My Own Words

by Ruth Bader Ginsburg

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  I. This piece was originally published in 59 American Bar Association Journal 1013 (September 1973). We have made edits based on length and context.

  5

  The VMI Bench Announcement

  ON MANY MORNINGS during the Supreme Court’s Terms, the Justices mount the bench in the ornate courtroom to announce the Court’s decisions. To read full opinions of the Court would take many hours (and likely put the audience to sleep), so the Court takes a more practical approach. The author of each majority opinion boils down the decision to its essence and, ideally, reads a succinct, accessible description of what the Court has done and why. Below is Justice Ginsburg’s announcement from the bench of the decision in United States v. Virginia (known as the VMI case), which she has described as one of the most personally satisfying she has delivered in all her years on the bench.

  Worthy of note: the only precedent from which Justice Ginsburg quotes in her bench announcement is Mississippi University for Women v. Hogan (1982). Those were the words of Justice Sandra Day O’Connor, the first woman to serve on the Supreme Court. Just finishing her first Term, Justice O’Connor wrote for the majority in that 5–4 case holding unconstitutional the exclusion of a man from the university’s all-female School of Nursing.

  The full VMI opinion, in which Ginsburg was joined by five of her colleagues, including Justice O’Connor, is reported at 518 U.S. 515 (1996). Chief Justice Rehnquist filed an opinion concurring in the judgment, which means he signed on to the outcome, although not the reasoning, of the majority opinion. Justice Thomas took no part in the consideration or decision of the case; his son was then attending VMI. Justice Scalia, the lone dissenter, mounted a spirited defense of single-sex education as a legitimate example of diversity in educational options and accused the majority of providing, for sex-based classifications, “a redefinition of intermediate scrutiny that makes it indistinguishable from strict scrutiny.” He also accused the Court of “destroying” VMI, a prediction that proved off base. As Justice Ginsburg has more than once pointed out, in the years since women have been admitted, VMI and its cadets seem to be doing fine, just as she expected they would. (For Justice Ginsburg’s reaction to the Scalia dissent, see “Remembrances of a Treasured Colleague,” p. 39.)

  Bench Announcement

  June 26, 1996

  United States v. Virginia, No. 94–1941

  Virginia v. United States, No. 94–2107

  This case concerns an incomparable military college, the Virginia Military Institute (VMI), the sole single-sex school among Virginia’s public institutions of higher learning. Since its founding in 1839, VMI has produced civilian and military leaders for the Commonwealth and the Nation. The school’s unique program and unparalleled record as a leadership training ground has led some women to seek admission. The United States, on behalf of women capable of all the activities required of VMI cadets, instituted this lawsuit in 1990, maintaining that under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, Virginia may not reserve exclusively to men the educational opportunities that VMI, and no other Virginia school, affords.

  The case has had a long history in court. In the first round, the District Court ruled against the United States, reasoning that the all-male VMI served the State’s policy of affording diverse educational programs. The Fourth Circuit vacated that judgment, concluding that a diversity policy serving to “favor one gender” did not constitute equal protection.

  In the second round, the lower courts considered, and found satisfactory, the remedy Virginia proposed: a program for women, called the Virginia Women’s Institute for Leadership (VWIL) at a private women’s college, Mary Baldwin College. A VWIL degree, the Fourth Circuit said, would not carry the historical benefit and prestige of a VMI degree, and the two programs differed markedly in methodology—VMI’s is rigorously “adversative,” VWIL’s would be “cooperative.” But overall, the lower courts concluded, the schools were “sufficiently comparable” to meet the demand of equal protection.

  We reverse that determination. Our reasoning centers on the essence of the complaint of the United States, and on facts that are undisputed: Some women, at least, can meet the physical standards VMI imposes on men, are capable of all the activities required of VMI cadets, prefer VMI’s methodology over VWIL’s, could be educated using VMI’s methodology, and would want to attend VMI if they had the chance.

  With recruitment, the District Court recognized, VMI could “achieve at least 10% female enrollment”—a number, the District Court said, “sufficient . . . to provide female cadets with a positive educational experience.” If most women would not choose VMI’s adversative method, many men, too, would not want to be educated in VMI’s environment. The question before us, however, is not whether women or men should be forced to attend VMI. Rather, the question is whether Virginia can constitutionally deny to women who have the will and capacity, the training and attendant opportunities VMI uniquely affords—training and opportunities VWIL does not supply.

  To answer that question we must have a measuring rod—what lawyers call a standard of review. In a nutshell, this is the standard our precedent establishes: Defenders of sex-based government action must demonstrate an “exceedingly persuasive justification” for that action. To make that demonstration, the defender of a gender line in the law must show, “at least, that the [challenged] classification serves important governmental objectives and that [any] discriminatory means employed [is] substantially related to the achievement of those objectives.” The heightened review standard applicable to sex-based classifications does not make sex a proscribed classification, but it does mark as presumptively invalid—incompatible with equal protection—a law or official policy that denies to women, simply because they are women, equal opportunity to aspire, achieve, participate in, and contribute to society based upon what they can do.

  Under this exacting standard, reliance on overbroad generalizations, typically male or typically female “tendencies,” estimates about the way most women (or most men) are, will not suffice to deny opportunity to women whose talent and capacity place them outside the average description. As this Court said in Mississippi University for Women v. Hogan some 14 years ago, state actors may not close entrance gates based on “fixed notions concerning the roles and abilities of males and females.”

  A remedial decree must cure the constitutional violation—in this case, the categorical exclusion of women from an extraordinary educational/leadership-development opportunity afforded men. To cure that violation, and to afford genuinely equal protection, women seeking and fit for a VMI-quality education cannot be offered anything less. We therefore reverse the Fourth Circuit’s judgment, and remand the case for proceedings consistent with this opinion.

  6

  Advocating the Elimination of Gender-Based Discrimination

  The 1970s New Look at the Equality PrincipleI

  In the 1970s, a revived feminist movement blossomed in the United States. I was in those years a law teacher, general counsel to the American Civil Liberties Union, and a founder of the ACLU’s Women’s Rights Project. It was my good fortune to be in the right place at the right time, able to participate in the effort to place women’s rights permanently on the human rights agenda in the United States. In these remarks, I will recall those now long ago days and describe, from my personal perspective and experience, what that 1970s effort entailed.

  Most of the world’s nations have rather new constitutions, written since 1970. Newer fundamental instruments of government generally contain a broad equality clause specifically proscribing discrimination on the basis of race, sex, ethnic origin, sexual orientation, religion, and other group characteristics. A few among many examples: Canada’s Charter of Rights and Freedoms, adopted in 1982, has such a catalog, as does South Africa’s post-apartheid Constitution, and the European Convention on Human Rights.

  In contrast to latter-twentieth-century rights declaration
s, the U.S. Constitution is over 220 years old. It is the oldest written constitution still in force in the world. Except for the Nineteenth Amendment, which gave women the right to vote in 1920, our Constitution contains no express provision regarding discrimination on the basis of gender. Indeed, the Constitution contained no equality prescription at all until after the Civil War. Equal protection jurisprudence in the United States principally involves interpretation of the spare Fourteenth Amendment command that governing authorities shall not deny to any person “the equal protection of the laws.”

  Those words, inserted into the Constitution in 1868, were once interpreted narrowly, but over time, they proved to have growth potential. In the 1890s, the U.S. Supreme Court said that racial segregation, mandated by state law, was compatible with the Constitution’s equal protection principle. By the middle years of the twentieth century, however, the Supreme Court came to recognize how wrong that judgment was. State imposed separation along racial lines, the Court acknowledged in Brown v. Board of Education, in 1954, at least in public educational facilities, could never be equal. Yet, until 1971, the Court turned away every woman’s complaint that she had been denied equal protection by a state or federal law.

  In that year, 1971, the Court turned in a new direction. The Justices began to respond favorably to the arguments of equal rights advocates who urged a more encompassing interpretation of the equality principle, one that would better serve U.S. society as it had evolved since the founding of the nation in the late eighteenth century.

  At the ACLU Women’s Rights Project, launched early in 1972, and in the law school seminars I conducted first at Rutgers (New Jersey’s state university), then at Columbia University, work progressed on three fronts: we sought to advance, simultaneously, public understanding, legislative change, and change in judicial doctrine. I will focus in this class primarily on the litigation endeavors.

  In one sense, our mission in the 1970s was easy: the targets were well defined. There was nothing subtle about the way things were. Statute books in the states and nation were riddled with what we then called sex-based differentials. Illustrative laws were set out in an Appendix to a brief the ACLU filed in the Supreme Court in the summer of 1971. The brief was written for the appellant in Reed v. Reed, first of the 1970s gender discrimination/equal protection cases to come before the Court. Among many entries, the Reed brief Appendix included the domicile rule we inherited from England, a rule once prevalent in the States of the United States and elsewhere in the world, in civil law as well as common law domains. Statutes codifying the rule typically read:

  The husband is the head of the family. He may choose any reasonable place or mode of living and the wife must conform thereto.

  On federal legislation in need of repair, the solicitor general of the United States (the Justice Department official who represents the United States in the Supreme Court) provided an important aid, perhaps inadvertently. The solicitor general at the time was former Harvard Law School dean Erwin Griswold. He asked the Supreme Court, in March 1973, to review a decision in a case the ACLU had won at the court of appeals level, Charles E. Moritz v. Commissioner of Internal Revenue.

  Moritz had encountered undisguised sex discrimination in, of all places, the Internal Revenue Code. He challenged a provision allowing single women, but not single men, a deduction for the cost of caring for an elderly, infirm dependent, in Moritz’s case, his aged mother. Congress had prospectively changed the law to eliminate that sex-based differential. With current and future dutiful sons accorded a benefit once reserved for dutiful daughters, there seemed to be no pressing need for High Court review. Take the case nonetheless, the solicitor general urged, for the Court of Appeals decision “casts a cloud of unconstitutionality upon the many federal statutes listed in Appendix E.”

  What was Appendix E? It was a printout from the Department of Defense computer (an unexpected release in those ancient pre-PC days). The printout listed, title by title, provisions of the U.S. Code “containing differentiations based upon sex-related criteria.” It was a road map for reform efforts. One could use the solicitor general’s list to press for curative legislation and, at the same time, bring to courts contests capable of capturing public attention and accelerating the pace of change.

  But if our targets were all set out in the law books, our work encountered resistance in this respect. Our starting place was not the same as that of advocates seeking aid from courts in the struggle against race discrimination. Judges and legislators in the 1960s, and at least at the start of the 1970s, regarded laws mandating differential treatment of men and women not as malign, but as operating benignly in women’s favor. Legislators and judges, in those years, were overwhelmingly white, well-heeled, and male. Men holding elected and appointed offices generally considered themselves good husbands and fathers. Women, they thought, had the best of all possible worlds. Women could work if they wished; they could stay home if they chose. (Women without husbands earning a good income, of course, never had that choice.) They could avoid jury duty if they were so inclined, or they could serve if they elected to do so. They could escape military duty or they could enlist. So what was there for them to complain about?

  Our mission was to educate, along with the public, decisionmakers in the nation’s legislatures and courts. We tried to convey to them that something was wrong with their perception of the world. As Justice Brennan wrote in a 1973 Supreme Court plurality opinion, Frontiero v. Richardson, decided a year and a half after the Court had begun to listen: “Traditionally, [differential treatment on the basis of sex] was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect [often] put women, not on a pedestal, but in a cage.”

  Those with whom I was associated at the ACLU kept firmly in mind the importance of knowing the audience—largely men of a certain age. Speaking to that audience as though addressing one’s “home crowd” could be counterproductive. We sought to spark judges’ and lawmakers’ understanding that their own daughters and granddaughters could be disadvantaged by the way things were. We saw ourselves as teachers appearing before audiences that, on the realities underlying our cases, had not advanced much beyond the third grade.

  To trace the story of when, why, and how women began to count in constitutional adjudication, I will start with a prosecution in a Hillsborough County, Florida, courtroom in 1957, a little over half a century ago. Gwendolyn Hoyt stood trial there for murdering her husband; the instrument of destruction, a baseball bat. Gwendolyn Hoyt was what we would today call a battered woman. Her philandering husband had abused and humiliated her to the breaking point. Beside herself with anger and frustration, she administered the blow that ended the couple’s altercation and precipitated the murder prosecution.

  Florida placed no women on jury rolls in those days, out of paternalistic concern for woman’s place at “the center of home and family life.” Gwendolyn Hoyt was convicted of second-degree murder by an all-male jury. Her thought was simply this: if women were on the jury, they might have better comprehended her state of mind, casting their ballot, if not for an acquittal, then at least to convict her of the lesser offense of manslaughter.

  The Supreme Court, in 1961 (a Court headed by Chief Justice Earl Warren and widely regarded as actively “liberal” in outlook), rejected Gwendolyn Hoyt’s plea. The Court did so following an unbroken line of precedent. That precedent reflected the long-prevailing “separate-spheres” mentality, the notion that it was man’s lot, because of his nature, to be the breadwinner, the head of household, the representative of the family outside the home; and it was woman’s lot, because of her nature, to bear and alone raise children and keep the house in order. Representative of that thinking, a 1948 decision, Goesaert v. Cleary, had upheld Michigan’s ban on women working as bartenders, unless the woman’s husband or father owned the establishment. The consequence, a woman who owned a tavern and her bartending daughter were put out of business.

  In 1971, ten years
after the decision in Gwendolyn Hoyt’s case, the Supreme Court reversed course. So did lower courts all over the United States. The turning point case was Reed v. Reed. Reed involved a teenage boy from Boise, Idaho, Richard Lynn Reed, who died under tragic circumstances. His parents were long separated, then divorced. Richard’s mother, Sally Reed, had unsuccessfully tried to keep the boy totally out of his father’s custody. While Richard was staying in his father’s house, he died from a bullet shot from one of his father’s guns. It was an apparent suicide. Sally Reed, having lost her only child, sought to take charge of her son’s few belongings. She applied to the probate court to be appointed administrator of Richard’s death estate. The boy’s father, Cecil Reed, later applied for the same appointment.

  The Idaho probate court rejected Sally Reed’s application, although it was first in time, and appointed Cecil Reed under a state statute that read: As between persons equally entitled to administer a decedent’s estate, “males must be preferred to females.” An intermediate appellate court ruled in Sally’s favor, but the Idaho Supreme Court ruled against her.

  Sally Reed was not a sophisticated woman. Once a white-collar clerical worker, she later earned her living by caring for elderly and disabled people in her home. She probably did not think of herself as a feminist, but she had the strong sense that her state’s law was unjust, and faith that the judiciary could redress her grievance. Ultimately, her faith was vindicated. The Supreme Court unanimously declared Idaho’s male preference statute unconstitutional, a plain denial to Sally Reed of the equal protection of the state’s law.