Alabama Justice: The Cases and Faces that Changed a Nation by Brown Steven P

Author:Brown, Steven P. [Brown, Steven P.]
Language: eng
Format: epub
Publisher: The University of Alabama Press

THE LITIGATION

At the federal level, cases are typically initiated in one of ninety-four US district courts where a single judge oversees the proceedings and renders an opinion. Until 1976, however, when constitutional questions arose regarding a state or federal government action, a three-judge district court was routinely convened to hear the initial dispute.26 The Frontieros’ case was heard by district judges Frank H. McFadden and Frank M. Johnson Jr., and by circuit judge Richard T. Rives. Johnson and Rives were among a handful of southern judges who used the law to protect the civil rights of African Americans in the face of both societal pressure and personal death threats. It would presumably be only a short step from their previous equal protection decisions on race to recognize Sharron Frontiero’s plea for equal treatment of women.

Yet, when the court announced its ruling on April 5, 1972, Johnson and Rives found themselves on opposing sides. Rives’s opinion for the majority went to some length to suggest that the challenged statutes did not constitute gender discrimination per se. The court acknowledged that male service members could claim their wives and children without having to prove their dependency status. But so too, the court added, were female members exempt from proving the dependency of the “unmarried, legitimate, minor children” they claimed.27 Similarly, just as women had to demonstrate the dependency status of anyone other than their minor children, so too did men who sought military benefits for their “adult children, parents, and parents-in-law.”28 Thus, the majority argued, “the availability of the presumption does not turn exclusively on the basis of the member’s sex but rather on the nature of the relationship between the member and the claimed dependent.”29

The district court opinion then went on to consider, albeit mostly for the sake of argument, the heart of Frontiero’s claim: that women in the military were treated differently than men. Using the rational basis test, the court concluded that there was a reasonable justification for the gender bias in the legislation governing military housing and benefits. “It seems clear,” the majority declared, “that the reason Congress established a conclusive presumption in favor of married servicemen was to avoid imposing . . . a substantial administrative burden of requiring actual proof from some 200,000 male officers and over 1,000,000 enlisted men that their wives were actually dependent upon them.”30 The practical result, the district court went on to say, was “a considerable saving of administrative expense and manpower.”31

In dissent, Judge Frank M. Johnson argued that the majority opinion had simply ignored both the question of “whether Congress may legitimately distinguish between men and women” with regard to spousal dependency and the Supreme Court’s ruling in Reed.32 That decision had explicitly rejected administrative convenience as a justifiable basis for gender discrimination, and there was no constitutional protection for either Congress or the United States military, any more than there had been for the state of Idaho in that case, to treat men and women differently.

The Frontieros appealed the

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