Brief for the Appellant in Reed v. Reed (1971)
In 1971, while a professor at Rutgers Law School and not yet a judge, Ruth Bader Ginsburg co-wrote with ACLU lawyers a brief for the appellant in a case called Reed v. Reed, decided in 1971. Sally Reed's son had recently died, and she and her separated husband, Cecil, were engaged in a battle over who would administer their son's estate. In Idaho, where the Reeds lived, state law dictated that Cecil was entitled to be the administrator, because "males must be preferred to females." Ginsburg was interested in the case not just to assert Sally Reed's right to be an administrator but to make a broader point about how laws that arbitrarily privilege men over women violate the Fourteenth Amendment's Equal Protection Clause. In the brief, Ginsburg argues forcefully that the Idaho law is unconstitutional.
The issue in this case is whether, as appellant contends, mandatory disqualification of a woman for appointment as an administrator, whenever a man "equally entitled to administer" applies for appointment, constitutes arbitrary and unequal treatment proscribed by the fourteenth amendment to the United States Constitution.
In very recent years, a new appreciation of women's place has been generated in the United States. Activated by feminists of both sexes, courts and legislatures have begun to recognize the claim of women to full membership in the class "persons" entitled to due process guarantees of life and liberty and the equal protection of the laws. But the distance to equal opportunity for women-in the face of the pervasive social, cultural and legal roots of sex-based discrimination-remains considerable. In the absence of a firm constitutional foundation for equal treatment of men and women by the law, women seeking to be judged on their individual merits will continue to encounter law-sanctioned obstacles.
The experience of trying to root out racial discrimination in the United States has demonstrated that even when the arsenal of legislative and judicial remedies is well stocked, social and cultural institutions shaped by centuries of law-sanctioned bias do not crumble under the weight of legal pronouncements proscribing discrimination. Thus . . . sex-based discrimination will not disintegrate upon this Court's recognition that sex is a suspect classification. But without this recognition, the struggle for an end to sex-based discrimination will extend well beyond the current period in time, a period in which any functional justification for difference in treatment has ceased to exist.
One challenge Ginsburg faced in writing the brief was that the Supreme Court had never used the Equal Protection Clause to strike down a law because it discriminated on the basis of sex addressed. Sex discrimination had not been the focus of the Fourteenth Amendment's framers. Ginsburg needed to show that sex discrimination was at least partially analagous to race discrimination: both were arbitrary forms of unequal treatment. At the time, this view was contested; many people thought that men and women were simply biologically different, and the law should reflect that. In the next section, Ginsburg begins the monumental task of arguing that sex should be a 'suspect classification,' not an acceptable reason to treat people differently under law.
It is only within the last half-dozen years that the light of constitutional inquiry has focused upon sex discrimination. Emerging from this fresh examination, in the context of the significant changes that have occurred in society's attitudes, is a deeper appreciation of the premise underlying the 'suspect classification' doctrine: although the legislature may distinguish between individuals on the basis of their ability or need, it is presumptively impermissible to distinguish on the basis of congenital and unalterable biological traits of birth over which the individual has no control and for which he or she should not be penalized. Such conditions include not only race, a matter clearly within the 'suspect classification' doctrine, but include as well the sex of the individual. . . .
Through a process of social evolution, racial distinctions have become unacceptable. The old social consensus that race was a clear indication of inferiority has yielded to the notion that race is unrelated to ability or performance. Even allegedly rational attempts at racial classification are now generally rejected outright. The burden of showing that these attempts are based on something other than prejudice is enormous.
There are indications that sex classifications may be undergoing a similar metamorphosis in the public mind. Once thought normal, proper, and ordained in the "very nature of things," sex discrimination may soon be seen as a sham, not unlike that perpetrated in the name of racial superiority. Whatever differences may exist between the sexes, legislative judgments have frequently been based on inaccurate stereotypes of the capacities and sensibilities of women. In view of the damage that has been inflicted on individuals in the name of these "differences," any continuing distinctions should, like race, bear a heavy burden of proof. One function of the fourteenth amendment ought to be to put such broad-ranging concerns into the fundamental law of the land.
When biological differences are not related to the activity in question, sex-based discrimination clashes with contemporary notions of fair and equal treatment. No longer shackled by decisions reflecting social and economic conditions or legal and political theories of an earlier era, both federal and state courts have been intensely skeptical of lines drawn or sanctioned by governmental authority on the basis of sex. Absent strong affirmative justification, these lines have not survived constitutional scrutiny.
Another characteristic which underlies all suspect classifications is the stigma of inferiority and second class citizenship associated with them. Women, like Negroes, aliens, and the poor have historically labored under severe legal and social disabilities. Like black citizens, they were, for many years, denied the right to vote and, until recently, the right to serve on juries in many states. They are excluded from or discriminated against in employment and educational opportunities. Married women in particular have been treated as inferior persons in numerous laws relating to property and independent business ownership and the right to make contracts.
Laws which disable women from full participation in the political, business and economic arenas are often characterized as "protective" and beneficial. Those same laws applied to racial or ethnic minorities would readily be recognized as invidious and impermissible. The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage. We conclude that the sexual classifications are properly treated as suspect, particularly when those classifications are made with respect to a fundamental interest such as employment.
To prove that sex should be a suspect classification, Ginsburg needed to make a second point, beyond just that biology cannot justify unequal treatment. She also needed to prove that women faced real discrimination-just like African Americans, discrimination against whom was the original basis for the Equal Protection Clause. In the next section, Ginsburg does so by attacking the typical justifications given for sex-classified laws.
While the characteristics that make a classification 'suspect' have not been defined explicitly by this Court . . . a series of cases delineates as the principal factor the presence of an unalterable identifying trait which the dominant culture views as a badge of inferiority justifying disadvantaged treatment in social, legal, economic and political contexts. Although the paradigm suspect classification is, of course, one based on race, this Court has made it plain that the doctrine is not confined to a 'two-class theory.'
American women have been stigmatized historically as an inferior class and are today subject to pervasive discrimination. As other groups that have been assisted toward full equality via the suspect classification doctrine, women lack political power to remedy the discriminatory treatment they are accorded in the law and in society generally.
No doubt promotion of expeditious administration of estates and curtailment of litigation are bona fide state interests. But it is equally plain that the end of expediency cannot be served by unconstitutional means.
The fact that not all women are denied the right to a hearing or presumed less than competent to administer an estate highlights the invidious discrimination inherent in the statute. A woman may compete on terms of equality whenever her challenger is another woman. If no male equally eligible opposes, the woman will be appointed. Through this device of law-mandated subordination of "equally entitled" women to men, the dominant male society, exercising its political power, has secured women's place as the second sex.
Ginsburg's ideal outcome in this case was for the Court to make gender a 'suspect classification,'establishing the basis for striking down other laws treating women with less dignity than men. Her role with the ACLU, however, required her to be more than just an idealist; she had to win the case she was litigating. That meant her back-up plan was to push the Court to make a narrower claim: that irrational instances of treating women worse than men were violations of the Equal Protection Clause-even if not every instance of gender discrimination was suspect.
Attributable in part to decisions of this Court, women continue to receive disadvantaged treatment by the law. In answer to the compelling claim of women for recognition by the law as full human personalities, this Court, at the very least, should reverse the presumption of a statute's rationality when the statute accords a preference to males. Rather than require the party attacking the statute to show that the classification is irrational, the Court should require the statute's proponent to prove it rational.
Declaring that "nature itself has established the distinction," the Idaho Supreme Court seemingly justified the discrimination challenged here by finding it "rational" to assume the mental inferiority of women to men. This assumption, particularized in the judgment that "men are better qualified to act as an administrator than are women" demands swift condemnation of this Court.
Any legislative judgment that "men are better qualified to act as an administrator than are women" is simply untenable. . . . Moreover, although the Idaho Supreme Court did not provide any enlightenment on the specific functions an administrator performs for which "men are better qualified," the standard responsibilities are evident: receiving payments from creditors, paying out debts, paying state and federal taxes if any, preserving the assets of the estate, and finally paying out the net estate to the lawful heirs. Except for the occasional millionaire who dies intestate, the responsibilities are hardly onerous. They can be handled satisfactorily by most people who have completed secondary school education.
Finally, as developed in the preceding section, Idaho's interest in prompt administration of estates and curtailment of litigation is barely served by section 15-314. The male preference system operates in relatively few cases. In most situations in which more than one applicant from a class of equal eligibles separately seek letters of administration, hearings must be held. Indeed, and quite appropriately, the Idaho Code invites hearings by providing that "any person interested" may challenge the competency of the administrator.
To eliminate women who share an eligibility category with a man, when there is no basis in fact to assume that women are less competent to administer than are men, is patently unreasonable and constitutionally impermissible. A woman's right to equal treatment may not be sacrificed to expediency.
Ultimately, it was Ginsburg's narrower claim that won. The Supreme Court ruled unanimously in Reed v. Reed that Idaho's law favoring men over women was 'the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.' Though neglecting to say that all gender-based distinctions were arbitrary, the Court still ruled in a way that allowed for Ginsburg to make future arguments defending a more robust role for gender protections under the Fourteenth Amendment.
Brief of the American Civil Liberties Union, Amicus Curiae, in Craig v. Boren (1976)
Ruth Bader Ginsburg is known as a champion of women's rights. Sometimes to expand those rights, however, she had to take an unusual path. In the following brief, Ginsburg's unusual path involves defending a law that seemed to advantage women. In 1976, Ginsburg, then director of the Women's Rights Project at the ACLU, cowrote an amicus curiae brief in the case of Craig v. Boren. In this "friend of the court" brief-a legal document submitted to the Court by a group or individual not directly involved in the litigation-Ginsburg argues against an Oklahoma law that allowed women to purchase low-alcohol beer at an earlier age than men. Careless critics might think Ginsburg's position in the brief suggested that discrimination against men was as serious or prevalent as discrimination against women. A closer look at her brief, however, shows her view to be far more nuanced, her goals still laser-focused on real equality for women-and thus equality for all. To Ginsburg, demanding that the Court give close scrutiny to any law that drew distinctions based on gender would bolster her victory in Reed v. Reed and call attention to the ways that legal stereotypes can hurt women, even when they appear beneficial. Ginsburg's outline of her argument follows.
Summary of Argument
Establishing a sex/age line to determine qualification for association with 3.2 beer, discriminates impermissibly on the basis of gender in violation of the fourteenth amendment's equal protection clause. This legislation places all 18-20 year old males in one pigeonhole, all 18-20 year old females in another, in conformity with familiar notions about "the way women (or men) are." Upholding the legislation, the court below relied upon overbroad generalizations concerning the drinking behavior, proclivities and preferences of the two sexes. Such overbroad generalization as a rationalization for line-drawing by gender cannot be tolerated under the Constitution.
On the surface, Oklahoma's 3.2 beer sex/age differential may appear to accord young women a liberty withheld from young men. Upon deeper inspection, the gender line drawn by Oklahoma is revealed as a manifestation of traditional attitudes about the expected behavior of males and females, part of the myriad signals and messages that daily underscore the notion of men as society's active members, women as men's quiescent companions.
Just as drinking preferences and proclivities associated with a particular ethnic group or social class would be perceived as an unfair and insubstantial basis for a beverage sale or service prohibition directed to that group or class, so a gender-based classification should be recognized as an inappropriate, invidious means to the legislative end of rational regulation in the public interest.
The legislation in question is a bizarre and paradoxical remnant of the day when "anything goes" was the rule for line-drawing by gender.