Frontiero Et Vir v. Richardson Secretary of Defense, No. 71-1694 Supreme Court of The United States 411 U.S. 677; 93 S. Ct. 1764; 1973 U.S. LEXIS 153; 36 L. Ed. 2d 583; 9 Fair Empl. Prac. Cas. (BNA) 1253; 5 Empl. Prac. Dec. (CCH) P8609

January 17, 1973, Argued

May 14, 1973, Decided

CORE TERMS: sex, classification, male, female, dependency, servicewomen, uniformed, one-half, convenience, spouse, Fifth Amendment, CONSTITUTIONAL LAW, allowance, inherently, quarters, dental, invidious, differential, joined, situated, wives, servicewoman, dissimilar, woman, agreeing, subjected, applicant, career, presently, fringe


A servicewoman's application for increased quarters allowances and medical and dental benefits for her husband as a dependent was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support, as required by 37 USCS 401, 403 (quarters allowances) and 10 USCS 1072, 1076 (medical and dental benefits). Thereupon the servicewoman instituted an action in the United States District Court for the Middle District of Alabama, contending that the statutes--which allow a serviceman to claim his wife as a dependent for such benefits without regard to whether she is in fact dependent upon him for any part of her support--unreasonably discriminated on the basis of sex in violation of the due process clause of the Fifth Amendment. The three- judge District Court upheld the constitutionality of the statutes (341 F Supp 201).

On direct appeal, eight members of the United States Supreme Court, although not agreeing on an opinion, agreed that the judgment should be reversed on the ground that the difference in treatment between servicewomen and servicemen under the statutes constituted an unconstitutional discrimination against servicewomen.

Brennan, J., announced the judgment of the court, and in an opinion joined by Douglas, White, and Marshall, JJ., expressed the views that (1) statutory classifications based upon sex were inherently suspect and thus must be subjected to close judicial scrutiny, and (2) under such standard of judicial scrutiny, the challenged statutes were unconstitutional as constituting an invidious discrimination against servicewomen in violation of the due process clause of the Fifth Amendment, the sole purpose advanced for the statutory discrimination being mere administrative convenience.

Stewart, J., concurred in the judgment, agreeing that the statutes worked an invidious discrimination in violation of the Constitution.

Powell, J., joined by Burger, Ch. J., and Blackmun, J., concurred in the judgment, agreeing that the challenged statutes constituted unconstitutional discrimination against servicewomen in violation of the due process clause of the Fifth Amendment, but expressing the view that it was unnecessary and inappropriate to determine whether sex was a suspect classification requiring strict judicial scrutiny, particularly since the Equal Rights Amendment, which would resolve the question if adopted, had been submitted for ratification by the states.

Rehnquist, J., dissented for the reasons stated in the District Court's opinion (341 F Supp 201).

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