by Irin Carmon
LAND, LIKE WOMAN, WAS MEANT TO BE POSSESSED
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Ten years earlier, in 1963, RBG picked fewer battles. She had read and been awed by Simone de Beauvoir’s The Second Sex. Like most of the things she learned in Sweden that were not civil procedure, she shelved it. A professor at Columbia, where she had begun lecturing, said he’d heard Rutgers School of Law was looking for a woman. After all, their only black professor had just moved on. No one seemed concerned that Columbia’s law school had no female or black full-time faculty. Only fourteen women in the entire country had tenure-track positions at law schools, and Rutgers already had one of them. RBG and fellow Rutgers law professor Eva Hanks would soon be profiled in the Newark Star-Ledger under the headline “Robes for Two Ladies.” The story led with calling them “slim, attractive” and gushed, “from their youthful appearance, they could easily be taken for students.”
In her first year, Rutgers offered RBG an annual contract to teach civil procedure. The salary was low. After all, Dean Willard Heckel reminded her, it was a state school, and she was a woman. “They told me, ‘We can’t pay you as much as A., who has five children; you have a husband who earns a good salary,” RBG remembered, discreetly withholding names. “I asked if B., a bachelor, was also paid more, and was told, ‘yes.’” That was the end of that conversation. RBG kept her head down, taking the train each day to Newark from Manhattan’s Penn Station and publishing articles with titles like “Recognition and Execution of Foreign Civil Judgments and Arbitration Awards.” She made it to a second year.
Rutgers School of Law–Newark
Then came a surprise. After Marty’s surgery, but before his radiation for testicular cancer, the doctor had informed the couple they had a quick and final window to try for a second child. Those were the days of juggling law school and a toddler and not knowing how long Marty would live. Another child was something they couldn’t imagine. By the time Jane was nearly ten years old, her parents had just about convinced her that being an only child wasn’t such a bad thing. But early in 1965, RBG discovered she was pregnant. “Tell me, dear,” said the female doctor, taking RBG’s hand. “Is there another?” There was no other. They ran a test and confirmed that Marty was still able to produce sperm.
RBG’s joy at the news of her pregnancy was tangled up in anxiety about her job. Rutgers would decide on her contract renewal at the end of the spring semester, and RBG wasn’t about to repeat the mistake she had made at the Social Security office in Oklahoma. She ran to her mother-in-law’s closet. Evelyn Ginsburg wore one size larger, and with a due date in September, RBG might only begin showing during the summer vacation. It worked. RBG waited until the last day of classes, with the next year’s contract in her hand, to break the news to her fellow professors. James was born September 8. Professor Ginsburg was soon back before her students as if nothing had changed.
But some things had changed. One of her law students declared himself a member of the free speech movement. “Each day, just before class, he climbed up on a branch, perched himself there, then thumbed his nose at me intermittently,” RBG recalled. In her first classes at Rutgers, there had been maybe five or six women on every seating chart. As more men suited up for Vietnam, more women filled law school seats. Outside the classroom, The Feminine Mystique, chronicling the discontent of educated middle-class women with their domestic roles, had sold over a million copies in its first paperback printing. The Civil Rights Act of 1964 had almost by accident banned employment discrimination on the basis of sex alongside race, despite many ball-and-chain jokes from congressmen. (Representative Emanuel Celler joked that he usually had the last word in his house: “Yes, dear.”)
RBG at RutgersRutgers School of Law–Newark
The New Jersey branch of the American Civil Liberties Union, where RBG had signed up as a volunteer lawyer, was overwhelmed by letters from women. She was a woman, RBG was told, couldn’t she handle it? She dutifully took a look. A woman who worked at Lipton Tea was barred from adding her family to her health insurance plan because the company assumed only married men had dependents. Girls weren’t welcome in Princeton’s summer engineering program. The best tennis player in Teaneck, New Jersey, wasn’t allowed on the varsity team because she was a girl. Some letters gave RBG the embarrassed flush of recognition. Teachers complained that they were forced off the job the moment they started showing pregnancy, and sometimes before. The schools called it maternity leave, but it wasn’t voluntary or paid, and the teachers couldn’t get their jobs back unless the school felt like it. One military woman had received an honorable discharge for being pregnant, but when she tried to reenlist, she learned pregnancy was a “moral and administrative disqualification.” None of these problems were new. What was new was that anyone thought it was worth it to complain about it. RBG certainly hadn’t.
The new crop of female law students, a decade or so younger than her, did more than complain. They made demands. Some of them were fresh from Mississippi, working for civil rights with the Student Nonviolent Coordinating Committee. These women had seen lawyers help lead the way, only to come to law schools and find that ladies were expected to fall in line. The universities themselves began to grudgingly make more space for women, especially after 1968, when the Johnson administration added sex discrimination to the list of sins that would imperil federal funding.
RBG watched these female students with some awe. How different they were from her generation, who’d been terrified of making a splash. When a handful of students came to RBG in 1970 and asked her to teach the first-ever Rutgers class on women and the law, she was ready to agree. It took her only about a month to read every federal decision and every law review article about women’s status. There wasn’t much. One popular textbook included the passage “Land, like woman, was meant to be possessed.” (The book was about land ownership; women were just the analogy.) When she left the library, RBG knew this much: Her days of quiet acceptance were over. That included accepting Rutgers’s giving her the ladies’ discount. RBG helped the other female professors file a federal class-action pay-discrimination claim against the university. They won.
PLUCKING HERSELF OUT OF OBSCURITY
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On August 20, 1971, a female letter carrier in Springfield, New Jersey, wrote to the New Jersey chapter of the ACLU to complain that she wasn’t allowed to wear the same hat that men wore. “The female carrier hats, a beret or a pillbox, have no place on which to attach my badge,” Laney Kaplan explained in her letter. “The male carrier hat has a brim to keep the sun from your eyes, which the female carrier hats have none.”
RBG was getting ready to lecture at Harvard Law School for the semester. She had begun bringing cases to the Supreme Court. But no case was too small. “The insistence on sexual identification by headgear for female letter carriers at the expense of functional features that would facilitate job performance appears to be wholly arbitrary,” RBG wrote the postmaster general. The man may not have known what hit him.
RBG at the ACLU of New Jersey ACLU of New Jersey
It was clear to RBG that fighting discrimination one strongly worded letter at a time was like catching the ocean in a thimble. There would always be another sexist law or regulation to take down. Women’s rights advocates needed to think bigger. What the country needed was a broader recognition of gender equality, whether in headgear or federal policy. For decades, some feminists had said the solution was an equal rights amendment to the Constitution, which would read, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” This amendment, known as the ERA, had been introduced in every session of Congress since 1923, but each time it had been held up in committee. RBG wondered whether the Constitution already held the answer. Its preamble began with “We the people,” and women were people, even if they had been long prevented from living out their full destinies. Didn’t women deserve equal protection under the law, as the Fourteenth Ame
ndment promised? The question was how to get at least five Supreme Court justices to see the Constitution as she did. By the early seventies, women’s roles had fundamentally transformed almost everywhere but in the high court’s chambers. Maybe, given the right case, the justices would come around.
RBG was puzzling over her strategy one night, working, as she usually did, in the bedroom. “There’s something you’ve got to read,” Marty exclaimed from the dining room, where he was working. “I don’t read tax cases,” RBG replied. She would be glad she read that one.
Charles E. Moritz was a traveling salesman who lived with his eighty-nine-year-old mother in Denver. Moritz paid someone to care for her when he was on the road, but his troubles began when he tried to take a tax deduction. The IRS only granted such deductions to women, widowers, or the husbands of incapacitated women, and Moritz was a never-married man. The idea that a man on his own might be responsible somehow for caregiving apparently never crossed the government’s mind. With a wide grin, RBG said, “Let’s take it.” It was her and Marty’s first professional partnership.
On the surface, the Moritz case was more small ball. He had been denied no more than six hundred dollars in expenses. There was no apparent glaring injustice to women. Marty and RBG could see beyond that. The government was senselessly denying a benefit to someone purely on the basis of gender. If the court said that was wrong, the precedent set would open the door to a broader recognition of gender equality.
RBG wrote to Mel Wulf, an old friend from summer camp who had become the national legal director for the ACLU, seeking support. Wulf agreed to back them. He later told author Fred Strebeigh that he knew that RBG was doing “some down and dirty women’s rights work” out in New Jersey. Wulf was about to “pluck her from obscurity,” he bragged to Strebeigh. He would help her get to the Supreme Court.
RBG at workRutgers School of Law–Newark
In their brief, the Ginsburgs argued that the government couldn’t discriminate between men and women “when biological differences are not related to the activities in question.” RBG sent their work to Wulf. She knew the ACLU had taken on the Supreme Court appeal of an Idaho law that preferred men over women to be administrators of estates. Sally Reed’s husband had been abusive and left the family, but when their son killed himself, it was Cecil Reed who would officially carry on what little material possessions the son had left behind, just because Cecil was a man. That was what the law said. RBG believed the Moritz case, paired with Reed, could show that gender discrimination harmed everybody.
“Some of this should be useful for Reed v. Reed,” she wrote Wulf on April 6, 1971, attaching the Moritz brief. “Have you thought about whether it would be appropriate to have a woman co-counsel in that case???” RBG had rarely asked anyone to consider her because she was a woman, but getting to the Supreme Court was worth it. Thinking it over years later, Wulf told Strebeigh, “Damn, maybe I didn’t pluck her from obscurity. Maybe she plucked herself from obscurity.” He was right. Wulf told RBG he could use her help building Sally Reed’s case to the Supreme Court.
THE SUPREME COURT NEVER SAW A SEX CLASSIFICATION IT DIDN’T LIKE
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The Reed case had high stakes. If the Supreme Court wasn’t ready to overturn its precedents that allowed the law to treat women as second-class citizens, Reed might lead it to double down on bad law. Only ten years prior, in 1961, a woman named Gwendolyn Hoyt, tried for murdering her husband, had challenged the all-male jury that convicted her. In Florida, men were obliged to serve on juries, but women had to opt in. It was perfectly fine to treat women’s participation as an afterthought, the justices said, because women were “still regarded as the center of home and family life.” The Hoyt case made plain that the court hadn’t progressed much since the 1948 opinion in which Felix Frankfurter—the same justice who refused to hire RBG as a clerk—gravely acknowledged that letting women freely bartend could “give rise to moral and social problems.”
RBG’s notes to Marty Library of Congress Manuscript Division, Courtesy of Justice Ginsburg
Back in law school, in her summer working at Paul Weiss, RBG had met a lawyer named Pauli Murray. She was a black woman at a time when race and gender were largely seen as separate categories. Murray worked passionately to build bridges between the civil rights movement, which she critiqued for being male-dominated, and women’s rights activists, many of whom had serious blind spots on race. It turned out that even though RBG was asking the court to venture somewhere it had never gone, Murray had taken the first steps.
Civil rights activist Pauli Murray, who inspired RBG © Bettmann/CORBIS
Murray had been arguing as early as 1961 that the equal protection clause of the Fourteenth Amendment might on its own free women of legal constraints. With fellow ACLU attorney Dorothy Kenyon, Murray tried to find a way to overturn the Hoyt precedent. “Jane Crow and the Law,” a 1965 article Murray coauthored comparing racial and gendered oppression, was on RBG’s Rutgers syllabus. The year after that article was published, Murray and Kenyon had tried to put their theories of the parallels and intersections of race and gender into practice. They challenged the all-white and all-male jury in Alabama that acquitted the murderers of two voting rights activists. They won, but Alabama never appealed to the Supreme Court, so the story ended there.
Moritz correspondenceLibrary of Congress Manuscript Division, Courtesy of Justice Ginsburg
Murray’s work was all over RBG’s soon-to-be-famous Reed brief, which also included unusual references to Simone de Beauvoir, the poet Alfred Lord Tennyson, and the sociologist Gunnar Myrdal. Written with the help of RBG’s feminist law students, the brief pointed out that while the world had changed, the law was stuck in the old ways. Before she submitted the Reed brief to the Supreme Court, RBG added two more names to the cover, where the authors’ names went: Dorothy Kenyon and Pauli Murray. She wanted to make it clear that she was “standing on their shoulders,” RBG later said.
Reed v. Reed brief coverWestlaw/Thomson Reuters
“It’s just not done,” Burt Neuborne, then a colleague at the ACLU, remembers telling her. He called it a “violation of the canons.”
“I don’t care,” RBG replied. “They deserve recognition.” Later, she would say her work was carrying on what Kenyon and Murray had pioneered. It was just that the world was finally ready to listen.
FROM RBG’S BRIEF IN REED V. REED *
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The sex line drawn by Sec. 15-314, mandating subordination of women to men without regard to individual capacity, creates a “suspect classification” requiring close judicial scrutiny. Although the legislature may distinguish between individuals on the basis of their need or ability, it is presumptively impermissible to distinguish on the basis of an unalterable identifying trait over which the individual has no control and for which he or she should not be disadvantaged by the law. Legislative discrimination grounded on sex, for purposes unrelated to any biological difference between the sexes, ranks with legislative discrimination based on race, another congenital, unalterable trait of birth, and merits no greater judicial deference.
Groups that are deemed “suspect” are those that receive closer scrutiny by courts in equal protection challenges, making it much harder for the government to classify on the basis of such categories.
The distance to equal opportunity for women in the United States remains considerable in face of the pervasive social, cultural and legal roots of sex-based discrimination. As other groups that have been assisted toward full equality before the law via the “suspect classification” doctrine, women are sparsely represented in legislative and policy-making chambers and lack political power to remedy the discriminatory treatment they are accorded in the law and in society generally. Absent 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.
RBG is invoking the concept of hist
orically disempowered groups deserving greater protection from the courts.
Prior decisions of this Court have contributed to the separate and unequal status of women in the United States. But the national conscience has been awakened to the sometimes subtle assignment of inferior status to women by the dominant male culture. . . .
Women are marching in the streets, demanding equal rights, and can no longer be ignored.
The time is ripe for this Court to repudiate the premise that, with minimal justification, the legislature may draw “a sharp line between the sexes,” just as this Court has repudiated once settled law that differential treatment of the races is constitutionally permissible. . . .
RBG is quoting Justice Felix Frankfurter, who refused to hire her as a clerk because she was a woman. This is from his opinion upholding the law restricting women from tending bar.
Biological differences between the sexes bear no relationship to the duties performed by an administrator. Idaho’s interest in administrative convenience, served by excluding women who would compete with men for appointment as an administrator, falls far short of a compelling state interest when appraised in light of the interest of the class against which the statute discriminates—an interest in treatment by the law as full human personalities. If sex is a “suspect classification,” a state interest in avoiding a hearing cannot justify rank discrimination against a person solely on the ground that she is a female.
RBG wants to establish how irrational it is to claim that men and women are biologically destined to have rigid roles. What does any of this have to do with your body parts?