A married woman Air Force officer (hereafter appellant) sought
increased benefits for her husband as a "dependent" under 37 U.S.C.
§§ 401, 403, and 10 U.S.C. §§ 1072, 1076. Those statutes provide,
solely for administrative convenience, that spouses of male members
of the uniformed services are dependents for purposes of obtaining
increased quarters allowances and medical and dental benefits, but
that spouses of female members are not dependents unless they are
in fact, dependent for over one-half of their support. When her
application was denied for failure to satisfy the statutory
dependency standard, appellant and her husband brought this suit in
District Court, contending that the statutes deprived servicewomen
of due process. From that Court's adverse ruling, they took a
direct appeal.
Held: The judgment is reversed. Pp.
411 U. S.
682-691;
411 U. S.
691-692.
341 F.
Supp. 201, reversed.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE DOUGLAS, MR. JUSTICE
WHITE, and MR. JUSTICE MARSHALL, concluded that 37 U.S.C. §§ 401,
403 and 10 U.S.C. §§ 1072, 1076, as inherently suspect statutory
classifications based on sex, are so unjustifiably discriminatory
as to violate the Due Process Clause of the Fifth Amendment. Pp.
411 U. S.
682-691.
MR. JUSTICE STEWART concluded that the challenged statutes work
an invidious discrimination in violation of the Constitution.
Reed v. Reed, 404 U. S. 71. P.
411 U. S.
691.
MR. JUSTICE POWELL, joined by THE CHIEF JUSTICE and MR. JUSTICE
BLACKMUN, while agreeing that the statutes deprive servicewomen of
due process, concluded that, in the light of
Reed v. Reed,
404 U. S. 71, and
the fact that the Equal Rights Amendment has been submitted to the
States for ratification, it is inappropriate to decide at this time
whether sex is a suspect classification. Pp.
411 U. S.
691-692.
Page 411 U. S. 678
BRENNAN, J., announced the Court's judgment and delivered an
opinion, in which DOUGLAS, WHITE, and MARSHALL, JJ., joined.
STEWART, J., filed a statement concurring in the judgment,
post, p.
411 U. S. 691.
POWELL, J., filed an opinion concurring in the judgment, in which
BURGER, C.J., and BLACKMUN, J., joined,
post, p.
411 U. S. 691.
REHNQUIST, J., filed a dissenting statement,
post, p.
411 U. S.
691.
MR. JUSTICE BRENNAN announced the judgment of the Court and an
opinion in which MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, and MR.
JUSTICE MARSHALL join.
The question before us concerns the right of a female member of
the uniformed services [
Footnote
1] to claim her spouse as a "dependent" for the purposes of
obtaining increased quarters allowances and medical and dental
benefits under 37 U.S.C. §§ 401, 403, and 10 U.S.C. §§ 1072, 1076,
on an equal footing with male members. Under these statutes, a
serviceman may claim his wife as a "dependent" without regard to
whether she is in fact, dependent upon him for any part of her
support. 37 U.S.C.§ 401(1); 10 U.S.C.§ 1072(2)(A). A servicewoman,
on the other hand, may not claim her husband as a "dependent" under
these programs unless he is in fact, dependent upon her for over
one-half of his support.
Page 411 U. S. 679
37 U.S.C. § 401; 10 U.S.C. § 1072(2)(C). [
Footnote 2] Thus, the question for decision is
whether this difference in treatment constitutes an
unconstitutional discrimination against servicewomen in violation
of the Due Process Clause of the Fifth Amendment. A three-judge
District Court for the Middle District of Alabama, one judge
dissenting, rejected this contention and sustained the
constitutionality of the provisions of the statutes making this
distinction.
341 F.
Supp. 201 (1972). We noted probable jurisdiction. 409 U.S. 840
(1972). We reverse.
I
In an effort to attract career personnel through reenlistment,
Congress established, in 37 U.S.C. § 401
et seq., and 10
U.S.C. § 1071
et seq., a scheme for the provision of
fringe benefits to members of the uniformed services on a
competitive basis with business and industry. [
Footnote 3] Thus, under 37 U.S.C. § 403, a member
of the uniformed services with dependents is entitled to an
Page 411 U. S. 680
increased "basic allowance for quarters" and, under 10 U.S.C. §
1076, a member's dependents are provided comprehensive medical and
dental care.
Appellant Sharron Frontiero, a lieutenant in the United States
Air Force, sought increased quarters allowances, and housing and
medical benefits for her husband, appellant Joseph Frontiero, on
the ground that he was her "dependent." Although such benefits
would automatically have been granted with respect to the wife of a
male member of the uniformed services, appellant's application was
denied because she failed to demonstrate that her husband was
dependent on her for more than one-half of his support. [
Footnote 4] Appellants then commenced
this suit, contending that, by making this distinction, the
statutes unreasonably discriminate on the basis of sex in violation
of the Due Process Clause of the Fifth Amendment. [
Footnote 5] In essence, appellants asserted
that the discriminatory impact of the statutes is twofold: first,
as a procedural matter, a female member is required to demonstrate
her spouse's dependency, while no such burden is imposed upon male
members; and, second, as a substantive matter, a male member who
does not provide more than one-half of his wife's support receives
benefits, while a similarly situated female member is denied such
benefits. Appellants therefore sought a permanent injunction
Page 411 U. S. 681
against the continued enforcement of these statutes and an order
directing the appellees to provide Lieutenant Frontiero with the
same housing and medical benefits that a similarly situated male
member would receive.
Although the legislative history of these statutes sheds
virtually no light on the purposes underlying the differential
treatment accorded male and female members, [
Footnote 6] a majority of the three-judge District
Court surmised that Congress might reasonably have concluded that,
since the husband in our society is generally the "breadwinner" in
the family -- and the wife typically the "dependent" partner --
"it would be more economical to require married female members
claiming husbands to prove actual dependency than to extend the
presumption of dependency to such members."
341 F. Supp. at 207. Indeed, given the fact that approximately
99% of all members of the uniformed services are male, the
District
Page 411 U. S. 682
Court speculated that such differential treatment might
conceivably lead to a "considerable saving of administrative
expense and manpower."
Ibid.
II
At the outset, appellants contend that classifications based
upon sex, like classifications based upon race, [
Footnote 7] alienage, [
Footnote 8] and national origin, [
Footnote 9] are inherently suspect, and must
therefore be subjected to close judicial scrutiny. We agree, and,
indeed, find at least implicit support for such an approach in our
unanimous decision only last Term in
Reed v. Reed,
404 U. S. 71
(1971).
In
Reed, the Court considered the constitutionality of
an Idaho statute providing that, when two individuals are otherwise
equally entitled to appointment as administrator of an estate, the
male applicant must be preferred to the female. Appellant, the
mother of the deceased, and appellee, the father, filed competing
petitions for appointment as administrator of their son's estate.
Since the parties, as parents of the deceased, were members of the
same entitlement class, the statutory preference was invoked, and
the father's petition was therefore granted. Appellant claimed that
this statute, by giving a mandatory preference to males over
females without regard to their individual qualifications, violated
the Equal Protection Clause of the Fourteenth Amendment.
The Court noted that the Idaho statute
"provides that different treatment be accorded to the applicants
on the basis of their sex; it thus establishes a classification
subject
Page 411 U. S. 683
to scrutiny under the Equal Protection Clause."
404 U.S. at
404 U. S. 75.
Under "traditional" equal protection analysis, a legislative
classification must be sustained unless it is "patently arbitrary"
and bears no rational relationship to a legitimate governmental
interest.
See Jefferson v. Hackney, 406 U.
S. 535,
406 U. S. 546
(1972);
Richardson v. Belcher, 404 U. S.
78,
404 U. S. 81
(1971);
Flemming v. Nestor, 363 U.
S. 603,
363 U. S. 611
(1960);
McGowan v. Maryland, 366 U.
S. 420,
366 U. S. 426
(1961);
Dandridge v. Williams, 397 U.
S. 471,
397 U. S. 485
(1970).
In an effort to meet this standard, appellee contended that the
statutory scheme was a reasonable measure designed to reduce the
workload on probate courts by eliminating one class of contests.
Moreover, appellee argued that the mandatory preference for male
applicants was, in itself, reasonable, since "men [are], as a rule,
more conversant with business affairs than . . . women." [
Footnote 10] Indeed, appellee
maintained that
"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. [
Footnote
11]"
And the Idaho Supreme Court, in upholding the constitutionality
of this statute, suggested that the Idaho Legislature might
reasonably have "concluded that, in general, men are better
qualified to act as an administrator than are women." [
Footnote 12]
Despite these contentions, however, the Court held the statutory
preference for male applicants unconstitutional. In reaching this
result, the Court implicitly rejected appellee's apparently
rational explanation of the statutory scheme, and concluded that,
by ignoring the individual qualifications of particular applicants,
the challenged statute provided "dissimilar treatment for men and
women who are . . . similarly situated." 404 U.S.
Page 411 U. S. 684
at
404 U. S. 77.
The Court therefore held that, even though the State's interest in
achieving administrative efficiency "is not without some
legitimacy,"
"[t]o 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 [Constitution]. . . ."
Id. at
404 U. S. 76.
This departure from "traditional" rational basis analysis with
respect to sex-based classifications is clearly justified.
There can be no doubt that our Nation has had a long and
unfortunate history of sex discrimination. [
Footnote 13] Traditionally, such discrimination
was rationalized by an attitude of "romantic paternalism" which, in
practical effect, put women not on a pedestal, but in a cage.
Indeed, this paternalistic attitude became so firmly rooted in our
national consciousness that, 100 years ago, a distinguished Member
of this Court was able to proclaim:
"Man is, or should be, woman's protector and defender. The
natural and proper timidity and delicacy which belongs to the
female sex evidently unfits it for many of the occupations of civil
life. The constitution of the family organization, which is founded
in the divine ordinance as well as in the nature of things,
indicates the domestic sphere as that which properly belongs to the
domain and functions of womanhood. The harmony, not to say
identity, of interests and views which belong, or should belong, to
the family institution is repugnant to the idea of a woman adopting
a distinct and
Page 411 U. S. 685
independent career from that of her husband. . . ."
". . . The paramount destiny and mission of woman are to fulfil
the noble and benign offices of wife and mother. This is the law of
the Creator."
Bradwell v.
State, 16 Wall. 130,
83 U. S. 141
(1873) (Bradley, J., concurring).
As a result of notions such as these, our statute books
gradually became laden with gross, stereotyped distinctions between
the sexes, and, indeed, throughout much of the 19th century, the
position of women in our society was, in many respects, comparable
to that of blacks under the pre-Civil 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.
See generally L.
Kanowitz, Women and the Law: The Unfinished Revolution 5-6 (1969);
G. Myrdal, An American Dilemma 1073 (20th anniversary ed.1962). And
although blacks were guaranteed the right to vote in 1870, women
were denied even that right -- which is itself "preservative of
other basic civil and political rights" [
Footnote 14] -- until adoption of the Nineteenth
Amendment half a century later.
It is true, of course, that the position of women in America has
improved markedly in recent decades. [
Footnote 15]
Page 411 U. S. 686
Nevertheless, it can hardly be doubted that, in part because of
the high visibility of the sex characteristic, [
Footnote 16] women still face pervasive,
although at times more subtle, discrimination in our educational
institutions, in the job market and, perhaps most conspicuously, in
the political arena. [
Footnote
17]
See generally K. Amundsen, The Silenced Majority:
Women and American Democracy (1971); The President's Task Force on
Women's Rights and Responsibilities, A Matter of Simple Justice
(1970).
Moreover, since sex, like race and national origin, is an
immutable characteristic determined solely by the accident of
birth, the imposition of special disabilities upon the members of a
particular sex because of their sex would seem to violate "the
basic concept of our system that legal burdens should bear some
relationship to individual responsibility. . . ."
Weber v.
Aetna Casualty & Surety Co., 406 U.
S. 164,
406 U. S. 175
(1972). And what differentiates sex from such nonsuspect statuses
as intelligence or physical disability, and aligns it with the
recognized suspect criteria, is that the sex characteristic
frequently bears no relation to ability to perform or contribute to
society. [
Footnote 18] As a
result, statutory distinctions
Page 411 U. S. 687
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.
We might also note that, over the past decade, Congress has
itself manifested an increasing sensitivity to sex-based
classifications. In Tit. VII of the Civil Rights Act of 1964, for
example, Congress expressly declared that no employer, labor union,
or other organization subject to the provisions of the Act shall
discriminate against any individual on the basis of "race, color,
religion,
sex, or national origin." [
Footnote 19] Similarly, the Equal Pay Act of
1963 provides that no employer covered by the Act "shall
discriminate . . . between employees on the basis of
sex."
[
Footnote 20] And § 1 of the
Equal Rights Amendment, passed by Congress on March 22, 1972, and
submitted to the legislatures of the States for ratification,
declares that "[e]quality of rights under the law shall not be
denied or abridged by the United States or by any State on account
of sex." [
Footnote 21] Thus,
Congress itself has concluded that classifications based upon sex
are inherently invidious, and this conclusion of a coequal
Page 411 U. S. 688
branch of Government is not without significance to the question
presently under consideration.
Cf. Oregon v. Mitchell,
400 U. S. 112,
400 U. S. 240,
400 U. S.
248-249 (1970) (opinion of BRENNAN, WHITE, and MARSHALL,
JJ.);
Katzenbach v. Moran, 384 U.
S. 641,
384 U. S.
648-649 (1966).
With these considerations in mind, we can only conclude that
classifications based upon sex, like classifications based upon
race, alienage, or national origin, are inherently suspect, and
must therefore be subjected to strict judicial scrutiny. Applying
the analysis mandated by that stricter standard of review, it is
clear that the statutory scheme now before us is constitutionally
invalid.
III
The sole basis of the classification established in the
challenged statutes is the sex of the individuals involved. Thus,
under 37 U.S.C. §§ 401, 403, and 10 U.S.C. §§ 1072, 1076, a female
member of the uniformed services seeking to obtain housing and
medical benefits for her spouse must prove his dependency in fact,
whereas no such burden is imposed upon male members. In addition,
the statutes operate so as to deny benefits to a female member,
such as appellant Sharron Frontiero, who provides less than
one-half of her spouse's support, while at the same time granting
such benefits to a male member who likewise provides less than
one-half of his spouse's support. Thus, to this extent, at least,
it may fairly be said that these statutes command "dissimilar
treatment for men and women who are . . . similarly situated."
Reed v. Reed, 404 U.S. at
404 U. S.
77.
Moreover, the Government concedes that the differential
treatment accorded men and women under these statutes serves no
purpose other than mere "administrative convenience." In essence,
the Government maintains that, as an empirical matter, wives in our
society frequently are dependent upon their husbands, while
husbands
Page 411 U. S. 689
rarely are dependent upon their wives. Thus, the Government
argues that Congress might reasonably have concluded that it would
be both cheaper and easier simply conclusively to presume that
wives of male members are financially dependent upon their
husbands, while burdening female members with the task of
establishing dependency in fact. [
Footnote 22]
The Government offers no concrete evidence, however, tending to
support its view that such differential treatment in fact saves the
Government any money. In order to satisfy the demands of strict
judicial scrutiny, the Government must demonstrate, for example,
that it is actually cheaper to grant increased benefits with
respect to all male members than it is to determine which male
members are, in fact, entitled to such benefits, and to grant
increased benefits only to those members whose wives actually meet
the dependency requirement. Here, however, there is substantial
evidence that, if put to the test, many of the wives of male
members would fail to qualify for benefits. [
Footnote 23] And in light of the fact that
the
Page 411 U. S. 690
dependency determination with respect to the husbands of female
members is presently made solely on the basis of affidavits, rather
than through the more costly hearing process, [
Footnote 24] the Government's explanation of the
statutory scheme is, to say the least, questionable.
In any case, our prior decisions make clear that, although
efficacious administration of governmental programs is not without
some importance, "the Constitution recognizes higher values than
speed and efficiency."
Stanley v. Illinois, 405 U.
S. 645,
405 U. S. 656
(1972). And when we enter the realm of "strict judicial scrutiny,"
there can be no doubt that "administrative convenience" is not a
shibboleth, the mere recitation of which dictates
constitutionality.
See Shapiro v. Thompson, 394 U.
S. 618 (1969);
Carrington v. Rash, 380 U. S.
89 (1965). On the contrary, any statutory scheme which
draws a sharp line between the sexes, solely for the purpose of
achieving administrative convenience, necessarily commands
"dissimilar treatment for men and women who are . . . similarly
situated," and therefore involves the "very kind of arbitrary
legislative choice forbidden by the [Constitution]. . . ."
Reed
v. Reed, 404 U.S. at
404 U. S. 77,
404 U. S. 76. We
therefore conclude that, by according differential treatment to
male and female members of the uniformed services for the sole
purpose of achieving administrative
Page 411 U. S. 691
convenience, the challenged statutes violate the Due Process
Clause of the Fifth Amendment insofar as they require a female
member to prove the dependency of her husband. [
Footnote 25]
Reversed.
MR. JUSTICE STEWART concurs in the judgment, agreeing that the
statutes before us work an invidious discrimination in violation of
the Constitution.
Reed v. Reed, 404 U. S.
71.
MR. JUSTICE REHNQUIST dissents for the reasons stated by Judge
Rives in his opinion for the District Court,
Frontiero v.
Laird, 341 F.
Supp. 201 (1972).
[
Footnote 1]
The "uniformed services" include the Army, Navy, Air Force,
Marine Corps, Coast Guard, Environmental Science Services
Administration, and Public Health Service. 37 U.S.C. § 101(3); 10
U.S.C. § 1072(1).
[
Footnote 2]
Title 37 U.S.C. § 401 provides in pertinent part:
"In this chapter, 'dependent,' with respect to a member of a
uniformed service, means --"
"(1) his spouse;"
"
* * * *"
"However, a person is not a dependent of a female member unless
he is in fact, dependent on her for over one-half of his support. .
. ."
Title 10 U.S.C. § 1072(2) provides in pertinent part:
"'Dependent,' with respect to a member . . . of a uniformed
service, means --"
"(A) the wife;"
"
* * * *"
"(C) the husband, if he is in fact, dependent on the member . .
. for over one-half of his support. . . ."
[
Footnote 3]
See 102 Cong.Rec. 3849-3850 (Cong. Kilday), 8043 (Sen.
Saltonstall); 95 Cong.Rec. 7662 (Cong. Kilday), 7664 (Cong. Short),
7666 (Cong. Havenner), 7667 (Cong. Bates), 7671 (Cong. Price).
See also 10 U.S.C. § 1071.
[
Footnote 4]
Appellant Joseph Frontiero is a full-time student at Huntingdon
College in Montgomery, Alabama. According to the agreed stipulation
of facts, his living expenses, including his share of the household
expenses, total approximately $354 per month. Since he receives
$205 per month in veterans' benefits, it is clear that he is not
dependent upon appellant Sharron Frontiero for more than one-half
of his support.
[
Footnote 5]
"[W]hile the Fifth Amendment contains no equal protection
clause, it does forbid discrimination that is 'so unjustifiable as
to be violative of due process.'"
Schneider v. Rusk, 377 U. S. 163,
377 U. S. 168
(1964);
see Shapiro v. Thompson, 394 U.
S. 618,
394 U. S.
641-642 (1969);
Bolling v. Sharpe, 347 U.
S. 497 (1954).
[
Footnote 6]
The housing provisions, set forth in 37 U.S.C. § 401
et
seq., were enacted as part of the Career Compensation Act of
1949, which established a uniform pattern of military pay and
allowances, consolidating and revising the piecemeal legislation
that had been developed over the previous 40 years.
See
H.R.Rep. No. 779, 81st Cong., 1st Sess.; S.Rep. No. 733, 81st
Cong., 1st Sess. The Act apparently retained in substance the
dependency definitions of § 4 of the Pay Readjustment Act of 1942
(56 Stat. 361), as amended by § 6 of the Act of September 7, 1944
(58 Stat. 730), which required a female member of the service to
demonstrate her spouse's dependency. It appears that this provision
was itself derived from unspecified earlier enactments.
See S.Rep. No. 917, 78th Cong., 2d Sess., 4.
The medical benefits legislation, 10 U.S.C. § 1071
et
seq., was enacted as the Dependents' Medical Care Act of 1956.
As such, it was designed to revise and make uniform the existing
law relating to medical services for military personnel. It, too,
appears to have carried forward, without explanation, the
dependency provisions found in other military pay and allowance
legislation.
See H.R.Rep. No. 1805, 84th Cong., 2d Sess.;
S.Rep. No. 1878, 84th Cong., 2d Sess.
[
Footnote 7]
See Loving v. Virginia, 388 U. S.
1,
388 U. S. 11
(1967);
McLaughlin v. Florida, 379 U.
S. 184,
379 U. S.
191-192 (1964);
Bolling v. Sharpe, supra, at
347 U. S.
499.
[
Footnote 8]
See Graham v. Richardson, 403 U.
S. 365,
403 U. S. 372
(1971).
[
Footnote 9]
See Oyama v. California, 332 U.
S. 633,
332 U. S.
644-646 (1948);
Korematsu v. United States,
323 U. S. 214,
323 U. S. 216
(1944);
Hirabayashi v. United States, 320 U. S.
81,
320 U. S. 100
(1943).
[
Footnote 10]
Brief for Appellee in No. 70-4, O.T. 1971,
Reed v.
Reed, p. 12.
[
Footnote 11]
Id. at 12-13.
[
Footnote 12]
Reed v. Reed, 93 Idaho 511, 514, 465 P.2d 635, 638
(1970).
[
Footnote 13]
Indeed, the position of women in this country at its inception
is reflected in the view expressed by Thomas Jefferson that women
should be neither seen nor heard in society's decisionmaking
councils.
See M. Gruberg, Women in American Politics 4
(1968).
See also 2 A. de Tocqueville, Democracy in America
(Reeves trans.1948).
[
Footnote 14]
Reynolds v. Sims, 377 U. S. 533,
377 U. S. 562
(1964);
see Dunn v. Blumstein, 405 U.
S. 330,
405 U. S. 336
(1972);
Kramer v. Union Free School District, 395 U.
S. 621,
395 U. S. 626
(1969);
Yick Wo v. Hopkins, 118 U.
S. 356,
118 U. S. 370
(1886).
[
Footnote 15]
See generally The President's Task Force on Women's
Rights and Responsibilities, A Matter of Simple Justice (1970); L.
Kanowitz, Women and the Law: The Unfinished Revolution (1969); A.
Montagu, Man's Most Dangerous Myth (4th ed.1964); The President's
Commission on the Status of Women, American Women (1963).
[
Footnote 16]
See, e.g., Note, Sex Discrimination and Equal
Protection: Do We Need a Constitutional Amendment?, 84 Harv.L.Rev.
1499, 1507 (1971).
[
Footnote 17]
It is true, of course, that, when viewed in the abstract, women
do not constitute a small and powerless minority. Nevertheless, in
part because of past discrimination, women are vastly
underrepresented in this Nation's decisionmaking councils. There
has never been a female President, nor a female member of this
Court. Not a single woman presently sits in the United States
Senate, and only 14 women hold seats in the House of
Representatives. And, as appellants point out, this
underrepresentation is present throughout all levels of our State
and Federal Government.
See Joint Reply Brief of
Appellants and American Civil Liberties Union (
Amicus
Curiae) 9.
[
Footnote 18]
See, e.g., Developments in the Law -- Equal Protection,
82 Harv.L.Rev. 1065, 1173-1174 (1969).
[
Footnote 19]
42 U.S.C. §§ 2000e-2(a), (b), (c) (emphasis added).
See
generally Sape & Hart, Title VII Reconsidered: The Equal
Employment Opportunity Act of 1972, 40 Geo.Wash.L.Rev. 824 (1972);
Developments in the Law -- Employment Discrimination and Title VII
of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109 (1971).
[
Footnote 20]
29 U.S.C. § 206(d) (emphasis added).
See generally
Murphy, Female Wage Discrimination: A Study of the Equal Pay Act
1963-1970, 39 U.Cin.L.Rev. 615 (1970).
[
Footnote 21]
H.R.J.Res. No. 208, 92d Cong., 2d Sess. (1972). In conformity
with these principles, Congress in recent years has amended various
statutory schemes similar to those presently under consideration so
as to eliminate the differential treatment of men and women.
See 5 U.S.C. § 2108, as amended, 85 Stat. 644; 5 U.S.C. §
7152, as amended, 85 Stat. 644; 5 U.S.C. § 8341, as amended, 84
Stat. 1961; 38 U.S.C. § 102(b), as amended, 86 Stat. 1092.
[
Footnote 22]
It should be noted that these statutes are not in any sense
designed to rectify the effects of past discrimination against
women.
See Gruenwald v. Gardner, 390 F.2d 591 (CA2),
cert. denied, 393 U.S. 982 (1968);
cf. Jones v. Alfred
H. Mayer Co., 392 U. S. 409
(1968);
South Carolina v. Katzenbach, 383 U.
S. 301 (1966). On the contrary, these statutes seize
upon a group -- women -- who have historically suffered
discrimination in employment, and rely on the effects of this past
discrimination as a justification for heaping on additional
economic disadvantages.
Cf. Gaston County v. United
States, 395 U. S. 285,
395 U. S.
296-297 (1969).
[
Footnote 23]
In 1971, 43% of all women over the age of 16 were in the labor
force, and 18% of all women worked full-time 12 months per year.
See U.S. Women's Bureau, Dept. of Labor, Highlights of
Women's Employment & Education 1 (W.B.Pub. No. 72-191,
Mar.1972). Moreover, 41.5% of all married women are employed.
See U.S. Bureau of Labor Statistics, Dept. of Labor, Work
Experience of the Population in 1971, p. 4 (Summary Special Labor
Force Report, Aug.1972). It is also noteworthy that, while the
median income of a male member of the armed forces is approximately
$3,686,
see The Report of the President's Commission on an
All-Volunteer Armed Force 51, 181 (1970), the median income for all
women over the age of 14, including those who are not employed, is
approximately $2,237.
See Statistical Abstract of the
United States Table No. 535 (1972) Source: U.S. Bureau of the
Census, Current Population Reports Series P-60, No. 80. Applying
the statutory definition of "dependency" to these statistics, it
appears that, in the "median" family, the wife of a male member
must have personal expenses of approximately $4,474, or about 75%
of the total family income, in order to qualify as a
"dependent."
[
Footnote 24]
Tr. of Oral Arg. 27-28.
[
Footnote 25]
As noted earlier, the basic purpose of these statutes was to
provide fringe benefits to members of the uniformed services in
order to establish a compensation pattern which would attract
career personnel through reenlistment.
See n 3,
supra, and accompanying text.
Our conclusion in no wise invalidates the statutory schemes except
insofar as they require a female member to prove the dependency of
her spouse.
See Weber v. Aetna Casualty & Surety Co.,
406 U. S. 164
(1972);
Levy v. Louisiana, 391 U. S.
68 (1968);
Moritz v. Commissioner of Internal
Revenue, 469 F.2d 466 (CA10 1972).
See also 1 U.S.C.
§ 1.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE
BLACKMUN join, concurring in the judgment.
I agree that the challenged statutes constitute an
unconstitutional discrimination against servicewomen in violation
of the Due Process Clause of the Fifth Amendment, but I cannot join
the opinion of MR. JUSTICE BRENNAN, which would hold that all
classifications based upon sex, "like classifications based upon
race, alienage, and national origin," are "inherently suspect, and
must therefore be subjected to close judicial scrutiny."
Ante at
411 U. S. 682.
It is unnecessary for the Court in this case to
Page 411 U. S. 692
characterize sex as a suspect classification, with all of the
far-reaching implications of such a holding.
Reed v. Reed,
404 U. S. 71
(1971), which abundantly supports our decision today, did not add
sex to the narrowly limited group of classifications which are
inherently suspect. In my view, we can and should decide this case
on the authority of
Reed, and reserve for the future any
expansion of its rationale.
There is another, and I find compelling, reason for deferring a
general categorizing of sex classifications as invoking the
strictest test of judicial scrutiny. The Equal Rights Amendment,
which if adopted will resolve the substance of this precise
question, has been approved by the Congress and submitted for
ratification by the States. If this Amendment is duly adopted, it
will represent the will of the people accomplished in the manner
prescribed by the Constitution. 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 democratic process, are debating
the proposed 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.
There are times when this Court, under our system, cannot avoid
a constitutional decision on issues which normally should be
resolved by the elected representatives of the people. But
democratic institutions are weakened, and confidence in the
restraint of the Court is impaired, when we appear unnecessarily to
decide sensitive issues of broad social and political importance at
the very time they are under consideration within the prescribed
constitutional processes.