by Irin Carmon
Equality was just too inconvenient, according to Idaho. Not a good enough excuse, says RBG.
. . . 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.
So-called protective legislation for the work conditions of women and children included safety standards, but also limited wages, working hours, and opportunities.
#benevolentsexism
RBG would later stop making this sort of argument as she, in her own words, became “more sensitive to the distinctions—that all oppressed people are not oppressed in the identical way or to the same degree.”
On November 22, 1971, RBG lifted her head briefly from her reading. She was coming home by train, exhausted. Her eye fell on a man’s newspaper. “High Court Outlaws Sex Discrimination” blared the front page of the New York Post. Not exactly, she learned when she finally got her hands on the opinion. The court had ruled for Sally Reed, the first time the Supreme Court ever struck down a law that treated men and women unequally. It was a big deal. But the decision’s reach was ambiguous. The court had laid down no broader rule. RBG’s work was only just beginning.
THE BIRTH OF THE WRP
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Early mailings from the ACLU Women’s Rights Project bore an unlikely stamp: the Playboy Bunny. At least one recipient was outraged at what turned out to be an in-kind donation from the magazine’s foundation, a big ACLU donor. The feminist spin-off had begun on a shoestring. The WRP’s first full-time employee was Brenda Feigen, a Harvard Law School graduate who had become a feminist activist. RBG’s law students pitched in on the legwork.
RBG split her time between Columbia and the ACLU. Columbia Law School
Still, RBG had big plans for the project, which she’d proposed to the ACLU board right after she won Reed. Along with Hugh Hefner, Erwin Griswold was a surprise, if unofficial, benefactor. After the Ginsburgs won the Moritz case at the Tenth Circuit Court of Appeals, Solicitor General Griswold protested to the Supreme Court that the justices had to overrule them; otherwise, hundreds of federal laws might be deemed unconstitutional. To prove his point, Griswold attached a computer-generated list, marked Appendix E, of all the laws and regulations that treated men and women differently. RBG swiftly realized what Appendix E really was: a hit list.
The country had new laws banning discrimination in pay, employment, and education. But RBG knew that promises on paper wouldn’t be enough. “The distance to equal opportunity for women—in the face of the pervasive social, cultural, and legal roots of sex-based discrimination—remains considerable,” she wrote in a prospectus in October 1972. The WRP would have three missions: public education, changing the law, and bringing cases to court, with the help of local ACLU affiliates across the country.
Getting to equality would mean attacking on every front. Even if the Supreme Court made abortion legal, as it had just been asked to do, “excessive restrictions on where abortions can be performed and medical benefits that can be applied to abortions would still have to be challenged.” Other priorities, RBG wrote, would be “the right to be voluntarily sterilized”—something white, middle-class women had been discouraged from doing by their doctors—“and the right not to be involuntarily sterilized”—something women of color and those considered “mentally defective” had been subject to. The project, wrote RBG, would tackle discrimination in education and training programs, as well as in the availability of mortgages, credit cards, loans, and home rentals; serve women in prison and in the military; and take on “discriminatory confinement of girls in juvenile institutions because of sexual promiscuity.” It would also go after institutions that discriminated against pregnant women.
On May 14, 1973, the Supreme Court ruled on Frontiero v. Richardson, the first case RBG had argued before the court herself. Technically, she won again: The justices struck down the rule that treated Sharron Frontiero’s work as less important to her family than a male servicemember’s. And Justice William Brennan’s opinion sounded like a win. “Traditionally, such discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women not on a pedestal, but in a cage,” he wrote, taking the words right from feminist lawyers’ mouths. But there weren’t five votes for a broader rule that would make most classifications by gender unconstitutional. Justice William Rehnquist was the lone dissenter. He told the Los Angeles Times, “My wife became resigned long ago to the idea that she married a male chauvinist pig, and my daughters never pay attention to anything I do.”
RBG learned a lesson that would stay with her for the rest of her life. She had been trying to teach the justices, and she wouldn’t give up. But as she later acknowledged, “one doesn’t learn that lesson in a day. Generally, change in our society is incremental, I think. Real change, enduring change, happens one step at a time.” She would have to be patient. She would have to be strategic. And maybe a little deaf.
At the ACLU’s Women’s Rights Project Collection of the Supreme Court of the United States
Her fellow feminists, on fire to transform the world, sometimes had to be persuaded to see things her way. “She insisted that we attempt to develop the law one step at a time,” fellow ACLU lawyer Kathleen Peratis later said. “‘Present the court with the next logical step,’ she urged us, and then the next and then the next. ‘Don’t ask them to go too far too fast, or you’ll lose what you might have won.’ She often said, ‘It’s not time for that case.’ We usually followed her advice, and when we didn’t, we invariably lost.”
PROFESSOR GINSBURG
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RBG had begun to make a name for herself, even though she rarely sought the limelight. “Ginsburg lacks the dash of a Gloria Steinem, or the physical power of a Betty Friedan,” wrote one student profiler. “Her hair is usually tied in a ponytail. She speaks flatly, sometimes haltingly, but always precisely. She dresses conservatively. Among themselves, students call her Ruthie, as if she were someone’s Jewish aunt. They are able to feel close to her without knowing her that well.” RBG’s students wrote in one course evaluation that she was “brilliant” and an “excellent teacher” but also “distant towards students” and “quite a reserved person.”
By 1972, Columbia, which had let RBG go west to Rutgers nine years earlier, finally saw her value. Her alma mater offered her the chance to become the law school’s first tenured female professor, which she accepted with the understanding that she would spend part of her time at the ACLU. The New York Times said Columbia had “scored a major coup: its law school, to its undisguised glee, has just bid for and won a woman for the job of full professor.” After all, according to the dean of the law school, “Mrs. Ginsburg” was actually qualified, apparently unlike all the other women they had refused to hire in 114 years of existence. (“Just one point about which I am curious,” RBG wrote the reporter when the piece came out. “Did the Times rule out Ms.?”)
RBG struck a surprisingly blunt note in the story. “The only confining thing for me is time. I’m not going to curtail my activities in any way to please them,” she said, apparently referring to the faculty and administration. “I don’t think I’ll have any problem,” she added a moment later. “People will be pleasant on the outside. Some of them may have reservations about what I’m doing, but I don’t think they’ll be expressed.”
Some people did have reservations, but the women at Columbia had been waiting for her. Almost immediately, they began contacting her to air grievances. Did RBG know that Columbia employees didn’t have pregnancy coverage and that women got lower pension benefits and lower pay? Well, now that she did, RBG helped file a class-action lawsuit with one hundred named plaintiffs on behalf of female teachers and administrators at the universit
y. They won. Did RBG know that the university was about to lay off more than two dozen maids, all women, but not a single janitor? “We feel that our hope in preventing these firings lies in getting visible the support that we know exists for these women on this campus,” wrote the activists on behalf of the maids, most of whom were women of color.
At Columbia in 1972 Columbia Law School
RBG wrote to Columbia’s president, calling the firing of the maids a “grave and costly mistake” and urged him to “avoid a course destined to turn into a federal case.” She went to meetings to press the maids’ case. She even got the ACLU and its New York branch involved, much to the indignation of Walter Gellhorn, the Columbia Law professor who had helped RBG get her job at Rutgers. In a letter addressed to the “gentlemen” of the ACLU, Gellhorn accused the group of too quickly accusing the university of sex discrimination. (RBG scrawled furiously in the letter’s margins, “He misconceives nature of the case. No!!!”)
“The present episode,” Gellhorn said, made him fear that the group had “tended too much to begin screaming prematurely.” The word mansplaining was, unfortunately, decades away from being invented. But in the end, no one, maid or janitor, was fired.
RBG had tenure, but she didn’t have to pick these battles, especially when some of her colleagues regarded her with suspicion for being there at all. “There was a certain hostility to having her there, and the notion that she was only there because of the pressure the school faced to hire a woman,” recalls Diane Zimmerman, a student at Columbia Law at the time whom RBG mentored. RBG knew people said “affirmative action” like it was an insult. “Others were of the view,” she later wrote, “that at last, the days of ‘negative action’ were over.”
RBG was the first tenured woman at Columbia Law School. Columbia Law School
THE WOMAN WHO DIDN’T WANT AN ABORTION
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“Women Working.” Brenda Feigen hung a bright yellow sign on the door with those words to mark WRP’s territory at the new ACLU offices on Fortieth Street. RBG loved that sign. Women working at the WRP also meant the literal arrival of newborn babies, breast-fed during the day by their attorney moms, tended by paid college students the rest of the time. Amid the chaos, RBG sat working methodically, her desk an oasis of calm. It was all a long way from getting pushed out of her job in Oklahoma, or scrambling for baggy clothes to keep her job at Rutgers.
That was inside the ACLU. Outside it, making reproductive freedom a reality was a knotty mess. The problem the WRP faced in connecting pregnancy to their line of sex-discrimination cases was this: Even if a man could take care of the kids and the elders, and a woman could join the air force and handle the family finances, only one of them could get pregnant and give birth. RBG and her team had to convince the justices that pregnancy too was a matter of equality—or inequality—and not just something special that women indulged in, off on their own. Even more radically, RBG wanted the Supreme Court to recognize that women would never be equal if they could not control their reproductive lives, whether they wanted to be pregnant or not. That meant the right to an abortion, and it meant the right to be free of discrimination for staying pregnant.
Captain Susan Struck, an air force nurse, never considered herself a feminist, but she also didn’t behave like women were supposed to. For one thing, she had volunteered to be sent to Vietnam. In 1970, when she got pregnant, she refused to quit or get an abortion, the only options the military offered her. Ironically, abortion was still illegal almost everywhere in the United States, and it was a shock when, in 1969, radical feminists had held the first-ever abortion speak-out in a church basement in New York. Military bases were the exception. Struck, raised Catholic, had enough sick leave saved up to give birth and give her baby up for adoption. So Struck kept ignoring, then challenging, her discharge notices. She turned to the ACLU for help.
RBG jumped at the chance to build a gradual case that reproductive freedom was a condition of equality, beginning with a woman who didn’t want an abortion. She couldn’t help but notice the hypocrisy of a country that banned abortion except when it was convenient for the military. Other ACLU lawyers were involved in two more direct attacks on statewide abortion bans, Doe v. Bolton and Roe v. Wade, that were pending that very same Supreme Court term. Mindful of the arguments that had worked seven years earlier when the court struck down a contraception ban in Griswold v. Connecticut, the Roe and Doe briefs claimed abortion fell under a right to privacy, not equality. RBG had other ideas, as she made clear in the brief to the highest court for one of her favorite cases.
FROM RBG’S BRIEF IN STRUCK V. SECRETARY OF DEFENSE
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“The Air Force regulation . . . directing immediate discharge of a woman officer upon determination that she is pregnant, reflects arbitrary notions of a woman’s place wholly at odds with contemporary legislative and judicial recognition that individual potential must not be restrained, nor equal opportunity limited, by law-sanctioned stereotypical prejudgments; operating on the basis of characteristics assumed to typify pregnant women, and . . . in total disregard of individual capacities and qualifications, the regulation violates the due process clause of the fifth amendment to the United States Constitution.
The policy: “A woman officer will be discharged from the service with the least practicable delay when a determination is made by a medical officer that she is pregnant.” In other words, abort your pregnancy or lose your job.
RBG in a nutshell. Here she is connecting her ideas about pregnancy with her ideas about sex discrimination.
The regulation singles out pregnancy, a physical condition unique to women involving a normally brief period of disability, as cause for immediate involuntary discharge. No other physical condition occasioning a period of temporary disability, whether affecting a man or a woman, is similarly treated. . . .
The idea was that if pregnancy was treated like other temporary disabilities rather than something singular, women wouldn’t be singled out for discrimination. After all, men got injured or sick and had to take time off too. Why was women’s time off any different?
Heading the list of arbitrary barriers that have plagued women seeking equal opportunity is disadvantaged treatment based on their unique childbearing function. Until very recent years, jurists have regarded any discrimination in the treatment of pregnant women and mothers as “benignly in their favor.” But in fact, restrictive rules, and particularly discharge for pregnancy rules, operate as “built-in headwinds” that drastically curtail women’s opportunities. Decisions of this Court that span a century have contributed to this anomaly: presumably well-meaning exaltation of woman’s unique role in bearing children has, in effect, restrained women from developing their individual talents and capacities and has impelled them to accept a dependent, subordinate status in society.
“Benign” pregnancy policies included being forced off the job the moment pregnant women started showing. Two years after this was written, the Supreme Court would strike down a policy like that in Cleveland Board of Education v. LaFleur.
From the beginning, RBG viewed women’s role in reproduction as a key source of societal discrimination that equal protection should forbid.
In addition to its reliance on a sex-based stereotype no less invidious than one racial or religious, the regulation invoked against petitioner operates as an unconstitutional infringement upon petitioner’s right to privacy in the conduct of her personal life and her right to free exercise of her religion. It “encourages” women officers not to bear children by prohibiting them from remaining in the Air Force if they do. Men in the Air Force, on the other hand, are not “encouraged,” on pain of discharge, to avoid the pleasures and responsibilities entailed in fathering children. A man serves in the Air Force with no unwarranted governmental intrusion into the matter of his sexual privacy or his decision whether to beget a child. The woman serves subject to “regulation”; her pursuit of an Air Force career requires that she decide not
to bear a child. . . .
Both already recognized by SCOTUS at that time.
Very bold to suggest to the court that women deserve not just the same employment opportunities, but also the same sexual freedom as men.
Although petitioner, a Roman Catholic, does not seek privileged treatment based on her religious orientation, it should be stressed that the challenged regulation operates with particularly brutal force against women of her faith. . . . Termination of pregnancy prior to the birth of a living child was not an option petitioner could choose. Thus, the regulation pitted her Air Force career against her right to privacy and autonomy in sexual matters, as well as her religious conscience.
Although today, in cases like Hobby Lobby, the religious right appeals to “conscience” to oppose contraception and abortion, during this time liberals appealed to conscience to explain why women should be free from state control over their childbearing decisions.
. . . The conclusion is inescapable that the regulation directing Captain Struck’s discharge reflects blatant prejudice against women for a condition peculiar to their sex. . . . If involuntary discharge of a woman solely on the ground of her pregnancy is not sex discrimination, nothing is!
Here’s where RBG tries to get the court to bring pregnancy under the sex-discrimination doctrine it had already begun to develop in Reed v. Reed.
Pretty unusual to see an exclamation point in any brief, let alone RBG’s. But the Supreme Court would say in 1974 that discriminating against pregnant women wasn’t necessarily the same as sex discrimination, because not all women are pregnant. To undo the damage of that decision, RBG later helped draft the Pregnancy Discrimination Act of 1978, with language much like this. Although Congress has enacted civil rights laws that provide women some protection against pregnancy discrimination in employment, the court has still not interpreted the Constitution as RBG did in Struck.