My Own Words
Page 12
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Women and the Law
A Symposium IntroductionI
[T]he principle which regulates the existing social relations between the two sexes—the legal subordination of one sex to the other—is wrong in itself, and now one of the chief hindrances to human improvement; . . . it ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other.
—JOHN STUART MILL,1 The Subjection of Women (1869)
As part of its Law Day activities on May 1, 1970, the Student Bar Association of Rutgers Law School organized a panel discussion on women’s liberation. . . . As moderator of the panel discussion, and one of then two women law professors at Rutgers, I was asked to furnish an appropriately brief introduction to the symposium. What follows is an updated résumé of my remarks at the Law Day program.
I. Comparative Sideglance
“The family is the most natural form of living for most people in our country. But it should be a togetherness between free and independent people.”2 Sweden’s prime minister, Olof Palme, included these remarks in his response to Swedish housewives who feared “devaluation” as a result of a change in Sweden’s system of taxing earned income. The Swedish system resembled the system in effect in the United States: by relating a wife’s income to her husband’s, it discouraged many wives from working. The new system introduces individual taxation; every person, married or not, will be taxed on earned income separately and under a uniformly applicable graduated rate schedule. Prime Minister Palme explained that the end envisioned, independence and equality for women, was a goal toward which Sweden had already made significant progress through reform of marriage law, in the field of education, on the labor market, and in working out social benefits.
In the United States, in very recent years, appreciation of women’s place has reached the nascent state. Activated by feminists of both sexes, courts and legislatures are beginning to recognize the claim of women to full membership in the class people, entitled to due process guarantees of life and liberty and equal protection of the laws. But the distance to equal opportunity remains considerable. Some European countries, as slow to accord women the vote, have followed up more rapidly than has the United States that promise of an equal voice in societal affairs.3 For example, contrast with the Swedish development in income taxation, the recent “reform” in the United States. The Tax Reform Act of 1969 not only perpetuates, but significantly enlarges the “marriage penalty” that has been a feature of United States tax law: when both spouses work and have approximately equal incomes, they will pay substantially larger amounts of income tax than if they were living together unmarried and filing returns as single taxpayers.4 The “married togetherness” fostered by the 1969 Tax Reform Act is between working husband and stay-at-home wife.5
II. New Horizons in Employment and Education: Equal Protection Potential
While it is no longer a popular view that “women . . . are only children of a larger growth,”6 the notion remains prevalent that women (if they are middle or upper class, and tax disincentives aside) enjoy the best of all possible worlds: the choice between gainful employment and domestic pursuits. Moreover, when women choose gainful employment, they sometimes reap the benefits of special protective legislation. Many men, and perhaps some women, who otherwise see the world without rose-colored glasses still profess belief in the existence of an ideal situation of choice and protection for women.7
But . . . choice is channeled during the earliest years.8 An exceedingly popular and in many respects exemplary television series for preschool children is, according to its director (a woman), “definitely male-oriented.”9 Books for the nursery and kindergarten audience continue to encourage achievement for boys and passivity for girls.10 Law-sanctioned protection in the labor market, whatever its benefits to women engaged in sweatshop operations at the turn of the century,11 in more recent times has effectively insulated men from female competition for jobs commanding higher pay.12 State “protection,” and unchecked discrimination by employers (sometimes abetted by male-dominated unions),13 have stopped many women at the gate, denied promotions to others, and kept great numbers of them at a compensation level appreciably lower than the level assigned to men performing work of the same kind and quality.14
Currently, federal legislation and guidelines, and vigorous efforts of women to enforce them, are beginning to rescue the submissive majority15 from the confinement of old-style state protective laws and the discriminatory practices of employers. Principal measures on the national level are the Equal Pay Act of 1963,16 Title VII of the Civil Rights Act of 1964,17 and, most recently, guidelines issued by the Labor Department designed to eliminate discrimination against women in jobs under federal contracts.18 These developments hold the promise of a new-style protection for society: protection of the equal right of men and women to pursue the employment for which individual talent and capacity best equip them. Illustrative is a recent case in which a federal district court declared inconsistent with Title VII the hours restrictions imposed on women by the Illinois Female Employment Act. Significantly, the plaintiffs were employers who successfully contended that the state “protective” legislation prevented them from promoting or assigning female employees to jobs requiring overtime, and imposed an excess overtime burden on male employees.19
While legislative and administrative measures have brightened opportunities for women job seekers, in another key area, education, the judiciary has taken the lead rein. A 1970 decision of a three-judge federal district court, Kirstein v. University of Virginia,20 may well mark the turning point in the long effort to place equal opportunity for women under the aegis of the Federal Constitution.21 The court held inconsonant with the Fourteenth Amendment’s Equal Protection Clause the exclusion of women from the University of Virginia’s undergraduate school at Charlottesville; it approved a plan which, after a two-year transition period, requires the admission of women on precisely the same basis as men. Although sixteen years have elapsed since Brown v. Board of Education,22 Kirstein v. University of Virginia is the first decision to declare unconstitutional exclusion of women from educational opportunities afforded to men by a state institution.23
Significantly, “private” institutions of higher learning that might escape a constitutional prod confined to “state action” are beginning to volunteer similar reforms. For example, Cornell University’s College of Arts and Sciences announced during the 1969–70 academic year that it would admit women on the same basis as men and would offer students of both sexes the same options with respect to housing accommodations.24 New York University’s Law School has opened to women once exclusively male scholarship programs and has provided accommodations for single women in a dormitory facility formerly reserved to bachelors and married couples; in response to requests of its women students (now over 15 percent of those enrolled in the J.D. program), it has begun to recruit women for regular faculty positions.25 Harvard Law School has agreed to provide dormitory accommodations for its women students, to improve medical services for them, and to fund a recruitment program designed to increase the female population of the law school.26 Dozens of universities and colleges and several law schools have introduced courses relating to sex roles in society.
Of course, the university scene is not yet rosy. Despite the superior performance of the women admitted to undergraduate studies at Yale in 1969–70, the university’s president declined to act on a request for increased female enrollment. Apparently in recognition of Yale’s dependence upon the support of people who do not believe strongly in coeducation, he stated: “We must not, unless it is absolutely necessary, increase the number of women at Yale at the expense of the number of men.”27 After unsuccessful efforts to persuade the University of Chicago’s Law School to exclude from placement office facilities firms that discriminate with respect to the employment of women attorneys, fourteen women law students filed a complaint with the Equal Employm
ent Opportunity Commission charging the school and three Chicago law firms with violations of Title VII.28 Recently, women’s groups have filed complaints with the United States Department of Labor against colleges and universities with federal contracts; these complaints seek investigation of discrimination against women with respect to admissions policies, financial aid, placement of graduates, hiring and promotion for staff and faculty, and salary differentials.29 A related matter concerning elementary and high school education is now sub judice. School desegregation plans tendered in a number of southern communities eliminate race segregation only to substitute in its place sex segregation. No doubt such plans may be challenged as a facade for continued race discrimination. But they also pose the question whether state enforcement of sex segregation is constitutionally permissible at the precollege level.30
The decision in Kirstein v. University of Virginia31 points toward a reassessment of the application of the Equal Protection Clause to women in other areas. For example, in Seidenberg v. McSorley’s Old Ale House,32 the court declared unconstitutional under the Equal Protection Clause a saloon’s 115-year-old practice of catering only to men. At a preliminary stage in the litigation, the court stated: “To adhere to practices supported by ancient chivalristic concepts, when there may no longer exist a need or basis therefor, may only serve to isolate women from the realities of everyday life, and to perpetuate, as a matter of law, economic and sexual exploitation.”33 In its final disposition awarding summary judgment to the plaintiffs, the court concluded that the discrimination was “without foundation in reason.”34
On the other hand, judicial awakening is hardly universal. Recently, the Idaho Supreme Court found consonant with the Equal Protection Clause a state statute providing: “Of several persons claiming and equally entitled to administer [the estate of a person dying intestate], males must be preferred to females.”35 Decisions of this genre, with formidable United States Supreme Court precedent as a prop,36 explain why feminists are urging with renewed vigor adoption of the proposed Equal Rights Amendment.37
III. Women and the Environment of 1990
In recent months, the mass media have presented frequent, and sometimes misleading, accounts of an activist women’s movement. The attention to feminist organizations and activities is not misplaced, however, for in the current decade a less submissive majority seems certain to develop. Those who deride women’s liberation, or write off the current feminist appeal as simply a shadow operation in the wake of the civil rights movement, need adjust their sights. Of course, in the United States grand inspiration has come from the organized effort of black people to achieve equal rights. But that model is not close at hand in European countries where women’s options are developing more rapidly than in this country. One universal concern is surely a contributing factor: recognition that long-term relief for environmental problems requires increased attention to birth control. For people otherwise indifferent to feminist goals, the prospect of life for women beyond Kinder, Kirche, and Küche takes on a new, attractive dimension. A tolerable future may be anticipated if 220 million rather than 300 million people populate the United States in 1990.38 This consideration, perhaps more than privacy concerns or the Fourteenth Amendment rights asserted by women,39 may have influenced the vote of at least some of the legislators and judges who responded affirmatively to demands for repeal or invalidation of abortion laws.
The unfinished business of equality for women is gaining momentum; thought and energy directed to it in the 1970s may contribute significantly to the healthy environment and society universally desired for the decades ahead. Key items on the feminist agenda are vigilantly enforced equality of opportunity in employment and education, generally available quality child care facilities (models presently exist in the Soviet Union and Israel), a tax system that does not penalize a wife for earning as much as her husband but does recognize adequately the business expense entailed in arranging for the care of dependents of working people, and elimination of vestiges of an inferior status still reflected in discriminatory practices in places of public accommodation and housing and in criminal, property, and family law.40 Pacesetters in the enterprise should be government and universities.41 Critical to a brighter future is the continued development of activist, but politically acute, feminist organizations—groups dedicated to the principle of equality, but possessing the pragmatism essential to a movement whose ultimate success requires broad popular support.
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I. This piece was originally published in 25 Rutgers Law Review 1 (1971). We have made minor edits based on length and context.
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How the Tenth Circuit Court of Appeals Got My Wife Her Good Job
MARTY GINSBURG, tax lawyer, law professor, and gourmet cook, passed away on June 27, 2010, before he could deliver the speech he had prepared for the Tenth Circuit Court of Appeals’ annual conference. Two months later to the day, Justice Ginsburg stood before the conferees in Colorado Springs, Colorado, and began: “My dear husband, who was a great tax lawyer, got an extension for our 2009 tax return, but he had his Tenth Circuit speech all written out and I know he would want you to hear it. So bear with me. My timing won’t be like his, but I’ll do the best I can.” She then read his speech, to laughter and applause, making only one correction to Marty’s text (below). When she finished, her audience gave her (and Marty) a standing ovation.
As you have heard, my field is tax law. When Chief Judge Henry asked me to speak today and hinted it might be on my favorite subject, naturally I prepared a long paper addressing the Supreme Court’s performance in tax cases. Sadly, the Chief Judge reacted with surprising hostility and so I am going to speak instead about the only significant thing I have done in my long life with Honorable Ruth. I shall recall for you the one case in which we served as co-counsel. It was also the one occasion either of us was privileged to argue in the Tenth Circuit. Nonetheless, fascinating as you will surely find this reminiscence, all in all you are the losers, for I promise you, the Supreme Court’s performance in tax cases is an exceedingly funny subject.
In the 1960s I practiced law, mainly tax law, in New York City, and Ruth began her law teaching career at Rutgers Law School in Newark. One of the courses she taught was Constitutional Law and, toward the end of the decade, she started looking into equal protection issues that might be presented by statutes that differentiate on the basis of sex. A dismal academic undertaking because, back then, the United States Supreme Court had never invalidated any legislative classification that differentiated on the basis of sex.
Then as now, at home Ruth and I worked evenings in adjacent rooms. Her room is bigger. [Here, Justice Ginsburg interjects: “And I must object—it is just not so! The little room was our bedroom, where I worked; the bigger room was the dining room, where Marty worked, with a large tax-book library shelved around him.”] In my little room one evening in fall 1970, I was reading Tax Court advance sheets and came upon a pro se litigant, one Charles E. Moritz, who, on a stipulated record, was denied a $600 dependent care deduction under old §214 of the Internal Revenue Code, even though, the Tax Court found, the operative facts—save one—fit the statute perfectly. Mr. Moritz was an editor and traveling salesman for a book company. His eighty-nine-year-old dependent mother lived with him. In order to be gainfully employed without neglecting mother or packing her off to an old-age home, Charles paid an unrelated individual at least $600—in fact, a good deal more than that—to take care of his mother when he was away at work.
There was just one small problem, and in the Tax Court, it served to do him in. The statute awarded its up-to-$600 deduction to a taxpayer who was a woman of any classification (divorced, widowed, or single), a married couple, a widowed man, or a divorced man. But not to a single man who had never been married. Mr. Moritz was a single man who had never married. “Deductions are a matter of legislative grace,” the Tax Court quoted, and added that if the taxpayer were raising a constitutional objection, forget about
it: everyone knows, the Tax Court confidently asserted, that the Internal Revenue Code is immune from constitutional attack.
Let me digress a moment to tell you that in the Tax Court Mr. Moritz, although not a lawyer, had written a brief. It was one page in length and said: “If I were a dutiful daughter instead of a dutiful son, I would have received the deduction. This makes no sense.” It was from that brief the Tax Court gleaned the taxpayer might be raising a constitutional objection. Mr. Moritz’s one-page submission remains in my mind as the most persuasive brief I ever read.
Well, I went to the big room next door, handed the Tax Court advance sheets to my spouse, and said, “Read this.” Ruth replied with a warm and friendly snarl, “I don’t read tax cases.” I said, “Read this one,” and returned to my little room.