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Court had declared that the objective was to "reduc[e] the workload on probate courts by eliminating one class of contests." The Court then held that constitutionally the statute in question was an improper method of gaining that objective."1

The Court's opinion was surprisingly short, considering the importance of the issue, and was somewhat unexpected. Appellant had argued that sex should be declared a "suspect classification," requiring "close judicial scrutiny," which would be satisfied only if the proponent of the statute could demonstrate an "overriding statutory purpose" justifying the classification." In support of this argument, appellant outlined the similarities between race discrimination, already considered "suspect," and sex discrimination.63 Additionally, appellant presented a wealth of historical, sociological, and economic data indicating the traditionally inferior status of women in the United States. As a ground for reversal, appellant summarily set forth her argument that the statute in question could not even pass the rational relationship test, much less the "strict scrutiny" test." Appellant knew that in the past the choice of tests had usually been determinative of the outcome of a case. If the "rational relationship" test were used, the statute would most likely be upheld; if the "strict scrutiny" test were used, the statute would, probably, be overturned. So the Court's conclusion-that the statute did not survive a rational relationship test-was certainly unexpected, and, although not ideal, was a small step in the right direction."7 In fact, some commentators believed that the Court in Reed had formulated a new test, one more rigorous than the old "rational relationship" test, but less strict than the "strict scrutiny" test.68 Feminists hoped that the next time the Court was presented with a sex discrimination case it would take one step further and declare sex a suspect classification. Just two years later, a plural

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60 Reed v. Reed, 404 U.S. at 76.

61 Id.

62 Brief for Appellant at 14-59, Reed v. Reed, 404 U.S. 71 (1971).

63 Id. at 15-21.

64 Id. at 24-53.

65 Id. at 60-67.

66 See Developments in the Law-Equal Protection, 82 HARV. L. REV. 1065 (1969). 67 Not all commentators would agree with this statement. See, e.g., Hodes, A Disgruntled Look at Reed v. Reed from the Vantage Point of the Nineteenth Amendment, 1 WOMEN'S RIGHTS L. REP. 9 (No. 2, Spring, 1972).

68 See Gunther, The Supreme Court 1971 Term, Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a New Equal Protection, 86 HARV. L. REV. 1, 17-48 (November, 1972) (hereinafter cited as Gunther, New Equal Protection].

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[Vol. 41: 209 ity of the Court did precisely that in Frontiero v. Richardson." Before we turn to Frontiero, we must delve a little deeper into Reed. The Court stated in Reed that the "objective" of the challenged statute was to increase administrative efficiency. But if this were the goal, why did the Idaho statute-and, indeed, similar statutes of other States"- provide that males should be given preference over females? Why did it not prefer older relatives over younger ones or the more educated over the less educated? These methods would have eliminated controversy and would even have had arguably rational relationships to the purpose of the whole statutory scheme-to appoint as administrator the best person for the job. The Court in Reed did not explain why the State of Idaho had chosen to discriminate on the basis of sex rather than on some other basis. The experience of living in this paternalistic society provides the reason-sex-role stereotypes. Appellant had argued that giving preference to males was reasonable because "men [are] as a rule more conversant with business affairs than . . women," and "it is a matter of common knowledge, that women still are not engaged in politics, the professions, business or industry to the extent that men are. " The Idaho Supreme Court had suggested that the legislature might reasonably have "concluded that in general men are better qualified to act as an administrator than are women."" Why did the Court avoid acknowledging the obvious male chauvinism behind the Idaho statute? Had it done so, would the decision in Reed have been unanimous? We will see another example of this purposefully superficial type of analysis in Geduldig v. Aiello,73 the most recent sex discrimination case decided by the Supreme Court; but first we must look at Frontiero v. Richardson," the judicial high-point in the Court's definition of the constitutional status of women.

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B. Frontiero v. Richardson

Sharron Frontiero was a First Lieutenant in the United States Air Force, stationed at Maxwell Air Force Base in Ala

9 411 U.S. 677 (1973).

70 The statutes of the District of Columbia, Nevada, South Dakota, Arizona, and Utah are set forth in the Appendix to Brief for Appellant, Reed v. Reed, 404 U.S. 71 (1971). "Brief for Appellee at 12-13, Reed v. Reed, 404 U.S. 71 (1971).

12 Reed v. Reed, 93 Idaho 511, 514, 465 P.2d 635, 638 (1970).

73 417 U.S. 484 (1974).

74 411 U.S. 677 (1973).

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bama. Her husband Joseph was a full-time student at a nearby college. They lived on Sharron's salary plus the $205.00 per month which Joseph received in veteran's benefits. Sharron applied for an increased housing allowance and medical and dental benefits to cover Joseph. These were denied on the ground that Sharron was not providing over one half of Joseph's support, a condition precedent in the controlling statutes" to eligibility for the increased benefits. If Sharron had been male, her spouse would have been considered her dependent regardless of whether he was in fact dependent upon her; in other words, there would be a conclusive presumption that a wife was dependent on her husband. But the statutes provided that, before the extra benefits could be awarded to a female member of the uniformed services, she would have to demonstrate that her husband was actually dependent on her.

Upon being denied these benefits, Sharron and Joseph filed suit in district court. A three-judge court was convened, and it held that the statutes in question were not violative of the Due Process Clause of the fifth amendment." The court commenced its analysis by declaring that the statue in question did not discriminate on the basis of sex, because the statutory scheme as a whole did not discriminate against women; in the case of unmarried, legitimate minor children, women as well as men enjoyed a presumption of dependency." But, the court confirmed, even if it were to look only at that narrow part of the statutory scheme which was being challenged, it would still uphold the statutes. Citing Reed," the court stated that only the rational relationship test need be met. The adjudged purpose behind the statutes was to avoid the substantial administrative burden of evaluating 1,200,000 claims by male members of uniformed services that their wives were in fact dependent on them," and presumably to avoid overpayments which would probably result if women did not have to prove actual dependency. Although the result of this attempt to save administrative expense and manpower was that some servicemen were getting a "windfall,”80

[a] classification having some reasonable basis does not offend

75 10 U.S.C. § 1072(2) (1968); 37 U.S.C. § 401 (1962).

76 Frontiero v. Laird, 341 F. Supp. 201 (N.D. Ala. 1972).

" Id. at 205-06. One must read this part of the court's opinion in full to appreciate the court's clever presentation of this absurd argument.

78 Id. at 206 n.2.

79 Id. at 207.

80 Id.

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[equal protection] merely because it is not made with mathematical nicety or because in practice it results in some inequality.81

Further, the court considered its decision to be in harmony with Reed:

In Reed there was a statutory presumption which had no relation to the statutory purpose of selecting the best qualified administrator. The effect was to exclude certain qualified females from serving as administrators, whereas the classification presented here does not exclude qualified female members. They merely have to show actual dependency.82

As we have seen, the statutory presumption in Reed did have some relation to the general statutory purpose of selecting the best-qualified administrator, even though the Supreme Court never alluded to that relation. It is no wonder that courts misread Reed when all the inner dynamics of the challenged statutes were omitted from the Court's opinion.

83

Finally, the court in Frontiero advised that women should not automatically take offense at a statutory scheme such as this, for the classifications established were "purely administrative and economic"; it was not "merely a child of Congress' 'romantic paternalism' and 'Victorianism'." This is a remarkable statement, considering that the whole statutory scheme was based on stereotyped notions of men as heads of families and of women as dependent housewives.

District Judge Johnson, dissenting, interpreted Reed quite differently:

The basic message which comes from [Reed] is that administrative convenience is not a shibboleth, the mere recitation of which dictates constitutionality. Rather, whatever governmental benefit that can be supposed should be balanced with the impact upon the subject class and the arbitrariness of the classification.85

He concluded his opinion as follows:

" Id. at 208, quoting Morey v. Doud, 354 U.S. 457, 463 (1957), quoting Lindsley v. National Carbonic Gas Co., 220 U.S. 61, 78-79 (1911).

82 Id. at 209 (emphasis added).

See discussion at 221-24 supra.

"Frontiero v. Laird, 341 F. Supp. at 209, citing Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 236 (5th Cir. 1969).

5 Frontiero v. Laird, 341 F. Supp. at 211.

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The majority seeks to minimize the impact and arbitrariness of the classification by characterizing the benefits which plaintiffs seek as a "windfall." This argument smacks of the long-discredited right-privilege dichotomy. When the Government determines to extend benefits, it must do so in a reasonable manner. . . . The attachment of a moral connotation to the benefits which plaintiffs ask adds nothing to the analysis and again begs the question.8

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Sharron and Joseph appealed to the United States Supreme Court. Eight members of that Court agreed that the judgment should be reversed on the ground that the statutes in question unconstitutionally discriminated against servicewomen. However, they wrote three different opinions.

Justices Brennan, Douglas, White, and Marshall reached the long-awaited conclusion that sex is a suspect classification, and invalidated the statutes on the ground that mere administrative convenience could not justify invidious discrimiation. The four Justices stated that they found "at least implicit support for such an approach in . . . Reed v. Reed . . .," where the "departure from 'traditional' rational basis analysis with respect to sex-based classifications [was] clearly justified." They found justification for this departure in our country's "long and unfortunate history of sex discrimination," which, they pointed out, has continued to the present. Further, the four Justices demonstrated why sex, like race and national origin, should be considered a suspect classification: it "is an immutable characteristic determined solely by the accident of birth . . .," and the "sex characteristic frequently bears no relation to ability to perform or contribute to society."" Finally, the four Justices noted that "Congress has concluded [in the Equal Pay Act," Title VII of the Civil Rights Act of 1964,93 and the Equal Rights Amendment to the Constitution"] that classifications based upon sex are inherently invidi

Id. (emphasis added).

87 Justice Rehnquist dissented for the reasons stated in the district court's opinion. Frontiero v. Richardson, 411 U.S. at 691.

8 Frontiero v. Richardson, 411 U.S. at 684.

89 Id. (footnote omitted).

90 Id. at 686.

"Id. (footnote omitted).

92 29 U.S.C. § 206(d) (1964).

93 47 U.S.C. §§ 2000e et seq.

"H.J. Res. No. 208, 92d Cong., 2d Sess. (1972). As of this writing, the ERA has been ratified by thirty-three States. In order to become law, it requires ratification by five more States. U.S. CONST. art. V.

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