Document 23B: Justice Byron R. White, memorandum to Justice William J. Brennan Jr., 15 February 1973, Part I: Case File, 1956-1990, Box 299, Folder 11, Papers of William J. Brennan, 1945-1998, Library of Congress, Washington, D.C.

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

CHAMBERS OF
JUSTICE BYRON R. WHITE

February 15, 1973

Re: No. 71-1694 - Frontiero v. Laird

Dear Bill:

   I think Reed v. Reed applied more than a rational basis test. Thurgood is right about this. If moving beyond the lesser test means that there is a suspect classification, then Reed has already determined that. In any event, I would think that sex is a suspect classification, if for no other reason than the fact that Congress has submitted a constitutional amendment making sex discrimination unconstitutional. I would remain of the same view whether the amendment is adopted or not.

   Whether it follows from the existence of a suspect classification that "compelling interest" is the equal protection standard is another matter. I agree with Thurgood that we actually have a spectrum of standards. Rather than talking of a compelling interest, it would be more accurate to say that there will be times—when there is a suspect classification or when the classification impinges on a constitutional right—that we will balance or weigh competing interests. Of course, the more of this we do on the basis of suspect classifications not rooted in the Constitution, the more we approximate the old substantive due process approach.

Sincerely,

Mr. Justice Brennan

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