This week for Supreme Court Sunday we’re going to talk about two of the four cases argued by future Supreme Court Justice Ruth Bader Ginsberg in front of the Supreme Court during her time as head of the Women’s Rights project for the ACLU. The first case deals with gender discrimination in service members’ benefits packages; the second case deals with beer.
Sharron Frontiero was a member of the Air Force, married to a fulltime student who had some income from his veterans’ benefits. Mrs. Frontiero applied for housing, medical and dental benefits on her husband’s behalf as a military dependent. At that time, military wives were entitled to these benefits without any proof of their dependent status, but military husbands were required to prove that they provided less than half of their own support. Because Mr. Frontiero provided more than half of his own support, his application for benefits was denied.
The Frontieros’ case wound its way to the Supreme Court supported by the ACLU and the Southern Poverty Law Center as a gender discrimination matter. The case was argued under a Fifth Amendment theory. The Fifth Amendment is the one which says your rights cannot be taken from you without due process. In this case, Mrs. Frontiero was denied her full benefit package without any reason other than her gender.
The Court affirmed the Frontieros’ argument, stating that any discrimination based on gender needed more than a rational basis (this is a legal term, but it means precisely what it sounds like), it needed what’s called “intermediate scrutiny,” which is a test of propriety and legality. Basically, if your law might result in gender discrimination, there had better be an important reason and no other way to write that law.
The next case for this Sunday, Craig v. Boren, follows very similar logic, though the circumstances couldn’t be more dissimilar. For this case, we take you from the orderly world of an Air Force base to a frat house in Oklahoma.
In 1976, Oklahoma had a law that prohibited men from purchasing alcohol under the age of 21, but women could buy alcohol at the age of 18. Basically, the idea of the law was that men were more prone to make stupid decisions while drunk and couldn’t be trusted with alcohol until they were 21. This is probably true, but not, as we will see, legal.
Curtis Craig, a college student who wanted to buy beer, along with Carolyn Whitener, a shopkeeper who wished to sell him said beer, sued the State of Oklahoma. They argued that any form of gender-based discrimination was illegal under the Fourteenth Amendment’s equal protection clause.
The Court agreed, and the Oklahoma law was overturned. The Court again established the intermediate scrutiny standard, though this time on a State rather than Federal level.
What’s interesting is that both of these cases resulted in a benefit being afforded to men rather than to women, even though they were argued through the ACLU’s women’s rights project. Mr. Frontiero got his subsidized housing, and Mr. Craig got his beer. When asked about this, Ruth Bader Ginsberg, who worked on both cases, made a compelling point: whenever women are afforded extra rights on the basis that we are in some way different than men, we are once again boxed in to our weaker, lesser, and smaller roles in society. Giving women extra rights never really helps women.
What do you think? Is there a role for gender discrimination in our society? What do you think of the Notorious RBG’s previous life as a men’s rights activist? Did you like the double header today? Let me know in the comments! See you all next week!
 Full disclosure: The Southern Poverty Law Center hasn’t put us on the hate map yet, but the way things are going, it’s only a matter of time. We’ll probably be somewhere between the Roman Catholic Church and KFC on the list.