Assistant Professor of Law and History
University of Pennsylvania Law School
Can administrative convenience be a legitimate reason to discriminate? It was for the Air Force until 1970, when Lieutenant Sharron Frontiero sued the military branch for not allocating equal benefits to women officers, says Penn Law Professor Serena Mayeri.
For Lt. Frontiero to receive a housing allowance and medical benefits for her husband, she had to prove that she covered more than half of his expenses. Male officers, in contrast, received these benefits automatically because the Air Force assumed that their wives were economically dependent on them.
In her research, which will be published as a chapter in the forthcoming book, Women and the Law Stories (Foundation Press, 2009), Mayeri is exploring how the Frontiero litigation challenged assumptions about gender roles, impacted the feminist movement and influenced the outcome of future cases involving equal rights for women.
The Frontieros hired Joseph Levin, who would go on to establish the Southern Law Poverty Center (SPLC), as their attorney, but there were few legal precedents favorable to the case, said Mayeri. At the time, the Supreme Court had yet to declare unconstitutional laws that discriminated on the basis of sex.
Nearly a year after the Frontieros filed the case in a federal district court, however, the Supreme Court concluded in Reed v. Reed that administrative convenience was not a sufficient justification for sex-discrimination.
That is at least how Frank M. Johnson, Jr., one of the three Frontiero v. Richardson judges, interpreted it, said Mayeri. But he could not convince the two other judges to declare laws that used sex as a basis for classification as “suspect,” said Mayeri. The court concluded that although the law was inconvenient for women, it was sound because it was based on the fact that most men were the breadwinners.
When the Frontieros appealed to the Supreme Court, the SPLC and the ACLU Women’s Rights Project struggled for control over the case, said Mayeri. Future Justice Ruth Bader Ginsburg who worked with ACLU at the time, did not want the same outcome as in Reed; she wanted to ensure that sex, like race, was declared a “suspect” classification. In the end, the SPLC and the ACLU filed separate briefs.
The pending status of the Equal Rights Amendment (ERA) influenced the Supreme Court’s deliberations over whether sex should be classified a suspect category, said Mayeri. Justice William Brennan felt that Frontiero offered the court an opportunity to tackle the question and did not want to wait until ERA’s outcome. Justice Lewis Powell felt that not waiting would short-circuit the political process.
The Frontieros won the case, but Justice Brennan could not muster a majority in favor of declaring sex a suspect classification, and Ginsburg fell short of her goal, said Mayeri. It did, however, leave a number of important legacies, said Mayeri.
It helped clarify what is meant by a “suspect” class, invalidated government benefit schemes based on assumptions about women’s economic dependency on men, led to more opportunities for women in service, and served as a paradigm for sex-based schemes that harm women, in contrast to affirmative action schemes that help create equality, said Mayeri.
More recently, Frontiero has also served as a precedent for gay rights advocates seeking constitutional equality, said Mayeri.
As for Sharron Frontiero’s afterlife? Her marriage dissolved by the time she received the $2200 compensation for lost benefits, but she went on to enjoy a second career as a romance novelist.