Classifications based on GENDER are inherently suspect
Like RACIAL classification, GENDER
classifications should be subject to close scrutiny.
Nation has had a history of sex discrimination
Romantic paternalism put women in a
Stereotyped distinctions of the sexes
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
Could NOT: VOTE, hold office, bring suit, own property, or hold
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
Blacks were given the right to vote
The characteristic of sex frequently
bears no relation to the ability to perform or contribute to
Civil Rights Act
Prohibits employment discriminations
based on GENDER
Congress has concluded Sex classifications are invidious
Congress itself has concluded that
classifications based upon sex are inherently invidious, and
this conclusion of a coequal branch of Government is not without
This classification cannot survive
This differential treatment of men
and women served the purpose of administrative convenience,
since wives were usually dependent on their husbands for at
least half their support, whereas husbands were RARELY similarly
dependent upon their wives.
Government offered no concrete
evidence to support this saving money view.
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 77, 76.
We therefore conclude that, by
treatment to male and female members of the uniformed services
for the sole purpose of achieving administrative 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
Concurring Justice Powell
Did not agree that classifications
based on sex are suspect.
He thought once ratified the equal
protection amendment would resolve the issue.
He did not think the court should
decide the will of the people.
Concurring - Justice Stewart
The statute was invidious
discrimination in violation of the constitution.
Dissent Justice Rehnquist