Appellants argue that classifications based on sex, like classifications based on race, alienage, and national origin, are inherently suspect and must be subjected to close judicial scrutiny.
When two individuals are otherwise equally entitled to appointment as administrator of an estate, the male applicant must be preferred to the female.
Under the statutes at issue, a serviceman may claim his wife as a dependent without regard to whether she is in fact dependent upon him for any part of her support. A servicewoman, on the other hand, may not claim her husband as a dependent under these programs unless he is in fact dependent upon her for over one-half of his support. The appellant claims that the right of a female member of the uniformed services to claim her spouse as a dependent for the purposes of obtaining increased quarters allowances and medical and dental benefits has been violated.
Are classifications based on sex inherently suspect and must be subjected to close judicial scrutiny?
Yes, classifications based on sex are inherently suspect and must be subjected to close judicial scrutiny and the difference in treatment by the statutes constitutes an unconstitutional discrimination against servicewoman in violation of the Fifth Amendment.
It is not necessary for this Court to characterize sex as a suspect classification. The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment. By this, the Court is not showing deference to legislative processes.
Because sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate the basic concept of our system that legal burdens should bear some relationship to individual responsibility. Moreover, what differentiates sex from such nonsuspect statutes as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. Accordingly, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members. Thus, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statutes violate the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.