My Own Words

by Ruth Bader Ginsburg

  No more than five minutes later—it was a short opinion—Ruth stepped into my little room and, with the broadest smile you can imagine, said, “Let’s take it!” And we did.

  Ruth and I took the Moritz appeal pro bono of course, but since the taxpayer was not indigent we needed a pro bono organization. We thought of the American Civil Liberties Union. Mel Wulf, the ACLU’s then legal director, naturally wished to review our proposed Tenth Circuit brief, which in truth was 90 percent Ruth’s Tenth Circuit brief. When Mel read the brief, he was greatly persuaded.

  A few months later, the ACLU had its first sex discrimination/equal protection case in the United States Supreme Court. As many of you will recall, it was titled Reed v. Reed. Remembering Moritz, Mel asked Ruth if she would take the lead in writing the ACLU’s Supreme Court brief on behalf of appellant Sally Reed. Ruth did and, reversing the decision of the Idaho Supreme Court, the U.S. Supreme Court unanimously held for Sally.

  Good for Sally Reed and good for Ruth, who decided thereafter to hold down two jobs, one as a tenured professor at Columbia Law School, where she had moved from Rutgers, the other as head of the ACLU’s newly created Women’s Rights Project.

  Now back to Moritz. The Tenth Circuit—Judge Holloway writing for the panel—found Mr. Moritz to have been denied the law’s equal protection, reversed the Tax Court, and allowed Mr. Moritz his $600 deduction.

  Amazingly, the government petitioned for certiorari. The Tenth Circuit’s decision, the government asserted, cast a cloud of unconstitutionality over literally hundreds of federal statutes—laws that, like old §214 of the Tax Code, differentiated solely on the basis of sex.

  In those pre–personal computer days, there was no easy way for us to test the government’s assertion. But Solicitor General Erwin Griswold took care of that by attaching to his cert. petition a list—generated by the Department of Defense’s mainframe computer—of those hundreds of suspect federal statutes. Cert. was denied in Moritz, and the computer list proved a gift beyond price. Over the balance of the decade, in Congress, the Supreme Court, and many other courts, Ruth successfully urged the unconstitutionality of those statutes.

  So our trip to the Tenth Circuit mattered a lot. First, it fueled Ruth’s early 1970s career shift from diligent academic to enormously skilled and successful appellate advocate—which in turn led to her next career on the higher side of the bench. Second, with Dean Griswold’s help, Mr. Moritz’s case furnished the litigation agenda Ruth actively pursued until she joined the D.C. Circuit in 1980.

  All in all, great achievements from a tax case with an amount in controversy that totaled exactly $296.70.

  As you can see, in bringing those Tax Court advance sheets to Ruth’s big room forty years ago, I changed history. For the better. And, I shall claim, thereby rendered a significant service to the nation. I have decided to believe it is the significant service that led to my being invited to speak to you today. And even if you had in mind a topic a little less cosmically significant and substantially more humorous, such as the Supreme Court’s performance in tax cases, Ruth and I are truly delighted to be back with you in the Tenth Circuit once again.

  After she read Marty Ginsburg’s speech, Justice Ginsburg was asked whether she knew what had become of Charles Moritz. Her reply, delivered with a smile, paraphrased the A. A. Milne children’s poem about “James James Morrison Morrison Weatherby George Dupree,” who “took great care of his mother, though he was only three.” “All I know for sure,” she said, “is that he took great care of his mother, even when she was ninety-three.”

  3

  The Frontiero Reply Brief

  IN THE FALL of 1970, Sharron Frontiero was a lieutenant in the U.S. Air Force, stationed at Maxwell Air Force Base in Montgomery, Alabama. Her husband, Joseph Frontiero, was a military veteran and full-time student at Montgomery’s Huntington College. Under federal law, married members of the military were afforded a supplemental housing allowance and on-base health care for their “dependents”—but the law defined “dependent” more favorably for male than female service members. If Joe had been the service member and Sharron the student, she would automatically have been treated as Joe’s dependent without regard to her income, qualifying the family for the statutory benefits. As a servicewoman, however, Sharron was required to prove that her husband relied on her for more than half of his expenses before her family would be deemed eligible. Sharron paid the majority of the family’s expenses, but fell a bit short of the required one-half of Joe’s support. Sharron filed a lawsuit in federal court against the secretaries of defense and the air force as well as her commanding officer, claiming that the federal law’s less generous family benefits for female service members violated her constitutional right to equal protection of the laws.

  When the case reached the U.S. Supreme Court, then-Professor Ruth Bader Ginsburg, on behalf of the American Civil Liberties Union, wrote a seventy-page amicus (friend-of-the-court) brief in support of Sharron Frontiero’s claim. In it, she laid out the long history of discrimination against women and the Supreme Court’s position, unwavering until 1971: legal distinction by sex (what Ginsburg often called “sex-role pigeonholing”) was rational and therefore constitutional. She characterized this as “the anything goes” standard of review; it authorized legislators to draw, as the Supreme Court summed up in 1948, a “sharp line between the sexes.” Ginsburg’s core contention in the ACLU brief was this: legislative line-drawing based on sex should, like race classifications, be labeled “suspect,” so the Court should extend to legal distinctions based on gender the same “strict scrutiny” the Justices, in the early 1970s, reserved (and still give) to race-based legal distinctions. The essential feature of strict scrutiny: a requirement that the state justify its “suspect” classification by proving that it was “necessary to a compelling state interest” and “narrowly tailored” to serve that interest. A legal commentator famously labeled this standard “strict in theory but fatal in fact” because its application so frequently led courts to conclude that racial classifications were unconstitutional.1

  The attorneys for Sharron Frontiero, who had initially requested the ACLU’s assistance with its Supreme Court brief, had declined to make this argument, prompting Ginsburg and the ACLU to submit the argument in their amicus brief. Diplomacy produced a reconciliation, however, and the ACLU and Frontiero’s attorneys joined together to submit the final brief, a reply to the government’s argument that the federal statute was constitutional. The portion of the reply brief presenting Ginsburg’s “sex as suspect” argument is set forth below. This case marked Ginsburg’s first personal appearance before the Supreme Court, where she and one of Frontiero’s attorneys split the argument time between them, with Ginsburg presenting the “sex as suspect” argument in person to the Justices for the first time.

  Excerpt from

  Joint Reply Brief of Southern Poverty Law Center, appellants, and the American Civil Liberties Union, Amicus Curiae.

  Filed in U.S. Supreme Court, January 12, 1973, in Frontiero v. Richardson, 411 U.S. 677 (1973).

  Legislative judgments about social roles solely on the basis of sex invoke a suspect criterion.

  1. . . . This Court has never to date recognized sex as a “suspect” criterion for legislative distinctions2 and, according to appellees, it never should. . . . In urging declaration of the sex criterion as suspect in the instant case, appellants merely reiterate what was plain to those who, a decade ago, adverted to the pervasive social, economic, and political effects of sex discrimination in American society: “Equality of rights under the law for all persons, male or female, is so basic to democracy and its commitment to the ultimate value of the individual that it must be reflected in the fundamental law of the land.” President’s Commission on the Status of Women, American Women 44–45 (1963) (statement indicating expectation that this Court would provide “imperative” clarification to remove “ambiguities with respect to the constitutional protection of women�
��s rights”).

  2. Appellees [in the government brief] concede that a prime ingredient eliciting strict scrutiny is inherent in the sex criterion: “sex, like race and national origin,3 is a visible and immutable biological characteristic that bears no necessary relation to ability.” (Br. Appellees 15.) On the other hand, appellees note that “racial distinctions, unlike sex distinctions, have an especially disfavored status in constitutional history.” (Br. Appellees 16.) This proposition is beyond debate. The paramount concern of Congress in the period during which the post–Civil War Amendments were adopted surely did not relate to women, but neither did it relate to newcomers to our shores. Yet the principle of equal protection, from the start reflected the fundamental notion that legislative distinctions should not be made on the basis of characteristics that bear no necessary relationship to ability and over which persons have no control. In accordance with this notion, in 1971 this Court formally enshrined alienage among the suspect categories. Graham v. Richardson, 403 U.S. 365 (1971).4

  3. Appellees urge, however, that although the sex criterion “bears no necessary relationship to ability,” it cannot rank as suspect because women constitute a numerical majority that has not been excluded from the political process. Skipped over is the fact that through most of our nation’s history, total political silence was imposed on this numerical majority. See E. Flexner, Century of Struggle (1959); Up from the Pedestal (A. S. Kraditor, ed. 1968); Br. Amicus Curiae 11–18. Even today, in many states, women do not share with men full rights and responsibilities with respect to jury service. See Br. Amicus Curiae 41–42. In educational institutions, on the job market, and, most conspicuously, in the political arena, women continue to occupy second-place status.5 Suggestive of the value that should be assigned to appellees’ head count, former Secretary of Labor Hodgson observed in 1970 that discrimination against women in the labor market is “more subtle and more pervasive than against any other minority group.”6

  Women’s “political influence” could be characterized as “substantial” [as appellees did in their brief] only by substituting fancy for fact. Not a single woman sits in the United States Senate; only 14 women hold seats in the House of Representatives. Over the past twenty years only one woman has chaired a House committee;7 no woman has ever chaired a Senate committee. Less than 3 percent of positions in the federal government at and above GS-16 rank are held by women.8 As of October 31, 1972, women comprised almost one-quarter of the foreign service, but less than 3 percent of the chiefs of missions.9 At the state level, no woman serves as governor, and less than 6 percent of state legislators are women.10

  4. Closely related to appellees’ head count argument, and as the final reason for denying that the sex criterion is suspect, appellees assert that sex distinctions “do not express an implied legislative judgment of female inferiority.” (Br. Appellees 17–19.) No such judgment, according to appellees, is embodied in a statute declaring women unfit for bartending (Goesaert v. Cleary, 335 U.S. 464 (1948)); a statute establishing a women’s college to equip females to serve as secretaries and homemakers and in other occupations “suitable to their sex” (the state’s men’s college, by contrast, was established as a military school offering a full range of liberal arts and engineering degrees) (Williams v. McNair, 316 F. Supp. 134 (D.S.C. 1970), aff’d mem., 401 U.S. 951 (1971)); a statute presuming that women are preoccupied with home and children and therefore should be spared the bother of serving on juries (Hoyt v. Florida, 368 U.S. 57 (1961)); and a statute that has become a major roadblock to women seeking equal opportunities for remuneration and promotions in blue-collar employment (Muller v. Oregon, 208 U.S. 412 (1908)).11

  Legal scholars who have assessed these legislative judgments less perfunctorily than appellees view the matter differently. Each judgment supposed by appellees to imply no “stigma of inferiority” has been exposed as resting upon “unjustified (or at least unsupported) assumptions about individual capacities, interests, goals and social roles solely on the basis of sex.” . . .

  Legislative judgments “protecting” women from full participation in economic, political, and social life have been labelled “benign” by persons who regard them as marking off for women a “separate but equal” role. Most men and women claim they value qualities traditionally associated with the mother-wife, e.g., selflessness, sensitivity, passivity, non-assertiveness. But investigations of social scientists leave no doubt that traits associated with the male breadwinner, e.g., assertiveness, aggressiveness, independence, are valued more. . . .

  Evidence abounds that the “submissive majority” perceives the real judgment underlying “benign” classifications and the “separate but equal” euphemism. Growing up in a society in which virtually all positions of influence and power are held by men, women believe that they belong to the inferior sex. Women’s lack of self-esteem and their own belief, shared by men, that it is better to be male than female is reflected, for example, in the fact that male babies are preferred over female babies by both parents. As Matina Horner observed, “It has taken . . . a long time to become aware of the extent to which [the stereotypical] image of woman has actually been internalized, thus acquiring the capacity to exert psychological pressures on [women’s] behavior of which [women themselves] are frequently unaware. . . . [S]ocial and, even more importantly, internal psychological barriers rooted in this image really limit the opportunities to men.” Horner, Toward an Understanding of Achievement-Related Conflicts in Women, 28 J. Social Issues 157, 158 (1972).12

  5. Women who seek to break out of the traditional pattern face all of the prejudice and hostility encountered by members of a minority group. Worse than being “discrete and insular,”13 which for other minority groups at least has the advantage of fostering political organizing, women are separated from each other and therefore remain far distant from the political potential appellees ascribe to them. For women who want to exercise options that do not fit within stereotypical notions of what is proper for a female, women who do not want to be “protected” but do want to develop their individual potential without artificial constraints, classifications reinforcing traditional male-female roles are hardly “benign.” Where, as in the instant case, a wife and husband deviate from the norm—the wife is the family breadwinner, the husband “dependent” in the sense that the wife supplies more than half the support for the marital unit14 —“benign” legislative judgments serve as constant reminders that, in the view of predominantly or all-male decision-making bodies, life should not be arranged this way.

  Conclusion

  In sum, appellants submit that designation of the sex criterion as suspect is overdue, provides the only wholly satisfactory standard for dealing with the claim in this case, and should be the starting point for assessing that claim.

  Professor Ginsburg would lose the battle for designating sex as a suspect classification but win the Frontiero case and, in the years that followed, the larger battle for women’s equality in the Supreme Court. Only four of the Justices, in a plurality opinion by Justice Brennan, agreed with her that gender classifications were worthy of strict scrutiny, but four additional Justices, although they declined to label sex classifications suspect, found the statute’s gender-specific definitions of dependency unconstitutional nevertheless, citing her 1971 Reed v. Reed case. Sharron Frontiero had prevailed, eight to one.

  Lacking the essential fifth vote for the proposition that sex, like race, was a “suspect” category, Ginsburg, in subsequent cases, coaxed the Justices into articulating an “intermediate” standard of review for sex discrimination cases.I The Court’s intermediate standard was first set forth in Craig v. Boren, a 1976 case in which Ginsburg and the ACLU had again submitted an amicus brief. In an opinion by Justice Brennan, the Court said:

  To withstand constitutional challenge under the equal protection clause of the Fourteenth Amendment, classifications by gender must serve important governmental objectives and must be substantially related to achievement
of those objectives.

  The new standard—a far cry from the historic “anything goes” approach to sex distinctions in law, but not quite strict scrutiny, the vigorous requirement that the state show its sex-based classifications were narrowly tailored to achieve a “compelling state interest”—proved potent enough to invalidate most of the many federal and state laws that “drew a sharp line” between the sexes. For Ginsburg’s culminating chapter in this battle over the proper judicial approach to gendered laws, see by-then-Justice Ginsburg’s announcement of the majority opinion in United States v. Virginia (1996), also known as the Virginia Military Institute (VMI) case, at p. 150.

  * * *

  I. A footnote in the Frontiero Reply Brief suggested the direction she would head. There, she quoted from a recent article in the Harvard Law Review, written by her former law professor and mentor, Gerald Gunther. Gunther argued that the Supreme Court, without acknowledging it, was already moving toward “a newer equal protection.” His evidence included her Reed case. Although the Court denied it was changing the standard in Reed, Gunther wrote, “It is difficult to understand [Reed’s] result without an assumption that some special sensitivity to sex as a classifying factor entered into the analysis. . . . Only by importing some special suspicion of sex-related means . . . can the result be made entirely persuasive.”

  4

  The Need for the Equal Rights Amendment

  On March 22, 1972, the United States Senate, as had the House of Representatives five months before, passed the Equal Rights Amendment to the United States Constitution. The proposed amendment then went to the states for ratification. The ERA’s basic provision, modeled on the Nineteenth Amendment, which granted women the right to vote, provided simply: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”