Again and again Donaldson petitioned for release. A variety of individuals, agencies, and doctors were ready and able to take on his outpatient care and even to have him live with them. These requests were always denied. O’Connor (falsely) insisted that Donaldson’s elderly and infirm parents were the only ones to whom he was legally permitted to release him, though by then, Donaldson was in his fifties. O’Connor gave lie to his claim by never approaching the Donaldsons to ask if they would support the release of their son.
Eventually Donaldson’s predicament caught the attention of Morton Birnbaum, a physician, attorney, and advocate for people with mental health disabilities who had long argued, including in the opinion pages of the New York Times, for the articulation of a constitutional right to adequate treatment. Birnbaum filed suit on his behalf, bringing in Bruce Ennis of the New York Civil Liberties Union. Ennis, like Birnbaum, was a vigorous advocate on behalf of people with mental health disabilities and had won a number of cases, of which he hoped Donaldson’s would be the culmination. The suit charged O’Connor, Gumanis, and others of civil rights violations, specifically the intentional and malicious deprivation of Donaldson’s right to liberty as guaranteed by the Civil Rights Act of 1871 and the Fourteenth Amendment to the Constitution.
Even as the suit was being filed, O’Connor retired. When word of the suit reached the new acting superintendent of the hospital, he and his staff first threatened to return Donaldson to a locked ward, and then, after pretrial rulings in Donaldson’s favor, suddenly released him. The case, however, continued to a jury trial.
At trial, O’Connor’s behavior toward Donaldson so shocked the conscience of the jury that they granted punitive damages against him and another psychiatrist. Among other things, the jury found that the doctors had unjustifiably withheld psychiatric care from Donaldson, including grounds privileges designed to teach independent living and occupational therapy.
O’Connor appealed the ruling, and the US Court of Appeals for the Fifth Circuit affirmed the jury’s verdict. In response to O’Connor’s claim that he had acted in good faith, the court found, among other things, that he and the other defendants “wantonly, maliciously, or oppressively blocked efforts by responsible and interested friends and organizations to have Donaldson released to their custody.” The court also granted the right for which Ennis and Birnbaum had long advocated, ruling that if a patient is confined because he needs treatment for mental illness, and not because he is dangerous, due process demands that treatment actually be provided. Involuntary confinement can only be justified by such a quid pro quo.
After this unequivocal victory, O’Connor once again appealed, this time to the Supreme Court. Ennis, who would eventually go on to become the ACLU’s national legal director, had never before argued before the Court and later confided to friends that he spent the week before the argument vomiting from nerves. However anxious he may have been, the novice won a profound Supreme Court victory.Though unlike the Fifth Circuit, the Court did not create a constitutionally guaranteed right to treatment, they ruled that Donaldson’s prolonged incarceration was a violation of his right to liberty.
As a result of Donaldson’s case, state governments were compelled to enact statutes limiting involuntary civil commitment and creating mechanisms for periodic review. No nondangerous person would again be (legally) deprived of his liberty for decades, years, or even weeks and months at a time.
And yet it’s hard not to view this victory, though life changing for people with mental health disabilities and system changing for the institutions that had previously incarcerated them without reasonable recourse, as a partial one. What might have happened if Birnbaum and Ennis had been able to convince the Supreme Court to pair its Fourteenth Amendment ruling with a finding of an affirmative right to treatment? As it stands, the closure of most of the nation’s hospitals for people with mental health disabilities did not result in the creation of a well-funded system of community treatment or with increased resources for services like supported housing, job training, drug treatment, or family and parenting counseling. Furthermore, the few budgetary dollars directed toward mental health are most often spent not on the sickest among us but on the “worried well,” who are easier, cheaper, and more pleasant to treat, leaving the truly affected to cycle in and out of emergency rooms and short-term civil commitments. Large numbers end up in jails and prisons, which have now become the warehouses of people with serious mental illnesses, where what is most often meted out is punishment and brutality rather than treatment. By conservative estimates, between 6 and 16 percent of the US prison population lives with severe mental illness, and the numbers are far higher when less serious mental illnesses and the illness of drug addiction and dependence are included in those figures.
It is, however, no surprise that we have failed as a society to prioritize the needs of those of us with mental health challenges. Many of us respond to those we view as mentally ill with fear, disgust, and judgment rather than compassion. There are myriad reasons for this intolerance. Deeply embedded prejudices against those we view as less than fully human are as integral to the American character as the fantasy of “rugged individualism,” and the most severely mentally ill among us fall neatly into the category of despised other.
There are those of us, however, whose prejudice is a result of the anxiety of overidentification rather than fear of the other. As a high-functioning person with a mood disorder who has written openly about her mental illness, I found myself reading Kenneth Donaldson’s case and personal account with an eye toward drawing a distinction between him and me, as if to reassure myself that I wouldn’t ever have fallen into such a circumstance. I latched on to his various expressions of seemingly paranoid delusions with a sigh of relief. I’m not crazy like that, I thought. Am I? It’s true I’ve never been hospitalized, but I came of age in a post–O’Connor v. Donaldson world. Were I of my grandparents’ generation, it’s entirely possible that my occasional bouts of suicidal ideation would have resulted in commitment, and once committed, I, like Donaldson, might have found it all but impossible to convince the arbiters of my incarceration that I should be freed. Moreover, and most important, as a white person of privilege, the system is inclined to trust and believe me, though gender can mitigate that privilege. A woman of color without my resources might even now struggle to convince a court of her “nondangerousness” to herself, if not to others.
In the face of these realities, I find solace in the efforts of the ACLU and its lawyers to demand dignity and the protection of the Constitution on behalf of all of us, including—especially—those least likely to be deemed worthy of it.
WEINBERGER V. WIESENFELD (1975)
In Weinberger v. Wiesenfeld, the ACLU argued that the Supreme Court’s landmark decision in Reed v. Reed (1971), recognizing constitutional protection against sex-based discrimination, prohibited differential treatment among widows and widowers in the administration of the Social Security system. In an 8–0 decision, the Court agreed, thereby vindicating the Wiesenfeld family’s right to equality of treatment under the law in the event of spousal death and continuing the development of a robust sex equality jurisprudence.
Father Sues for “Mother’s Benefits”
JENNIFER EGAN
A March 11, 1973, New York Times article begins: “A woman lawyer from New York and the Women’s Rights Project of the American Civil Liberties Union in Newark have joined forces in an attempt to obtain Social Security benefits for a widowed father.”
Apparently, a “woman lawyer” was something different from a lawyer in 1973, a distinction unimaginable today. That progress is due in part to Ruth Bader Ginsburg (the “woman lawyer”), who litigated several landmark cases to establish gender equality in American law.
The widowed father described in the Times was twenty-nine-year-old Stephen Wiesenfeld of New Jersey. His wife, Paula, had died in childbirth in 1972, leaving him the sole parent of a newborn son, Jason. Paula, a high school math
teacher working on her PhD, had earned significantly more money than her husband, who was a freelance computer consultant. For the seven years of her employment, Paula had paid the maximum into Social Security. Had she been male and left a widow behind, that widow would have received Social Security benefits (called “Mother’s insurance benefits”) to help her raise her child. But because Stephen Wiesenfeld was a father, not a mother, he was denied these benefits despite his wish to be his infant son’s primary caregiver.
“I intend to raise my son,” Wiesenfeld told the Times when Ginsburg, director of the ACLU Women’s Rights Project, filed a complaint on his behalf in district court. “I want to be a father to him. I realize I cannot be a mother, but I don’t want the tie between us broken.”
A three-judge district court ruled unanimously in Wiesenfeld’s favor, deeming the Social Security statute discriminatory on the basis of sex and therefore unconstitutional. Caspar Weinberger, secretary of health, education and welfare (later secretary of defense under President Ronald Reagan), appealed the decision to the Supreme Court in 1974. The brief supplied by Ginsburg and the ACLU’s legal director, Melvin Wulf, exposed the skein of prejudices that underlay existing practice: “The… ‘child in care’ Social Security benefit… reflects the familiar stereotype that, throughout this Nation’s history, has operated to devalue women’s efforts in the economic sector.… Just as the female insured individual’s status as a breadwinner is denigrated, so the parental status of her surviving spouse is discounted.”
In crackling prose characteristic of Ginsburg legal utterances, the brief argued that the government’s calculus would result in a loss for everyone, especially the child, “who supplies the raison d’être for the benefit in question.”
“It is invidious discrimination to provide less protection for the families of female wage earners than for the families of male wage earners, to deny to widowed fathers the same opportunity to attend to child rearing that is accorded widowed mothers, and to deny to a child whose mother has died the opportunity to be cared for personally by its sole surviving parent.”
To a contemporary eye, these arguments might seem self-evident, but Caspar Weinberger had countered with an array of sallies, including a suggestion that giving benefits only to widows was a way of remedying past discrimination against women. To that, the Ginsburg brief offered this tart riposte: “The case at bar presents a classic example of the double-edged discrimination characteristic of laws that chivalrous gentlemen, sitting in all male chambers, misconceive as a favor to the ladies.”
Ginsburg cited recent legal victories (some of which she had helped to bring about) that provided legal precedents for gender equality. One of these, Reed v. Reed (1971), involved an estranged married couple in Idaho, Sally Reed and Cecil Reed, both of whom applied to serve as administrators of the estate of their son, Richard, who had died as a teenager. The pathos of these facts—estranged parents confronting the premature death of their child—radiate distractingly through the legal language. Though Richard Reed’s cause of death was not specified in the legal documents, it was suicide.
As Richard’s parents, Cecil and Sally Reed were related to him equally. But a probate court ruled in favor of Cecil, following an Idaho statute that stipulated, “Of several persons claiming and equally entitled to administer, males must be preferred to females.”
Sally Reed sued in district court, which overturned the probate court’s decision as a violation of the equal protection clause of the Fourteenth Amendment to the Constitution. But the Idaho Supreme Court, to which Cecil Reed appealed, sided with the original probate court in granting him administration of his son’s estate.
“Philosophically it can be argued with some degree of logic that the provisions of [the statute] do discriminate against women on the basis of sex,” the decision conceded. “However nature itself has established the distinction and this statute… is only designed to alleviate the problem of holding hearings by the court to determine eligibility to administer.” In other words, discriminating on the basis of gender (given that “nature itself” created two of them) is a lot easier than having to decide on an individual basis which party is more qualified.
And, the court went on, men generally are more qualified: “The legislature when it enacted this statute evidently concluded that in general men are better qualified to act as an administrator than are women.”
According to a description of Reed v. Reed on the National Women’s Law Center website, Sally Reed reported that her husband had been abusive to her and to their son, whom she’d raised alone until he was a teenager. At that point, Cecil Reed was awarded partial custody of the boy and took out an insurance policy on his life. Richard, known as “Skip,” was found dead in his father’s basement of a wound from his father’s rifle. Hard to imagine a scenario whereby Cecil Reed would have been deemed more qualified than Sally Reed to administer their son’s small estate.
The brief that Ginsburg submitted on behalf of the ACLU to the US Supreme Court, to which Sally Reed appealed, pillories the Idaho Supreme Court’s decision as “one example of a wider pattern of discrimination against women which infects many areas of American society.”
She argued that gender discrimination was not merely unjust but insidious: by assigning second-class status to women, the court was denying them a chance to prove they deserved better: “If a legislature can bar a woman from service as a fiduciary on the basis of once popular, but never proved, assumptions that women are less qualified than men are to perform such services, then the myth becomes insulated from attack, because the law deprives women of the opportunity to prove it false.”
The US Supreme Court ruled unanimously in favor of Sally Reed, declaring that differential treatment based solely on gender was a violation of the Fourteenth Amendment’s equal protection clause and declaring the Idaho statute arbitrary and unconstitutional. It was the Supreme Court’s first ruling against gender-based discrimination under the Constitution. The decision required that hundreds of laws be rewritten and set a crucial precedent.
In her argument to the Supreme Court on behalf of Stephen Wiesenfeld, Ginsburg cited Reed v. Reed and a handful of other cases (including another landmark decision, Frontiero v. Richardson, which she had worked on in 1973) to claim that the government’s move to deny Wiesenfeld Social Security benefits was arbitrary, unjust, and outmoded. “In providing a ‘mother’s benefit,’ but no father’s benefit, Congress assumed a division of parental responsibility along gender lines: breadwinner was synonymous with father, child tenderer with mother. Increasing female participation in the paid labor force has placed in clear focus the invidious quality of this rigid sex-role delineation.”
In 1975, the Supreme Court ruled unanimously in Stephen Wiesenfeld’s favor.
Nearly twenty years later, in 1993, Wiesenfeld was the last witness to speak during four days of confirmation hearings for Ruth Bader Ginsburg’s appointment to the Supreme Court. With a lush, graying beard and a congenial air verging on playful, Wiesenfeld, who had never remarried, recounted the facts of his case. “We were among the pioneers in alternate family lifestyles,” he said of his wife, Paula, and himself. “It was our plan that I would take on the primary household chores, including those related to the raising of our son, Jason.”
Joe Biden, then the chairman of the US Senate Committee on the Judiciary, thanked Wiesenfeld for his testimony and added, “I shared a similar fate that you did in 1972 and raised two children with a professional wife who had passed away, and it is amazing how much has changed.”
Stephen Wiesenfeld returned to the Supreme Court in May 2014, nearly forty years after his landmark lawsuit. This time his purpose was to be remarried, at age seventy-one, by Justice Ruth Bader Ginsburg. His son, Jason (at whose Florida wedding Justice Ginsburg had officiated in 1998), and other family members, were also present.
BUCKLEY V. VALEO (1976)
In Buckley v. Valeo, the Supreme Court held that limiting expenditures on a
political campaign is an unconstitutional violation of the First Amendment’s protection of free speech. At issue were amendments to the Federal Election Campaign Finance Act, which sought to regulate spending and fundraising. Under this law, donors were limited to contributing up to $1,000 to a single candidate per each federal political race. The law also limited the amount a candidate could spend on her own campaign, requiring reporting on any contributions above this threshold.
In a per curiam decision, eight justices ruled that restrictions of independent expenditures are unconstitutional, as are limits on a candidate’s spending. The Court reasoned that permitting such practices would not necessarily lead to corruption—what Congress intended to prevent in passing the Federal Election Campaign Finance Act—so the government interest was not strong enough to justify curbing free speech.
The Court upheld restrictions on individual contributions to candidates, however, ruling that they don’t violate the First Amendment because they are designed to prevent the quid pro quo exchange of political campaign donations for favors, which would be anathema to the integrity of the democratic process.
Spending Money Isn’t Speech
How the ACLU Ruined Campaign Finance Laws
SCOTT TUROW
I have been an ACLU supporter throughout my adult life, due in no small measure to my mother’s influence. Her dedication to the organization was cemented in the McCarthy era, when the ACLU was an outspoken defender of Americans who were being punished as alleged communist sympathizers. For me, the moment of adherence came in 1977, while I was in law school, when the ACLU successfully represented neo-Nazis who wanted to march under swastika flags through the suburb of Skokie, Illinois, home to many Holocaust survivors. To me, the core promise of the First Amendment is to believe and say what you want about politics. Throughout the years, the ACLU has been perhaps the nation’s most reliable defender of the right to express political beliefs of all kinds.
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