FRONTIERO v. RICHARDSON 411 U.S. 677 (1973)

In Reed v. Reed (1971) a unanimous Supreme Court had invalidated a state law preferring the appointment of men, rather than women, as administrators of decedents' estates. The Court had used the rhetoric of the rational basis standard of review but had in fact employed a more rigorous standard of judicial review. Conceding the rationality of eliminating one type of contest between would-be administrators, the Court had concluded that the preference for men was an "arbitrary legislative choice" that denied women the equal protection of the law.

In Frontiero, two years later, the Court came within one vote of radically restructuring the constitutional doctrine governing sex discrimination. Under federal law, a woman member of the armed forces could claim her husband as a "dependent" entitled to certain benefits only if he was, in fact, dependent on her for more than half his support; a serviceman could claim "dependent" status for his wife irrespective of actual dependency. Eight Justices agreed that this discrimination violated the Fifth Amendment's equal protection guarantee, but they divided 4–4 as to their reasoning.

Justice william j. brennan, for four Justices, concluded that sex, like race, was a suspect classification demanding strict scrutiny of its justifications. Four other Justices merely rested on the precedent of Reed. Justice lewis f. powell, writing for three of them, added that it would be inappropriate for the Court to hold that gender was a suspect classification while debate over ratification of the equal rights amendment was still pending. Justice william h. rehnquist dissented.

The confusion in the wake of Frontiero ended three years later, in craig v. boren (1976), when the Justices compromised on an intermediate standard of review.

Kenneth L. Karst
(1986)