Frontiero v. Richardson (1973)
Holding: SC reversed lower court decision and held that classifications based on sex are inherently suspect and must receive heightened scrutiny. (Brennan says strict scrutiny, but not a majority)
Notes: The court did not give one answer to what the standard of review should be applied because there was no agreement. Stewart agreed with Brennan’s finding, but not with the applicable standard. He agreed, however, that there was invidious discrimination. Three justices agreed with the outcome, but not that all classifications based on sex are subject to strict scrutiny. These justices wanted to use Reed, thought it was premature to put sex into that classification because the ERA had not yet been ratified by the states, but had been approved by Congress. Additionally, interesting that P in this case was male and the ERA had been passed, but not ratified.
First time the court explicitly discussed standard of review re: sex and gender.
Facts: Statute said serviceman could claim wife as “dependent” w/o regard to if she was dependent on him for any part of her support; however, a servicewoman couldn’t claim husband as a “dependent” unless he was dependent on him for +1/2 of his support. 5th A. violation of EP component was the basis for discrimination.
Holding: SC reversed lower court decision and held that classifications based on sex are inherently suspect and must receive heightened scrutiny. (Brennan says strict scrutiny, but not a majority)
Notes: The court did not give one answer to what the standard of review should be applied because there was no agreement. Stewart agreed with Brennan’s finding, but not with the applicable standard. He agreed, however, that there was invidious discrimination. Three justices agreed with the outcome, but not that all classifications based on sex are subject to strict scrutiny. These justices wanted to use Reed, thought it was premature to put sex into that classification because the ERA had not yet been ratified by the states, but had been approved by Congress. Additionally, interesting that P in this case was male and the ERA had been passed, but not ratified.
- Brennan: “High visibility of the sex characteristic.” He seems to be saying that immutable characteristic of sex is like that of race.
- Kahn v. Shevin (1974): Court upheld state statute allowing widows, but not widowers, to receive a property tax exemption. Court said that women faced more barriers in the job market.
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