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Photo of Sharron and Joseph Frontiero.
Sharron Frontiero, who won a gender discrimination lawsuit against the U.S. Air Force, with her husband Joseph.

Reproduction courtesy of the Supreme Court Historical Society
Frontiero v. Richardson (1973)

In Frontiero v. Richardson (1973), the Supreme Court ruled that a law classifying benefits on the basis of gender violated the Constitution, but it could not agree on why. Four justices ruled, for the first time, that laws classifying individuals based on gender are "inherently suspect" and unconstitutional if they do not "narrowly" serve some "compelling" government interest. Another bloc on the Court, however, maintained that such laws are only unconstitutional if they are "irrational." The case began when Sharron Frontiero, a lieutenant in the U.S. Air Force, applied for armed service benefits for her husband under a congressional statute that stated "that members of the uniformed services with dependents are entitled to an increased basic allowance for quarters" and "a member's dependents are provided comprehensive medical and dental care." The statute also provided, however, that if the dependant is "a husband," he must be dependent for more than half his support to qualify. In cases where the dependant is "a wife," by contrast, the benefits are conferred automatically and irrespective of the need for support.

Frontiero failed to adequately "demonstrate" in her benefits application that her husband was dependent on her for more than half his support. Her application was therefore denied. Frontiero sued the Secretary of Defense in a federal district court, claiming that the congressional statute discriminated against women in violation of the Constitution. She argued that the statute imposed unnecessary barriers to female officers in applying for benefits and gave them fewer benefits compared to similarly situated male officers. The district court found no constitutional violation and denied Frontiero relief. The case was appealed to the U.S. Supreme Court.

The Supreme Court, in an 8-1 decision, ruled that the statute was unconstitutional because it impermissibly discriminated against women. Four of the justices, in a plurality opinion written by Justice William Brennan, ruled that the statute was unconstitutional because gender discrimination was "inherently suspect": laws classifying on the basis of gender should be presumed unconstitutional and subjected to "strict scrutiny," in which a law is declared unconstitutional unless the Court finds it provides the only means available (is "narrowly tailored") to serve a "compelling" government interest. The strict scrutiny test provides the greatest level of constitutional protection for the designated group. As with race classification laws, the plurality argued that gender classification laws should be construed as "inherently suspect" because of a history of discrimination against women, "which, in practical effect, put women, not on a pedestal, but in a cage," and because gender is an immutable characteristic that cannot be changed in response to a law.

Accordingly, the plurality reviewed the statute in question under the strict scrutiny test. The U.S. government argued that the statute was justified because it administered benefits more cheaply; because females are far more likely to be dependent on male officers than the reverse, an automatic conferral of benefits to female dependents saves time and money. The Court responded that imposing the one-half dependency rule on both male and female dependents provides a better means of saving money without discriminating against women.

Another three justices, in a concurrence written by Justice Lewis Powell, ruled that the statute was unconstitutional only because it was "irrational." The Powell bloc rejected the plurality's contention that women are a "suspect class," and argued such a ruling would hazardously upend all American laws involving gender and usurp from the states the decision in the ongoing debate over whether women should be considered a "suspect class" deserving absolute equality with men in every law. (The states were currently debating whether to adopt the Equal Rights Amendment to the Constitution, which would essentially do this; the amendment was ultimately never ratified.) Because a majority of the justices found the statute unconstitutional, it was invalidated. However, because the majority could not agree on the justification for invalidating the law, the decision failed to provide guidelines for evaluating gender discrimination in future cases.

Frontiero v. Richardson coincided with a revolution in gender perception in America. By the early 1970s, more of American society thought of gender roles, like racial roles, as socially constructed stereotypes, not innately grounded traits. The Court's disagreement as to which level of scrutiny should apply to gender classifications (strict or rational) was resolved by the 1976 case of Craig v. Boren, in which the Court ruled that classifications based on gender should be subjected to an "intermediate scrutiny" test, in which a challenged law is found unconstitutional unless it is "substantially related" to an "important governmental interest." As of 2006, some contend that the Supreme Court now imposes a test somewhere between intermediate and strict scrutiny in gender classification cases (see, e.g., United States v. Virginia [1996]).

AUTHOR'S BIO
Alex McBride is a third year law student at Tulane Law School in New Orleans. He is articles editor on the TULANE LAW REVIEW and the 2005 recipient of the Ray Forrester Award in Constitutional Law. In 2007, Alex will be clerking with Judge Susan Braden on the United States Court of Federal Claims in Washington.

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