Advocating the Elimination of Gender-Based Discrimination:
The 1970s New Look at the Equality Principle
University of Cape Town, South Africa
February 10, 2006
Ruth Bader Ginsburg
Supreme Court of the United States
In the 1970s, a revived feminist movement blossomed in the United States. I was in those years a law teacher and counsel to the American Civil Liberties Union, an organization committed to the preservation and advancement of human rights in the U.S. 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. I thought you might find engaging a description of what that effort entailed.
Unlike South Africa's Constitution, a model fundamental instrument of government for a nation starting afresh, the U.S. Constitution is nearly 220 years old and contains no express provision opposing discrimination on the basis of gender. Equal protection jurisprudence in the United States involves interpretation of the spare command that governing authorities shall not deny to any person "the equal protection of the laws." Those words, inserted into the U.S. 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, the Supreme Court came to recognize how wrong that judgment was. Separate, the Court acknowledged, 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 dynamic 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, which I assisted in launching early in 1972, and in the law school seminars I conducted first at Rutgers (New Jersey's State University), then at Columbia (in New York), work progressed on three fronts: We sought to advance, simultaneously, public understanding, legislative change, and change in judicial doctrine. In these remarks, I will focus, primarily, on the litigation endeavors. [There was solid precedent for the venture. As far back as the 1930s, and accelerated during the civil rights movements of the 1950s and 1960s, law teachers had involved students in public-oriented legal assistance.]
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 in the first of the 1970s gender discrimination/equal protection cases to come before the United States Supreme Court. Among many entries, the Appendix included the domicile rule inherited from England and once prevalent in the States and elsewhere in the world, including South Africa. 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.
Concerning federal legislation in need of repair, the United States Solicitor General (the Justice Department official who represents the United States in the Supreme Court) provided important aid, although 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, so 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 treasure trove. 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 the aid of the courts in the struggle against race discrimination. Judges and legislators in the 1960s, and at least at the start of the 1970s, regarded 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. 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.
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 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.
To trace the story of when, why, and how women began to count in constitutional adjudication, I will start with a prosecution in a Florida courtroom in 1957, nearly 50 years 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 women'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. [Constitutional interpretation had not notably advanced in the United States since 1875, when Lavinia Goodell of Wisconsin was denied admission to her State's bar. Wisconsin's Chief Justice wrote: "It would be revolting to all female sense of innocence . . . that woman should be permitted to mix professionally in all the nastiness of the world which finds its way into courts of justice . . . ."
This restrictive view of the role of women was characteristic of the times and was hardly confined to the United States. In South Africa, for example, the 1912 decision in Incorporated Law Society v. Wookey, [1912 AD 623], also rejected the suggestion that women could then or ever qualify for admission to the bar. The author of the opinion stated that "the immemorial practice of centuries" compelled him to conclude that women were unsuitable to serve as attorneys. An article in the South African Law Journal commenting on the case was less restrained. The article's author declared: "A revolt against nature is involved in any proposal to allow women to enter into the legal profession. The idea is incompatible with the idea and duties of Motherhood."]
Ten years after Gwendolyn Hoyt's case, in 1971, the U.S. Supreme Court, as I earlier observed, 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 sought to take charge of her son's few belongings, and so 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 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. [Sally Reed visited the U.S. Supreme Court for the first and only time in June 1999. It was my special pleasure to greet her in chambers and introduce her to the officers and staff of the Supreme Court Historical Society.]
Seventeen months after Reed, in Frontiero v. Richardson, the Court held it unconstitutional to deny female military officers housing and medical benefits covering their husbands on the same automatic basis as those family benefits were accorded to male military officers for their wives. Air Force Lieutenant Sharron Frontiero was the successful challenger. Lt. Frontiero had this clear view: She saw the laws in question as plain denials of equal pay.
[In the spring of 1999, Sharron Frontiero visited the Supreme Court, where she was photographed with me and a retired Air Force Major General, Jeanne Holm, an officer who had worked constantly to open opportunities for women in the military.] Like Sally Reed, Sharron Frontiero (now Cohen) is not someone you would choose from a crowd as a potential frontrunner. She is an everyday person, uncomfortable with publicity. But she knew she had been shortchanged, she had the courage to complain, and faith, like Sally Reed, in the capacity of the judicial system to vindicate her complaint.
Two years after Lt. Frontiero's victory, the Court declared unconstitutional an Iowa state law allowing a parent to stop supporting a daughter once she reached the age of 18, but requiring parental support for a son until he turned 21. That same year, 1975, the Court decided a case dear to my heart. It began in 1972, when Paula Wiesenfeld, a New Jersey public school teacher, died in childbirth. Her husband, Stephen Wiesenfeld, sought to care for the baby personally, but was denied child-in-care Social Security benefits then available only to widowed mothers, not to widowed fathers. Stephen Wiesenfeld won a unanimous judgment in the Supreme Court.
In defense of the sex-based differential, the Government had argued that the distinction was entirely rational, because widows, as a class, are more in need of financial assistance than are widowers. True in general, the Court acknowledged, but laws reflecting the situation of the average woman or the average man were no longer good enough even for Government work. Many widows in the United States had not been dependent on their husbands' earnings, the Court pointed out, and a still small, but growing number of fathers like Stephen Wiesenfeld were ready, willing, and able to care personally for their children. Using sex as a convenient shorthand to substitute for financial need or willingness to bring up a baby did not comply with the equal protection principle, as the Court had grown to understand that principle. (As a result of the decision, childcare benefits were paid to Stephen Wiesenfeld, who has been an extraordinarily devoted parent
Next, in 1976, the Court's majority acknowledged that it was applying an elevated standard of review - "heightened scrutiny" - to overt gender-based classifications. The case was Craig v. Boren, in which the Court struck down an Oklahoma statute that allowed young women to purchase "near beer," a beverage that contains only 3.2% alcohol, at age 18 but required young men to wait until they turned 21 to buy the weak brew. It was a silly law, which the State sought to justify on the ground that boys drive more, drink more, and commit more alcohol-related offenses than girls. One might wish the Court had chosen a less frothy case for announcing the "heightened" review standard. Still, it was a key doctrinal advance.
What caused the Court's understanding to dawn and grow? Judges do read the newspapers and are affected, not by the weather of the day, as distinguished Constitutional Law Professor Paul Freund once said, but by the climate of the era.
The altered conditions accounting for the different outcomes in Gwendolyn Hoyt's case in 1961, and in the 1970s cases of Sally Reed, Sharron Frontiero, Stephen Wiesenfeld, Curtis Craig, and several others, were these. In the years from 1961 to 1971, women's employment outside the home had expanded rapidly. That expansion was attended by a revived feminist movement, fueled in the United States, in part, by the movement of the 1960s for racial justice, but also, as elsewhere in the world, by the force of new thinking both represented and sparked by Simone de Beauvoir's remarkable 1949 publication, The Second Sex. Changing patterns of marriage, access to safer methods of controlling birth, longer life spans, even inflation -- all were implicated in a social dynamic that yielded this new reality: In the 1970s, for the first time in the history of the United States, the "average" woman was experiencing most of her adult years in a household not dominated by childcare responsibilities. That development, Columbia University economics professor Eli Ginzberg said in 1977, might well prove "the single most outstanding phenomenon" of the late twentieth century.
The U.S. Congress eventually weighed in, aided by the Department of Justice and a Civil Rights Commission report initially drafted by the ACLU Women's Rights Project working with students in a year-long seminar I conducted at Columbia. The Legislature eliminated most (but not quite all) of the "differentiations based upon sex-related criteria" on Solicitor General Griswold's 1973 list.
In sum, the U.S. Supreme Court in the 1970s, as I see it, effectively carried on in the gender discrimination cases a dialogue with the political branches of government. The Court wrote modestly, it put forth no grand philosophy. But by propelling and reinforcing legislative and executive branch re-examination of sex-based classifications, the Court helped to ensure that laws and regulations would "catch up with a changed world."
This "catching up" differs from the endeavor in which your Constitutional Court engages. For the Constitution of South Africa, on its face, explicitly and rigorously protects rights unspecified in the United States Constitution. Notably, many of the leading cases in U.S. gender equality jurisprudence were brought by male plaintiffs. Of course, the men were complaining about discrimination rooted in a certain way of thinking about women-as dependents, much like children, subservient to the male head of the house. True, it was sometimes easier to convince judges-who were generally male-that overbroad gender classifications were problematic by showing them that men could be disadvantaged by sex-role stereotyping. [Perhaps because your Constitution explicitly recognizes the harmful consequences of discrimination, there is less need for advocates to convince judges of the basic proposition that generalizations about the way women and men are often retard opportunities for individuals to develop their full human potential.]
One might contrast with the U.S. case of the father whose wife died in childbirth a case decided by your Constitutional Court some years ago: President of the Republic of South Africa v. Hugo, 1997 (6) BCLR 708 (CC). In Hugo, the Constitutional Court ruled on a challenge to the amnesty granted by the President to "all mothers in prison . . . with minor children under the age of twelve years." The challenger was a prisoner, John Hugo, a single father whose wife had died some years before. Hugo would have been released under the amnesty, but for the fact that he was the father (not the mother) of his young son. The Constitutional Court was well aware that the amnesty favored females over males. A hard case, or so it seems to me. The amnesty benefited a historically disadvantaged class. At the same time, it reflected a familiar generalization-mothers traditionally bear more responsibility for child-rearing than fathers. That generalization, like many stereotypes, accurately described reality for a large majority of the affected population. Your Court upheld the amnesty, pointing out that the President likely would not opt to release fathers as well as mothers, given the sheer numbers of male prisoners. The Court reasoned that, "although a society [affording] each human being equal treatment on the basis of equal worth and freedom is [the long-term] goal, [South Africa could not] achieve that goal by insisting [under current circumstances] upon identical treatment in all [cases]."
How the U.S. Supreme Court would regard a case like Hugo is debatable. Had our President declared a similar amnesty, I confess, I would have inquired of the Government whether it was feasible to release all single custodial parents of young children, instead of all mothers and no fathers.
Returning to the United States scene, Congress, in the late 1970s, had mooted a court case challenging the exclusion of women from the U.S. military academies - West Point, Annapolis, the Air Force Academy. Congress opened the doors of those academies to women. Change in that domain remained incomplete, however, until the Supreme Court, in 1996, decided a case called United States v. Virginia. That litigation concerned the Virginia Military Institute (VMI), a state college that had long served as a training ground for people who became prominent in their communities. The State offered no comparable opportunity for women. By the time the VMI case was launched, women cadets had graduated from the U.S. military academies for over a decade. The Marine Corps had elevated a career female officer to the rank of three-star General in charge of manpower and planning. Women in service were guarding the Tomb of the Unknown Soldier, flying planes, doing so many things once off limits to them. The Supreme Court held in United States v. Virginia that the State had a choice: It could admit women to VMI, or it could close the school.
Public understanding had advanced so that people comprehended that the VMI case was not really about the military. Nor did the Court question the value or viability of single-sex schools. Instead, VMI was about a State that invested heavily in a college designed to produce business and civic leaders, that for generations succeeded admirably in the endeavor, and that strictly limited this unparalleled opportunity to men. I regard the VMI case as the culmination of the 1970s endeavor to open doors so that women could aspire and achieve without artificial constraints.
One last story from the 1970s: the case of Captain Susan Struck, an Air Force officer serving as a nurse in Vietnam where, in 1970, she became pregnant. She was offered this choice: Have an abortion on base or leave the Service. (Captain Struck's case antedated the Supreme Court's 1973 decision in Roe v. Wade, which held that women have a constitutionally-protected right to control their own reproductive capacity. In those days, several military bases, without fanfare, made abortion available to women servicemembers and dependents of servicemembers.) Captain Struck, a Roman Catholic, would not have an abortion, but she undertook to use no more than her accumulated leave time for the birth, and she had arranged for the baby's adoption immediately after birth. She sued to fend off the discharge Air Force regulations required. She lost in the court of first instance and in the Court of Appeals. But she was well represented by ACLU lawyers in the State of Washington, and each month was able to secure a stay of her discharge.
The Supreme Court agreed to hear her plea. It was an ideal case to argue the sex equality dimension of laws and regulations regarding pregnancy and childbirth. Solicitor General Erwin Griswold saw loss potential for the Government. He recommended that the Air Force waive Captain Struck's discharge and abandon its policy of automatically discharging women for pregnancy. The Air Force did so, and the Solicitor General thereupon moved to dismiss the case as moot.
Hoping to keep the case alive, I called Captain Struck and asked if she had been denied anything that could justify our opposition to a mootness dismissal. She was out no pay or allowance, she confirmed. "Isn't there some benefit you wanted and couldn't get?," I inquired. "Of course," she said in our December 1972 conversation, "I'd like to become a pilot, but the Air Force doesn't provide flight training for women." We laughed, agreeing it was hopeless to attack that occupational exclusion then. Today, it would be hopeless, I believe, to endeavor to reserve flight training exclusively for men. That is one measure of what the 1970s litigation/legislation/public education efforts in the United States helped to achieve.