January 17, 1973 — Oral Argument, Frontiero v. Richardson, US Supreme Court, Washington DC

 

Mr. Chief Justice and may it please the Court.

Amicus views this case as kin to Reed v. Reed, 404 U.S. The legislative judgment in both derives from the same stereotype.

The man is, or should be, the independent partner in a marital unit.

The woman, with an occasional exception, is dependent, sheltered from bread-winning experience.

Appellees stated in answer to interrogatories in this case that they remained totally uninformed on the application of this stereotype to service families — that is, they do not know whether the proportion of wage-earning wives of servicemen is small-, large-, or middle-sized.

What is known is that by employing the sex criterion, identically situated persons are treated differently — the married serviceman gets benefits for himself, as well as his spouse, regardless of her income; the married servicewoman is denied medical care for her spouse and quarter’s allowance for herself as well as her spouse, even if, as in this case, she supplies over two-thirds the support of the marital unit.

For these reasons, amicus believes that the sex-related means employed by Congress fails to meet the rationality standard.

It does not have a fair and substantial relationship to the legislative objective so that all similarly circumstanced persons shall be treated alike.

Nonetheless, amicus urges the Court to recognize in this case what it has in others, that it writes not only for this case and this day alone but for this type of case.

As is apparent from the decisions cited at pages 27 to 34 of our brief, in lower federal as well as state courts, the standard of review in sex discrimination cases is, to say the least confused.

A few courts have ranked sex as a suspect criterion.

Others, including apparently the court below, in this case, seem to regard the Reed decision as a direction to apply minimal scrutiny and there are various shades between.

The result is that in many instances, the same or similar issues are decided differently depending upon the court’s view of the stringency of review appropriate.

To provide the guidance so badly needed and because recognition is long overdue, amicus urges the Court to declare sex a suspect criterion.

This would not be quite the giant step appellee suggests.

As Professor Gunther observed in an analysis of last term’s equal protection decisions published in the November 1972 Harvard Law Review, it appears that in Reed, some special suspicion of sex as a classifying factor entered into the Court’s analysis.

Appellees concede that the principle ingredient involving strict scrutiny is present in the sex criterion.

Sex, like race, is a visible, immutable characteristic bearing no necessary relationship to ability.

Sex, like race, has been made the basis for unjustified or at least unproved assumptions, concerning an individual’s potential to perform or to contribute to society.

But appellees point out that although the essential ingredient rendering a classification suspect is present, sex-based distinctions, unlike racial distinctions, do not have an especially disfavored constitutional history.

It is clear that the core purpose of the Fourteenth Amendment was to eliminate invidious racial discrimination.

But, why did the framers of the Fourteenth Amendment regard racial discrimination as odious.

Because a person’s skin color bears no necessary relationship to ability, similarly as appellees’ concede, a person’s sex bears no necessary relationship to ability.

Moreover, national origin and alienage have been recognized as suspect classifications, although the newcomers to our shores was not the paramount concern of the nation when the Fourteenth Amendment was adopted.

But the main thrust of the argument against recognition of sex as a suspect criterion centers on two points.

First, women are a majority.

Second, legislative classification by sex does not, it is asserted, imply the inferiority of women.

With respect to the numbers argument, the numerical majority was denied even the right to vote until 1920.

Women today face discrimination in employment as pervasive and more subtle than discrimination encountered by minority groups.

In vocational and higher education, women continue to face restrictive quotas no longer operative with respect to other population groups.

Their absence is conspicuous in Federal and State Legislative, Executive, and Judicial Chambers in higher civil service positions and in appointed posts in federal, state, and local government.

Surely, no one would suggest that race is not a suspect criterion in the District of Columbia because the black population here outnumbers the white.

Moreover, as Mr. Justice Douglas has pointed out most recently in Hadley v. Alabama 41 Law Week 3205, Equal Protection and Due Process of law apply to the majority as well as to the minorities.

Due to sex classifications listed by appellees imply a judgment of inferiority.

Even the Court below suggested that they do.

That court said it would be remiss if it failed to notice lurking in the background the subtle injury inflicted on servicewomen, the indignity of being treated differently so many of them feel.

Sex classifications do stigmatize when as in Goesaert v. Cleary 235 U.S., they exclude women from an occupation thought more appropriate to men.

The sex criterion stigmatizes when it is used to limit hours of work for women only.

Hours regulations of the kind involved in Muller v, Oregon though perhaps reasonable on the turn of the century conditions, today protect women from competing for extra remuneration, higher paying jobs, promotions.

The sex criterion stigmatizes when as in Hoyt v. Florida 368 U.S, it assumes that all women are preoccupied with home and children and therefore should be spared the basic civic responsibility of serving on a jury.

These distinctions have a common effect.

They help keep woman in her place, a place inferior to that occupied by men in our society.

Appellees recognize that there is doubt as to the contemporary validity of the theory that sex classifications do not brand the female sex as inferior. But they advocate a hold the line position by this Court unless and until the equal rights amendment comes into force.

Absent the equal rights amendment, appellees assert, no close scrutiny of sex-based classifications is warranted.

This Court should stand pat on legislation of the kind involved in this case, legislation making a distinction, servicewomen regard as the most frozen equity, the greatest irritant and the most discriminatory provision relating to women in the military service.

But this Court has recognized that the notion of what constitutes equal protection does change.

Proponents, as well as opponents of the Equal Rights Amendment, believe that clarification of the application of equal protection to the sex criterion is needed and should come from this Court.

Proponents believe that appropriate interpretation of the Fifth and Fourteenth Amendments would secure equal rights and responsibilities for men and women.

But they also stressed that such interpretation was not yet discernible and in any event, the amendment would serve an important function in removing even the slightest doubt that equal rights for men and women is fundamental constitutional principle.

In asking the Court to declare sex a suspect criterion, amicus urges a position forcibly stated in 1837 by Sarah Grimké abolitionist and advocate of equal rights for men and women.

She spoke, not elegantly, but with unmistakable clarity.

She said, “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”

In conclusion, amicus joins appellants in requesting that this Court reverse the judgment entered below and remand the case with instructions to grant the relief requested in appellants’ complaint.

Thank you.

 

 

Source: Library, Supreme Court, U.S., In the Supreme Court of the United States, Sharron A. Frontiero and Joseph Frontiero, Appellants, vs. Melvin R. Laird, et al., Appellees, Washington DC., pp. 14-20.