11 October, 2020 — The Precarious State of Justice Ruth Bader Ginsburg’s Progressive Legacy – Part 2

There were many discriminatory laws on the books in the US in the 1970s. For example, employers in most states could legally fire a woman for being pregnant, banks could require a woman applying for credit to have her husband co-sign, and in 12 states, husbands could not be prosecuted for raping their wives. It was in this legal climate that Ruth Bader Ginsburg, then a law professor at Rutgers University working with the American Civil Liberties Union (ACLU), took on the cases of “Sally Reed, who was assumed to be less competent to administer an estate, and Charles Morris, who was considered less competent to care for an elderly parent.”[1] In 1971, the US Supreme Court ruled in Reed v. Reed[2] that administrators of estates cannot be named in a way that discriminates between sexes. And in 1972, an Appeals Court ruled in favor of Moritz, citing Reed v. Reed.[3]

In 1972, Ruth Bader Ginsburg co-founded the ACLU Women’s Rights Project: “[w]e had three missions. And the first was public education. People have to care about the change. The second was legislature… get the legislature to change…. And then, finally, the Courts. We worked on all three levels.”[4]

Asked about her motivation to take on gender discrimination cases, Ruth Bader Ginsburg responded:

“One has to begin at the beginning. And what we faced were statute books, state and federal, that were riddled with classifications based on sex. What we wanted was to open all doors. For men and for women, that nobody should be blocked from an opportunity or pursuit of a particular course in life, because he was male or she was female. So the idea was to get rid of all the overt gender-based classifications. And that was the starting point: to have law books that did not classify people…. That was the mission. And what we encountered in approaching courts was something that was absent in the movement for racial justice… many people thought that gender discrimination operated benignly in women’s favor… that… all those protections sheltered women. It was hard for them to see that those so-called protections really operated… to put women not on a pedestal, but in a cage.”[5]

Ruth Bader Ginsburg wrote the amicus brief in the case of Frontiero v. Richardson, and for the first time in her legal career presented an oral argument in front of the US Supreme Court. The brief was powerfully persuasive, as the all-male Supreme Court ruled 8-1 for Frontiero, who had not been allowed to automatically claim her husband as a dependent for housing and medical benefits, while her male colleagues in the US Air Force had been allowed to do so for their wives[6]:

“Historically, women have been treated as subordinate and inferior to men. Although some progress toward erasing sex discrimination has been made, the distance to equal opportunity for women in the United States remains considerable…. A person born female continues to be branded inferior for this congenital and unalterable condition of birth. Her position in this country, at its inception, is reflected in the view expressed by Thomas Jefferson that women should be neither seen nor heard in society’s decision-making councils…. The common law heritage, a source of pride for men, marked the wife as her husband’s chattel…. Prior to the Civil War, the legal status of women in the United States was comparable to that of blacks under the slave codes…. Neither blacks nor women could hold office, serve on juries, or bring suit in their own names. Men controlled the behavior of both their slaves and their wives and legally enforceable rights to their services without compensation…. [t]he parallel was not accidental, for the legal status of women and children served as the model for the legal status assigned to black slaves….”[7]

[1] Legally Speaking: Ruth Bader Ginsburg. University of California Television (UCTV). November 3, 2011. Available on youtube at https://youtu.be/XA5KTkCGTWo

[2] Reed v. Reed, 404 U.S. 71 (1971).

[3] Moritz v. Commissioner, 469 F.2d 466 (10th Cir. 1972).

[4] Legally Speaking: Ruth Bader Ginsburg. University of California Television (UCTV). November 3, 2011. Available on youtube at https://youtu.be/XA5KTkCGTWo

[5] Legally Speaking: Ruth Bader Ginsburg. University of California Television (UCTV). November 3, 2011. Available on youtube at https://youtu.be/XA5KTkCGTWo

[6] Frontiero v. Richardson, 411 U.S. 677 (1973).

[7] In the Supreme Court of the United States, October Term, 1972, No. 71-1694, Sharron A. Frontiero and Joseph Frontiero v. Melvin R. Laird et al. Brief of American Civil Liberties Union Amicus Curiae, Ruth Bader Ginsburg et al.

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