A Soldier, a Law Professor, and Three Men

6 min readJun 9, 2021

…walk up to a bar (but not the kind you think….)

The Frontiero Case

When United States Air Force officer Lt. Frontiero applied for dependent spouse benefits, the Air Force refused her.

Why? After all, spouses routinely received such benefits. How were the Frontieros any different?

Well, it was the early 1970s. Lt. Sharron Frontiero of the U.S. Air Force was a woman. Her husband Joseph was a man. So, yes, while male officers could claim their wives as dependents, female officers had to prove they provided more than 50 percent of their husbands’ support to qualify.

Sharron Frontiero sued the U.S. Secretary of Defense (Melvin Laird at the outset, replaced later by Eliot Richardson) in District Court, claiming that the Air Force’s policy violated her rights under the Fifth Amendment’s due process clause and the Fourteenth Amendment’s equal protection clause. The district court ruled in favor of the defendant, so Sharron Frontiero appealed to the Supreme Court.

In an 8–1 decision, the Supreme Court ruled in Frontiero v. Richardson (1973) that the federal law allowing wives to become dependents automatically but raising the bar for husbands was a case of discrimination based on sex. This was the first time a sex discrimination case was successful against the federal government.

The law professor with a strategy

In the past, the Supreme Court had upheld laws making distinctions between men and women as long as those laws were “ ‘reasonable’ ” (Kerber et al. 752). But that changed in the early 1970s, when Court rulings began placing the burden of proof on those who would discriminate based on gender to prove the discrimination was, indeed, reasonable.

What changed? Well, a certain law professor began to work with the American Civil Liberties Union (ACLU) and argued successfully in the brief for Reed v. Reed (1971) that Idaho’s law requiring fathers be given preference as executors of children’s estates rather than mothers was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.

That law professor? Ruth Bader Ginsburg. She and ACLU director Melvin Wulf worked together on the Reed brief, and then she went on to head up the ACLU’s Women’s Rights Project, which she co-founded with Brenda Feigen, in 1972. That’s how she became involved in the Frontiero case, for which she developed the argument and wrote the brief, appearing for the ACLU amicus curiae (“friend of the court”). Frontiero was the first case RBG would argue before the Supreme Court.

In the Frontiero decision, Justice William J. Brennan compared discrimination based on sex to racial discrimination. However, three other justices who ruled in favor of the Frontieros indicated that they would not consider sex in the same category as race until the Equal Rights Amendment passed. (So, if anyone tries to tell you we don’t need the ERA, this is a good example to use in an argument for it).

The Frontiero case demonstrates something else, which Ruth Bader Ginsburg and colleagues would emphasize in another case: Weinberger v. Wiesenfeld (1975): Both men and women benefit when the sexes are treated equally under the law. Notice that in the Frontiero case, not only did Sharron Frontiero face gender discrimination by the Air Force and federal government, but so did her husband, Joseph.

In the Weinberger case, Stephen Wiesenfeld sued for survivor’s benefits under Section 402(g) of the Social Security Act of 1935 after the death of his wife in childbirth. As a widower, he was not eligible to draw benefits although his wife had earned more than he did before her death. Ginsburg argued that both Stephen Wiesenfeld and his deceased wife were being discriminated against because he couldn’t draw benefits the way a woman would be able to, and his wife’s contributions to Social Security were seen as less important than those of men. It would take another decision in Califano v. Goldfarb in 1977 to finally put to rest (legally, anyway) the “old notions’ of gender roles” under which wives were considered more likely to be dependent on husbands and in need of survivor’s benefits.

Let’s think about the implications here for a moment. In both cases — Frontiero and Weinberger — the women involved were clearly dismissed as less important than men. Their contributions and earnings were less important than those of men. But, what did these cases reveal about society’s expectations of men? That real men shouldn’t be dependent on their wives financially? A real man goes out and gets the bacon? In both cases, the federal government policies at issue were reinforcing serious negative perceptions of both women and men.

Men’s rights and gender equity

Another interesting case Ginsburg (along with her husband and the ACLU) was involved in during the early 1970s was Charles E. Moritz v. Commissioner of Internal Revenue (1972). This one, too, focused on discrimination on the basis of sex against men. The Internal Revenue Code allowed tax deductions for the cost of caregivers, but only if the person claiming the deduction was a woman or a man who had once been married. No single men need apply. Of course, there was no rational reason for this discrimination against Moritz, and the Court ruled in his favor.

In Craig v. Boren (1976), Ginsburg would again play a role as attorney (amicus curiae) for the ACLU, challenging a statute in Oklahoma limiting purchases of beer containing 3.2% ABV to women 18 years or older while prohibiting men under 21 years of age from purchasing the same. The Supreme Court found the statute unconstitutional and in violation of the Equal Protection Clause of the Fourteenth Amendment. Again, we see a law based on stereotypes — young women are expected to be the responsible ones and young men are hard partying rascals that need some extra guidance from big brother.

To be sure, Ginsburg knew what she was doing. She knew that with each case in which she defended men’s rights, she helped to establish legal precedents that would shore up women’s standing, as well. In fact, the Women’s Rights Project was designed to develop cases that would nudge the court toward treating sex as a suspect category.

Sex a “suspect class”?

There’s a deeper legal debate underpinning these cases that I’m not going to wander very far into. This debate involves the “suspect classifications” of race, religion, and nationality — all considered likely to be subject to discrimination — and whether gender is a “suspect class” as well. When a case involving an Equal Protection violation comes before the Court, justices will apply a strict scrutiny standard to analyze laws or actions very carefully to determine if they discriminate against these suspect classes, and the state has to come up with a very strong reason for the law under question. Remember the three concurring judges in the Frontiero case? They weren’t sure sex qualified as a “suspect class.” (And again, the ERA would address this issue.). However, the Court has now developed an intermediate or heightened scrutiny test that falls somewhere between strict scrutiny and rational basis (the latter simply means the state can defend legislation based on any reasonable grounds).

We have Ruth Bader Ginsburg, along with the ACLU, to thank for that. It’s important to remember that she fought for the rights of both women and men. As most of these cases show, equality is good for all of us. RBG definitely left the world a better place than she found it.

One more thing about Ruth Bader Ginsburg. I heard people complaining about her sitting on the Supreme Court at her advanced age before her passing. Knowing what I know about RBG, my response was simple: That woman could have sat in any damned place she wanted as long as she wanted, as far as I was concerned.