Frontiero v. Richardson, 411 U.S. 677; 93 S. Ct. 1764; 36 L. Ed. 2d 582 (1973)

Facts—Sharon Frontiero, a lieutenant in the U.S. Air Force, sought dependency allowances for her husband. Dependency would have been assumed

for a man in her position, but women were required to show that men depended upon them for one-half or more of their support. Because she made no such showing, Frontiero’s request was denied. A three-judge District Court upheld this denial.

Question—Did differing requirements for establishing dependency on males and females violate the due process clause of the Fifth Amendment of the U.S. Constitution?


ReasonsJ. Brennan (8–1; Brennan’s decision represents that of a plurality, 4 justices, on the Court). The differential requirements for establishing male and female dependency rest on the idea that men are typically the “breadwin- ners” in households. Classifications based on sex, like those based on race, alienage, and national origin “are inherently suspect and must therefore be subjected to close judicial scrutiny.” This decision is consistent with the Court’s decision in Reed v. Reed, 404 U.S. 71 (1971), striking down an Idaho statute requiring that a male should be automatically preferred to a female in administering an estate. Brennan observed 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 practice, put women, not on a pedestal, but in a cage.” Although such stereotypes have been reduced, “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.” Sex, “like race and national origin, is an immutable characteristic determined solely by the accident of birth” and it “frequently bears no relation to ability to perform or contribute to society.” Congress has “manifested an increasing sensitivity to sex-based classifications,” including the Civil Rights Act of 1964, the Equal Pay Act of 1963, and the proposal of the Equal Rights Amendment. The classification in this case is based solely on sex and the armed forces’ desire for “administra- tive convenience.” The government has not actually demonstrated, however, that it is cheaper to grant dependency allowances to all men than to make individualized determinations of need. In any event, mere administrative efficiency is insufficient to meet the Court’s close scrutiny.

J. Powell, concurring, would await state action on the proposed Equal Rights Amendment before deciding whether sex should be considered to be a suspect category.

J. Stewart concurs in the opinion on the basis of Reed v. Reed, while J. Rehnquist dissents for reasons stated in the opinion of the lower court.

Note—Because this case involves the U.S. government, it is brought under the Fifth Amendment rather than under the Fourteenth. Only four justices agreed to treat sex as a “suspect category” requiring a “compelling state interest.”

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