LOCATION: Frontiero's Residence
DOCKET NO.: 71-1694
DECIDED BY: Burger Court (1972-1975)
CITATION: 411 US 677 (1973)
ARGUED: Jan 17, 1973
DECIDED: May 14, 1973
Ruth Bader Ginsburg - for American Civil Liberties Union, amicus curiae, by special leave of Court
Joseph J. Levin, Jr. - Argued the cause for the appellants
Samuel Huntington - Argued the cause for the appellees
Facts of the case
Sharron Frontiero, a lieutenant in the United States Air Force, sought a dependent's allowance for her husband. Federal law provided that the wives of members of the military automatically became dependents; husbands of female members of the military, however, were not accepted as dependents unless they were dependent on their wives for over one-half of their support. Frontiero's request for dependent status for her husband was turned down.
Did a federal law, requiring different qualification criteria for male and female military spousal dependency, unconstitutionally discriminate against women thereby violating the Fifth Amendment's Due Process Clause?
Media for Frontiero v. Richardson
Audio Transcription for Oral Argument - January 17, 1973 in Frontiero v. Richardson
Warren E. Burger:
We’ll hear arguments next in 71-1694, Frontiero against Laird.
Joseph J. Levin, Jr.:
Mr. Chief Justice and may it please the Court.
This is a sex discrimination case.
After a short statement of the facts here, I will seek to refute the Government’s statistical analysis of the case and point to what we consider to be then substantiability of the Government’s interest in continuing this particular sex discrimination.
Following this, I will speak briefly about the merits of judging sex classifications by what we consider to be an intermediate test.
Professor Ginsburg to my left will then speak on the merits of judging these cases by standard of strict scrutiny.
A year after entering the Armed Forces in 1968, Lieutenant Sharron Frontiero married Joseph Frontiero.
Because of the statutes which are at issue here, any male member of the Armed Forces would have automatically become entitled to certain housing allowance benefits and medical benefits.
Lieutenant Frontiero did not.
The statutes giving males in the Armed Forces the irrebuttable presumption, that their spouses are dependent, and grant benefits regardless of the wives’ actual financial dependency.
A female must prove that her spouse is in fact dependent upon her for more than one-half of his support.
In this case, Lieutenant Frontiero earns more than three times as much as her husband Joseph.
Her income is approximately $8,200.
His income is just a little in excess of $2,800.
But because Joseph’s individual expenses are low, his small income meets more than half of his personal expenses.
Now, Sharron was therefore denied any supplemental benefits in both housing and medical for her spouse.
It’s undisputed that under these statutes, the ones which are at issue here that male Armed Forces member would have received this housing and medical benefits.
So we have a two-fold discrimination.
The first is procedural.
Women are forced to the burdens and uncertainties of proving that their spouses are in fact dependent upon them while males are given the benefits automatically and irrefutably.
But more importantly, there’s a substantive discrimination here.
Males whose wives are not financially dependent upon them, nevertheless receive these housing and medical benefits.
Women in precisely the same circumstances, identical circumstances do not receive the benefits.
And the Government really seeks to explain a way this discrimination by saying that it’s only a procedural difference.
And that since women earn less than men that they can presume for the sake, and I’m talking about women in the general population that they can presume for the sake of administrative convenience or administrative ease that the male spouses are financially dependent.
We have three relatively simple answers to the Government’s contention that lower income shows dependency.
First of all, earning levels don’t alone necessarily indicate dependency only because --
Warren E. Burger:
Did they indicate a general tendency, do you think?
Joseph J. Levin, Jr.:
I think that earning level, not necessary even a general tendency I would think that you could say that in the whole population that it does indicate a tendency that men earn more than women, and we don’t dispute that.