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SITTING SHIVA FOR RBG:  Frontiero vs. Richardson and sex-based discrimination laws

As I endeavor to post daily on some of the important case law which RBG (either as a jurist or an advocate) fashioned, I appreciate both the body of law that developed because of her and I mourn the passage of that era.  While I cannot predict what will happen in the next few weeks on the appointment of and potential confirmation of the next Supreme Court Justice, that we are moving into another, less generous, era seems inevitable.

Here is a case in which Ruth Bader Ginsburg filed an amicus brief on behalf of the ACLU, Women’s Rights Project.  She argued the case before the U.S. Supreme Court on January 17, 1973.  It was her first time arguing before the court.  As RBG would later explain her strategy on advocating for gender equality, “[g]enerally change in our society is incremental, I think.  Real change, enduring change, happens one step at a time.”  Her strategy at the ACLU was to present the court with the next logical step, and them the next, and then then next. (See Carmon, Knizhnik, The Notorious RBG, p. 93).

Frontiero vs. Richardson, 1973

Sharron Frontiero, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, 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, her application was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support.

Frontiero contended that, by making this distinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment. 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.

Frontiero argued that classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny.  In the case of Reed vs. Reed, two years earlier, the court had moved toward this conclusion that cases of sex should be reviewed with close scrutiny.  Thus, the Frontiero court held, in part and with emphasis supplied as follows:

There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. 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 it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . .

‘. . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.’ Bradwell vs. State of Illinois,  1873.

As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. See generally L. Kanowitz, Women and the Law: The Unfinished Revolution 5—6 (1969); G. Myrdal, An American Dilemma 1073 (20th Anniversary ed. 1962). And although blacks were guaranteed the right to vote in 1870, women were denied even that right—which is itself ‘preservative of other basic civil and political rights’—until adoption of the Nineteenth Amendment half a century later.

It is true, of course, that the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena. See generally K. Amundsen, The Silenced Majority: Women and American Democracy (1971); The President’s Task Force on Women’s Rights and Responsibilities, A Matter of Simple Act of 1964, 84 Harv.L.Rev. 1109 (1971).

Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate ‘the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . .. And what differentiates sex from such non-suspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.

 We might also note that, over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications. In Tit. VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the Act shall discriminate against any individual on the basis of ‘race, color, religion, sex, or national origin.’ Similarly, the Equal Pay Act of 1963 provides that no employer covered by the Act ‘shall discriminate . . . between employees on the basis of sex.  And s 1 of the Equal Rights Amendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the States for ratification, declares that ‘(e)quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.’ Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a coequal branch of Government is not without significance to the question presently under consideration. Cf.  With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid.

The reason this case remains important is that as early as three years prior, the Supreme Court had never invalidated any sex-based discrimination statute as unconstitutional.  In Frontiero, the Supreme Court gave a nod toward the application of strict scrutiny for gender-based discriminatory laws.  Although that application remained unsettled.  Much of the law in this area relied on the passage of the Equal Rights Amendment.  Throughout the 1970s, Ginsburg and the ACLU built on the Frontiero case to strike down other sex-based discriminatory laws.    In her oral argument, Ginsburg concluded with a quotation from the nineteenth century abolitionist and women’s rights leader Sarah Grimke: “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”

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