Frontiero et vir v. Richardson, Secretary of Defense, et al.
Decided on May 14, 1973; 411 US 677


Sex-based discrimination is inherently suspect. A statute giving benefits to the spouses of male but not female members of the uniformed services (on the assumption that only the former were dependent) is unconstitutional.

 

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Discrimination, due process

B. Legal Question Presented:

Is the difference of treatment of servicewomen under 37 U.S.C. 401 (1), 403 and 10 U.S.C. 1072, 1076, which provide that a serviceman may claim his wife as a "dependant," even if she is not, while a servicewoman can claim her husband as a "dependent" only if he is in fact dependent upon her for over one-half of his support, a violation of the Due Process Clause of the Fifth Amendment?
II. CASE SUMMARY:

A. Background:

"A married woman Air Force officer sought increased benefits for her husband as a "dependent" under 37 U.S.C. 401, 403, and 10 U.S.C. 1072, 1076. Those statutes provide, solely for administrative convenience, that spouses of male members of the uniformed services are dependents for purposes of obtaining increased quarters allowances and medical and dental benefits, but that spouses of female members are not dependents unless they are in fact dependent for over one-half of their support. 

When her application was denied for failure to satisfy the statutory dependency standard, appellant and her husband brought this suit in District Court, contending that the statutes deprived servicewomen of due process."

From that Court's adverse ruling, they took a direct appeal to the U.S. Supreme Court, which reversed the judgment of the District Court.
B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Ruth Bader Ginsburg argued the cause for the American Civil Liberties Union as amicus curiae urging reversal. With her on the brief was Melvin L. Wulf.

Joseph J. Levin, Jr., argued the cause for appellants. With him on the brief was Morris S. Dees, Jr.

Samuel Huntington argued the cause for appellees. On the brief were Solicitor General Griswold, Assistant Attorney General Wood, and Mark L. Evans.
IV. THE SUPREME COURT'S DECISION:

"[T]he 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... Moreover, the Government concedes that the differential treatment accorded men and women under these statutes serves no purpose other than mere 'administrative convenience' [and] offers no concrete evidence, however, tending to support its view that such differential treatment in fact saves the Government any money.

[A]ny 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]... ' We therefore conclude 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."

The US Supreme Court reversed the judgment of the District Court for the Middle District of Alabama.
Justice Vote: 8 Pro vs. 1 Con
  • Brennan, W.Pro (Wrote Majority opinion)
  • White, B. Pro (Joined majority opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • Stewart, P. Pro (Wrote concurring opinion)
  • Powell, L. Pro (Wrote concurring opinion)
  • Burger, W. Pro (Joined majority opinion)
  • Blackmun, H.Pro (Joined majority opinion)
  • Douglas, W. Pro (Joined majority opinion)
  • Rehnquist, W. Con (Wrote dissenting opinion)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU, as amicus curiae, urged reversal of the judgment of the District Court for the Middle District of Alabama; the Supreme Court reversed in a 8-1 vote, giving the ACLU an apparent win.