Warren E. Burger: We’ll hear arguments next in 71-1694, Frontiero against Laird. Mr. Levin.
Joseph J. Levin, Jr.: Mr. Chief Justice and may it please the Court. This is a sex discrimination case. After a short statement of the facts here, I will seek to refute the Government’s statistical analysis of the case and point to what we consider to be then substantiability of the Government’s interest in continuing this particular sex discrimination. Following this, I will speak briefly about the merits of judging sex classifications by what we consider to be an intermediate test. Professor Ginsburg to my left will then speak on the merits of judging these cases by standard of strict scrutiny. A year after entering the Armed Forces in 1968, Lieutenant Sharron Frontiero married Joseph Frontiero. Because of the statutes which are at issue here, any male member of the Armed Forces would have automatically become entitled to certain housing allowance benefits and medical benefits. Lieutenant Frontiero did not. The statutes giving males in the Armed Forces the irrebuttable presumption, that their spouses are dependent, and grant benefits regardless of the wives’ actual financial dependency. A female must prove that her spouse is in fact dependent upon her for more than one-half of his support. In this case, Lieutenant Frontiero earns more than three times as much as her husband Joseph. Her income is approximately $8,200. His income is just a little in excess of $2,800. But because Joseph’s individual expenses are low, his small income meets more than half of his personal expenses. Now, Sharron was therefore denied any supplemental benefits in both housing and medical for her spouse. It’s undisputed that under these statutes, the ones which are at issue here that male Armed Forces member would have received this housing and medical benefits. So we have a two-fold discrimination. The first is procedural. Women are forced to the burdens and uncertainties of proving that their spouses are in fact dependent upon them while males are given the benefits automatically and irrefutably. But more importantly, there’s a substantive discrimination here. Males whose wives are not financially dependent upon them, nevertheless receive these housing and medical benefits. Women in precisely the same circumstances, identical circumstances do not receive the benefits. And the Government really seeks to explain a way this discrimination by saying that it’s only a procedural difference. And that since women earn less than men that they can presume for the sake, and I’m talking about women in the general population that they can presume for the sake of administrative convenience or administrative ease that the male spouses are financially dependent. We have three relatively simple answers to the Government’s contention that lower income shows dependency. First of all, earning levels don’t alone necessarily indicate dependency only because --
Warren E. Burger: Did they indicate a general tendency, do you think?
Joseph J. Levin, Jr.: I think that earning level, not necessary even a general tendency I would think that you could say that in the whole population that it does indicate a tendency that men earn more than women, and we don’t dispute that. We don’t dispute that at all. But the only reason that Joseph Frontiero’s expense that the -- only because his expenses are low as he is technically not one-half financially dependent upon his wife, Sharron Frontiero, which is the criteria and the standard that women are forced to submit to under these statutes. And this is -- in spite of the fact that his income is less than one-third of her income. So, though we feel that income and expenses are relevant in this case, the Government wants to take into account only income. If they really believe that income is the only predictor of dependency then why not make that the standard for determining dependency. Instead, they take a biological class, women, and they ascribe the status to the entire class without reservation. If they believe that lower income equals dependency then let them protect their own interest by making that, that is income the criterion and in the sex discrimination they could do this with a narrowly drawn statute. Now, we doubt that what the Government refers to in its brief as, if I recall correctly, economic facts of life are really facts at all. Their own statistics is set out on page 51 of our own blue brief show that Armed Forces males actually are earn less than females. Now, if lower income equals dependency then the majority of Armed Forces males who are now granted in irrefutable presumption, would not be able to prove their spouses dependent. Now, they say that our use of this kind of comparison is unfair kind of like mixing apples and oranges.
Potter Stewart: This is a median income of Armed Forces males and --
Joseph J. Levin, Jr.: Of Armed Forces males, yes, sir.
Potter Stewart: The reason is there is a higher percentage of non-commissioned and commissioned officers among the female?
Joseph J. Levin, Jr.: I don’t --
Potter Stewart: Well, that would have to be the reason, wouldn’t it?
Joseph J. Levin, Jr.: It very well could be.
Potter Stewart: And we’re dealing here with military personnel whose spouses are civilians, are we not?
Joseph J. Levin, Jr.: Yes sir. But let’s --
Potter Stewart: Are we not?
Joseph J. Levin, Jr.: -- let's assume that the Government is correct in what they say that we should not have used this case.
Potter Stewart: Does these case involved only military personnel whose spouses are civilians?
Joseph J. Levin, Jr.: Yes, sir. It would.
Potter Stewart: That’s right.
Joseph J. Levin, Jr.: That’s correct. Now, let’s say that the Government is correct in what they have to say about our analysis that way. They suggest that we should instead use the figure for all women instead of just women in the working population. Well, let’s do that. Now the census shows that for all women and this is for everyone over the age of 14, regardless of whether or not they are employed that for all women as a median income of $2,400. And if we lump the military male’s median income which is $3,700 with the median income for the female, we come up with a $6,100 lump sum median. Now, the dependency standard we recall is one-half in fact or one-half dependency. For a woman to fail to provide, that is the wife of an Air Force or any Armed Services member for him -- for her to fail to provide, one-half of her own support, she would have to have expenses that total $4,800 which would be over 80% of the entire family’s income. Now, we don’t think that the Government can prove or saying here that service family's wives such spendthrifts, I don’t believe this anyway to prove it. But this whole analytical approach of statistics is extremely misleading. We don’t think that it has any particular relevance in this case because the crucial aspect of it is the substantive inequality which results here. And that is that when you get right down to the bottom that males who cannot prove their wives dependent, nevertheless, receive the benefits. Women in the identical position do not and there’s no way to cure that. There’s no way to cure that in Sharron Frontiero’s case.
Potter Stewart: What are we talking about the terms of numbers? I suppose what 98-99% of the military personnel are males or is that to a higher percentage?
Joseph J. Levin, Jr.: I don’t have access to these percentages. As I recall the figures are that there are approximately a million five married male service members and that there are somewhere in excess of, I am talking the Government new figures, are somewhere in excess of 6,000 married female service members, that’s --
Potter Stewart: So would this percentage of -- somewhat comparable to that I mentioned?
Joseph J. Levin, Jr.: They very well could be. I have not computed this, but I would say that that was --
Potter Stewart: Because I understood that the good part of the Government’s argument is based upon administrative simplicity, is it not?
Joseph J. Levin, Jr.: Mr. Justice, the only part of the Government’s argument, their entire argument is based upon administrative convenience. And that is all that they have alleged. To them, that’s the only justification and we don’t say that this is an illegitimate end because of course it isn’t. But it in itself cannot justify the discrimination that exists here. If it did then any arbitrary cut off in benefits would be constitutional. In Shapiro versus Thompson, in Reed versus Reed, we feel that this Court explicitly rejected administrative convenience as justifying this kind of discrimination. And the court in Shapiro explicitly stated that this interest was insufficient regardless of whether measured against the rational basis or the compelling state interest standard. Now, the Government has proposed that the minimal standard of review be used here. The amicus, American Civil Liberties Union has proposed that the -- and will argue that the strict standard of suspect classification is appropriate for this case. Now, we suggest. We, as appellant suggest that the strict standard applicable in the -- that the strict standard here does not pose a choice between polar alternatives. We agree wholeheartedly with what Mr. Justice Powell had to say in Weber versus Aetna. That regardless of the test employed here, that the essential inquiry is inevitably a deal what legitimate state interest does the classification promote and what fundamental personal rights, might the classification endanger. Now here, the classification that we’re talking about surrounds employment benefits and this is an area of discrimination in which women had been discriminated against -- been the object of discrimination, I think and that’s well documented. The Government’s approach employs sort of reverse bootstraps theory where their reasoning is that traditional discrimination and employment should be rewarded by further discrimination and employment benefits, if you look at the figures that they attempt to use. Now, we got stack up against the woman’s right to be free from these inequalities and what the Government stacks up against the right of women to be free inequalities is the ease of administration. That’s the only thing that they really advanced in this case.
William H. Rehnquist: Well, Mr. Levin, you say that it’s a personal right you claim here, following the analysis in Weber. But it’s a personal right to more money, isn’t it? Well, what more you are claiming now?
Joseph J. Levin, Jr.: It’s a personal right. It’s a personal right, Mr. Justice Rehnquist to be free from discrimination and employment. And it --
William H. Rehnquist: Well, but you can argue any equal protection that way. You are saying in effect, I want to be free from this discrimination that I claim exists. But I would think if you follow the Weber analogy, you got to see what it is your claiming, what you would get if your claim were sustained?
Speaker: Which is more money?
Joseph J. Levin, Jr.: Yes, sir. I think so too. But I think with the right that I’m talking about and I think that the kind of personal right that Court is talking about and Mr. Justice Powell is talking about for the Court in Weber was – was the right to be -- for group to be free from discrimination, here that’s the right for women as a group to be free from discrimination and that you got to look at the facts involved in that case. You have to look at the facts and you have to determine whether or not the Government has advanced to sufficient or legitimate is the language is here, governmental interest. For example, evidence might be adduced to show that a sex difference which related to performance in combat would be a legitimate governmental interest. That might be. I am not saying it would be but it might be and here, the Air Force certainly doesn’t claim that the general earning differentials that you see in the population as a whole would justify discrimination, sex discrimination in basic pay. So, it certainly couldn’t justify sex to discrimination in fringe benefits. We think that Mr. Justice Powell’s analysis in Webber is a legitimate method for determining what standard to be used in this case. It’s stronger than the minimal scrutiny standard which the Government proposes. We feel that a burden should be placed on both the Government, the Government to show illegitimate governmental interest and on the appellant to show that there is discrimination. We think that there should be equal burdens here. The test should be stronger than it is --
Potter Stewart: There used to be an old-fashioned idea that a statute enacted by the Congress or statute enacted by the legislature of the state was presumptively constitutional. We don’t hear much about that anymore but --
Joseph J. Levin, Jr.: Your Honor, --
Potter Stewart: I think that -- when I went to law school, that’s what the doctrine was.
Joseph J. Levin, Jr.: Well, I think that, that is fine except when the state is classifying different groups and especially when they are classifying a group which is traditionally been the object of discrimination, and consequently, the lower standard in sex discrimination cases, the minimal scrutiny standard simply isn’t sufficient.
Potter Stewart: Now, it gets so that statutes enacted in that area is only so to step one, isn’t it?
Joseph J. Levin, Jr.: Step one owe it before its test.
Potter Stewart: Yes.
Joseph J. Levin, Jr.: Well, I think the legislature should consider this in passing legislation and they should make sure that you don’t have invidious discrimination.
Potter Stewart: The rule construction to which I referred was sort of based upon the hypothesis that Congress would consider the Constitution before it enacted legislation.
Joseph J. Levin, Jr.: Yes, sir. Well, --
Potter Stewart: That was the basis of that rule statutory construction, that the Congress could read the Constitution as well as other people.
Joseph J. Levin, Jr.: Appellants in this case would say that apparently, the Congress did not pay too much attention to the Constitution in enacting these particular provisions.
Warren E. Burger: But does this record show whether the petitioner was a volunteer or was drafted into the Army?
Joseph J. Levin, Jr.: Petitioner was in a sense a volunteer. She -- the Air Force put her through some portion of her schooling and in return she was obligated to serve in the Air Force. So it’s six of one, half a dozen of another, I would say that probably a volunteer. I have used more time than I should have. I’d like Professor Ginsburg to speak the appellant’s respective position of strict view that is going to argue and felt that it was essential in this case that she be given an opportunity to present oral argument to the Court.
Warren E. Burger: Very well. Mrs. Ginsburg.
Ruth Bader Ginsburg: Mr. Chief Justice and may it please the Court. Amicus views this case as kin to Reed v. Reed 404 U.S. 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 bread winning experience. Appellees stated in answer to interrogatories in this case that they remained totally uninformed on the application of this stereotype to serve as families that is they do not know whether the proportion of wage-earning wives of servicemen is small, large, or middle size. What is known is that by employing the sex criterion, identically situated persons are treated differently. The married serviceman gets benefits for himself, as well as his spouse regardless of her income. The married servicewoman is denied medical care for her spouse and quarter's allowance for herself as well as her spouse even if as in this case, she supplies over two-thirds the support of the marital unit. For these reasons, amicus believes that the sex-related means employed by Congress fails to meet the rationality standard. It does not have a fair and substantial relationship to the legislative objective so that all similarly circumstanced persons shall be treated alike. Nonetheless, 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. As is apparent from the decisions cited at pages 27 to 34 of our brief, in lower federal as well as state courts, the standard of review in sex discrimination cases is to say the least confused. A few courts have ranked sex as a suspect criterion. Others, including apparently the court below in this case, seem to regard the Reed decision as a direction to apply minimal scrutiny and there are various shades between. The result is that in many instances, the same or similar issues are decided differently depending upon the court’s view of the stringency of review appropriate. To provide the guidance so badly needed and because recognition is long overdue, amicus urges the Court to declare sex a suspect criterion. This would not be quite the giant step appellee suggests. As Professor Gunther observed in an analysis of last term’s equal protection decisions published in the November 1972 Harvard Law Review, it appears that in Reed, some special suspicion of sex as a classification factor entered into the Court’s analysis. Appellees concede that the principle ingredient involving strict scrutiny is present in the sex criterion. Sex like race is a visible, immutable characteristic bearing no necessary relationship to ability. 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. But appellees point out that although the essential ingredient rendering a classification suspect is present, sex-based distinctions unlike racial distinctions do not have an especially disfavored constitutional history. It is clear that the core purpose of the Fourteenth Amendment was to eliminate invidious racial discrimination. But why 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. Moreover, national origin and alienage have been recognized as suspect classifications, although the new comers to our shores was not the paramount concern of the nation when the Fourteenth Amendment was adopted. But the main thrust of the argument against recognition of sex as a suspect criterion centers on two points. First, women are a majority. Second, legislative classification by sex does not, it is asserted, imply the inferiority of women. With respect to the numbers argument, the numerical majority was denied even the right to vote until 1920. Women today face discrimination in employment as pervasive and more subtle than discrimination encountered by minority groups. In vocational and higher education, women continue to face restrictive quotas no longer operative with respect to other population groups. Their absence is conspicuous in Federal and State Legislative, Executive, and Judicial Chambers in higher civil service positions and in appointed posts in federal, state, and local government. Surely, no one would suggest that race is not a suspect criterion in the District of Columbia because the black population here outnumbers the white. Moreover, as Mr. Justice Douglas has pointed out most recently in Hadley against Alabama 41 Law Week 3205, Equal Protection and Due Process of law apply to the majority as well as to the minorities. Due to sex classifications listed by appellees imply a judgment of inferiority. Even the Court below suggested that they do. That court said it would be remiss if it failed to notice lurking in the background the subtle injury inflicted on servicewomen, the indignity of being treated differently so many of them feel. Sex classifications do stigmatize when as in Goesaert against Cleary 235 U.S., they exclude women from an occupation thought more appropriate to men. The sex criterion stigmatizes when it is used to limit hours of work for women only. Hours regulations of the kind involved in Muller against Oregon though perhaps reasonable on the turn of the century conditions, today protect women from competing for extra remuneration, higher paying jobs, promotions. The sex criterion stigmatizes when as in Hoyt against Florida 368 U.S, it assumes that all women are preoccupied with home and children and therefore should be spared the basic civic responsibility of serving on a jury. These distinctions have a common effect. They help keep woman in her place, a place inferior to that occupied by men in our society. Appellees recognize that there is doubt as to the contemporary validity of the theory that sex classifications do not brand the female sex as inferior. But they advocate a hold the line position by this Court unless and until the equal rights amendment comes into force. Absent the equal rights amendment, appellees assert, no close scrutiny of sex based classifications is warranted. This Court should stand pat on legislation of the kind involved in this case. Legislation making a distinction, servicewomen regard as the most frozen equity, the greatest irritant and the most discriminatory provision relating to women in the middle -- in the military service. But this Court has recognized that the notion of what constitutes equal protection does change. Proponents as well as opponents of the equal rights amendment believe that clarification of the application of equal protection to the sex criterion is needed and should come from this Court. Proponents believe that appropriate interpretation of the Fifth and Fourteenth Amendments would secure equal rights and responsibilities for men and women. But they also stressed that such interpretation was not yet discernible and in any event the amendment would serve an important function in removing even the slightest doubt that equal rights for men and women is fundamental constitutional principle. In asking the Court to declare sex a suspect criterion, amicus urges a position forcibly stated in 1837 by Sara Grimke, noted abolitionist and advocate of equal rights for men and women. She spoke not elegantly, but with unmistakable clarity. She said, “I ask no favor for my sex. All I ask of our brethren is that they take their feet of our necks.” In conclusion, amicus joins appellants in requesting that this Court reverse the judgment entered below and remand the case with instructions to grant the relief requested in appellants complaint. Thank you.
Warren E. Burger: Thank you Mrs. Ginsburg. Mr. Huntington.
Samuel Huntington: Mr. Chief Justice and may it please the Court. A position of the Government in this case is first that there is a rational basis for the different treatment of male and female members of the Armed Forces in the statute here under review. And second, that the rational basis standard is the proper standard for determining the validity of those statutes. I would like to first address myself to the statutes and then discuss the appropriate standard of review. I think it would be useful to begin by reviewing the actual impact of the housing allowance and medical care statutes here in issue. The housing allowance statute is 37 U.S.C. 403 grants a basic housing allowance to each member of the military for whom on-base housing is not available. In addition, each such member is entitled to an increased housing allowance if he has one or more dependents as defined by 37 U.S.C. 401. Under the scale which is now in existence, for example, a lieutenant in Pay Grade II would be entitled to $138.60 for -- per month for housing without dependents and $175.80 with dependents, a difference of $37.20. Now, the particular issue here of course concerns under what circumstances a member of the Armed Forces may claim a spouse as a dependent. And the general rule under the statute is that wives of male members qualified automatically for dependency benefits, whereas husbands of female members qualify only if dependent in fact on their wives for over half of their support.
Potter Stewart: Does this housing allowance run right through all of the commissioned and non-commissioned ranks?
Samuel Huntington: Yes, it applies to everyone.
Potter Stewart: There is an amount, I know, but --?
Samuel Huntington: There is an amount. Yes.
Potter Stewart: Thank you.
Samuel Huntington: I would like to point out, now first --
Potter Stewart: Except those for whom housing is provided by the Government?
Samuel Huntington: Yes, right. Housing is available and --
Potter Stewart: For the person and his family, and his or her family?
Samuel Huntington: Right. I would like to point out that under --
Byron R. White: Well, as you put it, the discrimination is against the men, is that it?
Samuel Huntington: Well, I didn’t mean to imply that. No, it’s --[Attempt to Laughter] The -- I’d like to point out that under 37 U.S.C. 420 in the case of an inter-service marriage, neither the husband nor the wife may claim his or her spouse as a dependent. Now, this fact has considerable importance here for a significant majority of married women in the Armed Force are married to military men. Now while the record is silent on this matter, the Senate Report issued on the proposals in Congress last year to amend these statutes contained a letter from the general counsel of the Department of Defense which is in point. In the letter, at page 4 of the report that’s Senate Report 92-1218, it is noted that a recently completed survey of married women in the Air Force show that 25% of the officers were married, but that only 4% of the officers were married to civilians and the percentage of all women in the Air Force married to civilians is even smaller. In not being able to claim their husbands as dependents, military women married to military men are not discriminated against since their husbands could not claim them either. Similarly, a female member --
Thurgood Marshall: [Voice Overlap] But the only way for the woman to get equality as to put a husband as none.
Samuel Huntington: Well, that would be --[Laughter]
Thurgood Marshall: Is that right?
Samuel Huntington: One way, yes. Well, this is also true that these women who married the military men are not discriminated with respect to medical benefits because under 10 U.S.C. 1074 both the husband and the wife would qualify for medical benefits. Well, in short then the only women who are treated differently then their male counterparts are those women who are married to civilian. Now, in our view, one does not have to search far to discover a rational basis for Congress’ decision to treat married men and married women differently with respect to dependency benefits. We start with the basic purpose of the two statutes. And the basic purpose is to provide housing allowance and medical benefits for dependents in order to establish a compensation pattern which would attract career personnel into the Armed Forces. In Congress’ view, this would enable the military to compete with the civilian sector of the economy for married people. Now in establishing these benefits, Congress had to determine what proof of dependency it would require. Now, an examination of this statute shows that where it was very likely that a military person would be supporting certain relatives, dependency benefits were conferred automatically where it would be less likely or unusual that a military member would be supporting a person, proof of dependency was required. Thus, under 37 U.S.C. 401, a serviceman’s wife and minor children automatically qualify for dependency benefits, whereas, his older children and his parents would qualify only if dependent in fact. And since women, generally do not provide the main support for their husbands, children, or parents, servicewomen were required to establish to establish dependency in fact in each case. Let me state this in other way. Taking the over one million married military men as a group, a significant majority of their wives are the dependent upon them. Under these circumstances, it is rational to decide to grant all married men dependency benefits for their wives automatically rather than undertaking the heavy administrative burden of determining dependency in fact in each case. On the other hand, taking the one or two thousand military women who are married to civilians as a group, an overwhelming majority of their husbands are not dependent upon them. Under these circumstances, it is rational to examine individually the few instances where a military woman might have a dependent husband.
Potter Stewart: We’re talking --
Thurgood Marshall: On your rational relationship, are you going to square this with Reed against Reed as some?
Samuel Huntington: Yes, we think Reed against Reed is distinguishable. Let me just addressed myself to the statistical basis for a statement that the majority of women are dependent upon their husbands. The ACLU cites in their brief the fact that 60% of all women living with their husbands are gainfully employed. Well, the converse of this fact of course is that 40% of all married women are not employed. Moreover, of those who work, as other figures cited in the ACLU brief indicate, only a portion work full time. In preparing this for this argument I looked at the --
Byron R. White: You mean like a 90% or what ir do you know it?
Samuel Huntington: Well, I think the figure in their brief was that 43% of women are in the labor force and 18% work full time.
Byron R. White: 18%.
Samuel Huntington: That’s at page 45 of the ACLU brief. In the statistical abstract of the United States which is a document which is cited in our brief is a table that shows that in 1970, in white families where both the husband and wife worked and the husband is under 35; the main contribution of the wife to the total family income was 27.1%. That’s at the table at page 327 of the statistical abstract. In comparable, black families, the main contribution the wife was slightly higher at 33.4%. In short, there can be no question but that husbands still provide the primary income in most families. In many families, they provide the only income. In the remaining families, their aggregate contribution to the total family income, totally eclipses the aggregate contribution of working wives. Now, if that is true today, we submit that 23 years ago and 17 years ago when the statutes here were passed, it was even true to a greater extent. Now on the other side of the coin, it can hardly be disputed that most men are not dependent upon their wives. As we note in our brief, almost all married work and in families were both the husband and the wife work, the husband’s income is generally well above the wife's.
Byron R. White: Is there some danger of fraud in these areas as part of the Government’s aim or let’s assume that you are trying to determine if the parents or older children are dependent, do you just take an affidavit or what do you do?
Samuel Huntington: They fill out a form listing their expenses.
Byron R. White: That will be the end of it, isn't it?
Samuel Huntington: I beg your pardon?
Byron R. White: That’s the end of it, isn’t it?
Samuel Huntington: That, I believe that probably is.
Byron R. White: What is the -- is that the large administrative burden you’re talking about?
Samuel Huntington: Well, for a million and a half men to have to examine a million and a half forms, I submit would be an administrative burden to --
Byron R. White: But I mean, I agree it’s a burden but I’m just trying to find out how much of the burden it is. It’s just --
Samuel Huntington: Well --
Byron R. White: -- making an affidavit, and then somebody will have to read them, I suppose.
Samuel Huntington: Making an affidavit and then somebody reading it and making a determination as to whether it’s justified, I think that’s -- that is exactly what’s involved. I suppose that if evidence came to the Military's attention that the affidavit was false then you would have to investigate further.
Byron R. White: But wouldn’t it be the other -- how about – how about letting the women claim -- you could treat women the same as men the other way I suppose.
Potter Stewart: [Voice Overlap] of all administration.
Samuel Huntington: You mean deny them benefits altogether? Not even give them a chance to show that they --
Byron R. White: Well, treat them like --
Samuel Huntington: Or treat them the way the men; well, certainly Congress could do that --
Thurgood Marshall: That is the whole argument?
Samuel Huntington: -- and the proposal before Congress in the last Congress and it probably be resubmitted at this time is to amend the statute to treat women exactly the same way. What I’m saying here is --
Warren E. Burger: Would that include a requirement to show a dependency?
Samuel Huntington: No, that would -- there would be no requirement -- dependency benefits for spouse and minor children would be conferred automatically both on men and --
Warren E. Burger: The Senate Bill would give the petitioners exactly what they’re asking for here?
Samuel Huntington: Oh, yes, that’s right. But we submit that while that may be a good suggestion and Congress may adopt it but there is rational basis, for the classification made in the statutes, and it is the difference statistical characteristics of married military men as a group compared with not married military women as a group which justify the different treatment here.
Thurgood Marshall: Those contentions haven’t been consistent I’m sure, aren’t they, for 40 years?
Samuel Huntington: You mean consistent for 40 years? No, as I --
Thurgood Marshall: Of course, they vary every year.
Samuel Huntington: Well the statistics I gave were for the current year or in the last couple of years.
Thurgood Marshall: And that would not what the statute was based on?
Samuel Huntington: The statute was based on the situation 20 years ago and as --
Thurgood Marshall: Is there any evidence in the legislative history that they consider those factors?
Samuel Huntington: No, there is not. The legislative history simply indicates that --
Thurgood Marshall: Women are women and men are men.
Samuel Huntington: The statute was designed to give dependent -- to give benefits for dependence. Now what I am stating --
Thurgood Marshall: Do I understand the legislative history other than there should be a distinction made between men and women in the Armed Services? Is there anything else in the legislative history on this statute other than that?
Samuel Huntington: Well, it’s not even that. I mean the statute speaks for itself on that point. The only thing in the legislative history is that by giving allowances for dependents, you would compensate military personnel better so that you could compete with the civilian sector of the economy. Now, I still say that it is apparent that Congress wrestled with the question of how do you determine who’s the dependent. And that it was rational for them to determine that in the case of men you assume that wives are dependent automatically because treating the class of men as a whole that is generally true. Treating the class of women it is -- it is generally not true.
Thurgood Marshall: We base it on the whole general class of women and the whole general class of men.
Samuel Huntington: Right, but we submit that there is a --
Thurgood Marshall: And that’s a rational basis.
Samuel Huntington: We submit it’s a rational basis.
Thurgood Marshall: That’s a rational basis.
Samuel Huntington: Yes.
Thurgood Marshall: It is!
Samuel Huntington: We submit it is a rational basis because there’s statistical differences between the two classes which justify --
Thurgood Marshall: What’s the good difference is that Congress consider. You said not.
Samuel Huntington: I said the legislative history doesn’t indicate that they – they -- they looked at it. The legislative history is fairly silent. I say, you don’t have to go very far to find an underlying rational here. I think that this is fairly apparent. I don’t believe this is the type of case where you have to strain your imagination to dream up some conceivable rational behind the statute. I think the rational as I’ve indicated is one which if it doesn’t lead back from the statute is one which is fairly apparent.
Thurgood Marshall: Women are women and men are men and you can draw that difference and that difference only in based money on.
Samuel Huntington: Well, I would submit simply that there are statistical differences here which do justify the different treatment. I’d like to turn now to the Reed and Reed case. In that case, as you will recall the Court reviewed an Idaho statute which provided that when competing applications to administer an estate were filed by a man and a woman in the same priority group, the man was to be given preference and appointed. Now there is no evidence in the record that men as a class were better administrators than women and the Court rejected the contention that measure was justified to save litigation costs. In short, there are no differences in the two classes of applicants, men and women which justify the discrimination. By contrast, there are very real and relevant statistical differences between married military men as a class and married women which justify the, in our view justify the classifications under review in this case. I would like to turn now to the question of the appropriate standard to be applied under the due process clause of the Fifth Amendment to determine the validity of these statutes. To begin with, as this Court has held a numerous cases, traditional principles of equal protection developed under the Fourteenth Amendment are relevant in considering a tax under the Fifth Amended alleging that federal statutes unjustifiably discriminate between different classes of individuals. Now as already as been touched upon here today, the traditional equal protection tests is the rational basis test. Although originally developed in cases involving statutes regulating business, the test has been applied in recent years to cases involving economic and social benefits. Now as both Mr. Levin and Professor Ginsburg have pointed out, the Court has imposed a stricter standard of review with respect to statutory classifications in two types of cases; those involving classifications which affect fundamental personal rights and those involving inherently suspect classifications. As far as the personal rights are concerned, I would disagree with Mr. Levin that personal rights of the type which bring in to play this, the standard are involved here, the rights are two dependency benefits. These are the same type of economic benefits which were under review in the Dandridge case and I think it’s not the type of personal rights which were under consideration in the Weber case which involved the relationship between illegitimate children and legitimate children within the family unit. The rights here so we would say that the stricter review if it’s going to apply at all in this case, it must be because sex is a suspect classification. Let me just comment briefly on Professor Gunther’s article in the Harvard Law Review. He suggested there that in recent cases, this Court has not been limited simply to one, the polar extremes. But that in reviewing statutes the Court has been taking a fairly close look even when applying the rational basis test to determine whether there is in fact some Government interest involved which can -- which is readily apparent and you don’t have to stretch the imagination to come up with it. We would submit that in this case, the classifications here would stand scrutiny under that type of approach. I would like to turn now to Professor Ginsburg’s argument that classifications based on sex are suspect for equal protection and due process purposes. To begin with, as Professor Ginsburg acknowledges, this Court has never treated classifications based on sex as inherently suspect. And only last term in Reed against Reed applied the traditional rational basis test. In our view, the Court should not now abandon the traditional test and treat sex classifications as suspect. Just last week in the Crest (ph) decision, which upheld the $50 filing fee for requirement as a pre-condition to discharge and bankruptcy, the Court referred to the suspect criteria of race, nationality, and alienage. Now, race classifications of course have an especially disfavored status in our constitutional history. And each of the three classifications in the words of Justice Blackmun in Graham against Richardson involves and I quote “a discreet and insular minority for whom heightened judicial solicitude is appropriate.” Now these minorities generally lack the political power to protect their own interest. Now, we are not contending that women have achieved equal political power with men. The statistics cited by Professor Ginsburg as to the number of women in high government positions in state and federal legislatures are certainly not in dispute, they’re very small. What we do suggest is that because they are a numerical majority in the population as a whole, they have been exercising substantial and growing political influence upon state and federal legislatures. At the federal level, as summarized in the ACLU’s brief, there has been considerable legislative activity in amending statutes containing classifications based on sex. Proposed legislation to amend these statutes as I’ve already stated, was before Congress last year and undoubtedly will be before Congress this year. And also of course the equal rights amendment which was passed last year is evidence -- is an indication of the influence that women who favor the amendment have been able to exert. There is another reason for not expanding the category of suspect classifications to include women. Unlike classifications based on race, nationality, or alienage, classifications based on sex frequently are not arbitrary, but reflect the actual differences between the sexes which are relevant to the purpose of the statutes containing the classifications. Now, we contend here that the dependency statutes, for example, do not discriminate against women because of their femininity. They treat women differently because women as a class are less likely to have dependents than men. Similarly, the Florida statute upheld that Hoyt against Florida did not excuse women from jury duty because they were inferior, but excused them because of the fact that women as class were more likely than men to have family responsibilities, making it impractical for them to serve as jurors. Application of the rational basis test permits the Courts to consider statutes on a case by case basis to determine which classifications are based on valid factual or physiological differences between the sexes and which classifications like the one struck down in Reed and Reed are arbitrary and not based on sex differences. On the other hand, denominating sex classifications as suspect would subject all statutes containing sex classifications to strict review and could result in invalidating many of them whether or not individual classifications reflect acknowledged factual or physiological differences.
Warren E. Burger: But when you talk about generality of women as being less likely to have dependents, you mean dependents in this narrow sense, financially?
Samuel Huntington: Dependence as defined -- yes, dependence --
Warren E. Burger: In terms of children?
Samuel Huntington: No, in terms of dependent spouses, that’s what I mean. Well, in closing, let me simply state that we have no quarrel with the drive of any 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 rather than case by case consideration is better addressed to the legislature rather than to the courts. In conclusion, the judgment of the District Court should be affirmed. Thank you.
Byron R. White: Could I ask you -- if we agreed with the other side, what do you understand the consequence would be?
Samuel Huntington: I understand the consequence would be that you would extend the same benefits to women. I think --
Byron R. White: What would we strike down?
Samuel Huntington: You would strike down the portion of the statute which says that women have to establish dependency in fact in order to claim their wife as a --
Byron R. White: Or we strike that provision down which provides for their allowance then how do they get the allowance?
Samuel Huntington: No, you wouldn’t strike. You would only strike down the part that requires them to establish dependency in fact in order to claim --
Byron R. White: Well, if you just strike down the discrimination, the other way of doing it would be to say that the -- is that the male must prove --
Samuel Huntington: The males must -- well, I would think that would definitely not be the preferable alternative.
Byron R. White: I didn’t say preferable, I wondered how do you know which one?
Samuel Huntington: Well, I think the -- I think the inquiry here would be what Congress would have wished had it been faced with the situation of not being able to make this classification and I think that the conclusion would have to be that they would wish that the --
Byron R. White: Could we just strike down that particular part of the statute of the provision, just those particular words?
Samuel Huntington: That’s right. Yes.
Warren E. Burger: And then we construe all the other relevant statutes to mean and then women wherever it says men or --
Samuel Huntington: Well, just in this narrow context.
Warren E. Burger: I am talking about in these statutes.
Samuel Huntington: In Section -- in 43 -- 37 U.S.C. 401.
Warren E. Burger: So, we strike down one statute and rework some others? Or at least --
Samuel Huntington: Well, no, just within the definition part itself would be the only -- if you simply said that the same standard have to apply to women as applies to men.
Byron R. White: Well, a --
Warren E. Burger: Well, couldn’t we just as easily, why couldn’t we just as easily say that since the allowances if that were the conclusion are discriminatory, all allowances are stricken?
Samuel Huntington: Well, I think that would fly right in the face of the purpose of Congress in adopting the dependency benefits statutes to be --
Warren E. Burger: Any more so than except as to numbers?
Samuel Huntington: Oh, yes, but well I think the numbers [Attempt to Laughter] are quite relevant when you’re talking about a million and a half men and only a couple of a thousand women married to civilians.
Warren E. Burger: You don’t want us to strike the allowances for men?
Samuel Huntington: No, we don’t want you to strike that and we don’t want you to require that the men’s applications for dependency allowances be examined in each case.
Byron R. White: Well, in fact in 401 the definition says that a dependent is a -- of a member of the service is one, his spouse; two, is unmarried minor child.
Samuel Huntington: Well, if you just struck the --
Byron R. White: And then down below it says however, the first is not a dependent of a female member unless he is in fact dependent on her for over half his support. Now, what do we strike down?
Samuel Huntington: That sentence.
Byron R. White: That sentence. Well, then there are no provisions for a man being independent, because up above, it’s just a female member, his spouse.
Samuel Huntington: Well, I think “his” means her in this context. At least in certain areas --[Laughter]
Byron R. White: Obviously, I mean if the Constitution discriminated what, is that it?
Warren E. Burger: Right.
Samuel Huntington: Well, if the statute has always been construed to --
Byron R. White: Well, it doesn’t, is it so? That means his, it means his because --
Samuel Huntington: Well, I mean take the next one, his unmarried legitimate child.
Byron R. White: Well, so we do have to change the meaning of “his” in one, don’t we?
Warren E. Burger: We have to make it really his or hers?
Byron R. White: We have to make it his or hers?
Samuel Huntington: Then why do a complete job. You can do it but the way --[Laughter] -- but the way the statute has been construed is interchangeable with her and his.
Thurgood Marshall: Well, should we assume that petitioners cases in this case are not in favor of cutting out all of the allowances that the wife gets.
Samuel Huntington: Well, you could certainly assume that and we’re not suggesting that you do that. Thank you.
Warren E. Burger: You have three minutes left, Mr. Levin if you wish to use it.
Joseph J. Levin, Jr.: I would do answer Mr. Justice White about which provision of the statute should be struck.
Warren E. Burger: Rewritten?
Joseph J. Levin, Jr.: First of all, I think you don’t get into any trouble by striking that portion that begins however and in support.
Byron R. White: Why not?
Joseph J. Levin, Jr.: Because I don’t believe that “his” means his in the masculine --
Byron R. White: It means not -- now doesn’t it?
Joseph J. Levin, Jr.: No, sir. It doesn’t mean it now. Because the only limitation you have is down here is not a dependent of a female member unless he is in fact dependent on her for over one-half the --
Warren E. Burger: What page of what document?
Joseph J. Levin, Jr.: I am looking at page 23 (a) of the appendix.
Warren E. Burger: Of the appendix?
Joseph J. Levin, Jr.: Yes, sir. Last paragraph.
Warren E. Burger: Hmm.
Joseph J. Levin, Jr.: But I certainly wouldn’t construe “his” in the masculine or feminine sense.
Byron R. White: Or we need to strike that one sentence? That’s what we’re talking about?
Joseph J. Levin, Jr.: I believe that that would extend the benefits to all, yes sir. I think the Government has misconstrued the basic question here and the basic purpose of the statute. The basic purpose of these statutes in the legislative history shows this is to extend these benefits to men and women, that’s the language that the legislature use and the proponents of the legislation used. And the idea was to encourage re-enlistment of men and women and it said more than once, so that is the legislative history. Anything else, would be inconsistent with the basic purpose of the statutes. I think we lose sight of the issue that no matter how many figures are thrown after the court that nevertheless you get right down to rock-bottom, women who are identically situated to men as in the case of Lieutenant Frontiero don’t receive either housing benefits or medical benefits and there can’t be no justification for that kind of situation. The Government talked in terms of forms that have to be filled out. Well, I know for military experience that there are hundred forms that have to be filled out when you go in. Men, all service people have to inform the Government as to how many dependents they have and a variety of other items in order to determine initially what kind of payments they might be eligible to receive. So you’re not asking for any, if you extend it all the way around, you certainly wouldn’t be asking for any extension. You just have to require a quality of root, I prefer to call it that. This Senate Bill has been discussed by the Government, of course, is speculative and it's only perspective as I read it would not apply whatsoever to assist Lieutenant Frontiero and her husband. I think in Reed versus Reed that the lower court there talked in terms of a difference and the experience of men and women and attempted to justify the classification that way. Well, statistics in that case could just as easily have shown that more than in any business world than are women and that con -- and have more and consequently, they have more experience of the classification would then be justified, once again, under the administrative convenience justification. I think you get into a problem when you try and ask the question what is the definition of dependency. The Government seems to want to use one-half dependent in the case of women who are seeking to have their husbands as dependents but to use another classification that is just general dependency of bread winning in the case of men, and we think that this cannot in any way be justified.
Warren E. Burger: Thank you. The case is submitted.