Frontiero v. Richardson
Did a federal law that automatically granted military servicemen dependent benefits for their wives, while requiring servicewomen to prove their husbands were actually dependent on them for more than half their support, violate the Due Process Clause of the Fifth Amendment?
The Decision
8-1 decision · Opinion by William J. Brennan Jr. · 1973
Majority Opinion— William J. Brennan Jr.concurring ↓dissent ↓
The Supreme Court ruled 8–1 that the federal statutes were unconstitutional. However, the Justices could not agree on a single legal rationale, so the case produced a plurality opinion rather than a true majority opinion. Justice William J. Brennan Jr. wrote the lead opinion, joined by Justices William O. Douglas, Byron White, and Thurgood Marshall — four of the nine Justices.
In the plurality opinion, Justice Brennan argued forcefully that sex should be recognized as a 'suspect classification' under the Constitution, just like race and national origin. This would mean that any law drawing distinctions based on sex would be subject to 'strict scrutiny' — the most demanding level of judicial review, requiring the government to show that the classification serves a compelling governmental interest and is narrowly tailored to achieve that interest. Brennan reasoned that America's long and regrettable history of sex discrimination, the immutability of sex as a characteristic, and the fact that sex frequently bears no relationship to a person's ability to perform or contribute all pointed toward treating it as suspect. He noted that Congress itself had recognized the problem by sending the Equal Rights Amendment to the states for ratification.
Applying this heightened standard, the plurality concluded that the government's asserted interest in administrative convenience was wholly insufficient to justify the discriminatory classification. Even if it cost the military more money to require proof of dependency from all service members equally, that added cost could not justify treating women as second-class members of the armed forces. The plurality emphasized that the Constitution does not tolerate laws built on broad generalizations about the typical economic roles of men and women.
Three additional Justices — Powell, Burger, and Blackmun — agreed that the statute was unconstitutional but declined to go as far as declaring sex a suspect classification. Justice Stewart also concurred in the result. Only Justice William H. Rehnquist dissented, and he did so without writing a separate opinion. The practical result was clear — the discriminatory benefits scheme was struck down — but because only four Justices endorsed the suspect classification framework, that portion of Brennan's opinion did not become binding law.
Concurring Opinions
Justice Potter Stewart wrote a brief concurrence stating simply that the statutes constituted 'invidious discrimination' forbidden by the Constitution, without elaborating on the appropriate standard of review. More significantly, Justice Lewis F. Powell Jr., joined by Chief Justice Warren Burger and Justice Harry Blackmun, wrote a concurrence agreeing the statute was unconstitutional under the existing rational basis standard articulated in Reed v. Reed, but explicitly objecting to the plurality's effort to declare sex a suspect classification — Powell argued it would be inappropriate for the Court to preempt the democratic process while the Equal Rights Amendment was still pending ratification before the state legislatures.
Dissenting Opinions
William H. Rehnquist
Justice Rehnquist dissented from the Court's judgment without writing a separate opinion. His vote indicated he would have upheld the federal statute, presumably on the ground that Congress had a rational basis for distinguishing between male and female service members in administering dependent benefits.
- By dissenting without opinion, Rehnquist signaled agreement with the lower court's conclusion that Congress's interest in administrative efficiency provided a sufficient rational basis for the sex-based distinction.
- Rehnquist's lone dissent reflected his broader judicial philosophy of deferring to legislative judgments, particularly in matters of military administration.
Background & Facts
Sharron Frontiero was a lieutenant in the United States Air Force stationed in Montgomery, Alabama. Like all members of the uniformed services, she was entitled to certain benefits, including a housing allowance and medical and dental coverage. She sought to have her husband, Joseph Frontiero, classified as her 'dependent' so that she could receive a larger housing allowance and have him covered by military medical and dental benefits. Joseph was a full-time college student and veteran receiving $205 per month under the GI Bill.
Under federal statutes in effect at the time (found in Titles 10 and 37 of the United States Code), a male member of the armed forces could automatically claim his wife as a dependent and receive increased benefits — no questions asked. A female member of the armed forces, however, faced a very different process: she had to affirmatively prove that her husband depended on her for more than half of his financial support. Because Joseph Frontiero received his own GI Bill stipend, Sharron could not demonstrate that she provided more than half of his expenses, and her application for dependent benefits was denied.
Sharron Frontiero, joined by her husband, filed suit in federal court in Alabama, arguing that this sex-based distinction violated the Due Process Clause of the Fifth Amendment (which constrains the federal government in the same way the Equal Protection Clause of the Fourteenth Amendment constrains state governments). The case was heard by a special three-judge district court, as was required at the time for constitutional challenges to federal statutes. That court upheld the law, finding that Congress had a rational basis for the distinction — namely, administrative convenience, since military wives were statistically more likely to be financially dependent on their husbands than military husbands were on their wives.
The Frontieros appealed directly to the Supreme Court, which agreed to hear the case. The case arrived at a pivotal moment in the development of constitutional law around sex discrimination. Just two years earlier, in Reed v. Reed (1971), the Court had for the first time struck down a law for discriminating on the basis of sex, but it had done so under a relatively lenient legal standard. Frontiero gave the Court an opportunity to clarify — and potentially raise — the level of constitutional scrutiny applied to sex-based classifications in the law.
The Arguments
The federal statutes requiring servicewomen to prove their husbands' dependency, while granting servicemen automatic dependent status for their wives, constituted unconstitutional sex discrimination in violation of the Due Process Clause of the Fifth Amendment. Sex-based classifications, like race-based classifications, should be treated as inherently suspect and subjected to the most rigorous constitutional scrutiny.
- The law drew an explicit line between men and women performing the same military service, giving male service members an automatic financial benefit that female service members had to fight to obtain.
- Sex, like race and national origin, is an immutable characteristic determined at birth that bears no relation to an individual's ability to contribute to or participate in society.
- The nation's long history of sex discrimination — reflected in laws denying women the right to vote, hold office, serve on juries, and own property — parallels the history of discrimination against racial minorities and justifies treating sex as a suspect classification.
The different treatment of male and female service members was a reasonable exercise of congressional power, justified by administrative efficiency. Because the vast majority of military wives were in fact financially dependent on their husbands, Congress could rationally choose to skip proof of dependency for wives while requiring it for husbands.
- Congress had a legitimate interest in reducing paperwork and administrative costs, and a blanket rule for the larger group (servicemen with dependent wives) was a rational way to achieve that goal.
- The distinction was not motivated by hostility toward women but by a practical recognition of typical economic realities in American families at the time.
- The Supreme Court had not previously held sex to be a suspect classification, and the proper standard of review for this kind of legislation was the more deferential rational basis test.