Public Law and Legal Theory Research Paper Series Research Paper No. 10-13

“When the Trouble Started”: The Story of Frontiero v. Richardson

Serena Mayeri

UNIVERSITY OF PENNSYLVANIA

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“When the Trouble Started”: The Story of Frontiero v. Richardson

Serena Mayeri

In 1969, a twenty-­three­ year ­old U.S. Air Force lieutenant married a twenty­-four ­year­ old college student. Had the lieutenant been a man, she would automatically have received a housing allowance and medical benefits for her spouse. Indeed, when Lt. Sharron Frontiero received her first post­wedding paycheck as a physical therapist at the Maxwell Air Force Base hospital in Alabama, she “thought it was a mistake. I set out to correct it,” she later recalled, “and that’s when the trouble started.”1

The “trouble” was that although Lt. Frontiero patiently made her way through the military base bureaucracy, eventually filing a formal complaint, the answer was always the same: official policy denied to female servicemembers the spousal benefits routinely available to men. For a married woman Air Force officer to receive a housing allowance and health insurance for her spouse, she had to prove that her income covered more than one ­half of her husband’s expenses.

Adding insult to injury, Lt. Frontiero’s colleagues were less than wholeheartedly supportive. Though she remembers asking other married women at the base to join her in suing the Air Force, the typical response reflected a reluctance to “cause trouble.”2 Worse, Frontiero remembered, “I had people telling me, ‘You’re lucky we let you into the military at all.’ And then I got mad.”3 Lt. Frontiero and her husband, Joseph, a veteran of the armed forces and a junior at Huntingdon College, consulted a local civil rights attorney, Joseph Levin. In December 1970, they filed a class action complaint in federal district court, contending that the statutes and regulations in question were “arbitrary and unreasonable, in that they deny equal protection of the laws to plaintiffs” in violation of the Fifth Amendment’s Due Process Clause.4

Selected material from this chapter will also appear in Reasoning from Race: Feminism and the Law in the Late Civil Rights Era (Harvard Univ. Press, forthcoming). For helpful comments and conversations, I am grateful to Regina Austin, Jill Fisch, Sarah Barringer Gordon, Seth Kreimer, Anne Kringel, Sarah Paoletti, Elizabeth M. Schneider, Stephanie M. Wildman, Tobias Wolff, and participants in the University of Pennsylvania Law School Faculty Workshop. For excellent research support, I am indebted to Alvin Dong, Benjamin Meltzer, and the staffs of the University of Pennsylvania’s Biddle Law Library and the Library of Congress.

1 Chris Carmody, Judge Ginsburg’s Ex­Clients Reflect Upon Their Cases, Nat’l L.J., June 28, 1993, at 34.

2 Kay Lazar, Fight for Equality Recalled, Boston Herald, Mar. 16, 2003, at 7.

3 Carmody, supra note 1.

4 Complaint, Frontiero v. Laird, Civ. A. No. 3232­N (M.D. Ala. Dec. 23, 1970) (on file Frank M. Johnson, Jr., Papers, Container 64, Folder: Frontiero v. Laird, Library of Congress [hereinafter FMJ Papers, Container 64, Folder: Frontiero v. Laird]). The Court had established years earlier that the standard of review under the Fifth

Electronic copy available at: http://ssrn.com/abstract=1583064

At the time that Sharron Frontiero sued, the federal courts’ sex discrimination record was, at best, lackluster. In 1970, the Supreme Court had yet to invalidate any sex discriminatory law under constitutional equality principles. The Court’s most recent pronouncement on women’s roles as citizens had located women “at the center of home and family life,” in the course of upholding state laws that exempted women from jury service.5 Although Congress had prohibited sex discrimination in employment several years earlier, the Equal Employment Opportunity Commission had largely failed to devote its limited resources to bringing cases on behalf of aggrieved women. The courts were still slow to recognize workplace inequities as civil rights violations.6 Indeed, after decades of division among women’s rights advocates over the desirability of pursuing a constitutional amendment to secure sex equality, judicial intransigence had helped to persuade a wide swath of feminist activists to support the Equal Rights Amendment as the only sure path to improving women’s legal status.7

The Middle District of Alabama, with headquarters in the Frontieros’ new domicile of Montgomery, was an exception to the generally dismal judicial reception feminist lawyers had encountered. Montgomery was home to two paragons of civil rights enforcement, Judges Frank

M. Johnson, Jr. and Richard T. Rives, both of whom had braved harassment and death threats for their support of African Americans’ struggle for racial justice.8 In 1966, Rives and Johnson handed feminists a landmark victory in a case called White v. Crook, a challenge to the de facto exclusion of Black men and the de jure exclusion of all women from a jury that acquitted the men accused of murdering civil rights activists Viola Liuzzo and Jonathan Daniels. In addressing sex discrimination alongside the pervasive race discrimination in Southern jury pools, they heeded the arguments of veteran women’s rights advocates Dorothy Kenyon and Pauli Murray of the ACLU. But White never reached the Supreme Court, dashing feminist hopes for a decisive ruling on women’s status under the Equal Protection Clause.9 Until the early 1970s, White remained one of just a handful of lower court cases hinting at the constitutional revolution to come.

“Administrative Convenience Is Not a Shibboleth”

The first break in what had seemed an impenetrable line of Supreme Court precedents declaring sex an eminently reasonable basis for legal classification came eleven months after the Frontieros filed suit. In Reed v. Reed, Sally Reed, who had lost her only child to suicide, challenged an Idaho law that designated her estranged husband Cecil as their son’s estate administrator merely because he was a man. ACLU legal director Melvin Wulf enlisted the help

Amendment’s due process clause was substantially the same as that under the Fourteenth Amendment’s Equal Protection Clause. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

5 Hoyt v. Florida, 368 U.S. 57, 62 (1961). 6 See Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy, 1960–72, at 205–32 (1990) (discussing the EEOC’s initial failure to enforce Title VII’s sex discrimination prohibition).

7 Serena Mayeri, Constitutional Choices: Legal Feminism and the Historical Dynamics of Change, 92 Cal. L. Rev.

755, 824 (2004). 8 See generally Jack Bass, Taming the Storm: The Life and Times of Judge Frank M. Johnson, Jr. and the South’s Fight Over Civil Rights (1993); Jack Bass, Unlikely Heroes (1990).

9 Linda K. Kerber, No Constitutional Right to Be Ladies 197­99 (1998); Mayeri, supra note 7, at 780.

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of his childhood friend, law professor and budding women’s rights expert Ruth Bader Ginsburg, in preparing Sally Reed’s brief to the Supreme Court. Drawing upon the theories developed by Kenyon and Murray in White, Ginsburg crafted what would come to be called the “grandmother brief”—a thoroughly researched and reasoned argument for treating laws that classified on the basis of sex as “suspect” and subject to the same “strict scrutiny” accorded to race­based classifications. Despite their best efforts, Ginsburg and Wulf were unable to convince Reed’s personal attorney, Allen Derr, to allow the ACLU to present oral arguments to the Supreme Court, but they did achieve a significant victory when the Court handed down its ruling in November 1971.10 Chief Justice Burger’s brief opinion for a unanimous Court struck down the Idaho provision preferring males to females:

To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.11

If the cryptic Reed opinion fell short of feminist hopes, it did offer sympathetic judges a doctrinal hook on which to hang new interpretations of women’s right to equal treatment under the federal Constitution. The Court handed down Reed while the three­judge panel—Rives, Johnson, and Judge Frank McFadden—was in the midst of deliberations in Frontiero.12 In contrast to their consensus a few years earlier in White, Rives and Johnson were ultimately unable to agree in the case that would become one of the pivotal sex discrimination decisions of the decade.

Even before Reed was decided, the judges—particularly Johnson—understood that Frontiero presented substantial constitutional questions.13 In a memorandum to Judge Johnson

10 Mayeri, supra note 7, at 815­17.

11 Reed v. Reed, 404 U.S. 71, 76–77 (1971).

12 Johnson and McFadden were district court judges; Rives, a Fifth Circuit judge, sat on the panel by designation.

13 The defendants objected to convening a three­judge panel, contending, inter alia, that “the Constitutional questions presented by this action are clearly insubstantial.” Motion to Dissolve Three­Judge Court, Frontiero v. Laird, Civ. A. No. 3232­N (M.D. Ala. Apr. 26, 1971) (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4). The government argued that Supreme Court precedents clearly established the validity of rational sex­based classifications. See Memorandum in Support of Defendants’ Motion to Dissolve Three­Judge Court, Frontiero v. Laird, Civ. A. No. 3232­N (M.D. Ala. Apr. 26, 1971) (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4). The court rejected these arguments, finding that “[w]hether a ‘rational basis’ is sufficient to meet due process requirements does not appear to be very well settled in sex classification cases.” Opinion on Motion to Dissolve Three­Judge Court at 4, Frontiero v. Laird, Civ. A. No. 3232­N (M.D. Ala. June 14, 1971) (per curiam) (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4).

Rives wrote to his colleagues in July 1971 that “the defendants’ brief is very sorry in my opinion, and the plaintiffs’ brief fails to answer the questions which trouble me.” Memorandum from Richard T. Rives, circuit judge,

U.S. Court of Appeals for the Fifth Circuit, on C.A. No. 3232­N—Frontiero v. Laird to Frank M. Johnson, Jr. & Frank H. McFadden, dist. judges, U.S. Dist. Court for the Middle Dist. of Ala. (July 8, 1971) (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4). Accordingly, the court requested additional briefing from

in July 1971, law clerk Jack Billings enumerated the political and economic discrimination suffered by women, including the paucity of women public officeholders, the widening income gap between men and women, and the courts’ affirmation of various restrictions on women’s employment. Billings concluded that “women have been the object of pervasive discrimination, albeit generally less blatant than that visited upon minorities” and urged the judge to declare sex a suspect classification. Both “prior cases” and the “growing recognition of [women’s] subjugation” supported such an outcome, Billings argued.14 Billings’ memo, with its lengthy discussion and endorsement of the race­sex analogy, formed the basis of Johnson’s draft opinion for the court, which he circulated to his colleagues in October.15 Johnson confessed in a cover note that he had “changed [his] mind two or three times about this case.”16 Rives’s reply indicated that his own conviction of the law’s validity had not changed upon pondering Johnson’s draft.17

One month later, the Supreme Court decided Reed. The parties in Frontiero submitted supplementary memoranda interpreting the impact of the Court’s ruling on their case. The defendants’ submission amounted to hardly more than a page asserting that Reed “reiterated that legislation should be upheld so long as it ‘bears a rational relationship to a state object that is sought to be advanced by the operation’ of the statutory provision.”18 In contrast, the plaintiffs’ addenda were significantly lengthier and more ambitious. Plaintiffs, not surprisingly, “attach[ed] no special significance to the fact that the Reed Court failed to adopt the compelling state interest test for sex classifications,” arguing that this choice “did not mean that a stricter standard may not be adopted in the future.”19 Reed, the plaintiffs urged, demolished defendants’ contention that administrative convenience provided an adequate justification for distinguishing between servicemen and ­women.20 Dees and Levin also sent the court an excerpt from a brief they had

the parties on several questions. See Letter from Jane P. Gordon, Clerk of Court, to Levin & Dees, et al. (July 19, 1971) (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4).

14 Memorandum from Jack Billings, law clerk, U.S. Dist. Court, on Frontiero v. Laird to Frank M. Johnson, Jr., dist. judge, U.S. Dist. Court for the Middle Dist. of Ala. (Jul. 8, 1971) (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4). Whatever might be said about sex­based classifications previously upheld by the Court, Billings argued, many of those laws had been “protective” in nature, while the challenged rules here were “clearly detrimental in effect.” Id. at 23.

15 See draft appended to Memorandum from Frank M. Johnson, Jr., dist. judge, U.S. Dist. Court for the Middle Dist. of Ala., on Frontiero v. Laird to Richard T. Rives, circuit judge, U.S. Court of Appeals for the Fifth Circuit (Oct. 28, 1971) (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4).

16 See id.

17 Memorandum from Richard T. Rives, circuit judge, U.S. Court of Appeals for the Fifth Circuit, on Frontiero v. Laird to Frank M. Johnson, Jr. and Frank H. McFadden, dist. judges, U.S. Dist. Court for the Middle Dist. of Ala. (Oct. 29, 1971) (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4).

18 Reply to Plaintiffs’ Memorandum Regarding Reed v. Reed, Frontiero v. Laird, Civ. A. No. 3232­N (M.D. Ala. Dec. 20, 1971) (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4). Judge Johnson wrote in the margin of his copy, “This begs ‘issue.’”

19 Memorandum Regarding United States Supreme Court’s Decision in Reed v. Reed, at 1, Frontiero v. Laird, Civ.

A. No. 3232­N (M.D. Ala. Dec. 8, 1971) (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4).

20 Id. at 4–7.

drafted for another case that never went to trial. The excerpt, as they put it, “trace[d] the history of sex discrimination from ancient Greece to modern America.”21

But notwithstanding Reed, the plaintiffs’ additional submissions, and an in­person conference among the three judges, Johnson remained unable to convince his colleagues to strike down the challenged distinction. While Johnson believed that Reed rendered administrative convenience an insufficient justification for laws that discriminated on the basis of sex, Rives and McFadden did not see the challenged statute as differentiating primarily on the basis of sex, nor did they read the cryptic Reed decision as wholly proscribing the use of administrative convenience as a rationale for sex­based classifications.22 Perhaps more importantly, they had difficulty viewing as discriminatory the assumption—underlying many federal benefits schemes, not just the military’s—that most marriages joined a breadwinning husband and a dependent housewife. As Judge Rives’s law clerk, David Golden, argued in a December memo:

This distinction could rationally have been drawn on a theory that in most instances the husband or father is head of the household, his wife is in fact his dependent, and his unmarried, legitimate minor children are in fact his dependents . . . . It is the relationship between husband and wife and between father, mother, and child that warrant the favorable treatment accorded male members by the statute.”23

Further, Rives read Reed as rejecting the suspect classification analysis that Johnson’s original draft opinion embraced. The Reed decision only confirmed his earlier assessment that while “[l]ess favorable treatment because of racial difference would be invidious discrimination . . . . That has not been held true as to different treatment accorded to males and females.”24

The majority’s final opinion essentially applied a balancing test to determine whether the burden on servicewomen occasioned by the requirement that they prove their husbands’ dependency outweighed the substantial administrative costs the government saved by not requiring the same proof from male servicemembers.25 Servicewomen whose husbands were

21 Morris Dees, Southern Poverty Law Center, to Richard T. Rives, circuit judge, U.S. Court of Appeals for the Fifth Circuit (Jan. 4, 1972) Re: Frontiero v. Laird (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4).

22 Frontiero v. Laird, 341 F. Supp. 201, 209 (M.D. Ala. 1972).

23 Memorandum from David S. Golden, law clerk, U.S. Dist. Court for the Middle Dist. of Ala., to Richard T. Rives, circuit judge, U.S. Court of Appeals for the Fifth Circuit 4–5 (Dec. 16, 1971) (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4).

24 R[ichard].T. R[ives], Memorandum, Oct. 29, 1971, Re: Frontiero v. Laird (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4).

25 From the documents in Judge Johnson’s papers, the final opinion for the majority appears to have been a collaborative effort between Judges Rives and McFadden. See, e.g., Memorandum from [Richard T.] Reeves, circuit judge, U.S. Court of Appeals for the Fifth Circuit, on Frontiero v. Laird to Frank H. McFadden & Frank M. Johnson, Jr., dist. judges, U.S. Dist. Court for the Middle Dist. of Ala. Mar. 27, 1972, Re: Frontiero v. Laird (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4). Judge McFadden thought that “the opinion should be either per curiam or the credit for it should go to Judge Rives.” Memorandum from Frank McFadden, dist. judge, U.S. Dist. Court for the Middle Dist. of Ala., on Frontiero v. Laird to Richard T. Rives, circuit judge,

U.S. Court of Appeals for the Fifth Circuit, & Frank M. Johnson, Jr., dist. judge, U.S. Dist. Court for the Middle

truly dependent upon them for more than half of their expenses were not, Rives and McFadden observed, deprived of the benefits servicemen received. Rather, women whose husbands were not dependent merely missed the “windfall” available to the (presumably few) male servicemembers with economically independent wives.26 The majority opinion did acknowledge the plaintiffs’ arguments in passing: “The Court would be remiss,” the judges wrote, “if it failed to notice, lurking behind the scenes, a subtler injury purportedly inflicted on service women . . . under these statutes. That is the indignity a woman may feel, as a consequence of being the one left out of the windfall, of having to traverse the added red tape of proving her husband's dependency, and, most significantly, of being treated differently.” The court, they insisted, “is not insensitive to the seriousness of these grievances,” but rather saw them as “a misunderstanding of the statutory purpose.” Congress had merely acted on the basis of economic and administrative realities. If married couples began to depart from the male breadwinner/female homemaker model in large numbers, he suggested, practical realities would undermine the statute’s rational basis. But, they contended, “There is no reason to believe that the Congress would not respond to a significant change in the practical circumstances presumed by the statutory classification or that the present statutory scheme is merely a child of Congress’ ‘‘romantic paternalism’ and ‘Victorianism.’”27

Though his draft opinion had boldly embraced the argument that sex should be treated like race for the purposes of equal protection analysis, in the end, Johnson based his dissent on Reed, without expressing any view on whether sex should be a suspect classification.28 Nevertheless, Johnson’s dissent offered a robust reading of Reed. After querying whether the statutory scheme served the goal of administrative convenience at all, Johnson questioned the objective’s validity. Reed, he wrote, established that “administrative convenience is not a shibboleth, the mere recitation of which dictates constitutionality.”29

Indeed, in the following months, some commentators saw in Reed the seeds of a new equal protection jurisprudence, one that softened the rigid dichotomy between the traditionally lenient “rational basis” or “reasonableness” standard, on the one hand, and the stringent “strict scrutiny” review, on the other.30 Eminent constitutional scholar Gerald Gunther of Stanford Law School explicated this view in his widely cited Harvard Law Review Foreword.31 In a “truly startling and intriguing development[],” Gunther wrote, the Court in several 1971 Term cases, including Reed, had “found bite in the equal protection clause after explicitly voicing the

Dist. of Ala (Mar. 28, 1972) (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4). In the end, the opinion was signed by both judges.

26 Frontiero v. Laird, 341 F. Supp. 201, 207–08 (M.D. Ala. 1972)

27 Id. at 209.

28 See id.

29 Id. at 211 (Johnson, J., dissenting).

30 As Gerald Gunther put it in 1972, under the Warren Court’s equal protection jurisprudential approach, “[s]ome situations evoked the aggressive “new” equal protection, with scrutiny that was “strict” in theory and fatal in fact; in other contexts, the deferential “old” equal protection reigned, with minimal scrutiny in theory and virtually none in fact.” Gerald Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).

31 See id. at 1–8.

traditionally toothless minimal scrutiny standard.”32 He suggested that these decisions might augur a “principled” expansion of equal protection analysis that would accept the legitimacy of the government’s proffered objective in enacting a law or policy, but would examine the relationship, or “fit,” between means and ends more carefully than the rational basis standard had previously done.33 Gunther also noted, however, that although the Court “purported to avoid” the “application of new equal protection criteria in Reed, Reed’s result was difficult to justify in the absence of “an assumption that some special sensitivity to sex as a classifying factor entered into the analysis.”34 Ginsburg wrote to Gunther, her former professor, that his Foreword “lived up to expectations.” She confessed that “[w]ith an eye on ACLU cases rather than scholarly concern,” she had “some fears about how Reed would fare” in his analysis, but the article put her “completely at ease on that score.”35

The disagreement between Rives and Johnson in Frontiero mirrored Reed’s mixed reception in the lower courts. A number of courts during the period between Reed and the Supreme Court’s decision in Frontiero applied Reed to strike down sex-­based legal classifications; others distinguished Reed, or otherwise applied the ruling narrowly. One of the most ­litigated sex discrimination issues in the early 1970s concerned discrimination based on pregnancy—in particular, policies that mandated leaves of absence for pregnant workers and regulations that required the discharge of military servicewomen who became pregnant. Courts were divided about whether pregnant women could be singled out for discharge and what, if anything, the Court’s recent change of heart about sex-­based classifications meant for pregnancy discrimination.36

Similar disagreements pervaded other areas of the law. At least two courts found that a law prohibiting massage therapists from serving clients of the opposite sex violated equal protection;37 while another permitted the criminalization of female but not male prostitutes; and still another struck down a sentencing scheme that differentiated between male and female juvenile offenders.38 Some courts held that denying girls the opportunity to play non­contact sports on boys’ athletic teams in the absence of an all­ female alternative violated equal protection; another upheld a school district’s rules placing special limitations on girls’ athletic contests as consistent with Reed.39 A Pennsylvania court outlawed sex­segregated job

32 Id. at 18–19.

33 Id. at 20–25.

34 Id. at 34.

35 Letter from Ruth Bader Ginsburg, Am. Civil Liberties Union, [hereinafter RBG] to Gerald Gunther, Stanford Law Sch. (Dec. 26, 1972) (on file Ruth Bader Ginsburg Papers, Container 3, Folder: Frontiero v. Richardson, 1972, Library of Congress [hereinafter RBG Papers, Container 3, Folder: Frontiero v. Richardson, 1972]).

36 Compare, e.g., Schattman v. Texas Employment Comm’n, 459 F.2d 32 (5th Cir. 1972), with Williams v. San Francisco Unified Sch. Dist., 340 F. Supp. 438 (N.D. Cal. 1972).

37 J.S.K. Enterprises v. City of Lacey, 492 P.2d 600 (Wash. Ct. App. 1971); Corey v. City of Dallas, 352 F. Supp. 977 (D.C. Tex. 1972).

38 Wilson v. State, 278 N.E.2d 569 (Ind. 1972); People v. Ellis, 293 N.E.2d 189 (Ill. App. Ct. 1973).

39 Haas v. South Bend Cmty. Sch. Corp., 289 N.E.2d 495 (Ind. 1972); Bucha v. Illinois High Sch. Ass’n, 351 F. Supp. 69 (D.C. Ill. 1972); Brenden v. Independent Sch. Dist., 477 F.2d 1292 (8th Cir. 1973).

advertisements, while a New York judge dismissed a complaint challenging the use of “girls” in an employment agency’s name.40 Panels of judges frequently disagreed among themselves over Reed’s meaning: for instance, when Louisiana’s highest court upheld a grant of custody to a mother based in part on the traditional “tender years” presumption, a dissenting justice cried foul, arguing that Reed provided constitutional support for the proposition that “[t]he social basis for favoring the mother which once existed because the mother was the homemaker and child­tender while the father was the breadwinner has almost totally disappeared.”41

A “Nixonian Low Profile”

Feminists hoped the Frontiero case would undermine these assumptions about male and female roles once and for all. They also sought to resolve confusion over the proper standard of review for sex­based classifications. To these ends, Ginsburg and her colleagues were anxious not to allow another women’s rights case to be weakly presented to the Supreme Court. Once the Frontieros appealed the three­judge court’s decision, the ACLU’s newly established Women’s Rights Project (“WRP”) hoped to assume responsibility for the litigation. An exchange of letters between Frontiero’s original lawyers and various ACLU attorneys reveals a struggle for control over the case. A number of issues caused friction: the WRP urged that the case should be argued by a female attorney—Ginsburg—but Levin wrote to Wulf in October 1972 that he and Dees, who had, the previous year, founded the Southern Poverty Law Center (“SPLC”), had decided to argue the case themselves.42 Though they were willing to consult with WRP lawyers on the contents of the briefs and preparation for oral argument, Levin explained, “We have invested a great deal of time and effort in this case and would like to see it through to its conclusion. I hope you understand our desire to follow through in this—it is our first opportunity to argue a case before the Court and we have grown very attached to this particular case over the past couple of years.”43

The SPLC and ACLU also had strategic disagreements: the SPLC’s Chuck Abernathy, who became involved in the case once it reached the Court, thought it best to keep a “Nixonian low profile,” given the “Burger Justices’ preoccupation with decisions which would have a revolutionary impact on the courts (if not the law),” and resisted the idea of extensive amicus involvement.44 He summed up his more cautious approach: “A decision for us on the merits here will set the same high precedent for other laws of this nature regardless of whether the Court realizes or acknowledges the pervasiveness of such benefit classifications.”45 Abernathy’s

40 Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 287 A.2d 161 (Pa. Commw. Ct. 1972); Phillips

v. State Human Rights Appeal Bd., 41 A.D.2d 710 (N.Y. App. Div. 1973).

41 Estes v. Estes, 258 So. 2d 857, 862 (La. 1972).

42 Joseph Levin, Southern Poverty Law Center, to Melvin Wulf, Am. Civil Liberties Union, (Oct. 17, 1972) (on file RBG Papers, Container 3, Folder: Frontiero v. Richardson, 1972, supra note 35).

43 Id. (Levin to Wulf).

44 Letter from Charles F. Abernathy, Southern Poverty Law Center, to Brenda Fasteau, American Civil Liberties Union (Oct. 19, 1972) (on file RBG Papers, Container 3, Folder: Frontiero v. Richardson, 1972, supra note 35). By “preoccupation,” Abernathy apparently meant that the political climate on the Court had recently become hostile toward the judicial innovations many perceived as the legacy of the Warren Court.

45 Id. (Abernathy to Fasteau, Oct. 19).

correspondence also suggests some pique at the WRP’s attempts at intervention: as he wrote to WRP lawyer Brenda Feigen Fasteau in October 1972, “Given the nature of your suggestions up to now, I think our arguments are at a higher level of sophistication than you suspect, and that, of course, makes me a bit reticent in incorporating your general suggestions into the brief.”46

The WRP was not about to give up control of the case without a fight. Ginsburg wrote to Abernathy a week later: “Mel, Brenda and I were caught off guard by your October 17 letter indicating your change of mind on the Frontiero argument. Of course, every lawyer would like to present to the Supreme Court a case in which he or she has been a major participant. However, we assumed responsibility for the jurisdictional statement on the express understanding that the Women’s Rights Project would supervise the case at the Supreme Court level and that I would argue it.” She continued:

I am not very good at self­advertisement, but believe you have some understanding of the knowledge of the women’s rights area I have developed over the past two years. Also, the importance of argument by a woman attorney in a case of this significance is a matter now appreciated by male colleagues who once resisted the suggestion that they might not make the best representative.47

Levin responded almost immediately: “I find myself trying to determine at exactly what point in time we allowed ourselves to become ‘assistants’ in our own case . . . . There is nothing chauvinistic in our desire to present oral argument. We have carried this case from its inception and do not intend to lose control over it at this stage. I do not believe it makes one iota of difference whether a male or female makes this argument.”48 Levin concluded: “I am normally the easiest guy in the world to get along with and find it very uncomfortable to engage in squabbling of any sort, petty or otherwise. But let me make it clear that this is our case. We can handle it with or without the cooperation of ACLU—we would prefer the former.”49 Ginsburg stood firm.

I suppose it is hard for either of us, at this stage, to see each other as we describe ourselves. The ‘easiest guy in the world to get along with,’ in my book, would not renege on an understanding. On the other hand, my attempt to bring you back to where we stood

46 Id. (Abernathy to Fasteau, Oct. 19).

47 Letter from RBG to Joseph Levin, Southern Poverty Law Center (Oct. 24, 1972) (on file RBG Papers, Container 3, Folder: Frontiero v. Richardson, 1972, supra note 35).

48 Letter from Joseph Levin, Southern Poverty Law Center, to RBG (Oct. 27, 1972) (on file RBG Papers, Container 3, Folder: Frontiero v. Richardson, 1972, supra note 35). Levin wrote by way of explanation: “I thought I explained clearly to Mel [Wulf] and Brenda [Feigen Fasteau] that we needed assistance on the jurisdictional statement for two reasons—(1) Morris had left the office to go full­time with McGovern until November 7th, and (2) Chuck Abernathy had just returned to school and was faced with the demanding job of getting the Civil Rights ­Civil Liberties Law Review going. These two events left me responsible for the entire caseload of the Center. There was no time to do an adequate job on a jurisdictional statement. At that time I thought I made it clear that we intended to do the brief on the merits and I know for certain we never intended to abdicate our role as counsel for Appellants simply because the case reached the Supreme Court…Yes, during my discussions with Mel [Wulf], I did indicate a willingness to let you handle oral argument. However, after a great deal of thought, I no longer think that is the best approach.” Id.

49 Id.

on the oral argument from May­October probably does not seem to you to have been penned by someone who is, by nature, rather modest.50

In the end, the two organizations went their own ways, canceling their planned meeting.51 The WRP instead filed an amicus brief, and Ginsburg was afforded time to present its arguments to the Court.

In Ginsburg’s words, the WRP brief’s “approach and substantive content . . . differ[ed] substantially” from the SPLC’s brief for the appellants.52 Most notably, the WRP’s submission built upon the Reed “grandmother brief,” advancing the argument that the similarities between race and sex discrimination, and between the historical and legal treatment of African Americans and women, warranted the extension of suspect classification status to sex.53 A “Nixonian low profile” it was not. Up until almost the last minute, the WRP tried to convince the SPLC to highlight the suspect classification argument, to no avail.54

At oral argument, Levin began by disputing the government’s statistics regarding relative income and economic dependency; he also emphasized that the injustice challenged by the Frontieros was the “substantive inequality” visited upon women.55 In response to a question from one of the Justices, Levin contended that the government’s only legitimate asserted interest in maintaining the sex­based classification was administrative convenience, a justification rejected in cases like Reed. Eventually the discussion turned to the appropriate standard of review. Levin noted the difference between the SPLC’s position and the WRP’s: “Professor Ginsburg,” he told the Justices, would argue for strict scrutiny, but he suggested that such a “choice between polar alternatives”—traditional rational basis review and strict scrutiny—was unnecessary to the resolution of the case. Rather, he proposed an “intermediate” approach. The Court, he said, should weigh the governmental interest promoted by the classification against “what fundamental personal rights . . . the classification [might] endanger.” Justice Rehnquist

50 Letter from RBG to Joseph Levin, Southern Poverty Law Center (Oct. 31, 1972) (on file RBG Papers, Container 3, Folder: Frontiero v. Richardson, 1972, supra note 35).

51 Ginsburg wrote, “In view of the new signals coming from you, I do not think we should go ahead with the November 6 meeting.” Letter from RBG to Joseph J. Levin, Southern Poverty Law Center (Oct. 31, 1972) (on file RBG Papers, Container 3, Folder: Frontiero v. Richardson, 1972, supra note 35).

52 Letter from RBG to Joseph Levin, Southern Poverty Law Center (Dec. 5, 1972) (on file RBG Papers, Container 3, Folder: Frontiero v. Richardson, 1972, supra note 35).

53 Ginsburg described the Reed brief as growing out of her brief in the first case she argued in court, Moritz v. Commissioner of Internal Revenue. See Letter from RBG to Charles Abernathy and Joseph Levin (Oct. 16, 1972) (on file RBG Papers, Container 3, Folder: Frontiero v. Richardson, 1972, supra note 35).

54 See RBG to Joseph Levin, Dec. 5, 1972 (on file RBG Papers, Container 3, Folder: Frontiero v. Richardson, 1972, supra note 35) (“We expect to file our amicus in Frontiero on Friday. The approach and substantive content of the brief differs substantially from the brief for appellants. After you have had a chance to read the brief, it might be fruitful to discuss the differences.”); RBG to Joseph Levin, Dec. 20, 1972 (on file RBG Papers, Container 3, Folder: Frontiero v. Richardson, 1972, supra note 35) (“We hope you will read our Frontiero brief with close attention (we are very fond of it) and rethink your position on suspect classification. Your call is anticipated with interest.”).

55 The following description is based upon Transcript of Oral Argument, Frontiero v. Richardson, 411 U.S. 677 (No. 71­1694), reprinted in 76 Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law 848–56 (Philip B. Kurland & Gerhard Casper eds., 1975).

interjected: “You say that it is a personal right you are claiming here . . . it is a personal right to more money, isn’t it?” Levin replied, “It is a personal right, Mr. Justice Rehnquist, to be free from discrimination in employment.” A few minutes later, another Justice chimed in, “Do you feel that a statute enacted by the Congress, or a statute enacted by the legislature of a state, was presumptively constitutional? You don’t hear very much about that any more.” Levin responded, “I think that that is fine, except when the state is classifying different groups, and especially when they are classifying a group which has traditionally been the object of discrimination.” Soon thereafter, he realized that his argument had spilled over into the WRP’s allotted time, and he turned the lectern over to Ginsburg.

“Amicus,” Ginsburg began crisply, “views this case as kin to Reed v. Reed . . . . 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 breadwinning experience.” She made clear at the outset that the WRP did not believe the challenged benefits scheme could meet even a rationality standard. “Nonetheless,” she said, “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.” In lower federal and state courts, she told the Justices, the “standard of review in sex discrimination cases is, to say the least, confused.” She urged the Court to clear up the confusion by making sex unambiguously a suspect classification. Invoking Gunther’s analysis, she observed that the Court had already laid the groundwork for such a conclusion in Reed. Further, “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.” Ginsburg acknowledged that the “core purpose” of the Fourteenth Amendment was “to eliminate invidious racial discrimination.” “But why,” she asked rhetorically, “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.” Ginsburg further pointed out that the Court had extended protections originally designed for race to other categories—national origin and alienage.

Ginsburg went on to address what she saw as the two primary arguments against recognizing sex­based classifications as suspect: first, that “women are a majority” of the population; and second, that classifications based on sex did not imply the “inferiority of women.” But numerical superiority notwithstanding, she argued, women had not received the right to vote until a mere half­century earlier; women continued to encounter discrimination in employment “as pervasive and more subtle” than that encountered by racial minority groups; quotas continued to limit women’s access to higher education; and women’s “absence” from high­level government positions remained “conspicuous.” As to inferiority, she noted that “even the court below” had recognized the potential injury to women from differential treatment. She then offered several examples of stigmatizing sex­based classifications upheld by the Court over the previous decades—hours and wage regulations that prevented women from competing with men for high­paying jobs;56 the outright exclusion of women from opportunities available to men;57 the assumption that all women were preoccupied with family responsibilities and

56 See Muller v. Oregon, 208 U.S. 412 (1908).

57 See Goesaert v. Cleary, 335 U.S. 464 (1948).

therefore unable to serve as jurors and fulfill a “basic civic responsibility.”58 “These distinctions have a common effect. They help keep woman in her place, a place inferior to that occupied by men in our society.”

Ginsburg also tackled the argument that the Court should not move to scrutinize sex classifications more stringently unless and until the requisite number of states ratified the Equal Rights Amendment. She argued that the content of equal protection had changed over time, and that both proponents and opponents of the ERA agreed that clarification of the Fourteenth Amendment’s applicability to sex discrimination was needed and should come from the Court. Ginsburg was reaching the end of her prepared statement, and the Justices, unusually, had not interrupted her with a single question. She concluded with a quotation from the nineteenth­century abolitionist and women’s rights leader Sarah Grimke: “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”

Among Ginsburg’s present day “brethren” in the Supreme Court bar was Solicitor General Erwin Griswold, who had signed the brief submitted by the government in Frontiero. Ginsburg had crossed paths with Griswold before; at Harvard Law School in the late 1950s, she participated in a now­notorious ritual: a dinner for the small coterie of female students at then­Dean Griswold’s home in Cambridge. Griswold famously asked his guests why they were occupying a seat in the law school class that could have gone to a man; Ginsburg, who would go on to win a coveted spot on the Law Review, reportedly replied “diffidently” that she hoped to better understand the work of her husband, Marty, also a law student.59

Griswold, who had served as an expert witness for the NAACP in the litigation leading up to Brown v. Board of Education and as a member of the U.S. Civil Rights Commission during much of the 1960s, was a highly respected attorney and scholar. A moderate Republican originally appointed to the Solicitor General’s office by a Democratic President, Lyndon B. Johnson, Griswold had replaced Thurgood Marshall as Solicitor General upon Johnson’s appointment of Marshall to the Supreme Court in 1967. At Harvard, he had presided over the end of the law school’s ban on female students, and notwithstanding his reputation for putting female students on the spot over dinner, was no stranger to arguments for women’s equal rights. Indeed, a decade before Frontiero reached the Supreme Court, Griswold had corresponded with pioneering feminist lawyer Pauli Murray about the very litigation strategy that Ginsburg had now undertaken to implement. Murray, whose own attempt to gain admission to Harvard Law School in the 1940s had been rebuffed by one of Griswold’s predecessors, had in 1962 proposed to the President’s Commission on the Status of Women (“PCSW”) that advocates launch a campaign to win equal rights for women through litigation under the Equal Protection Clause of the Fourteenth Amendment.

Murray hoped that a court­based strategy modeled on the NAACP Legal Defense Fund’s success would overcome long­standing feminist divisions over the desirability of an Equal Rights Amendment and link the sometimes divergent civil rights and women’s rights movement

58 See Hoyt v. Florida, 368 U.S. 57 (1961).

59 Fred Strebeigh, Standard­Bearer, Legal Affairs, Sept.­Oct. 2003, at 38.

in common cause.60 Murray’s memorandum to the PCSW made the case for applying a higher level of scrutiny to sex­based classifications than the traditionally lax “reasonableness” standard, and both her substantive and strategic arguments relied heavily on an analogy between race and sex inequality. She sent the memo to a range of interested parties, including Dean Griswold, who replied cordially but noncommittally. After praising her “excellent memorandum,” Griswold confessed that he found himself “rather lukewarm” about her equation of race and sex discrimination. “Somehow or other, it has always seemed to me that there are differences in sex, and that these differences may, in appropriate cases, be the basis of classification for legal purposes,” he wrote.61

The government’s position in Frontiero almost a decade later reflected a similar stance.62 Assistant Solicitor General Samuel Huntington began his oral argument by buttressing with statistics the government’s contention that the social fact that most women were economically dependent upon their husbands provided a sufficiently rational basis for the classification. Even in families where wives worked, Huntington explained, their contribution to household income almost never exceeded their husbands’ share. When asked whether Congress had considered such statistics in enacting the statute more than twenty years earlier, he replied that the legislative history did not indicate that they had, but added, “I don’t believe this is the type of case where you have to strain your imagination to dream up some conceivable rationale behind the statute.” He attempted to distinguish Reed on the grounds that there had been no evidence in the record that men were, as a group, better suited to serve as estate administrators than women.

Huntington then turned to the standard of review question that had been at the heart of Ginsburg’s presentation. He first discounted Levin’s contention that a “fundamental personal right” was at stake in the case, and instead argued that the only way for the Court to apply a higher level of scrutiny in Frontiero was to declare sex a suspect classification. He also addressed Gunther’s argument that the two­tier scrutiny scheme had become passé, arguing that even under the heightened rational basis standard Gunther had identified in Reed and other recent cases, the challenged classification would be justifiable.

Finally, Huntington tackled Ginsburg’s argument. The other categories—race, national origin, and alienage—identified by the Court as suspect had encompassed the sort of “discrete and insular minorities” contemplated by the Court’s famous 1938 footnote in U.S. v. Carolene Products. Those groups’ members lacked sufficient political clout to represent their own interests effectively. Though women admittedly had not achieved political power equal to men, Huntington argued that legislation like the proposed Equal Rights Amendment constituted compelling evidence of women’s burgeoning political influence. Further, he contended, sex­based classifications, unlike those based on race and the other suspect categories, “frequently are

60 See generally Serena Mayeri, Note, “A Common Fate of Discrimination”: Race/Gender Analogies in Legal and Historical Perspective, 110 Yale L.J. 1045 (2001).

61 Letter from Erwin N. Griswold, dean, Harvard Law School, to Pauli Murray (Jan. 31, 1963) (on file Pauli Murray Papers, MC 412, Box 49, Folder 878, Schlesinger Library, Radcliffe Institute, Harvard University), quoted similarly in Mayeri, supra note 7, at 765–66.

62 See, e.g., Brief for Appellees at 6, Frontiero v. Richardson, 411 U.S. 677 (1973) (No. 71­1694) (“Sex…does not share most of the qualities that have led to the rigid scrutiny of classifications based on race, national origin, or alienage….”).

not arbitrary, but reflect actual differences between the sexes which are relevant to the purpose of the statutes containing the classifications.” Rational basis review allowed courts to decide “on a case­by­case basis” which classifications were based on “physiological or factual” differences and which had no such basis. To treat women differently for the purpose of government benefit allocation because they were less likely to have dependents or to exempt women from jury service because they were more likely to have family responsibilities was not arbitrary, but eminently reasonable. Huntington concluded: “[W]e have no quarrel with the drive of many women to achieve equality by attacking statutes enacted in a different era that may reflect antiquated notions of the respective roles of the sexes. We submit, however, that the plea for across the board change . . . is better addressed to the legislatures rather than to the courts.” Both of these rebuttals to Ginsburg’s case for strict scrutiny—the invalidity of the race­sex analogy and women’s status as a numerical majority, obviating any need for protection of women in the democratic process—cannily anticipated the obstacles feminists would confront as Frontiero was submitted to the Court.

“A Lot of People Sire Offspring Unintended!”

At conference, the Justices’ discussion centered on whether the Court should view Frontiero as “kin to Reed,” in Ginsburg’s words. Chief Justice Warren E. Burger led off by asserting that Frontiero had “nothing to do with” Reed, but could potentially have an “enormous” impact on the armed forces generally. But the next seven Justices, speaking in order of seniority, disagreed.63 Only the Court’s newest member, Justice Rehnquist, who had given equivocal testimony about the ERA before Congress as a representative of Nixon’s Justice Department just months before,64 joined the Chief in voting against the Frontieros. Still, at conference, none of the Justices focused on the amicus ACLU’s argument that sex should be a suspect classification.65

But the Justices’ post­conference deliberations did address the question of whether the Court should take the more radical step Ginsburg had proposed—declaring sex a suspect classification. Justice William O. Douglas, as the most senior Justice in the majority, exercised his prerogative to assign the Court’s opinion to Justice William J. Brennan, Jr. Brennan, after drafting an opinion that struck down the benefits scheme under Reed’s rationality standard, wrote a memo to his colleagues indicating his willingness to craft a broader ruling: “I do feel . . . that this case would provide an appropriate vehicle for us to recognize sex as a ‘suspect criterion.’ Perhaps,” he wrote, “there is a Court for that approach. If so, I’d have no difficulty writing an opinion along these lines.”66 Justice Lewis F. Powell, Jr. quickly replied, signing onto Brennan’s more cautious draft and stating that he saw “no reason to consider whether sex is a ‘suspect’

63 Strebeigh, supra note 59, at 41.

64 See Mayeri, supra note 7, at 813.

65 Strebeigh, supra note 59, at 41.

66 Memorandum from Lewis F. Powell, Jr., associate justice, U.S. Supreme Court, to William J. Brennan, Jr., associate justice, U.S. Supreme Court (Feb. 15, 1973) (on file Justice William J. Brennan, Jr. Papers, Part I:299, Folder 11, Library of Congress [hereinafter WJB Papers, Part I: 299, Folder 11]).

classification in this case. Perhaps we can avoid confronting that issue until we know the outcome of the Equal Rights Amendment,” he suggested.67

Justice Byron White took a different approach to the relationship between the ERA’s pendency and the appropriate judicial interpretation of the equal protection clause. He agreed with Justice Marshall’s expressed view that, as White put it, “Reed applied more than a rational basis test,” perhaps rendering sex a suspect classification already. “In any event,” White wrote, “I would think that sex is a suspect classification, if for no other reason than the fact that Congress has submitted a constitutional amendment making sex discrimination unconstitutional. I would remain of the same view whether the amendment is adopted or not.”68 Justice Potter Stewart came down on Powell’s side, writing to his colleagues, “I see no need to decide in this case whether sex is a ‘suspect’ criterion, and I would not mention the question in the opinion.” Stewart suggested an opinion for the Court describing the classification as “invidious discrimination,” which he called “an equal protection standard to which all could repair.”69

In light of these disagreements, Brennan drafted a new opinion that did declare sex to be “suspect.” Powell remained unpersuaded. Powell wrote that his “principal concern” continued to be the prospect of “preempting the amendatory process initiated by the Congress.”70 Others, interestingly, saw Frontiero as an opportunity to derail the ERA: James Ziglar, a former aide to Senator James O. Eastland of Mississippi and now law clerk to Justice Harry A. Blackmun, introduced the litigation to his boss as “the much­heralded women’s rights case which I hope will head­off the Equal Rights for Women Amendment.”71 Though Ziglar believed that there was “little real difference in classifications based on race and alienage from those based on sex,” he feared the ERA would make sex an “absolutely prohibited” classification, and preferred suspect classification status because he believed it would allow for somewhat greater flexibility in classifying by sex while striking down invidious discriminations against women. Frontiero, in his view, presented a “difficult choice”: If the Court struck down the challenged provision, “the impact on the Equal Rights Amendment would be minimal . . . . However, if you apply the ‘suspect classification’ doctrine to sex­based classifications, you do leave some elbow room for

67 Memorandum from Lewis F. Powell, Jr., associate justice, U.S. Supreme Court, to William J. Brennan, Jr., associate justice, U.S. Supreme Court (Feb. 15, 1973) (on file WJB Papers, Part I:299, Folder 11, supra note 66).

68 Memorandum from Byron R. White, associate justice, U.S. Supreme Court, to William J. Brennan, Jr., associate justice, U.S. Supreme Court (Feb. 15, 1973) (on file WJB Papers, Part I:299, Folder 11, supra note 66).

69 Memorandum from Potter Stewart, associate justice, U.S. Supreme Court, to William J. Brennan, Jr., associate justice, U.S. Supreme Court (Feb. 16, 1973) (on file, WJB Papers, Part I:299, Folder 11, supra note 66).

70 Memorandum from Lewis F. Powell, Jr., associate justice, U.S. Supreme Court, to William J. Brennan, Jr., associate justice, U.S. Supreme Court (March 2, 1973) (on file Lewis F. Powell, Jr. Papers, Powell Archives, 71­1694 Frontiero v. Laird, Supreme Court Case Files, Washington and Lee University School of Law [hereinafter LFP Papers, 71­1694 Frontiero v. Laird, Supreme Court Case Files]).

71 Bench Memorandum from J[ames] W[.] Z[iglar], law clerk, U.S. Supreme Court, on Frontiero v. Laird, No. 71­1694, to Harry A. Blackmun, associate justice, U.S. Supreme Court 1 (Jan. 7, [1973]) [hereinafter Ziglar Bench Memo] (on file Harry A. Blackmun Papers, Box 163, Folder 9, Supreme Court Case File, Library of Congress [hereinafter HAB Papers, Box 163, Folder 9, Supreme Court Case File]).

classifications based on a compelling state interest. Of course,” Ziglar acknowledged, “there is always the chance that the Amendment will pass anyway or that it may never pass.”72

Ziglar wavered on the extent to which he believed the ERA should be a factor in the Court’s decision in Frontiero; a month after his initial memo to Justice Blackmun, he wrote, “Although I think a holding that sex is a suspect classification would seriously dampen enthusiasm for the Equal Rights Amendment, I now wonder whether the Court should put itself in a straight­jacket [sic] for the sake of heading off this Amendment.”73 Later, though, after Brennan circulated the new draft opinion declaring sex a suspect classification, Ziglar recommended that Blackmun join. “Justice Brennan’s circulation seems to give us the best of both worlds. While sex is treated as a ‘suspect’ classification and thus invokes the rigid scrutiny required to sustain such a classification, Justice Brennan makes it clear . . . that ‘frequently’ there is no basis for classifications based on sex. I read this to mean that the traditional ‘rigid scrutiny’ will not be blindly applied in sex classification cases.”74 But Blackmun apparently did not agree. He acknowledged that Frontiero had “afforded [him] a good bit of difficulty, but indicated his agreement with Powell and Stewart that “Reed v. Reed is ample precedent here . . . we should not, by this case, enter the arena of the proposed Equal Rights Amendment.”75

Brennan had not given up, however. In a memo to Justice Powell he explained his position: “You make a strong argument and I have given it much thought. I come out however still of the view that the ‘suspect’ approach is the proper one and, further, that now is the time, and this is the case, to make that clear.” Brennan declared himself convinced by Justice Marshall’s dissent in a recent decision, San Antonio Independent School District v. Rodriguez, that Reed had effectively elevated the standard of scrutiny applicable to sex­based classifications. Moreover, he wrote, “we cannot count on the Equal Rights Amendment to make the Equal Protection issue go away.” Presciently, in March 1973, Brennan predicted that the ERA would not be ratified by three­quarters of the states, calling the amendment a “lost cause.” He concluded, “I therefore don’t see that we gain anything by awaiting what is at best an uncertain outcome.”76

72 Ziglar Bench Memo, supra note 71, at 13–16. Ziglar continued: “I do not suggest that the Court should make its decision in a particular way simply because a Constitutional Amendment is threatened. Quite to the contrary, I think the Court must apply the relevant constitutional analyses in determining this issue, as it no doubt will. However, the Amendment does seem relevant to the extent that the Court may want to reach the unanswered question as to whether sex is a ‘suspect classification’ for Equal Protection purposes.” Id.

73 Memorandum from J[ames] W[.] Z[iglar], law clerk, U.S. Supreme Court, on Frontiero v. Laird, No. 71­1694 to Harry A. Blackmun, associate justice, U.S. Supreme Court (Feb. 18, 1973) (on file HAB Papers, Box 163, Folder 9, Supreme Court Case File, supra note 71).

74 Memorandum from J[ames] W[.] Z[iglar], law clerk, U.S. Supreme Court, on Frontiero v. Laird, No. 71­1694 to Harry A. Blackmun, associate justice, U.S. Supreme Court (Mar. 3, 1973) (on file HAB Papers, Box 163, Folder 9, Supreme Court Case File, supra note 71).

75 Memorandum from Harry A. Blackmun, associate justice, U.S. Supreme Court, to William J. Brennan, Jr., associate justice, U.S. Supreme Court (Mar. 5, 1973) (on file WJB Papers, Part I: 299, Folder 11, supra note 66).

76 Memorandum from William J. Brennan, Jr., associate justice, U.S. Supreme Court, to Lewis F. Powell, Jr., associate justice, U.S. Supreme Court (Mar. 6, 1973) (on file WJB Papers, Part I: 299, Folder 11, supra note 66).

In the end, though, Brennan was unable to muster five votes for strict scrutiny. His opinion for a four­Justice plurality articulated a similar, though not quite as candidly strategic, view of constitutional change to that expressed in his memoranda to the Justices: congressional passage of the ERA weighed in support of judicial reinterpretation of the Fourteenth Amendment. The ERA’s passage indicated to him that “Congress itself has concluded that classifications based upon sex are inherently invidious.” Brennan opined that “this conclusion of a coequal branch of Government is not without significance to the question presently under consideration.”77 Brennan read Reed as “implicit support” for his conclusion that sex was “inherently suspect.”78 He described the nation’s “long and unfortunate history of sex discrimination . . . rationalized by an attitude of ‘romantic paternalism,’ which, in practical effect, put women, not on a pedestal, but in a cage.”79

Brennan also analogized race and sex at some length:

“[T]hroughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre­Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children . . . [a]nd although blacks were guaranteed the right to vote in 1870, women were denied even that right . . . until adoption of the Nineteenth Amendment half a century later.”

He continued, adopting Ginsburg’s arguments about sex as a category comparable to recognized suspect classifications: “[S]ex, like race and national origin, is an immutable characteristic determined solely by the accident of birth . . . . the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.”80

Justice Stewart concurred in the plurality’s judgment only, while Justice Powell wrote a separate concurrence, arguing that the ERA’s pendency militated against, rather than in favor of, a more expansive interpretation of the Equal Protection Clause. Powell deemed the ratification process a “compelling . . . reason for deferring a general categorizing of sex classifications as invoking the strictest test of judicial scrutiny.”81 He continued, in language echoing his earlier memos:

By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional

77 Frontiero v. Richardson, 411 U.S. 677, 687–88 (1973).

78 Id. at 682.

79 Id. at 684. Brennan’s opinion in Frontiero drew heavily both on the WRP’s brief and on the language of the California Supreme Court, which had, a few months earlier, declared sex a suspect classification under the state constitution’s equal protection guarantee. See Sail’er Inn, Inc. v. Kirby, 485 P.2d 529 (Cal. 1971).

80 411 U.S. at 686–87 (citation and footnote omitted); see also Kirby, 485 P.2d at 540.

81 Frontiero, 411 U.S. at 692 (Powell, J., concurring).

democratic process, are debating the proposed [Equal Rights] Amendment. It seems to me that this reaching out to pre­empt by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes.82

Burger and Blackmun joined Powell’s concurrence. While the Chief Justice had changed his position on the outcome of the case since the Justices’ conference, he disagreed with the plurality’s reasoning, writing to Brennan in March: “Some may construe Reed as supporting the ‘suspect’ view but I do not. The author of Reed never remotely contemplated such a broad concept but then a lot of people sire offspring unintended!”83 Burger joined Powell’s concurrence, suggesting just one minor change and quipping, “With or without my puny effort to mute the outrage of ‘Women’s Lib,” I will join.”84 Justice Rehnquist, who as a DOJ official had equivocated about the ERA’s desirability and predicted judicial reinterpretation of the Fourteenth Amendment, was the lone dissenter in Frontiero.85 When a reporter asked whether his wife and two teenage daughters had reproached him for his vote, Rehnquist responded with a laugh. “My wife became resigned long ago to the idea that she married a male chauvinist pig,” he said, “and my daughters never pay attention to anything I do.”86 Meanwhile, Rives—upon whose opinion below Rehnquist solely relied—sent his “belated but hearty congratulations” to Johnson on the Court’s acceptance of Johnson’s dissenting view.87

Though she had not secured a majority for the sex­as­suspect analysis, Ginsburg nevertheless declared victory: as she wrote to a former student the day after the ruling, “Brennan’s opinion is a joy to read.”88 Sharron Frontiero reportedly “burst out with a joyous ‘Hot damn!’ when she heard the news. Her husband Joseph said he was pleased that despite the

82 Powell wrote the following in a memorandum explaining why he could not join Brennan’s opinion: “My principal concern about going this far at this time . . . is that it places the Court in the position of preempting the amendatory process initiated by the Congress. If the Equal Rights Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. If, on the other hand, this Court puts ‘sex’ in the same category as ‘race’ we will have assumed a decisional responsibility (not within the democratic process) unnecessary to the decision of this case, and at the very time that legislatures around the country are debating the genuine pros and cons of how far it is wise, fair and prudent to subject both sexes to identical responsibilities as well as rights.” Memorandum from Lewis F. Powell, Jr., associate justice, U.S. Supreme Court, to William J. Brennan, Jr., associate justice, U.S. Supreme Court (Mar. 2, 1973) (on file WJB Papers, Part I: 299, Folder 11, supra note 66).

83 Memorandum from Warren E. Burger, chief justice, U.S. Supreme Court, to William J. Brennan, Jr., associate justice, U.S. Supreme Court (Mar. 7, 1973) (on file WJB Papers, Part I: 299, Folder 11, supra note 66).

84 Memorandum from Warren E. Burger, chief justice, U.S. Supreme Court, to Lewis F. Powell, Jr., associate justice, U.S. Supreme Court (May 8, 1973) (on file WJB Papers, Part I: 299, Folder 11, supra note 66).

85 See Frontiero, 411 U.S. at 691 (Rehnquist, J., dissenting) (relying on the reasoning of Judge Rives below, see Frontiero v. Laird, 341 F. Supp. 201 (M.D. Ala. 1972).

86 Marlene Cimons, Family Ruling on Rehnquist, L.A. Times, Dec. 14, 1973, at F7.

87 Memorandum from Richard T. Rives, circuit judge, U.S. Court of Appeals for the Fifth Circuit, on Frontiero v. Laird to Frank M. Johnson, Jr., district judge, U.S. Dist. Court for the Middle Dist. of Ala. (June 18, 1973) (on file FMJ Papers, Container 64, Folder: Frontiero v. Laird, supra note 4).

88 RBG to Jane Lifset, (May 15, 1973) (on file RBG Papers, Container 10, Folder: Weinberger v. Wiesenfeld, Correspondence, 1972–1973, supra note 35).

time and expense the couple and their allies had invested in the case, “the one real good thing about it was that it gave a real lift to the feminist movement. We like to think we helped do something concrete rather than just talk.”89

“Make Hay While the Sun is Shining”

Frontiero was as close as the Court ever came to endorsing a full­blown constitutional analogy between race and sex discrimination. Brennan wrote of the nation’s “long and unfortunate history of sex discrimination,” which, he suggested, bore significance because of its similarity to racial subjugation. The analogy Brennan invoked, unlike the version presented the Court by the WRP, was abstract and comparative rather than connective. It juxtaposed race and sex as legal categories without acknowledging the intersections between them. The WRP’s briefs in Reed and Frontiero invoked not only the similarities between the historical treatment of “women” and “blacks” but also the ways in which feminist and antiracist movements had collaborated since the era of slavery and abolitionism. The briefs acknowledged the contributions of African­American women like Sojourner Truth, who argued that the rights of formerly enslaved persons would be incomplete without the enfranchisement and liberation of freedwomen. They echoed the contemporary arguments of Pauli Murray who, in her advocacy and writings, used a race­sex analogy to unite the civil rights and women’s movements. These nuances, however, did not make it into Brennan’s opinion. Nor was Frontiero, like White v. Crook, a case that poignantly embodied the intersections of racial and sexual exclusion.90

Further, because Brennan justified the application of strict scrutiny to sex­based classifications more or less solely on the basis of a parallel between race and sex as categories, his opinion could be read to imply that sex discrimination violated the equal protection guarantee if but only if it resembled discrimination based on race. In listing the ways in which sex discrimination resembled race discrimination as a justification for heightened judicial scrutiny, the plurality ratified a list of qualifying attributes that could as easily constrain as expand the Equal Protection Clause’s scope and applicability to other disadvantaged groups. For instance, Frontiero impelled advocates seeking to apply the equal protection guarantee to sexual orientation to explain how homosexuality—like dark skin, or womanhood—was a visible, immutable characteristic that resulted not only in a history of invidious discrimination but also conferred political powerlessness.91

Relying upon a race­sex analogy to justify the Equal Protection Clause’s expansion also risked alienating those who could not see the two categories as equivalent, or even particularly similar. Indeed, Justice Powell’s refusal to make the Frontiero plurality a majority reflected a deep and enduring reluctance to endorse parallels between race and sex discrimination. During the Frontiero deliberations he wrote to Justice Brennan: “I may add that I see no analogy between the type of ‘discrimination’ which the black race suffered and that now asserted with

89 A ‘Flaming Feminist’ Lauds Court, N.Y. Times, May 22, 1973, at 36.

90 See Reva B. Siegel, Collective Memory and the Nineteenth Amendment: Reasoning About “The Woman Question” in the Discourse of Sex Discrimination, in History, Memory, and the Law 131 (Austin Sarat & Thomas R. Kearns eds., 1999); Mayeri, supra note 7; Mayeri, supra note 60.

91 Kenji Yoshino, The Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of ‘Don’t Ask, Don’t Tell,’ 108 Yale L.J. 485, 560–63 (1998).

respect to women. The history, motivation, and results—in almost all aspects of the problem— were totally different.”92 In another memorandum, he noted:

Women certainly have not been treated as being fungible with men (thank God!). Yet, the reasons for different treatment have in no way resembled the purposeful and invidious discrimination directed against blacks and aliens. Nor may it be said any longer that, as a class, women are a discrete minority barred from effective participation in the political

93

process.

Powell’s hesitance to accept the plurality’s reasoning was not only a procedural objection to circumventing the constitutional amendment process, but a substantive misgiving about the historical and material basis for race­sex equivalence not unlike that expressed by then­Dean Griswold a decade earlier.

The Justices’ inability to agree on a standard of review in Frontiero meant that the issue would remain alive for the foreseeable future. In Frontiero’s wake, some lower courts moved to implement strict scrutiny despite its lack of majority support on the Court. One district court judge referred to the “strict review now mandated for sex­based classification” in striking down a school district policy terminating the employment of unmarried mothers.94 Another court expressed confusion as to whether Justice Stewart had in fact joined Brennan’s call for strict scrutiny.95 Still another judge complained that “[t]he case law is not clear . . . with respect to whether or not sex is a suspect classification.” Particularly in light of subsequent Supreme Court decisions upholding sex­based classifications or striking them down under something less than strict scrutiny, many lower courts concluded that Frontiero was not a mandate to treat sex as suspect.96 Commentators often remarked that the divided ruling left lower courts with no clear decisionmaking guidelines.97 Feminists, including Ginsburg, frequently lamented the unsettled state of sex equality law during these years, citing inconsistency and confusion in the courts as a rationale for ratifying the ERA.98

By 1976, Brennan apparently had concluded that Frontiero was the closest the Court would come to judicially enacting the ERA, and that it was time to clarify the level of scrutiny

92 Memorandum from Lewis F. Powell, Jr., associate justice, U.S. Supreme Court, to William J. Brennan, Jr., associate justice, U.S. Supreme Court (Mar. 1, 1973) (on file LFP Papers, 71­1694 Frontiero v. Laird, Supreme Court Case Files, supra note 70).

93 Memorandum from Lewis F. Powell, Jr., associate justice, U.S. Supreme Court, to William J. Brennan, Jr., associate justice, U.S. Supreme Court (Mar. 2, 1973) (on file WJB Papers, Part I:299, Folder 11, supra note 66).

94 Andrews v. Drew Mun. Separate Sch. Dist., 371 F. Supp. 27, 36 (N.D. Miss. 1973).

95 Smith v. City of East Cleveland, 363 F. Supp. 1131, 1139 n.6 (N.D. Ohio 1973).

96 See, e.g., Edwards v. Schlesinger, 377 F. Supp. 1091, 1096 (D.D.C. 1974) (“The conclusion to be drawn from Kahn is that the Supreme Court has not declared sex to be an inherently suspect classification. Indeed, Kahn seems to indicate that only three Justices currently share this view.”).

97 See, e.g., The Supreme Court, 1973 Term, 88 Harv. L. Rev. 41, 134 (1974); J. Harvie Wilkinson III, The Supreme Court, the Equal Protection Clause, and the Three Faces of Constitutional Equality, 61 Va. L. Rev. 945, 980 (1975).

98 See, e.g., Ruth Bader Ginsburg, The Equal Rights Amendment Is the Way, 1 Harv. Women’s L.J. 19, 24 (1978).

applicable to sex classifications. In Craig v. Boren, the majority held that sex­based distinctions henceforth must be “substantially related” to an “important government interest.”99 While he did not have a majority for strict scrutiny, Brennan now had several precedents to support the view that heightened review of some kind was appropriate. He also likely sensed that some of his colleagues at the Court’s ideological center were growing increasingly skeptical of what they believed to be the Court’s usurpation of the legislative function.100 The “intermediate scrutiny” standard articulated in Craig, an uninspiring case about “near­beer,” represented a compromise between the remaining Justices from the Frontiero plurality—Brennan, Marshall, and White— who favored strict scrutiny, and those Justices who remained wary—Blackmun, Powell, and Stewart.101 The Justices remained divided on the proper course of action. Blackmun had hoped the Court would settle on a “middle­tier” standard of review as early as 1974. The Chief Justice told Brennan he could not join Brennan’s Craig opinion, complaining, “You read in Reed v. Reed what is not there.”102 Powell, though he had been sympathetic to a broad reading of Reed in the past, did not approve of so explicitly endorsing a new test for sex­based classifications. He wrote a concurrence expressing concern about the intermediate scrutiny standard.103 As Powell’s law clerk Tyler Baker put it, “Justice Brennan did not write this opinion as narrowly as it deserved to be written. I suppose he was following the old adage that you make hay while the sun is shining.”104

Throughout the 1970s, Ginsburg and her allies built on the Frontiero decision in a series of cases establishing the constitutional illegitimacy of allocating government benefits on the basis of generalizations about women’s dependency on men. For instance, in Weinberger v. Wiesenfeld, Stephen Wiesenfeld successfully challenged a Social Security scheme that awarded survivor’s benefits to widows of wage­earning workers, but not to widowers. When Wiesenfeld’s wife, Paula, died in childbirth, he and their son Jason lost not only a spouse and parent but the household’s primary breadwinner. Like Sharron Frontiero, Paula Wiesenfeld did not receive the spousal benefits to which she would have been entitled as a husband. The Wiesenfeld case provided an opportunity to highlight the important of male caregiving, as well as female breadwinning, to family welfare: Stephen Wiesenfeld wished to stay home and care for his son, and the survivors’ benefits could allow him to do so. Ginsburg later reflected that Wiesenfeld was her ideal case, because it allowed the WRP “to cast men in the role of being good parents. The theme was that children will grow up happier and better all around if they have the care of two loving parents instead of one.”105

99 429 U.S. 190, 199–200 (1976).

100 Serena Mayeri, Reconstructing the Race­Sex Analogy, 49 Wm. & Mary L. Rev. 1789, 1819 (2008).

101 Id. at 1818–19.

102 Memorandum from Warren E. Burger, chief justice, U.S. Supreme Court, to William J. Brennan, Jr., associate justice, U.S. Supreme Court (Nov. 15, 1976) (on file Lewis F. Powell, Jr. Papers, Washington & Lee University School of Law, [hereinafter Powell Papers], Folder: Craig v. Boren) For more, see Mayeri, supra note 100, at 1819

n.116.

103 Craig, 429 U.S. at 210–11 (Powell, J., concurring).

104 Memorandum from Tyler Baker, law clerk, to Lewis F. Powell, Jr., associate justice, U.S. Supreme Court, at 2 (Nov. 2, 1976) (on file Powell Papers, 75­628 Craig v. Boren), quoted in Mayeri, supra note 100, at 1819 n.116.

105 Ruth Bader Ginsburg, An Open Discussion with Ruth Bader Ginsburg, 36 Conn. L. Rev. 1033, 1038 (2004).

Though several of the Justices initially expressed skepticism about Wiesenfeld’s claim,106 Ginsburg ultimately succeeded in winning a unanimous ruling from the Court. Brennan’s majority opinion not only recognized the application of Frontiero’s teaching to the challenged law, but also embraced her argument that sex discrimination hurt fathers and children as well as women. “It is no less important,” Brennan wrote, “for a child to be cared for by its sole surviving parent when that parent is male rather than female.”107 Though Powell was not prepared to go that far, he did write a concurrence affirming Frontiero’s applicability, and even Rehnquist concurred in the judgment.108 Ginsburg also squeaked out a narrower victory in Califano v. Goldfarb, a 1977 decision invalidating another sex­specific Social Security benefit scheme.109 By 1979, when the Court ruled in Califano v. Westcott that government could not award welfare benefits to children with unemployed fathers while withholding benefits from children with unemployed mothers,110 feminists had succeeded in establishing the government’s inability to disadvantage women or reinforce traditional gender roles by assuming a male breadwinner/female homemaker family structure in distributing benefits.

Frontiero did not foreclose all sex­based differentiation in government benefits. In the years after it was decided, Frontiero became a paradigm example of “invidious” sex discrimination, in contradistinction to “benign” sex classifications and “genuine affirmative action.” Indeed, less than a year after Frontiero, the Court upheld a small tax exemption for widows in Kahn v. Shevin,111 and the following year ruled in Schlesinger v. Ballard that the military could enforce a sex­specific “up or out” policy that gave male officers less time than female officers to win a promotion before forcing their resignation.112 Though feminists like Ginsburg viewed these decisions as defeats, they did leave the door open for the Court to distinguish between classifications that harmed women and those designed to expand opportunities, promote non­traditional employment, and enhance women’s economic independence. In Califano v. Webster (1977), an obscure case never briefed by the parties, the Court upheld a Social Security rule that allowed women to exclude more low­wage­earning years from their average monthly wage calculation than men. In a per curiam opinion, Justice Brennan justified the differential treatment on the grounds that the provision did not devalue women’s work or rest on illegitimate stereotypes but rather compensated women for past discrimination in wages and employment, through a form of “genuine affirmative action.”113 Brennan’s law clerk, Jerry Lynch, wrote to his former professor—none other than Ruth Bader Ginsburg—two days after the ruling to report that he had drafted Webster in an “attempt[] to confine legitimate ‘benign’ discrimination pretty narrowly, throwing in a plug for absolute

106 Mayeri, supra note 100; see also Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey 217–21 (2006).

107 Weinberger v. Wiesenfeld, 420 U.S. 636, 652 (1975).

108 See id. at 654–55.

109 For a much more detailed examination of these cases and the litigation strategy that produced them, see Mayeri, supra note 100.

110 443 U.S. 76 (1979).

111 416 U.S. 351 (1974).

112 419 U.S. 498 (1975).

113 430 U.S. 313 (1977).

equality . . . and yet preserving the possibility that truly compensatory programs can be clearly identified.” Ginsburg praised his “fine work,” adding, “I could not have done better.”114

By the late 1970s, the Court’s failure to apply strict scrutiny to sex­based classifications had become something of a blessing, albeit a mixed one. Now that many of the Justices viewed strict scrutiny as foreclosing virtually all race­based classifications—including those designed to benefit disadvantaged racial minorities—a more flexible standard for sex classifications might preserve affirmative action for women. Indeed, Ginsburg and her allies argued that the Court’s sex equality jurisprudence, culminating in Webster, provided an excellent template for upholding the race­based affirmative action program challenged in the much more visible and controversial Regents of the University of California v. Bakke115 case. Although that position won the support of four Justices in Bakke, Justice Powell remained unconvinced by the analogy between sex and race, this time deployed in reverse. 116 In subsequent years, the Court’s race jurisprudence became more conservative and feminist visions of equality more expansive, complicating the political valence of race­sex analogies.

Viewed as a case about sex discrimination in government benefits schemes, Frontiero looks like a mostly unqualified victory, ushering in a constitutional principle that the Court followed and elaborated in subsequent cases. Seen as a case about women in the military, Frontiero was less a harbinger of court decisions to come than a constitutional outlier. The Los Angeles Times headlined its article on the Frontiero decision, “High Court Strikes Blow for Equality of Women in Khaki.”117 But Chief Justice Burger’s concern, expressed in the Frontiero conference, that the case would have “enormous” implications for the armed forces, was not borne out by later developments. If Burger feared that a decision for the Frontieros would lead to court­mandated equality for women and men in the military, no such mandate was forthcoming.

Frontiero left a mixed legacy for military equality. Male and female servicemembers challenged various policies distinguishing between men and women throughout the 1970s. In the early part of the decade, before the Supreme Court ruled in Geduldig v. Aiello (1974) that pregnancy­based discrimination was not necessarily discrimination based on sex in violation of equal protection,118 feminists attacked military policies mandating the discharge of pregnant servicemembers. Indeed, Ginsburg hoped that one of these challenges, Struck v. Secretary of Defense, would be the case in which the Supreme Court confronted the question of sex equality and its relationship to reproductive freedom, but like White v. Crook, an earlier generation’s

114 Mayeri, supra note 100, at 1823–24 (quoting Letter from Jerry Lynch, law clerk to Justice William J. Brennan, Jr., to RBG, Mar. 23, 1977 (on file RBG Papers, Container 2, Folder: Califano v. Goldfarb: Correspondence, 1977– 79, supra note 35)).

115 438 U.S. 265 (1978).

116 Mayeri, supra note 100, at 1835–36 (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 303 (1978)).

117 High Court Strikes Blow for Equality of Women in Khaki, L.A. Times, May 14, 1973, at 2. The New York Times headline that day, “Air Force Woman Wins Benefits Suit,” was probably more reflective of what was to come. Warren Weaver, Jr., Air Force Woman Wins Benefit Suit: Justices Rule Her Entitled to Allowance for Spouse, N.Y. Times, May 15, 1973, at 10.

118 Geduldig v. Aiello, 417 U.S. 484 (1974).

dream case, Struck never reached the Supreme Court, nor did other similar challenges.119 Women’s advocates did eventually succeed in overturning military policies mandating the discharge of pregnant servicemembers. Linda Mathews of the Los Angeles Times described how the Air Force, “[i]n a surprise move apparently aimed at avoiding an unfavorable ruling by the Supreme Court,” dropped discharge proceedings against Captain Susan Struck under pressure from Solicitor General Erwin Griswold, who reportedly “told subordinates he could never win the suit.”120 Similar claims brought contemporaneously by the ACLU in other jurisdictions, including Air Force officer Mary Gutierrez’s suit in Washington, DC, also failed.121 The Air Force retained both Struck and Gutierrez, and waived the discharge of a third officer after a federal court in Colorado declared the policy violative of substantive due process in 1972.122 Over the next several years, the Armed Forces reconsidered and revised their policies on pregnant military servicemembers; by the time the Second Circuit accepted the WRP’s argument that such discharges were unconstitutional, in 1976, most of the challenged regulations had been revised or repealed.123

That same year, however, Congress dealt a blow to reproductive freedom for women in the military by passing the Hyde amendment, which prohibited all federal funding of abortions, including those provided to servicemembers and their families.124 A recent case dramatically illustrates the continuing consequences of this policy: in 2005, the Ninth Circuit ruled that the government could, consistent with equal protection, refuse to pay for the termination of a sailor’s nineteen­year­old wife’s pregnancy even when fetal anencephaly made infant death inevitable.125

Feminists also failed to vanquish the male­only draft, upheld by the Supreme Court in the 1981 case Rostker v. Goldberg.126 Courts reasoned that women’s exclusion from combat justified sex­based differentiation in other areas, including the promotion standards upheld in Ballard and the draft. Though the magnitude and scope of women’s military participation would increase substantially over the next three decades, it did not do so at the behest of judges127 nor did Frontiero provide a launching pad for a broad­based assault on military inequality. Instead, courts generally treated military cases as sui generis. While not entirely immune from constitutional scrutiny, congressional decisions regarding military functions enjoyed a high level of deference.

119 See Struck v. Sec’y of Defense, 460 F.2d 1372 (9th Cir. 1971); Gutierrez v. Laird, 346 F. Supp. 289 (D.D.C. 1972).

120 Linda Mathews, Unwed AF Nurse Wins Right to Stay, L.A. Times, Dec. 2, 1972, at 23.

121 Gutierrez v. Laird, 346 F. Supp. 289 (D.D.C. 1972).

122 Robinson v. Rand, 340 F. Supp. 37 (D. Colo. 1972).

123 Crawford v. Cushman, 531 F.2d 1114 (2d Cir. 1976). Kathleen Peratis argued the case, with Ginsburg and Wulf on the brief.

124 See infra ch. 6.

125 Doe v. United States, 419 F.3d 1058 (9th Cir. 2005). The plaintiff won her case in the lower court and obtained an abortion, but the Navy appealed and sought to recoup the $3,000 cost of the procedure.

126 453 U.S. 57 (1981).

127 See Jill Elaine Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minn.

L. Rev. 96 (2008).

Frontiero did lay the groundwork for another case with implications for women in military roles, if not in the U.S. armed forces per se. In the early­to mid­1990s, the Virginia Military Institute (“VMI”), a publicly funded military college in Lexington with a reputation for rigorous training of male “citizen­soldiers,” was the setting for a lawsuit challenging the exclusion of women—a policy that had persisted two decades longer than similar bans at the

U.S. service academies. Much had changed in the years since Frontiero. Strict scrutiny was no longer the prize it once had seemed, but rather mostly served as a vehicle for striking down racial classifications designed to benefit minorities or further racial integration.128 And Ruth Bader Ginsburg now sat on the other side of the bench; after she spent more than a decade on the U.S. Court of Appeals for the D.C. Circuit, President Bill Clinton had appointed her the second female Supreme Court Justice in 1993.

In United States v. Virginia (1996), Ginsburg wrote for six Justices who endorsed a muscular version of intermediate scrutiny, “skeptical scrutiny,” but left the door open for classifications designed to compensate women for historic inequalities or to promote equal opportunity in the present. Virginia vindicated Ginsburg’s 1970s crusade: VMI’s all­male policy was a paradigm example of the sort of exclusion Ginsburg’s litigation campaign sought to vanquish. And “skeptical scrutiny,” with its emphasis on the importance of an “exceedingly persuasive justification” for sex­based legal classifications seemed to win for women the benefits of strict scrutiny without its drawbacks. Ginsburg declared shortly after the Virginia ruling, “There is no practical difference between what has evolved and the ERA.”129

“Like a Great White Knight”

Frontiero’s legacy extends beyond the intricacies of standards of review, the constitutionality of government benefits schemes, women’s status in the armed forces, and the career of the race­sex analogy. As a matter of litigation strategy, constitutional interpretation, and historiography, Frontiero has enjoyed a lively afterlife.

In the 1960s, legal feminists overcame decades of division to unite around a “dual constitutional strategy”—simultaneously pursuing judicial reinterpretation of existing constitutional provisions through litigation and seeking an ERA through amendment advocacy in Congress, the states, and the court of public opinion. By 1970, most advocates for women agreed that pursuing their goal of legal equality through multiple avenues held out the greatest hope of success and, just as importantly, minimized the risk of alienating feminist activists who had invested in one approach or the other.130 Frontiero stands in complicated relation to the dual strategy. Brennan’s opinion—and indeed the temporal proximity of judicial reinterpretation with congressional approval of the ERA—suggests that without the impetus provided by ERA advocacy, feminist litigation might not have succeeded to the extent that it did. But as Justice Powell’s concurrence vividly demonstrated, the simultaneous pursuit of the ERA cut both ways: more cautious justices were unwilling to circumvent Article V processes and prematurely declare

128 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).

129 Much of the preceding paragraph is taken from Mayeri, supra note 7, at 829–30.

130 See Mayeri, supra note 7.

sex equality. Conversely, the political scientist Jane Mansbridge argued in 1986, decisions like Frontiero made the ERA seem less necessary, allowing opponents to argue that legal sex equality was a fait accompli and pushing proponents to exaggerate the amendment’s potential effects.131 More recently, scholars have highlighted the extent to which feminists achieved many, though not all, of their objectives despite the states’ failure to ratify the ERA.132

Frontiero symbolizes what Reva Siegel and Robert Post have called “policentric constitutional interpretation.”133 The plurality opinion explicitly acknowledged the role of extrajudicial actors in influencing the Court’s reinterpretation of the Equal Protection Clause. As Siegel has demonstrated, much of the sex equality jurisprudence of the 1970s had been implicitly ratified by political actors across the ideological spectrum by the mid­1980s.134 Nowhere is this acceptance more apparent than in Rehnquist’s transformation over the three decades following his lone dissent in Frontiero. Rehnquist, who presided over an unprecedented revitalization of federalism in his almost twenty years as Chief Justice, surprised many in 2003 by authoring an opinion upholding the Family and Medical Leave Act as a valid exercise of congressional power to enforce the equal protection guarantee under Section 5 of the Fourteenth Amendment.

Rehnquist’s role was unexpected not only because of his leadership in limiting Section 5’s scope in previous cases, 135 but also because it belied his history of skepticism about feminists’ constitutional claims.136 But Rehnquist’s language in Nevada Department of Human Resources v. Hibbs was expansive. His majority opinion included a strikingly broad definition of constitutionally cognizable sex discrimination, a definition that encompassed “stereotype­based beliefs about the allocation of family duties’ that disproportionately disadvantage women in ‘situations in which work and family responsibilities conflict.’” Hibbs, like the VMI case,137 vindicated Ginsburg’s substantive vision of sex equality. Less obviously, Hibbs also reaffirmed the procedural legacy of 1970s legal feminism. As Post puts it, Hibbs’s “extraordinarily generous account of the constitutional harm of sex discrimination” finds its roots in the political and jurisprudential developments of the 1970s, when a plurality of the Court acknowledged, in

131 See generally Jane Mansbridge, Why We Lost the ERA (1986).

132 See Reva B. Siegel, Constitutional Culture, Social Movement Conflict, and Constitutional Change: The Case of the De Facto ERA, 94 Cal. L. Rev. 1323 (2006). On the extent to which the constitutional landscape changed between 1972 and 1982, when the ERA went down to defeat, see generally Mansbridge, supra note 127; see also Serena Mayeri, A New ERA or a New Era? Amendment Advocacy and the Reconstitution of Feminism, 103 Nw. U.

L. Rev. 1223, 1240­43 (2009).

133 Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943, 1947 (2003).

134 Siegel, supra note 132, at 1409–11 (describing Judge Robert Bork’s ultimately unsuccessful nomination to the Supreme Court). But see, e.g., Walter Berns, The Words According to Brennan, Wall St. J., Oct. 23, 1985, at 32 (criticizing Brennan’s opinion in Frontiero as judicial usurpation); Terry Eastland, Proper Interpretation of the Constitution, N.Y. Times, Jan. 9, 1986, at A23 (same).

135 See, e.g., Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); United States v. Morrison, 529 U.S. 598 (2000); Bd. of Trs. of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001).

136 See Reva B. Siegel, You’ve Come a Long Way, Baby: Rehnquist’s New Approach to Pregnancy Discrimination in Hibbs, 58 Stan. L. Rev. 1871 (2006).

137 United States v. Virginia, 518 U.S. 515 (1996)

Frontiero, its own “debt to Congress’s articulation of the transformation in national understandings of the significance of sex discrimination.”138

Frontiero has also served as precedent for gay rights advocates seeking constitutional recognition of sexual minorities’ claims to equal protection. Early attempts by same­sex couples to win the right to marry drew unsuccessfully upon Frontiero’s reasoning. For instance, in Singer v. Hara, a same­sex marriage challenge brought under Washington state’s newly enacted ERA, the plaintiffs relied upon sex discrimination arguments—including a 1973 Yale Law Journal Note suggesting that the federal ERA could constitutionally require same­sex marriage139—to press their claim.140 But judges rejected these early marriage challenges,141 and in the 1970s, it was social conservatives who gained the most political leverage from emphasizing the potential of constitutional sex equality to upend traditional marriage and extend equal protection to sexual minorities.142 Many ERA supporters, fearful that such arguments would derail any hope of ratification, vigorously denied any relationship between sex equality and the legal legitimization of same­sex relationships, much less marriage between couples of the same sex.143 After the ERA’s failure, lesbian and gay plaintiffs virtually “abandoned” sex equality rationales in favor of arguing that legal categories based on sexual orientation themselves deserved heightened judicial scrutiny.144 This line of reasoning also drew from the Frontiero plurality opinion, but more for its definition of suspect classifications than for its condemnation of legally prescribed gender roles.

Over the past two decades, sex equality arguments for gay rights have undergone a partial renaissance. Feminists have expressed hope that legal recognition for same­sex partnerships will undermine the patriarchal connotations of marriage and help to liberate heterosexual women and men from the very same traditional gender roles that Ginsburg and her allies set out to undermine in the 1970s.145 Scholars and activists continue to debate the utility of these arguments, with critics remaining profoundly dubious about the potential of same­sex marriage to transform,

138 Robert C. Post, The Supreme Court, 2002 Term—Foreword: Fashioning the Legal Constitution: Culture, Courts and Law, 117 Harv. L. Rev. 4, 17, 25–26 (2003). The content of the foregoing paragraph is similar to Mayeri, supra note 7, at 833–34.

139 Note, The Legality of Homosexual Marriage, 82 Yale L.J. 573 (1973).

140 Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974), aff’d, 84 Wash. 2d 1008 (1974).

141 In addition to Singer, see Baker v. Nelson, 191 Nw.2d 185 (Minn. 1971); 501 Sw.2d 588 (Ky. 1973).

142 See, e.g., Phyllis Schlafly, The Power of the Positive Woman (1977). For more, see Mayeri, supra note 132; Siegel, De Facto ERA, supra note 132.

143 Peggy Pascoe, “Sex, Gender, and Same­Sex Marriage,” in Is Academic Feminism Dead?: Theory and Practice 86, 91­103 (Social Justice Group at the Center for Advanced Feminist Studies, University of Minnesota ed., 2000). See also Sarah Barringer Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America 182­83 (Harvard Univ. Press, forthcoming 2010).

144 Pascoe, supra note 143, at 103.

145 See, e.g., Pascoe, supra note 143, at 109­10; Nan D. Hunter, Marriage, Law, and Gender: A Feminist Inquiry,1 Law & Sexuality 9 (1991). See also Cary Franklin, The Anti­Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. (forthcoming, 2010).

much less revolutionize, the institution more generally.146 Advocates and sympathetic judges in search of doctrinal support for marriage equality draw on Frontiero in a number of different ways: as a source of criteria for “suspectness,” as a paradigm instance of unconstitutional sex discrimination, and as an example of legislative recognition militating in favor of, rather than against, constitutional protection. In Baehr v. Lewin (1993), the Hawaii Supreme Court interpreted the Brennan plurality and Powell concurrence to require strict scrutiny for sex classifications in light of Hawaii’s state Equal Rights Amendment. Having found that prohibiting marriages between individuals of the same sex was discrimination based on sex, the Hawaii court became the first to strike down a same­sex marriage ban.147 Justice Denise Johnson’s concurrence in the 1999 Vermont marriage case suggested that Frontiero and its progeny might allow judges to see justifications for same­sex marriage bans that are premised on traditional gender role “complementarity” or gender­based role­modeling for children as unconstitutional discrimination.148

More recently, in Kerrigan v. Department of Public Health, the Connecticut Supreme Court took from Frontiero the lesson that a group need not be politically powerless to be accorded quasi­suspect status. The court also relied on Frontiero for the proposition that legislative action on behalf of a vulnerable group could justify, rather than undermine, judicial reinterpretation of constitutional equality provisions.149 Further, the majority opined, “one of the lessons to be learned from Frontiero and its treatment of the equal rights amendment . . . is that, because support for particular legislation may ebb or flow at any time, the adjudication of the rights of a disfavored minority cannot depend solely on such an eventuality.”150 While some recent court decisions in challenges to same­sex marriage bans have rejected or ignored sex

146 See, e.g., Edward Stein, Evaluating the Sex Discrimination Argument for Gay and Lesbian Rights, 49 U.C.L.A.

L. Rev. 471 (2001); Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994); Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not ‘Dismantle the Legal Structure of Gender in Every Marriage,’ 79 Va. L. Rev. 1535 (1993); Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187. See also William N. Eskridge, Jr., Gaylaw 218–28 (1999).

As Susan Frelich Appleton notes, discussions of gender roles and ideologies have been relatively absent from popular discourse on same­sex marriage, despite their prominence in academic writing. Susan Frelich Appleton, Missing in Action? Searching for Gender Talk in the Same­Sex Marriage Debate, 16 Stan. L. & Pol’y Rev. 97 (2005).

147 852 P.2d 44 (Haw. 1993). Though a state constitutional amendment soon overruled this decision, strict scrutiny remains applicable to sex­based classifications under Hawaii’s Constitution. Haw. Const. art. I, § 5.

148 Baker v. State, 744 A.2d 864 (Vt. 1999).

149 Kerrigan v. Comm’r of Public Health, 957 A.2d 407, 450 (Conn. 2008) (“[T]he court [in Frontiero] viewed the enactment of remedial legislation aimed at protecting women from discrimination not as reason to deny them protected class status but, rather, as a justification for granting them such treatment, because it reflected the determination of Congress that gender based classifications are likely to be founded on prejudice and stereotype.”).

150 Id. at 453. The California Supreme Court made a similar point more cryptically in its May 2008 ruling on same­sex marriage. In re Marriage Cases, 43 Cal. 4th 757, 843 n.63 (2008) (“In [Frontiero], the lead opinion of Justice Brennan pointed to the enactment of laws prohibiting sex discrimination as confirming that a class of individuals had been subjected to widespread discrimination in the past and thus as supporting the need for heightened judicial scrutiny of statutory provisions that impose differential treatment on the basis of such a characteristic.”).

discrimination arguments,151 Frontiero continues to provide fodder for a variety of creative constitutional claims.

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Neither Sharron Frontiero’s military career nor her marriage much outlasted the litigation that enshrined her name in American constitutional history. Indeed, by the time Sharron and Joseph Frontiero received the $2,200 in compensation for the lost spousal benefits they had sued to obtain, their marriage had dissolved. “And you know,” she later recalled, “[the court] scrupulously split those payments down the middle.”152 Sharron had left the Air Force in 1972 when Joseph took a job in New Hampshire; not long after the couple divorced, she met and married a physician. She worked intermittently in Massachusetts as a nurse, librarian, and writer of educational materials for middle school children and raised a son, Nathan, born in 1979. She also enjoyed a second career as an author of romance novels, publishing several under her new name, Sharron Cohen.153 So it was perhaps fitting that when the former Lt. Frontiero recalled her sojourn as a feminist plaintiff, she spoke in terms worthy of a Harlequin heroine: “The law came in like a great white knight for me. We could have tried to change public opinion, but the law came in and changed the reality.”154

151 For instance, the California Supreme Court rejected sex discrimination arguments against the state’s same­sex marriage prohibition, even as it ruled that the ban violated the state constitution’s equal protection clause. In re Marriage Cases, 43 Cal. 4th at 837 (“[A] statute or policy that treats same­sex couples differently from opposite­sex couples, or that treats individuals who are sexually attracted to persons of the same gender differently from individuals who are sexually attracted to persons of the opposite gender, does not treat an individual man or an individual woman differently because of his or her gender but rather accords differential treatment because of the individual’s sexual orientation.”). See infra ch. 10.

152 Martha Brannigan, Women Who Fought Sex Bias on Job Prove to Be a Varied Group, Wall St. J., June 8, 1987, at 1.

153 See, e.g., Sharron Cohen, Odd Man Out (1987); Sharron Cohen, High Country (1987).

154 Carmody, supra note 1. For a different view of the relationship between the Supreme Court’s sex equality jurisprudence and public opinion, see Barry Friedman, The Will of the People (2009).