How Ruth Bader Ginsburg Fought Gender Discrimination — For Both Men and Women

In 1926, Burnita Shelton Matthews  — counsel to the National Women’s Party and the first woman appointed to a federal trial court — wrote, “It is of course disappointing to women that men of the legal profession are unable to see equality as equity when applied as between men and women. But then it is not surprising when one remembers that this defective vision, this regard of discrimination as ‘protection’ is traditional.”

Fifty year later, Ruth Bader Ginsburg wielded Matthews’ words in her quest to establish legal equality between the sexes. The most fascinating aspect of Ginsburg’s work is not her fight for women, but that her cases just as frequently argued for the equal rights of men.

Throughout the 1970s, Ginsburg had established a history of arguing gender discrimination cases in front of the Supreme Court. In two 1976 cases, Califano v. Goldfarb and Craig v. Boren, Ginsburg played a critical role before the Court that came to define her crusade for gender equality and secured greater scrutiny of laws that drew upon gender as a legal distinction.

Prior to those ’76 cases, Ginsburg left a trail of her intentions. The 1973 case Frontiero v. Richardson served as Ginsburg’s first oral argument in front of the Supreme Court. According to the laws governing military benefits, men were automatically allowed to claim their wives as  dependents, but women service members were prohibited from claiming husbands as dependents unless the husband could demonstrate his wife had contributed more than 50 percent of his support. Ginsburg and the ACLU challenged the law on behalf of service member Sharron Frontiero. Ginsburg won the case.

The following year, in the 1974 Supreme Court case Kahn v. Shevin, Ginsburg and the ACLU challenged a Florida law that granted widows an automatic property tax exemption of $500 but denied the same to widowers.

This time, Ginsburg lost the case. Justice William O. Douglas had written the 6-3 majority opinion, ruling that the law reasonably enacted a state “policy of cushioning the financial impact of spousal loss upon the sex for whom that loss imposes a disproportionately heavy burden.” Ginsburg strongly disagreed. In her correspondence in the Ruth Bader Ginsburg Papers preserved at the Library of Congress, Ginsburg wrote to legal pioneer Sara Ann Determan, “I’m ashamed of [Justice Potter] Stewart for associating himself with such sloppy work. It is galling that Douglas sees women as appropriate objects of benign dispensation (ranked with the blind and the totally disabled) when he should know that there is no surer way to keep them down than to perpetuate that brand of chivalry.”

Instead, Ginsburg favored Justice Byron White’s dissent. He argued that Florida’s tax law was unconstitutionally discriminatory; the state ‘had not adequately explained why women should be treated differently than men” in granting the economic benefit. “White is the only one with complete integrity,” she wrote Determan.

Frontiero v. Richardson and Kahn v. Shevin served as Ginsburg’s first SCOTUS oral arguments — the first a limited victory and the second a loss — but she had already cut her teeth on such arguments in two earlier cases. The first instance, working with her husband Martin Ginsburg, focused on repealing tax law that excluded some men from claiming tax deductions for caretaking costs of aging parents and others. As written, the law only allowed women, widowers, and married men caring for their incapacitated wives to claim a tax exemption. Charles Moritz, who cared for his ailing 89-year-old widowed mother, was prohibited from claiming the exemption. Both Ginsburgs argued Moritz v. Commissioner in front of the United States Court of Appeals for the 10^th Circuit in 1971, and won. One can even watch a movie about it, On the Basis of Sex (2018), starring Felicity Jones as Ruth and Armie Hammer as Martin.

Trailer for On the Basis of Sex (Uploaded to YouTube by Focus Features)

The second instance was the 1971 Supreme Court case Reed v. Reed, which overturned an Idaho state probate law that mandated men be assigned administrative estate duties over women, and crystalized her thinking on the issue. Though Ginsburg did not argue Reed, she wrote a defining legal brief for it, referred to as the Grandmother Brief; it gave birth to every legal argument on the issue for a generation. She acknowledged decades later that Moritz (the “Grandfather Brief”) had laid the groundwork. “The argument developed in Reed was first sketched out in Moritz,” she told Maeva Marcus in 1996. Following her two victories,  Ginsburg established the ACLU’s Women’s Rights Project in 1972.

From Reed forward, Ginsburg fought for the application of “strict scrutiny” part of “suspect classification,” which meant that laws that drew distinctions between groups required a “compelling justification;” a rational explanation was not legally sufficient. Until that time, strict scrutiny under the equal protection clause of the 14^th Amendment had largely been ascribed to race, national origin, and religion — but never gender. “Legislative discrimination grounded on sex, for purposes unrelated to any biological differences between the sexes, ranks with legislative discrimination based on race, another congenital, unalterable trait of birth, and merits not greater judicial difference,” Ginsburg wrote in her Reed brief. Although the Reed decision written by Chief Justice Warren Burger had invalidated the Idaho law, it did so for reasons of rationality. The opinion ignored Ginsburg’s claim to equal protection and strict scrutiny.

As Supreme Court journalist Linda Greenhouse notes in her book, Becoming Justice Blackmun, these cases “questioned politics that often appeared sensible and reasonable.” They rarely hinged on issues of “life and death,” and some of the plaintiffs and issues could seem “petty or self-indulgent” but at their core represented serious legal challenges to gender law. The idea, she told interviewers in 1996, “was to question the assumption that any law that differentiates on the basis of sex is a favor to a woman, protecting her, not keeping her down.”

To the petty or self-indulgent issue, see the plaintiff Martin Kahn. Historian Linda Hirshman describes Kahn as “an unpleasant representative of what seemed to be men’s lib, looking for a tax break on the back of Justice Douglas’s mother …” in her dual biography of Justices Ruth Bader Ginsburg and Sandra Day O’Connor, Sisters in Law. The Douglas reference referring to his apparent sympathy for the law due to his own mother’s hardships, a point Ginsburg conceded in correspondence.

The two 1976 cases mentioned at the beginning of this article reflect the dynamics of Ginsburg’s efforts, namely that at first glance the issues of the case seem frivolous but upon review underscore serious issues of law and that both focused on men, but functioned to expand women’s rights. Craig v. Boren challenged an Oklahoma law that allowed 18-year-old women to buy 3.2 percent beer but prohibited men from doing so until age 21. Ginsburg worked with Oklahoma lawyer Fred Gilbert, advising him on strategy and writing a friend of the court brief. “Although the beer case is something of an embarrassment,” she wrote in February 1976,” it does have significance for our social security widower’s case [Goldfarb] in which the Supreme Court has just noted probably jurisdiction.” (Califano v. Goldfarb involved a widower without minors suing to collect his deceased wife’s benefit without demonstrating any dependence on her financially.)

While all people deserve legal representation, and the law should be applied equally regardless of background, personality or charisma, it doesn’t hurt to have a striking central figure. In Frontiero (the case challenging that women service members were prohibited from claiming husbands as dependents), active-duty service member Sharron Frontiero made a compelling person for argument, and several of the justices recognized it immediately. “This [law] must be stricken down…The question is by what route and how far,” Justice Harry Blackmun wrote in a pre-oral argument memo to himself. Justice William Brennan drew directly from sections of Ginsburg’s brief in his plurality opinion, which came within one vote of achieving equal protection and strict scrutiny status. “I wanted to make ‘sex a suspect classification’ the number-one argument, not thinking that the Court would accept it, expecting that they wouldn’t, but wanting to plant, just plant the idea,” she remembered years later. Her losing verdict in the Kahn case seemed to undermine this momentum and explains some of Ginsburg’s clear frustration in her correspondence.

Ginsburg would get another sympathetic plaintiff, the first case in which she represented the plaintiff from U.S. District Court to the Supreme Court, in Weinberger v. Wiesenfeld.  At the time, social security policy dictated that when a male wage earner died, his widow and their minor children received benefits. However, when the wage earner was a woman, the benefits only accrued to their children and not the husband.

In contrast to Melvin Kahn, Stephen C. Wiesenfeld was a much more attractive petitioner. “We started with [his] case because the facts were appealing,” Ginsburg told historian Maeva Marcus in an oral history years later. Wiesenfeld worked as a self-employed consultant while his wife worked as a teacher. Her job provided much of the family income, but when she died in childbirth, her social security benefits only accrued to her son and not Wiesenfeld. “A man whose wife died in childbirth, something that doesn’t happen a lot in the latter part of the twentieth century, with a baby — I mean, widows and orphans — you can’t get any better than that!” observed one of Ginsburg’s student assistants. For Ginsburg, this case and others like it weren’t about invalidating a law or securing men’s rights, but about equal pay and labor. “Although a man was the complainant because he had been denied benefits,” she told Marcus, “the reason he was denied benefits was that he was the spouse of a worker who was undervalued.”

Ginsburg’s oral argument and the ensuing opinion, written by Brennan, managed to convince even conservative Justice William Rehnquist, surprising Ginsburg. “Still amazed that Rehnquist voted for the judgement in Wiesenfeld, the one break in his solid approach to equal protection claims,” she wrote to Brennan’s law clerk Jerry Lynch in 1977.

Whatever her frustrations with Kahn, the 1975 Wiesenfeld victory led to some level of optimism. In 1976 Ginsburg saw potential in the Court. On August 30, the Charlotte Observer quoted Ginsburg regarding the issue: “From the viewpoint of feminists, the Burger Court has been far superior to other courts.”

Ginsburg had discovered Craig (the case where Oklahoma women could buy 3.2 percent beer at age 18 but men couldn’t until age 21) while preparing to argue Califano v. Goldfarb. In her amicus brief of Craig for the ACLU, Ginsburg pointed to the problematic nature of laws that on their face, at least according to tradition, made sense. The Oklahoma beer law was based on the state’s argument that women matured at a younger age and hence were more trusted with the responsibility of alcohol, particularly when it came to traffic accidents, a provision that at first seems complimentary until one realizes it reinforced damaging stereotypes. Ginsburg argued the law pigeonholed both men and women with “familiar notions about ‘the way women (or men) are’ … such overbroad generalization as a rationalization for line drawing by gender cannot be tolerated under the Constitution.” They robbed individuals of their full “human potential” and retarded efforts to achieve equal opportunity. Recognizing the power of tradition, Ginsburg still made sure to reference the nation’s bicentennial and founding, writing “such laws have no place in a nation preparing to celebrate a 200-year commitment to equal justice under law.”

Inside the Court, Justice Brennan saw Goldfarb and Craig as intertwined, citing the “Craig-Goldfarb-Webster test” (Califano v. Webster, being a unanimous decision following the Goldfarb case along similar if not identical lines, it was never argued at the Court) as a possible future standard by which gender discrimination might be evaluated. Again, he drew from Ginsburg’s brief in portions of his opinion.

If Kahn had threatened to thwart the progress made by Reed, Frontiero, and Wiesenfeld, the troika of cases and especially Wiesenfeld, served as a cudgel that forced the all-male Supreme Court to follow its own jurisprudence in Goldfarb, a case that several of the justices found distasteful. “If the slate were clean … I would certainly leave it to Congress … [but Weinberger] v. Wiesenfeld and Frontiero … certainly strongly support the decision” in favor of Ginsburg’s argument, Justice Lewis Powell wrote. Ginsburg herself mused to lawyer Bill Hoppe “[w]onder what would have happened in Kahn if it came up after Weinberger v. Wiesenfeld. There ACLU got an 8-0 victory for a widower …”

With a 5-4 decision in Goldfarb, Ginsburg squeezed out a tight victory, but one she appreciated enough to tell one colleague she “felt like kissing Justice Brennan,” who wrote the majority decision.  The combination of Craig and Goldfarb along with Ginsburg’s previous victories, enabled Brennan to establish a new standard for gender law in his Craig opinion. “Justice Brennan … decided to draft an opinion that was somewhat more adventuresome than his mandate might seem to allow,” wrote his clerks in their case history for the term. “To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives,” Brennan wrote in his opinion. He established what is now referred to as “intermediate scrutiny.”

Regardless of her apparent frustration, Ginsburg had established herself. In 1980, she was appointed by Jimmy Carter to the United States Court of Appeals for the District of Columbia. There she struck up her famous friendship with her ideological opposite and fellow future SCOTUS justice Anton Scalia. In 1993, Bill Clinton appointed her to the Supreme Court.

As Linda Greenhouse and Matthew Graetz observe in their co-authored work, The Burger Court and the Rise of the Judicial Right (2016), the intermediate scrutiny established by Ginsburg’s efforts slowly contributed to a near strict scrutiny status. It all came full circle in Ginsburg’s majority 7-1 opinion in United States v. Virginia, which struck down the Virginia Military Institute’s (VMI) single sex policy excluding women. Governmental classifications based on sex, she wrote, must demonstrate “exceedingly persuasive justification” nor could they “rely on overbroad generalization about the different talents, capacities, or preferences of males and females.” While not exactly strict scrutiny, “exceedingly persuasive justification” made it difficult to “tell the difference,” write Greenhouse and Gaetz.

Reflecting on her career months after her VMI opinion in August 1996, Ginsburg thought about her decade-long commitment to gender equity under the law. She and the ACLU hadn’t invalidated legal statutes; rather, they “invalidated the gender line in the statute … inserted a carat mark … added widowers to widows, husbands to wives.” Laws that undermined women undermined men.“ The woman was disadvantaged as breadwinner, the man was disadvantaged as spouse.” The “defective vision” lamented by Judge Shelton a century ago is still imperfect, but much improved.