Document 23C: Justice Potter Stewart, memorandum to Justice William J. Brennan Jr., 16 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 POTTER STEWART

February 16, 1973

71-1694 - Frontiero v. Laird

Dear Bill,

   I see no need to decide in this case whether sex is a "suspect" criterion, and I would not mention the question in the opinion. I would, therefore, eliminate the first full paragraph on page 5, and substitute a statement that we find that the classification effected by the statute is invidiously discriminatory. (I should suppose that "invidious discrimination" is an equal protection standard to which all could repair, even though the dissenters would not find such discrimination in this case.)

Sincerely yours,

P. S.

Mr. Justice Brennan

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