Frontiero v. Richardson 8212 1694

Decision Date14 May 1973
Docket NumberNo. 71,71
Citation36 L.Ed.2d 583,93 S.Ct. 1764,411 U.S. 677
PartiesSharron A. FRONTIERO and Joseph Frontiero, Appellants, v. Elliot L. RICHARDSON, Secretary of Defense, et al. —1694
CourtU.S. Supreme Court

A married woman Air Force officer (hereafter appellant) 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. Held: The judgment is reversed. Pp. 682—691, 691—692, 341 F.Supp. 201, reversed.

Joseph J. Levin, Jr., Montgomery, Ala., for appellants.

Ruth B. Ginsburg, New York City, for American Civil Liberties Union, amicus curiae, by special leave of Court.

Samuel Huntington, Washington, D.C., for appellees.

Mr. Justice BRENNAN announced the judgment of the Court in an opinion in which Mr. Justice DOUGLAS, Mr. Justice WHITE, and Mr. Justice MARSHALL join.

The question before us concerns the right of a female member of the uniformed services1 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(2)(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- 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 judge issenting, 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. 840, 93 S.Ct. 64, 34 L.Ed.2d 78 (1972). We reverse.


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 increased 'basic allowence for quarters' and, under 10 U.S.C. § 1076, a member's dependents are 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 Frontiero, 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 one-half of his support.4 Appellants then commenced this suit, contendingthat, by making this distinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment.5 In essence, appellants asserted that the discriminatory impact of the statutes is twofold: 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- 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 Court speculated that such differential treatment might conceivably lead to a 'considerable saving of administrative expense and manpower.' Ibid.


At the outset, appellants contend that classifications based upon sex, like classifications based upon race,7 alienage,8 and national origin,9 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, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).

In Reed, the Court 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.

The Court 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- ject to scrutiny under the Equal Protection Clause.' 404 U.S., at 75, 92 S.Ct. at 253. 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, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1372, 4 L.Ed.2d 1435 (1960); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 115o, 1161, 25 L.Ed.2d 491 (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 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

Despite these contentions, however, the Court held the statutory preference for male applicants unconstitutional. In reaching this result, the Court 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 provide 'dissimilar treatment for men and women who are . . . similarly situated.' 404 U.S at 77, 92 S.Ct., at 254. The Court 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) . . ..' Id., at 76, 92 S.Ct. at 254. This departure from 'traditional' rational-basis analysis with respect to sex-based classifications is clearly justified.

There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination.13 Traditionally, such discrimination was rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim:

'Man is, or should be, women's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits...

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