"Sex Discrimination - The Search for a Standard," by Natalie Wexler
The uncertainty engendered by the Court's opinion in Reed v. Reed surfaced the very next term in a case called Frontiero v. Richardson.
Sharron Frontiero, an air force lieutenant, sought an increased housing allowance after she married, as well as dental and medical benefits for her husband, Joseph, a full-time college student. Under federal law, a married man in the armed forces was automatically entitled to such perquisites, whether his wife earned a lot or a little, but a married woman was unable to obtain them unless she could prove that her husband was dependent on her for more than one-half his support. Although Sharron earned more than Joseph's monthly veteran's stipend, he did not receive more than half his support from her. Sharron was therefore denied the additional benefits.
The Frontieros sued in federal court, arguing that the difference in treatment of men and women violated the Constitution: the same benefits available to married men in the "uniformed services" should extend to married women, without a showing of actual dependency. (Because the Fourteenth Amendment's Equal Protection Clause applies only to action taken by a state-not by the federal government-the Frontieros had to invoke the Due Process Clause of the Fifth Amendment, which does apply to federal action. However, the Court has interpreted the Due Process Clause to require equal protection from the federal government as well.) Normally, a federal case goes through three levels of review: the district court, the court of appeals, and the Supreme Court. But because this case presented a constitutional challenge to a federal statute, it came before a three-judge district court whose decision could be appealed directly to the Supreme Court.
To begin with, the district court was not convinced that the difference in treatment here amounted to sex discrimination at all. While it was true that men were given an advantage over women in obtaining benefits for spouses, under the statutory scheme as a whole both women and men were entitled to an automatic presumption of dependency for their unmarried, minor children. And both sexes were required to prove dependency when seeking benefits for adult children and parents.
But, the district court held, even assuming that sex discrimination had occurred, it did not rise to the level of a constitutional violation. The government certainly had a rational basis for its action: the numbers of married men in the armed forces were so vast-more than a million-that requiring proof of dependency from each of them would impose a "substantial administrative burden." While it was true that men whose wives were not in fact dependent on them received, in the court's words, a "windfall," the mere fact that Sharron Frontiero had been denied this "windfall" did not "so unreasonably burden [her] that the administrative classification should be ruled unconstitutional." Under the rational basis test, the fact that a classification resulted in some inequality did not render it invalid. The court never discussed the fact that in essence Sharron was being paid less for her work than a man whose spouse had the same income as Joseph.
Judge Frank Johnson of the district court dissented on the grounds that Reed v. Reed had clearly rejected "administrative convenience" as a justification for unequal treatment of men and women.
In the Supreme Court, the appropriate standard of review-rational basis or strict scrutiny-became an issue for the first time. In the district court, the Frontieros' lawyers, Joseph Levin and Morris Dees, had not raised the question of strict scrutiny, believing that it was inappropriate in sex discrimination cases. "Our view was that it should be reserved for race," Levin says now. In a footnote, the district court had addressed the matter on its own initiative and concluded that Reed had rejected the use of strict scrutiny in sex discrimination cases.
But once the appeal was taken to the Supreme Court, the ACLU stepped in, and strict scrutiny for sex discrimination cases was very much at the top of its agenda. The Supreme Court briefs for the Frontieros (filed by both Levin and Dees and the ACLU) argued that the statutes should be struck down under either standard. But-as with the ACLU's brief in Reed-the bulk of the argument was directed to the need for strict scrutiny. Reed had caused widespread confusion in the lower courts, the ACLU argued. Some courts had regarded it "as a major precedent marking a new direction in judicial review of sex-based classifications." Others, like the district court in this case, had seen it as either breaking no new ground or else implicitly rejecting a strict standard of review.
The justices initially agreed in conference to hold the statutes unconstitutional without reaching the question of strict scrutiny. Justice William H. Rehnquist was the lone dissenter. But Justice William J. Brennan Jr., who had been assigned to write the majority opinion, was sympathetic to the ACLU's position: in a case decided earlier that term, he had dropped a footnote stating that Reed had simply left open the question of the appropriate standard of review in sex discrimination cases. Brennan did circulate a draft opinion that accorded with the cautious decision reached in conference. But he attached a note indicating that he felt Frontiero would "provide an appropriate vehicle for us to recognize sex as a suspect criterion," and wondered whether a majority of the Court would agree.
Three other justices-William O. Douglas, Byron R. White, and Thurgood Marshall-responded favorably. That meant that Brennan was only one vote short of a majority for a more radical approach. But neither of the other two justices most likely to join the opinion-Lewis F. Powell Jr. and Potter Stewart-was willing to sign on.
In the end, rather than retreating to his original draft, Brennan decided to go ahead with a plurality opinion (one not signed by a majority of the Court, and therefore lacking the force of law) ruling that sex should be a suspect classification. Reed v. Reed, Brennan said flatly, had constituted a departure from the usual rational-basis analysis, and moreover, one that was clearly justified. Drawing heavily from the fact-laden brief filed by the ACLU, Brennan reviewed the United States' "long and unfortunate history of sex discrimination"-discrimination that was "rationalized by an attitude of ‘romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage."
The position of women and African Americans was similar in key respects: both had been barred from holding office, serving on juries, or suing in their own names-and African American men had won the right to vote and sit on juries when these rights were still denied to women of all races. Sex, like race, was a characteristic people were born with and were powerless to alter. And, unlike intelligence or physical disability, it was one that usually bore no relationship to ability. Any legislation that used such a characteristic to group people for unequal treatment merited strict scrutiny.
Once Brennan applied that scrutiny, it took only a few paragraphs to demonstrate that the statutes were unconstitutional. The government's defense was essentially "administrative convenience"-probably not a sufficient argument under a rational basis test after Reed, and certainly not under strict scrutiny.
Stewart merely concurred in the judgment (that is, in the holding that the statutes were unconstitutional but not in Brennan's reasons for reaching that conclusion) and cited Reed. Powell also concurred in the judgment, but he filed a short separate opinion that was joined by Chief Justice Burger and Justice Harry A. Blackmun. It was unnecessary, Powell wrote, for the Court to add sex to the very restricted list of suspect classifications when the same result could have been reached under Reed. Besides, the Equal Rights Amendment (ERA) had been approved by Congress and been submitted for ratification by the states. "It seems to me," Powell wrote, "that this reaching out to pre-empt by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes." Indeed, at the time of the decision, thirty states of the required thirty-eight had ratified the ERA.
Rehnquist, still in dissent, simply stated that he agreed with the reasoning of the district court.
One commentator, writing in the American Bar Association Journal, wrote that Brennan's opinion would "endear him to Mses [Gloria] Steinem, [Betty] Friedan, [Bella] Abzug, et aliae, because of its wholehearted espousal of the cause of women's lib." The opinion did indeed establish Brennan as a hero to many women's rights advocates, and it fired up their hopes for a definitive judicial pronouncement that sex discrimination warranted strict scrutiny. All that was needed, it seemed, was one more vote.