Document 23D: Justice Lewis F. Powell, memorandum to Justice William J. Brennan Jr., 2 March 1973, Part I: Case File, 1956-1990, Box 299, Folder 11, Papers of William J. Brennan, 1945-1998, Library of Congress, Washington, D.C. 2 pp.

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Supreme Court of the United States
Washington, D. C. 20543


March 2, 1973

No. 71-1694 - Frontiero v. Richardson

Dear Bill:

   This refers to your third draft opinion in the above case, in which you have now gone all the way in holding that sex is a ''suspect classification."

   My principal concern about going this far at this time, as indicated in my earlier letter, is that it places the Court in the position of preempting the amendatory process initiated by the Congress. If the Equal Rights Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. If, on the other hand, this Court puts "sex" in the same category as "race" we will have assumed a decisional responsibility (not within the democratic process) unnecessary to the decision of this case, and at the very time that legislatures around the country are debating the genuine pros and cons of how far it is wise, fair and prudent to subject both sexes to identical responsibilities as well as rights.

   The point of this letter is not to debate the merits of the Equal Rights Amendment, as to which reasonable persons obviously may differ. Rather, it is to question the desirability of this Court reaching out to anticipate a major political decision which is currently in process of resolution by the duly prescribed constitutional process.

   I joined your opinion in its original draft on the authority of Reed v. Reed. This is as far as we need go in the case now before us. If and when it becomes necessary to consider whether sex is a suspect classification, I will find the issue a difficult one. Women

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certainly have not been treated as being fungible with men (thank God!). Yet, the reasons for different treatment have in no way resembled the purposeful and invidious discrimination directed against blacks and aliens. Nor may it be said any longer that, as a class, women are a discrete minority barred from effective participation in the political process.

   For these reasons, I cannot join your new opinion and will await further circulations.



Mr. Justice Brennan

cc: The Conference


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