Teaching About the Feminist Rights Revolution: Ruth Bader Ginsburg as “The Thurgood Marshall of Women’s Rights”
Robert Cohen and Laura J. Dull
Biography illuminates history
Ruth Bader Ginsburg and Thurgood Marshall
Neil A. Lewis, “A Slave’s Great-Grandson Who used Law to Lead the Rights Revolution,” New York Times (June 28, 1991), para. 9.
I. Full text of Interview with Ruth Bader Ginsburg
Advice for social studies teachers on teaching about Ruth Bader Ginsburg’s advocacy for gender equity when she led the ACLU Women’s Rights Project, from an interview with Justice Ginsburg by Robert Cohen, Dec. 17, 2015 at the NY Historical Society
Robert Cohen In U.S. History courses, I’ve noticed that there is no mention of the ACLU Women’s Rights Project or of the historic Supreme Court victories for gender equality that it won under your leadership. One of our goals today in our teacher education panel is to get this history taught in the schools. What would you want teachers to emphasize about the ACLU Women’s Rights Project, your leadership in this struggle, and the court cases that you argued for women’s rights [as a lawyer]? And which of the course cases do you think would be most important, interesting, and teachable for high school students?
Justice Ruther Bader Ginsburg Well first I would recommend a book by the Supreme Court Historical Society, Supreme Court Decisions and Women’s Rights (Cushman, 2010). It covers all the leading cases from the 1970s. I contributed some things to it, as did Justice O’Connor. It’s very readable and I think it would be ideal for high school students.
As for the cases I’d select, I would choose Reed v. Reed about Sally Reed from Boise, Idaho whose son died under tragic circumstances. She wanted to be appointed administrator of his estate but was told by the probate judge “We’re sorry, but the law says that between persons equally entitled to administer a deceased youth’s estate, males must be preferred to females.” As her ex-husband had applied to be administrator, so he got the appointment. And so that’s a good example of discrimination adversely affecting a woman.
The other case I’d pick is Weinberger v Wiesenfeld. [The case was] about a man, Stephen Wiesenfeld, whose wife Paula was a school teacher, who had a very healthy pregnancy and was teaching into the ninth month. But when she went to the hospital to give birth, the doctor came out and told Stephen “you have a healthy baby boy but your wife died of an embolism.” So he vowed that he would take personal care of the child and work only part time until the child was in school full time. He went to the Social Security office to ask for what he thought were child care benefits and was told that these are mother’s benefits not available to fathers. In that case, we made the point that the discrimination starts with the woman as wage earner because her Social Security taxes don’t get for her family the same benefits that a man’s taxes will get for his family. [The case also involved] discrimination against the male as parent since he wouldn’t even have the opportunity to be the primary care-taker of his child. And the argument that appealed to my later Chief [Justice], then Justice [William] Rehnquist, was that the baby should have the opportunity for the care of a parent only if the parent is female and not male. So that case is a good illustration of how these rigid gender lines in the law hurt everyone – the woman, the man, and the children.
RC And what about of your role in these cases and the legal struggle for gender equity? What would you like teachers to highlight?
Justice RBG I would say I was fantastically lucky to be born when I was and to have legal training. Because women for generations had been saying the same things that we said in the 70s, but society [prior to the ’70s] was not yet prepared to listen. In the late ‘60s things began to change and that change accelerated throughout that decade of the ‘70s. On the brief in the turning point case of Reed v. Reed, we put the names of two women, [feminist attorneys] Dorothy Kenyon and Pauli Murray, women who had been saying the same things that we were saying, but a little too soon. The courts are seldom out in front of social change. What happened in the ‘70s was that the courts were catching up to a change that had already occurred in society.
RC Because you’ve been compared to Thurgood Marshall, you could also draw an analogy of Pauli Murray’s influence on you with Charles Hamilton Houston [Marshall’s teacher, law school dean, and predecessor in leading the NAACP racial equality crusade in the courts] influence on Marshall. That earlier generation was fighting the same battles but society wasn’t ready yet…They were the building blocks, but were not there [a generation later] at those moment of triumph with Brown or with your decisions.
Justice RBG Yes. Marshall was very careful to have the building blocks in place before he argued Brown.
II. Summaries of Key ACLU and Supreme Court Cases:
Adapted from materials found on the Oyez website hosted by IIT Chicago-Kent College of Law, https://www.oyez.org/
Significant cases as ACLU Women’s Rights Project Litigator: Between 1972 and 1980, Ginsburg filed briefs in 9 major Supreme Court sex-discrimination cases. She argued 6 of these and won 5. What follows are summaries of three of her most important gender rights victories that she won as a legal advocate.
Frontiero v. Richardson, 411 U.S. 677 (1973)
Sharron Frontiero, a lieutenant in the United States Air Force, sought a dependent's allowance for her husband. Federal law provided that the wives of members of the military automatically became dependents. Husbands of female members of the military, however, were not accepted as dependents unless they were dependent on their wives for over one-half of their support.
Frontiero's request for dependent status for her husband was turned down and the case went to the Supreme Court: Did a federal law, requiring different qualification criteria for male and female military spousal dependency, unconstitutionally discriminate against women thereby violating the Fifth Amendment's Due Process Clause? The Court held that the statute clearly commanded “dissimilar treatment for men and women who are similarly situated,” violating the Due Process Clause.
In her (winning) argument before the court, Ginsburg stated: “Sex like race is a visible, immutable characteristic bearing no necessary relationship to ability. Sex like race has been made the basis for unjustified or at least unproven assumptions, concerning an individual’s potential to perform or contribute to society.”
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)
After his wife died in childbirth, Stephen Wiesenfeld applied for social security survivors’ benefits. While his son was granted benefits, Wiesenfeld was told he was not eligible, as the benefits could only be given to widows, not widowers. Wiesenfeld sought a declaration that this provision was unconstitutional as men and women were treated differently. The Supreme Court unanimously agreed that this distinction constituted discrimination and was therefore unconstitutional.
In her oral argument, Ginsburg said, “There could not be a clearer case than this one of the double-edged sword in operation of differential treatment accorded similarly situated persons based grossly and solely on gender. Paula Wiesenfeld, in fact the principal wage earner, is treated as though her use of work is of only secondary value to her family. Steven Wiesenfeld, in fact the nurturing parent, is treated as though he did not perform that function. And Jason Paul, a motherless infant with the father willing and able to care for him personally, is treated as not entitled to the personal care of his sole surviving parent…In practical effect, laws of this quality help to keep women not on the pedestal but in a cage.”
Reed v. Reed, 404 U.S. 71 (1971)
The Idaho Probate Code specified that “males must be preferred to females” in appointing administrators of estates. After the death of their adopted son, both Sally and Cecil Reed sought to be named the administrator of their son's estate (the Reeds were separated). According to the Probate Code, Cecil was appointed administrator. Sally challenged the law in court: Did the Idaho Probate Code violate the Equal Protection Clause of the Fourteenth Amendment?
In a unanimous decision, the all-male Court held that the law's dissimilar treatment of men and women was unconstitutional. The Court argued that “[t]o give a mandatory preference to members of either sex over members of the other…is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment…The choice in this context may not lawfully be mandated solely on the basis of sex.”
In a 1975 interview, Ginsburg explained why this case was so significant: “Almost anyone would recognize that the statute [Idaho Probate Code] was discriminatory, and you might think the issue too obvious to yield a major precedent. However, [the case] was tremendously significant in that it represented the first time ever in the history of the country that the Supreme Court had said yes to a woman; the first time the Court recognized women as victims of discrimination.”
Significant cases as Supreme Court Justice: Ruth Bader Ginsburg was nominated by President Clinton and sworn into office on August 10, 1993. She is the second female justice.
United States v. Virginia, 518 US 515 (1996)
The Virginia Military Institute (VMI) boasted a proud tradition as Virginia's only exclusively male public undergraduate higher learning institution. The United States brought suit against VMI alleging that the school's male-only admissions policy violated the Fourteenth Amendment's equal protection clause. After the Fourth Circuit found the policy to be unconstitutional, Virginia proposed to create a Virginia Women's Institute for Leadership (VWIL) as a parallel program for women. The United States disagreed, asking the Supreme Court to decide: Is Virginia's creation of a women's-only academy comparable to a male-only academy, thereby satisfying the Equal Protection Clause?
In a 7-to-1 decision, the Court held that VMI's male-only admissions policy failed to meet the requirements of the equal protection clause as the VWIL would not provide women with the same rigorous military training, faculty, courses, facilities, financial opportunities, or alumni reputation and connections that VMI affords its male cadets.
In writing the majority opinion, Ginsburg wrote: “Sex classifications may be used to compensate women for particular economic disabilities [they have] suffered, to promot[e] equal employment opportunity, [and] to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”
Nevada Department of Human Resources v. Hibbs, 538 US 721 (2003)
William Hibbs sought leave to care for his wife, badly injured in a car accident, under the Family and Medical Leave Act (FMLA) of 1993. The FMLA entitles an eligible employee to take up to 12 weeks of unpaid leave to care for the employee's ill or injured spouse. The Nevada Department of Human Resources granted Hibbs's request and, after he had exhausted that leave, said he must report to work by a certain date. When Hibbs failed to do so, he was fired. As the FMLA allows action “against any employer" that “denied the exercise of” FMLA rights, Hibbs sued. The Supreme Court had to decide: May an individual sue a State for damages in federal court for violation of the FMLA?
In a 6-3 opinion delivered by Chief Justice William H. Rehnquist, the Court held that State employees may recover money damages in federal court in the event of the State's failure to comply with the FMLA's family-care provision. Rehnquist’s explanation of the ruling reflects the influence of Justice Ginsburg: “Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men…These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to assume the role of primary caregiver.”
Ledbetter v. Goodyear Tire and Rubber Company, 550 US 618 (2007)
Over her nineteen-year career at Goodyear Tire, Lilly Ledbetter was consistently given low raises relative to other employees. She did not know this, however, until a colleague left her an anonymous note stating that she was earning significantly less money than similarly situated men. Ledbetter sued Goodyear for gender discrimination in violation of Title VII of the Civil Rights Act of 1964. After a jury found for Ledbetter, Goodyear appealed, citing a Title VII provision that requires discrimination complaints to be made within 180 days of the employer's discriminatory conduct. The case was taken up by the Supreme Court: Can a plaintiff bring a salary discrimination suit when the disparate pay is received during the 180-day statutory limitations period, but is the result of pay decisions that occurred outside the limitations period?
By a 5-4 vote, the Court ruled that Ledbetter's claim was time-barred by the limitations period. Justice Samuel Alito’s opinion held that “current effects alone cannot breathe life into prior, uncharged discrimination.” For a timely claim, Ledbetter would have needed to file within 180 days of a discriminatory salary decision.
In an unusual move, Justice Ginsburg delivered a dissent from the bench: “The realities of the workplace reveal why [pay discrimination] does not fit within the category of singular discrete acts ‘easy to identify.’ A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment...When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext. Compensation disparities, in contrast, are often hidden from sight. It is not unusual for management to decline to publish employee pay levels, or for employees to keep private their own salaries. Tellingly, as the record in this case bears out, Goodyear kept salaries confidential.” Ginsburg ended by stating that “the ball is in Congress’ court” to undo the damage. Her call led to The Lilly Ledbetter Fair Pay Act of 2009, the first bill signed into law by President Barack Obama.
RBG continues her fight against gender discrimination. In Sessions v. Morales-Santana (2017), the plaintiff challenged part of the Immigration and Nationality Act which required a longer residency for unwed citizen fathers than for unwed citizen mothers in order to transfer citizenship to children born abroad. As RBG wrote in the majority opinion, “Hardly gender neutral, that assumption [in the law that mothers are more attached to children, so require less time] conforms to the long-held view that unwed fathers care little about, indeed are strangers to, their children...Lump characterization of that kind, however, no longer passes equal protection inspection.” In Whole Women's Health v. Hellerstedt (2016), RBG joined with four of her colleagues to strike down Texas abortion laws that placed a "substantial burden" on women accessing legal abortions.
Irin Carmon and Shana Knizhnik, Notorious RBG: The Life and Times of Ruth Bader Ginsburg (2015).
Amy Leigh Campbell, Raising the Bar: Ruth Bader Ginsburg and the ACLU's Women's Rights Project (2004).
Clare Cushman, Supreme Court Decisions and Women’s Rights: Milestones to Equality (2010)
Scott Dodson, ed., The Legacy of Ruth Bader Ginsburg (2015).
Linda Hirshman, Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World (2015).
Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (1999).