Gender Classifications & Sex Discrimination

Question 1

Early cases/Lochner era:

Answer 1

SCOTUS upheld laws that expressly discriminated based on gender, aggressively protecting freedom of contract while also upholding laws related to that if women were being regulated

West Coast Hotel v. Parrish: case signaling end of Lochner era still upheld min wage law for women b/c it was in public interest to regulate women’s health & protect them from overreaching employers

Question 2

Reed v. Reed (1971)

Answer 2

A law of the state of Idaho imposed a mandatory preference for the selection of males over females in the appointment of an administrator of an intestate estate. Reed (plaintiff) was not selected to serve as the administrator of an estate because of her gender. Reed appealed the court’s appointment of a male administrator. The state supreme court upheld the gender-based appointment. Reed petitioned the United States Supreme Court for review.

While the goal of promoting efficient probate administration may be legitimate, eliminating a class of participants exclusively on the basis of gender is inconsistent with the mandates of the Equal Protection Clause. The state supreme court decision is reversed.

: SCOTUS for the first time invalidated gender classification under EP, but only applied rational basis review. Classification must be reasonable, not arbitrary, fair/substantial relation to object to legislation so that all persons similarly circumstanced shall be treated alike

Question 3

Frontiero v. Richardson (1973)

Answer 3

Congress passed a law granting members of the armed services with dependents an increased housing allowance, as well as medical and dental benefits for their dependents. 37 U.S.C. §§ 401, 403; 10 U.S.C. §§ 1072, 1076. However, servicemen were permitted to claim their wives as dependents, regardless of whether the wife was actually dependent. Servicewomen, in contrast, were only permitted to claim their husbands as dependents upon a showing that the husband was actually dependent on the servicewoman for more than half of his support. Sharron Frontiero (plaintiff), a member of the United States Air Force, tried to claim her husband (plaintiff) as a dependent. Frontiero’s application was denied, because she did not make the required showing of dependence. Frontiero alleged that this policy violated the procedural and substantive requirements of the Due Process Clause of the Fifth Amendment by imposing additional procedural burdens on female service members and extending dependency benefits to non-dependent spouses of male service members.

Brennan, Yes. Governmental classifications based on sex are inherently suspect and warrant heightened judicial scrutiny, just like classifications based on race, alienage, and national origin. See Reed v. Reed, 404 U.S. 71 (1971). Women, like racial minorities, faced a long and unfortunate history of discrimination.

Concurrence (Powell, J.)

The plurality is correct that the challenged statutory scheme constitutes unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment. However, the plurality incorrectly adopts the general rule that all governmental classifications based on sex must be subject to strict scrutiny. The majority’s conclusion that sex is “a suspect classification, with all the far-reaching implications of such a holding” is not needed.

Concurrence (Stewart, J.)

The statutory scheme constitutes invidious discrimination in violation of the Constitution.

Dissent (Rehnquist, J.)

The rationale of the district court was sound. Frontiero v. Laird, 341 F. Supp. 201 (1972).