Presentation - Litigating for Gender Equality in the 1970s
Litigating for Gender Equality in the 1970s
Ruth Bader Ginsburg
Supreme Court of the United States
May 21, 2002
What was the mission in the 1970s? The grand aim was to place women's rights permanently on the human rights agenda. At the ACLU Women's Rights Project, which started up early in 1972, we worked on three fronts: We sought to advance, simultaneously, public understanding, legislative change, and change in judicial doctrine. In one sense, our mission was easy: the targets were well defined. There was nothing subtle about the way things were. Statute books in the States and Nation were riddled with what we then called sex-based differentials. Sex lines in the law were overt and entrenched.
A few typical examples of state laws, among many included in an Appendix to the ACLU's brief for Sally Reed, filed in the summer of 1971. Reed was the first of the 1970s gender discrimination/equal protection cases to come before the Court.1
Listed in the Reed Appendix, was the domicile rule that prevailed in many States. Idaho's version, for a typical example, read:
The husband is the head of the family. He may choose any reasonable place or mode of living and the wife must conform thereto.
Another familiar example from the Reed Appendix, this one of the birds of a feather (women and children go together) genre: California's Penal Code made it a misdemeanor to use "indecent language within the presence or hearing of women or children."
As to federal legislation, the Solicitor-General provided aid, although perhaps not intentionally. He (the Solicitor-General at the time was former Harvard Law School Dean Erwin Griswold) asked the Supreme Court, in March 1973, to review a decision the ACLU had won in The Court of Appeals, Charles E. Moritz v. Commissioner of Internal Revenue.2 Moritz was a man who had encountered rank sex discrimination in, of all places, the Internal Revenue Code - a provision that allowed single women, but not single men, a deduction for the cost of caring for an elderly parent. Congress had prospectively changed the law to eliminate the sex line, so there seemed to be no pressing need for High Court review. Take the case nonetheless, the Solicitor-General urged, for the Court of Appeals decision "casts a cloud of unconstitutionality upon the many federal statutes listed in Appendix E."
What was Appendix E? It was a printout from the Department of Defense's computer (there were not many around in those ancient pre-PC days); the printout listed, title by title, provisions of the U. S. Code "containing differentiations based upon sex-related criteria." It was a treasure trove. One could use the Solicitor-General's list to press for curative legislation and, at the same time, bring to courts contests capable of accelerating the pace of change.
But if our targets were all set out in the law books, our work encountered resistance in this respect. Our starting place was not the same as that of advocates seeking the aid of the courts in the struggle against race discrimination. Judges and legislators in the 1960s and at least at the start of the 1970s regarded differential treatment of men and women not as malign, but as operating benignly in women's favor. Legislators and judges, in those years, were overwhelmingly white, well-heeled, and male. Men holding elected and appointed offices generally considered themselves good husband and fathers. Women, they thought, had the best of all possible worlds. Women could work if they wished; they could stay home if they chose. They could avoid jury duty if they were so inclined, or they could serve if they signed up to do so. They could escape military duty or they could enlist.
Our mission was to educate, along with the public, decisionmakers in the nation's legislatures and courts. We tried to convey to them that something was wrong with their perception of the world. As Justice Brennan wrote in a 1973 Supreme Court opinion, a year and a half after the Court had begun to listen: "Traditionally, [differential treatment on the basis of sex] was rationalized by an attitude of 'romantic paternalism' which, in practical effect put women, not on a pedestal, but in a cage."3
Those with whom I was associated kept firmly in mind the importance of knowing the audience and playing to that audience - largely men of a certain age. Speaking to that audience as though addressing one's "home crowd" could be counterproductive. We sought to spark judges' and lawmakers' understanding that their own daughters and granddaughters could be disadvantaged by the way things were.
Before 1971, the Supreme Court had never acted favorably on a woman's complaint that she had been denied equal protection by any state or federal law. To trace the story of when, why, and how women began to count in constitutional adjudication, may I take you back to a prosecution in a Hillsborough County, Florida, courtroom in 1957, some 45 years ago. Gwendolyn Hoyt stood trial there for murdering her husband; the instrument of destruction, a broken baseball bat. Gwendolyn Hoyt was what we would today call a battered woman. Her philandering husband had abused and humiliated her to the breaking point. Beside herself with anger and frustration, she administered the blow that ended the couple's altercation and precipitated the murder prosecution.
Florida placed no women on the jury rolls in those days, out of patriarchal concern for women's place at "the center of home and family life."4 Gwendolyn Hoyt was convicted of second degree murder by an all-male jury. Her thought was simply this: If women were on the jury, they might have better comprehended her state of mind, casting their ballot, if not for an acquittal, then at least to convict her of the lesser offense of manslaughter.
The Supreme Court, in 1961 (the "liberal" Warren Court), rejected Gwendolyn Hoyt's plea.5 The Court did so, following an unbroken line of precedent. That precedent reflected the long-prevailing "separate-spheres" mentality, the notion that it was man's lot, because of his nature, to be the breadwinner, the head of household, the representative of the family outside the home; and it was woman's lot, because of her nature, to bear and alone to raise children and keep the house in order. Representative of that thinking, a 1948 decision, Goesaert v. Cleary, had upheld Michigan's ban on women working as bartenders, unless the woman's husband or father owned the establishment.6
Just ten years after Hoyt, in 1971, the Supreme Court turned in a new direction. So did lower courts all over the nation. The turning point case, as I earlier mentioned, was Reed v. Reed. Reed involved a teenage boy from the State of Idaho, Richard Lynn Reed, who died under tragic circumstances. His parents were long separated. Richard's mother, Sally Reed, unsuccessfully sought sole custody. While Richard was staying in his father's house, he died from a bullet shot from his father's gun. It was an apparent suicide. Sally Reed sought to take charge of her son's few belongings, and so applied to the court to be appointed administrator of Richard's death estate. The father, Cecil Reed, some days later, applied for the same appointment.
The Idaho court rejected Sally Reed's application, although it was first in time, and appointed the father, Cecil Reed, under a state statute that read, as between persons "equally entitled to administer" a decedent's estate, "males must be preferred to females."7 Sally Reed was not a sophisticated woman. She earned her living by caring for elderly people, taking them into her home. She probably did not think of herself as a feminist, but she had the strong sense that her State's law was unjust. And she prevailed. The Supreme Court unanimously declared Idaho's male preference statute unconstitutional, a plain denial to Sally Reed of the equal protection of the State's law. Sally Reed visited the Court for the first time in June 1999. It was my special pleasure to introduce her then to members of the Supreme Court Historical Society.
Seventeen months after Reed, in Frontiero, v. Richardson, the Court held it unconstitutional to deny female military officers housing and medical benefits covering their husbands on the same automatic basis as those family benefits were accorded to male military officers for their wives.8 Air Force Lieutenant Sharron Frontiero was the successful challenger. Lt. Frontiero had this clear view: She saw the laws in question as plain denials of equal pay.
In the spring of 1999, Sharron Frontiero (now Cohen) visited the Supreme Court to take some photographs with me and a retired Air Force Major General, Jeanne Holm, an officer who had worked constantly to open opportunities for women in the military. (General Holm was one of the 18 high ranking female military officers who signed a friend of the Court brief supporting admission of women to the Virginia Military Institute.9) Like Sally Reed, Sharron (Frontiero) Cohen is not someone you would choose from a crowd as a potential frontrunner. She is an everyday person, uncomfortable with publicity. But she knew she had been shortchanged and she had the courage to complain.
Two years after Sharron Frontiero's victory, the Court declared unconstitutional a state law allowing a parent to stop supporting a daughter once she reached the age of 18, but requiring parental support for a son until he turned 21.10 That same year, 1975, the Court decided a case very dear to my heart. It began in 1972, when Paula Wiesenfeld, a New Jersey public school teacher, died in childbirth. Her husband, Stephen Wiesenfeld, sought to care for the baby boy (Jason) personally, but was denied child-in-care Social Security benefits then available only to widowed mothers, not to widowed fathers. Stephen Wiesenfeld won a unanimous judgment in the Supreme Court.11
In defense of the sex-based differential, the government had argued that the distinction was entirely rational, because widows, as a class, are more in need of financial assistance than are widowers. True in general, the Court acknowledged, but laws reflecting the situation of the average woman or the average man were no longer good enough. Many widows in the United States had not been dependent on their husbands' earnings, the Court pointed out, and a still small, but growing number of fathers like Stephen Wiesenfeld were ready, willing, and able to care personally for their children. Using sex as a convenient shorthand to substitute for financial need or willingness to bring up a baby did not comply with the equal protection principle, as the Court had grown to understand that principle. (As a result of the decision, childcare benefits were paid to Stephen Wiesenfeld, who has been an extraordinarily devoted parent. His son Jason graduated from Columbia Law School in 1998 and I had the great pleasure of co-officiating at Jason's wedding ceremony later that year.)
Next, in 1976, the Court's majority acknowledged that it was applying an elevated standard of review - "heightened scrutiny" - to overt gender-based classifications. The case was Craig v. Boren, in which the Court struck down an Oklahoma statute that allowed young women to purchase 3.2 percent beer at age 18 but required young men to wait until they turned 21.12 It was a silly law, mercifully terminated. One might wish the Court had chosen a more weighty case for announcing the "heightened " review standard. (Women in the Barracks, I should note, in telling the VMI story, perceptively describes the cases I have just summarized.)13
What caused the Court's understanding to dawn and grow? Judges do read the newspapers and are affected, not by the weather of the day, as distinguished Constitutional Law Professor Paul Freund once said, but by the climate of the era. The altered conditions accounting for the different outcomes in Gwendolyn Hoyt's case in 1961, and in the 1970s cases of Sally Reed, Sharron Frontiero, Stephen Wiesenfeld, Curtis Craig, and several others, were these. In the years from 1961 to 1971, women's employment outside the home had expanded rapidly. That expansion was attended by a revived feminist movement, fueled in the United States, in part, by the movement of the 1960s for racial justice, but also, as elsewhere in the world, by the force of new thinking both represented and sparked by Simone de Beauvoir's remarkable 1949 publication, The Second Sex.14 Changing patterns of marriage, access to safer methods of controlling birth, longer life spans, even inflation -- all were implicated in a social dynamic that yielded this new reality: in the 1970s, for the first time in the nation's history, the "average" woman in the United States was experiencing most of her adult years in a household not dominated by childcare requirements. That development, Columbia University economics professor Eli Ginzberg said in 1977, might well prove "the single most outstanding phenomenon" of the late twentieth century.
Congress, aided by the Department of Justice and a Civil Rights Commission report, eventually weighed in. The legislature eliminated most (but not quite all) of the "differentiations based upon sex-related criteria" on Dean Griswold's 1973 list.
In sum, the Supreme Court in the 1970s, as I see it, effectively carried on in the gender discrimination cases a dialogue with the political branches of government. The Court wrote modestly, it put forth no grand philosophy. But by impelling legislative and executive branch re-examination of sex-based classifications, the Court helped to ensure that laws and regulations would "catch up with a changed world."
Most immediately relevant to the VMI litigation about which Professor Strum has written so insightfully, Congress, in the late 1970s, had mooted a court case challenging the exclusion of women from the U.S. military academies – West Point, Annapolis, the Air Force Academy. Congress opened the doors of those academies to women. By the time of the United States v. Virginia case, women cadets had graduated from the U.S. academies for over a decade. The Marine Corps had elevated a career female officer to the rank of three-star General in charge of manpower and planning. Women in service were guarding the Tomb of the Unknown Soldier, flying planes, doing so many things once off limits to them.
Public understanding had advanced so that people could perceive that the VMI case was not really about the military. Nor did the Court question the value of single-sex schools. Instead, VMI was about a State that invested heavily in a college designed to produce business and civic leaders, that for generations succeeded admirably in the endeavor, and that strictly limited this unparalleled opportunity to men. The case was the culmination of the 1970s endeavor to open doors so that women could aspire and achieve without artificial constraints.
One last story from the 1970s: the case of Captain Susan Struck, an Air Force officer serving as a nurse in Vietnam where, in 1970, she became pregnant. She was offered this choice: Have an abortion on base (in pre-Roe v. Wade15 days, the military, without fanfare, made abortion available to its members and dependents of members) or leave the Service. Captain Struck, a Roman Catholic, would not have an abortion, but she undertook to use no more than her accumulated leave time for the birth, and she had arranged for the baby's adoption immediately after birth. She sued to fend off the discharge Air Force regulations required. She lost in the District Court, and again on appeal to the Ninth Circuit. But she was well represented, and each month was able to secure a stay of her discharge.
The Supreme Court agreed to hear her plea. It was an ideal case to argue the sex equality dimension of laws and regulations regarding pregnancy and childbirth. Solicitor-General Erwin Griswold intervened. He saw loss potential for the government. He therefore recommended that the Air Force waive Captain Struck's discharge and abandon its policy of automatically discharging women for pregnancy. The Air Force did so, and Griswold thereupon moved to dismiss the case as moot.16
Hoping to keep the case alive, I called Captain Struck and asked if she had been denied anything that could justify our opposition to a mootness dismissal. She was out no pay or allowance, she confirmed. "Isn't there some benefit you wanted and couldn't get?," I inquired. "Of course, she said, "I'd like to become a pilot, but the Air Force doesn't provide flight training for women." That was in 1972. We agreed it was hopeless to attack that occupational exclusion then.
Today, it would be hopeless, I believe, to endeavor to reserve flight training exclusively for men. That is one measure of what the1970s litigation/legislation/public education efforts achieved.
1 Reed v. Reed, 404 U.S. 71 (1971). The Equal Protection clause of the Fourteenth Amendment to the Constitution states, "No state shall...deny to any person within its jurisdiction the equal protection of the laws."
2Moritz v Commissioner, 469 F.2d 466 (C.A.10 1972).
3Frontiero v. Richardson, 411 U.S. 677 (1973), at 684.
4Justice John Marshall Harlan in Hoyt v. Florida, 368 U.S. 547 (1961), at 62.
5Hoyt v. Florida, 368 U.S. 547 (1961).
6Goesaert v. Cleary, 335 US 464 (1948).
7Idaho Code Section 15-312.
8Frontiero v. Richardson, 411 U.S. 677 (1973).
9U.S. v. Virginia, 518 U.S. 515 (1996).
10Stanton v. Stanton, 421 U.S. 7 (1975).
11Weinberger v. Wiesenfeld, 420 US 636 (1975).
12Craig v. Boren, 429 U.S. 190 (1976).
13Philippa Strum, Women in the Barracks: The VMI Case and Equal Rights (University Press of Kansas, 2002).
14Simone de Beauvoir, The Second Sex (first French edition, 1949; first American edition, ed. H. M. Parshley, 1952).
15Roe v. Wade, 410 U.S. 113 (1973).
16Struck v. Secretary of Defense, 460 F.2d 1372 (9th Cir. 1971), vacated and remanded to consider the issue of mootness, 409 U.S. 1071 (1972).