Chapter Three of "Equal"

3.Frontiero Brings Hopes

When Ginsburg first heard about Wiesenfeld, two ACLU cases concerning discrimination in the military were heading for the Supreme Court.

Susan Struck became pregnant in 1973 when the Air Force required discharge of pregnant service members. According to Strebeigh, the government urged her to have an abortion (this was prior to Roe v. Wade.) Instead she used leave time she had accumulated to have the baby, whom she put up for adoption. She was discharged for “moral or administrative reasons.”

The Air Force gave in and made an exception for Struck, rendering her case moot. The instructions came down from Erwin Griswold, solicitor general and former dean of Harvard Law, who had invited Ginsburg to his home in 1956 to ask why she was taking a man's place at the school.

The remaining case was Sharron Frontiero, who was denied a military housing allowance for her husband on the grounds that he was not dependent on her – a standard that a male seeking the same pay would not have had to meet. Lower courts found a rational basis for the discrimination.

Southern Poverty Law Center lawyer Joseph Levin handed the case off to the ACLU with the understanding that the ACLU would control the case and Ginsburg would argue. Levin reneged, based on his attachment to the case and not any “chauvinistic” desires. The ACLU was left to an amicus position, arguing for strict scrutiny, and Ginsburg would get 10 minutes of argument. She drew on Reed to argue that the court could proceed from the test articulated therein to a strict scrutiny test without making a “giant step.” She argued for 10 minutes without interruption, and the discovery of Justice Blackmun's papers later revealed he had given her a C+.

The court ruled for Frontiero but did not adopt strict scrutiny. Ironically, one of the key points in the argument against strict scrutiny was the court's desire to avoid “activism”-- preempting the enactment of the Equal Rights Amendment, which in 1973 appeared imminent. Four justices – Brennan, Douglas, White and Marshall – favored strict scrutiny.

Ginsburg wanted to turn next to Wiesenfeld, but had to detour around a case unvolving Melvin Kahn, a widower who was denied a Florida tax break. Kahn had been brought by another attorney and then forced on Ginsburg. She relied on Reed, stepping back from strict scrutiny because she had no faith she could prevail in Kahn. The court found a rational basis for Kahn – Justice Douglas, the son of a widow, was mindful of women's particular financial difficulties. Only two justices (Brennan and Marshall) wanted strict scrutiny. The court had taken a step backward.