the [Constitution] .... " R eed v. Reed, supra, at 77, 76. We therefore hold that, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience,
male member of the armed forces is approximately $3,686, see The Report of the President 's Commission on an All Volunteer Armed Force 51, 181 (1970) , the median income for all women over the age of 14, including those who are not employed, i::; approximately $2,237. See U. S. Dept. of Commerce, Bureau of the Cen::;ns, Statistical Abstract of the United States Table No. 535 (1972). Applying the statutory definition of "dependency" to thc::;e ::;ta listics, it appearci that, in the "median" family, the wife of n male member mu::; t have personal expen::;es of approximately S4,474, or about 75% of t he total family income, in order to qualify as a "dependent ."
"" Tr . of Oral Arg. 27- 28.
71-1694-0PINION
14 FRONTIERO v . RICHARDSON
the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.""
Reversed.
~r. As noted mrlier, tho ba~ ic purpo~c of the~c ~t<ltute~ wa ~ 1o proYide fringe brnefilR to member~ of the uniformed ~en·ier:o in ordPr io establish a compensation paitcrn which would at1 me1 ea n'rr prr~onnel through rc-cnlistmen1. See n. 3, supra, and acc·ompa n~·ing
t ext. Our holding in no wise im·alid:1tes the statulor~· sehemes exrepl insofar as the~· require a female member to pro,·e thr drprnd<·nr~ · of her spouse. Src lV rber "· Aetna Casualty ,{: Suret11 Co ., 406 U. S. 164 (1972); Lc?'?J "· Louisiana, 391 U. S. 6S (l96S) ; Moritz v. Commissioner of Internal Revenue,- F. 2d- (CAl(} 1972) . Sec also 1 U.S. C. §1.
No. 71-1694 l.:aird
Please join me.
I see no reasoo to consider whether sex 18 a "suspect" elassifieatton in this ease. Perhaps we ean avoid confronting that issue until we lmow the outcome of the Equal Rights Amendment.
Sincerely,
...
1",,
CHAMBERS OF
~npt'tmt ~oud of tqt ~tb .ihttttt Jfuqhtgton, ~. ~ 2.0~J!.~
.JUSTICE POTTER STEWART
February 16, 1973
71-1694 - Frontiero v. Laird
Dear Bill,
I see no need to decide in this case whether sex is a "suspect" criterion, and I would not mention the question in the opinion. I would, therefore, eliminate the first full paragraph on page 5, and substitute a statement that we find that the classification effected by the statute is invidiously discriminatory. (I should suppose that "invidious discrimination" is an equal protection standard to which all could repair, even though the dissenters would not find such discrimination in this case. )
Sincerely yours,
Mr. Justice Brennan
Copies to the Conference
CHAMBERS OF
.§n:prttttt <!fottd of tqt 'Jilnittb .:§tatttt ~uqinghm. ~. (!f. 2!lp'~.;t
.JUSTICE WM . .J. BRENNAN, .JR. February 28, 1973
MEMORANDUM TO THE CONFERENCE
RE: No. 71-1694 - Frontiero v. Richardson
Since the previous circulation attracted only Lewis'
full agreement and Potter's partial agreement, and since
Bill Douglas and Byron have indicated a preference for
the "suspect criterion" approach, the attached new cir-
culation embodies the latter approach (which is also my
own preference).
W. J. B. Jr.
~ .. - ~ ... ~. '-- . _ . .,- ..........
~nprttnt Qicnri cf tlrr ~ttitd,. ~huts
Jlagltingttttt. ~. <.q. 2.0,?J!.~
CHAMBERS OF
.JUSTICE WILLIAM 0 . DOUGLAS February 28, 1973
Dear Bill:
Please join me in your
opinion in Noo 71-1694 - Frontiero
Vo Richardson.
Wo O. Do
Mr. Justice Brennan
cc: Conference
§nprtme ~~'nrt ~,f t11c ',llltitr~ §ihtb-.s· 'lllaglfingtltn, P. ~· 20.:;,~~
CHAMBERS OF
JUSTICE BYRON R . WHITE
March 1, 1973
Re: No. 71-1694 - Frontiero v. Richardson
Dear Bill:
Please join me.
Sincerely,
Mr. Justice Brennan
Copies to Conference
j
CHA"'4BER~ OF
~uprrme ~ott.rt of tit e )futitrb .§tatrG
'Jllanirington. p. ~· 20p>~2
.JUSTICE THURGOOD MARSHALL March 1, 1973
Re: No. 71-1694 - Frontiero v. Richardson
Dear Bill:
Please join me.
Mr. Justice Brennan
cc: Conference
Sincerely,~"' n :;
(... '-......
T.M.
March 2, 1973
No. 71-1694 - Frontiero v. Richardson
Dear Bill:
This refers to your third draft opinion in the above case, in which you have now gone all the way in holding that sex is a "suspect classification. "
Hy principal concern about going this far at this time, as indicated in my earlier letter, is that it places the Court in the position of preempting the amendatory process initiated by the Congress. If the Equal Rights Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. If, on the other hand, this Court puts "sex" in the same cate~ory as "race" we will have assumed a decisional responsibility (not within the democratic process) unnecessary to the decision of this case, and at the very time that legislatures around the country are debating the genuine pros and cons of how far it is wise, fair and prudent to subject both sexes to identical responsibilities as well as rights.
The point of this letter is not to debate the merits of the Equal Rights Amendment, as to which reasonable persons obviously may differ. Rather, it is to question the desirability of this Court reaching out to anticipate a major political decision which is currently in process of resolution by the duly prescribed constitutional process.
I joined your opinion in its original draft on the authority of Reed v. Reed. This is as far as we need go in the case now beforeus. If and when it becomes necessary to consider whether sex is a suspect classification, I will find the issue a difficult one. Women
·'·
-2-
certainly have not been treated as being fungible with men (thank God! ) • Yet, the reasons for different treatment have in no way resembled the purposeful and invidious discrimination directed against blacks and aliens. Nor may it be said any longer that, as a class, women are a discrete minority barred from effective participation in the political process.
For these reasons, I cannot join your new opinion and will await fu rther circulations.
Sincerely,
Mr • . Justice Brennan
cc: :rhe Conference
~uprttnt <Caurt af tlp·11nittlt ~httta
)lhtafringhm. D. ~· ~ll:JJ~J
CHAMBfRS Or
JUSTICE WILLIAM 0 DOUGLAS March 3, 1-r73
Dear Bill:
RE: 71-1694, F~ONTIERO v. RICHARDSON
Levis' position in his meMO of .March
2nd is understandable. There is a marked
difference in point of view over sex classifica-
tiona. For purposes of employment 1 think the
discrimination is aa inr.idious and purposeful
as that directed against blacks and aliens.
I always thought our 1874 decision which gave
rise to the 19th Amendment was inTidious dis-
crimination against women which should have
been invalidated under the Equal Protection
Clause.
This memo is designed only to make
clear to you what one member of the Court thinks.
There may be a way for you to sail
between Scylla and Charibdis •
Mr • Juatice Brennan cc: Conference
. \j t_, \..
"'"' --,_ William o. Douglas
/
CHAMBE:RS Of'
.JUSTICE HARRY A. BLACKMUN
,jnprmu <qomi of tlrt ~nittb ~httts ._,aslfhtgton. ~. <q. 2ll.;t~~
March 5, 1973
Re: No. 71-1694 - Frontiero v. Richardson
Dear Bill:
/
This case has afforded me a good bit of difficulty. After some struggle, I have now concluded that it is not advisable, and certainly not necessary, for us to reach out in this case to hold that sex, like race and national origin and alienage, is a suspect classification. It seems to me that Reed v. Reed is ample precedent here and is all we need and that we should not, by this case, enter the arena of the proposed Equal Rights Amendment. This places me, I believe, essentially where Lewis and Potter are as reflected by their respective letters of March 2 and February 16.
Sincerely,
Mr. Justice Brennan
Copies to the Conference
CHAMBERS O F"
.... ,~~crt tift~....,. .... ~ Jl. fiJ. 201,.~
JUSTICE POTTER STEWART
March 5, 1973
No. 71-1694 - Frontiero v. Richardson
Dear Bill,
I agree with the thoughts expressed by Lewis Powell in his letter to you of March 2.
You make a strong argument and I have given it much thought. I come out however still of the view that the "suspect" approach is the proper one and, further, that now is the time, and this is the case, to make that clear .. ~ Two reasons primarily underlie my feeling. First, Thurgood's discussion of Reed in his dissent to your Rodriguez convinces me that the only rational explication of Reed is that it rests upon the "suspect" approach. Second, we cannot count on the Equal Rights Amendment to make the Equal Protection issue go away. Eleven states have now voted against ratification (Arkansas, Connecticut, illinois, Louisiana, Montana, Nevada, North Carolina, North Dakota, Oklahoma, Utah and Virginia). And within the next month or two, at least two, and probably four, more states (Arizona, Mississippi, Missouri and Georgia) are expected to vote against ratification. Since rejection in 13 states is sufficient to kill the Amendment it looks like a lost cause. Although rejections may be rescinded at any time before March 1979, the trend is rather to rescind ratification in some states that have approved it. I therefore don't see that we gain anything by awaiting what is at best an uncertain outcome.
Moreover, whether or not the Equal Rights Amendment eventually is ratified, we cannot ignore the fact that Congress and the legislatures of more than half the States have already determined that classifications based upon sex are inherently suspect.
Mr. Justice Powell
Sinif;; c cc: The Conference
CHAMBERS OF
.§uprttttt "fou:rt of tlrt ~nittb .§tatcs
:llnsltington. ~. "f. 20t?'~,;l
.JUSTICE POTTER STEWART
March 7, 1973
No. 71-1694, Frontiero v. Richardson
Dear Bill,
I should appreciate your adding the following at the foot of your opinion in this case:
MR. JUSTICE STEWART concurs in the judgment, agreeing that the statutes before us work an invidious discrimination in violation of the Constitution. Reed v. Reed, 404 U.S. 71.
I have watched the "shuttlecock" memos on the subject of Reed v. Reed and the "suspect" classification problem.
Some may construe Reed as supporting the "suspect'' view but I do not. The author of Reed never remotely contemplated such a broad concept but then a lot of people sire offspring unintended I At some point, I will perhaps join someone who expresses the narrow view expressed by Potter, Harry and Lewis.
Mr, Justice Brennan
Copies to the Conference
William C. Kelly, Jr.
Lewis F. Powell, Jr. ~·
No. 71-1694 Frontiero v.
It appears from "join circulations" that Justice Brennan will
certainly have a plurality for his opinion (Brennan, Douglas, Marshall
a nd White). ,Justice Stewart concurs in the judgment but not the opinion.
I would guess that there is some chance that other Justices (who have
not yet stated their position) will share a similar view.
As you know, I feel quite strongly that the Court is acting
wmecessarily and unwisely. It is this sort of action which subjects the
Court to criticism which even its friends have difficulty in rebutting.
I sincerely think that our democratic institutions are weakened -and
the ultimate pdrlition of the Court in our system also weakened - by
unnecessary action of this kind.
I would appreciate your editing the attached rough draft, adding
appropriate citations if two or three are available. I do not contemplate
anything much longer than the attached draft. But I would like to make
my position clear and strong.
~. -~ -· •..
I
LFP, Jr. :psf 3/8/73
No. 71-1694 Frontiero v. Richardson
MR. JUSTICE POWELL, concurring in the judgment.
I agree that the challenged statutes constitute an uncon-
stitutional discrimination against service women in violation
of the due process clause of the Fifth Amendment, but I cannot
join the opinion of the Court which holds that sex, "like cldllsi-
fications based upon race, alienage, and national origin" is I
"inherently suspect and must therefore be subjected to close
judicial scrutiny." (SUpra at 5). It is quite unnecessary •
1 1 for the Court in this case to characterize sex as a suspect
classification, with all of the far-reaching implications from
such a holding. Reed v. Reed, 404 U.s. 71 (1971), which abun-
dantly supports our decision today, did not add sex to the narrowly
limited group of classifications which are inherently suspect. In
my view, we can and should decide this case on the authority of
Reed and reserve for the future any expansion of its rationale.
There is another, and I find compelling reason, for
-2-
deferring at this time a general categorizing of sex classi-
fications as invoking the strictest test of judicial scrutiny.
The Equal Rights Amendment, which if adopted wil~ resolve the
substance of this precise question, has been approved by the
Congress and submitted for ratification by the states. If this
amendment is duly adopted, it will represent the will of the
people accomplished in the manner prescribed by the Constitution.
By acting prematurely and unnecessarily, as I view it, the Court
has assumed a decisional responsibility at the very time when
state legislatures, functioning within the traditional democratic
process, are debating the proposed Amendment. It seems to me
that this reaching out to anticipate by judicial action a major
political decision which is currently in process of resolution re-
fleets inappropriate respect either for the doctrine of Separation
of Powers or duly prescribed constitutional processes.
There are times when this Court, under our system, cannot
avoid a constitutional decision on issues which normally should be
resolved by the elected representatives of the people. But democratic
-3-
institutions are weakened, and confidence in the restraint of
the Court is impaired, when we appear unnecessarily to decide
sensitive issues of broad social and political importance at the
very time they are under consideration within the prescribed
de moe ratic processes.
DRAFT 3/1/73 LFP, Jr. :psf lee (copy to Conference)
No. 71-1694 - Frontiero v. Richardson
Dear Bill:
This refers to your third draft opinion in the above case,
in which you have now gone all the way in holding that sex is a
"suspect classification."
My principal concern about going this far at this time, as
indicated in my earlier letter, is that it places the Court in the
position of preempting the amendatory process initiated by the Con-
gress. If the Equal Rights Amendment is duly adopted, it will
represent the will of the people accomplished in the manner prescribed
by the Constitution. If, on the other hand, this Court puts "sex" in
the same category as "race" we will have assumed a decisional
responsibility (not within the democratic process) unnecessary to the
decision of this case, and at the very time that legislatures around the
country are debating the genuine pros and cons of how far it is wise,
fair and prudent to subject both sexes to identical responsibilities
as well as rights.
-2 ..
It is evident from what one reads in the press that a good
many responsible people about the country are now having second
thbughts as to whether the Equal Rights Amendment is indeed in the
interest of women or the country. Not the least among those having
such thoughts are women themselves.
But the point of this letter is not to debate the merits, as
to which reasonable persons obviously may differ. Rather, it is
to question the desirability of this Court reaching out to anticipate
currently a major political decision which is )lacwtt;xin process of resolution
by the duly prescribed constitutional process.
I may add that I see no analogy between the type of "discrim-
ination" which the black race suffered and that now asserted with
respect to women. The history, motivation and results - in almost
all aspects of the problem - were totally different.
I can, of course, say all of this in a concurring opinion if this
should become necessary. I write this letter in the hope that possibly
we can discuss at the Conference the wisdom of the Court reading into
.. '
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the Constitution a reBllt obviously not intended by the framers
at the very time when the amendatory process is underway.
Sincerely,
" . ~·
lfp/ss 3/8/73 ~1'1-~~~ ~~-I~/
No. 71-1694 Frontiero v. Richardson
MR. JUSTICE POWELL, concurring in the judgment.
I agree that the challenged statutes constitute an unconstitutional
discrimination against service women in violation of the1fue process
clause of the Fifth Amendment, but I cannot join the opinion of the
Court which holds that sex, "like classifications based upon race,
'' II alienage, and national origin~ ~, is inherently suspect
and must therefore be subjected to close judicial scrutiny. "KliJaX
(Supra at 5). It is quite unnecessary for the Court in this case to
~~ characterize sex as a suspect classification, with all of the
·-1
implications from such a holding. The eontFolli:ag .aathoJ:Uyjs
ltemk Reed v. Reed, 404 U.S. 71 (1971) which abundantly --- --- )
