INTRODUCTION

“Hot damn!”

These were the words self-described “flaming feminist” Sharron Frontiero joyously uttered when she learned that the U.S. Supreme Court's decision in her landmark 1973 case, Frontiero v. Richardson, would allow female military personnel to receive the same dependency benefits for their husbands as their male counterparts were already getting for their wives.

Frontiero was a significant victory for the feminist movement, though not an uncomplicated one. The number of laws on the books in the early 1970s reflecting and reinforcing traditional gender roles was dizzying, and courts – including the U.S. Supreme Court – routinely upheld them. Frontiero was only the second case in which the Court invoked equal protection principles to hold unconstitutional a law that discriminated against women. It was also the first case Ruth Bader Ginsburg argued before the Court, helping solidify her role as “the leading Supreme Court litigator for gender equality” in the 1970s. The original decision in Frontiero marks the closest the Court has come to recognizing sex as a suspect class – Ginsburg's ultimate goal in a creative and sometimes controversial litigation strategy. But because Justice Brennan's opinion establishing strict scrutiny review for sex-based classifications garnered only a plurality of the Court, Frontiero left behind a messy legacy.

In her feminist revision, Professor Dara Purvis, writing as Justice Purvis, gives Ginsburg the strict scrutiny majority for which she strategized so long and hard. Purvis's opinion is grounded in a social constructionist vision of feminism that views all gender stereotypes – including those found in “policies that seemingly honor women's contributions” – as harmful. What is unclear is whether Purvis's feminist judgment, had it been the actual majority opinion, could have done more to mitigate the potential dangers of strict scrutiny seen in recent years.

GINSBURG's TEMPERATURE-RISING STRUGGLE FOR STRICT SCRUTINY

In reflecting on her time as a gender equality litigator in the 1970s, Justice Ginsburg noted that “[o]ur starting place was not the same as that of advocates” fighting race discrimination because policies treating the sexes differently were often regarded “as operating benignly in women's favor.” Lawmakers and judges were “overwhelmingly white, well-heeled, and male,” and “generally considered themselves good husband[s] and fathers.