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Redefining Fair With a Simple Careful Assault
Step-by-Step Strategy Produced Strides for Equal Protection

By David Von Drehle
Washington Post Staff Writer
Monday, July 19, 1993

In the late 1960s, Ruth Bader Ginsburg was a little-known law professor, expert in such abstruse subjects as "conflict of laws" and the Swedish legal system. A decade later, she had a place in American constitutional history, and was being touted for the Supreme Court.

More than anything in her life, this lightning advance revealed the strange blend of convention and revolution that so marks President Clinton's high court nominee. Ruth Ginsburg won her fame with what was, at the time, a revolutionary idea: that women were covered by the equal protection promise of the Constitution.

But she sold this idea to the Supreme Court in the most conventional way, through small, careful steps, on behalf of ordinary, unthreatening clients. Many of the clients were men. Ginsburg did not expect the court to force social change; she wanted it to give change a "green light," in her words, and she moved the justices to send that signal through a series of simple, scarcely controversial cases.

"Her personal style has always been measured and restrained," says Lynn Hecht Schafran, of the NOW Legal Defense and Education Fund. "And that fit perfectly with what she tried to do."

Ginsburg's tool was the 14th Amendment, which says, in part: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." When she began her assault in the late '60s on gender distinctions in the law, however, the U.S. Supreme Court had never applied that clause to women.

When she began her assault, this was the lay of the land:

An 1873 case, Bradwell v. Illinois, in which the court held that women could be barred from becoming lawyers. A 1948 case, Goesaert v. Cleary, holding that women could be prevented from working as bartenders. A 1961 case, Hoyt v. Florida, which said that laws could opt women out of jury duty. The "peculiar characteristics, destiny and mission of woman" marked her to be "wife and mother," one justice wrote -- and laws could be written to assure just that.

As founder and mastermind of the Women's Rights Project of the American Civil Liberties Union, Ginsburg changed things, though not as much as she wished. Through five victories in six Supreme Court cases, she used the 14th Amendment to erase gender lines in areas ranging from military benefits to jury duty to the administration of estates. The ripple effect of those victories altered hundreds of laws and regulations across the country.

Some current feminist legal thinkers have criticized her work of 20 years before. Ginsburg, they argue, paid too little attention to the essential differences between men and women. Equal protection should not mean simply laws that treat women like men, they maintain.

But Schafran, a former student of Ginsburg, says: "I can't imagine how anyone could get from where we were in 1970 to these contemporary theories if Ruth had not done her equal protection work. People forget how things were."

Showing the Way Through Lives of Others

The Ginsburg campaign was part timing, part luck, part setback -- all guided by a detailed battle plan. It happened like this.

Ginsburg was always a trailblazer: an early career woman and working mother, the first woman to make law review at two Ivy League law schools, among the first 20 female law professors in America. Along the way, she faced job discrimination, but she never thought of herself as a feminist and took no action.

What moved her into court was her own experience mirrored in the lives of others; New Jersey schoolteachers, for example, threatened with job loss when they became pregnant. It seemed outrageous to Ruth Ginsburg, and, while teaching law at Rutgers, she took the schoolteacher case on behalf of the New Jersey branch of the ACLU.

Her work caught the eye of Melvin Wulf, an acquaintance from years earlier, when she was a camper and he was a waiter at Camp Che-ne-wah in the Adirondack Mountains. Wulf had risen to the post of national ACLU legal director and on a visit to New Jersey, he looked Ginsburg up. Soon, he brought her into her first big case.

The client was Sally Reed, a divorced woman in Idaho, mother of a son who had died. Reed applied to be executor of her son's estate; so did her ex-husband. Idaho law held that when a man and a woman were equally situated to be executor, the man must be preferred. The state Supreme Court upheld the law. In 1970, Wulf persuaded Reed's lawyer, Allen Derr of Boise, to let the ACLU join his appeal to the U.S. high court. Wulf included Ginsburg on the team.

In the clear, simple facts of the Reed case, Ginsburg saw the promise of a landmark victory; for the first time, the court would strike down an example of bias against women.

Up to that point, the justices had always deferred to any "rational basis" that states might offer for sex distinctions. This "rational basis" standard allowed the government vast leeway to draw lines; the government had merely to give a rationale for its actions, and it was up to the plaintiff to prove, basically, that the government was crazy.

In Reed, Idaho's offered rationale was that men knew more, generally, about business than women, and that it was too much trouble for the state to determine whether this was true in each case. In the changing social climate of the late '60s and early '70s, Sally Reed's lawyers figured the straight line to victory was to argue that the rationale wasn't rational.

But Ginsburg had a long-range plan in mind that went beyond Idaho and Sally Reed. Eventually, she wanted to nudge the court into applying a much higher standard than "rational basis" to gender distinctions; she wanted the same "strict scrutiny" the court applied to racial classifications in the law.

Under the higher standard, the burden of proof shifts to the government; it must prove that lines drawn in the law make unbiased sense. Plaintiffs usually lose cases judged by the "rational basis" standard. Under "strict scrutiny," they frequently win.

Ginsburg did not expect to win all that in her first Supreme Court case. She pictured a gradual progression of cases that would "educate" the court about gender bias and move the justices step-by-step toward her goal. She modeled her campaign on Thurgood Marshall's work 20 years earlier at the NAACP Legal Defense and Educational Fund. Marshall, who died earlier this year, moved the court in careful increments to abolish the "separate but equal" standard that propped up segregation.

She poured her considerable energy into the brief on "strict scrutiny," hoping that hints, at least, of her ideas would be "reflected in the analysis and language of the decision, thus establishing a sound precedent for future cases," according to a history of Ginsburg's project written by former Georgetown law student Deborah L. Markowitz.

Which is how it happened. Ginsburg got the camel's nose under the tent. Sally Reed won her case unanimously, with Chief Justice Warren Burger writing the decision.

"I think Reed is the turning point case," Ginsburg wrote in a letter soon afterward.

Mainstream Clients, Less Inflammatory Issues

Eager to press the Reed victory, the ACLU board of directors created the Women's Rights Project (WRP) in 1972, with Ginsburg as its first director. To show it was serious, the ACLU sank its own money into the set-up. (Funding for an early mass mailing came from an unlikely source: The Playboy Foundation. The response from some women was enraged. One woman -- the sort Ginsburg has been known to call a "flaming feminist" -- shouted at her over the phone: "Do you know what's on those envelopes? The bunny!")

ACLU executive director Aryeh Neier, a fund-raising wizard, soon found grants from more palatable donors, the Ford Foundation and the Rockefeller Family Foundation. But again there was trouble. While the Rockefeller board was particularly interested in birth control-related issues, including abortion rights, the Ford Foundation was reluctant to touch those topics. Simple enough for Neier: He created the Reproductive Freedom Project, complete with its own director.

This bureaucratic distinction, as much as anything else, kept Ginsburg out of the abortion battle.

"There were no political or philosophical debates about where this all should be heading. Except for gay and lesbian issues," recalls Kathleen Peratis Frank, a private attorney in New York who worked with Ginsburg on many of the WRP cases. "There were some differences over how much we should get into that."

Ginsburg preferred more mainstream clients, and less inflammatory issues. For instance, she objected strongly when Frank suggested pressing the courts to enforce the idea of "comparable worth." The concept involved rating jobs commonly held by men, and jobs typically held by women, according to the skills required and the importance to society. Employers would then be forced to pay the same salary for jobs of equal rating.

Too radical to win, Ginsburg said, and she was right. Frank filed the suit, but lost.

Similarly, Ginsburg's co-founder at the WRP, Brenda Feigan, wanted to challenge special opportunities given to Vietnam veterans, on the grounds that the vets were overwhelmingly male. Ginsburg insisted the idea would lose, "and the worst thing we could do was to make bad constitutional law," Feigan recalls.

"If you bring a case with everything going against you, you can lose and keep losing for decades," Feigan says. "As a constitutional scholar, Ruth felt that once something is decided, it should pretty much stay decided. She saw the big picture, and checked my youthful enthusiasm."

Sharron Frontiero's was the sort of case Ginsburg liked. Frontiero was a married Air Force lieutenant. Wives of servicemen automatically qualified for housing allowances and medical benefits, but when Frontiero applied for those benefits for her husband, she was told she would have to prove he was dependent on her.

This seemed to Ginsburg like a clear case of a woman getting less than a man for the same work, based on an unthinking assumption that women are naturally dependent.

Brenda Feigan approached Frontiero's attorney, Joe Levin of the Southern Poverty Law Center, and asked if the WRP could join his Supreme Court appeal. Levin was cautious. According to Markowitz's history, Levin did not care much for the "strict scrutiny" argument; he would rather show simply that the law was irrational. Finally, he agreed to give Ginsburg 10 minutes of his 30 minutes allowed for oral argument to present a "friend of the court" brief.

Ginsburg was "obviously brilliant," Levin recalls. As she made her case for "strict scrutiny," Feigan sat nearby, opening law books to the relevant page for each citation. Ginsburg cited the page numbers from memory. (A few minutes later, however, as they were leaving the courthouse, Ginsburg's husband, Marty, worried whether she could figure out how to use the shuttle back to New York. "She's just so focused on the law," says Feigan.)

Frontiero was another winner. In fact, Ginsburg almost hit the jackpot. Four of the nine justices, led by William J. Brennan Jr., announced that "strict scrutiny" should apply. But Potter Stewart, in the middle, would not go that far, and held for Frontiero on narrower grounds.

Some lawyers would be thrilled with such a strong plurality vote, but to the cautious Ginsburg, those four votes of confidence amounted to worrisome loss. She feared Brennan and company had jumped the gun, moving before her education project at the court was complete. "Strict scrutiny" had been raised in a justice's opinion and voted down. That was a precedent. Ginsburg began to believe she would never get "strict scrutiny."

So she dreamed up something else.

An ACLU Office, Upper East Side Lifestyle

In 1972, Ginsburg became the first woman hired with tenure for the Columbia Law School faculty, and she spent more time there than at the ACLU offices. Around those offices, she was known as an 18-hour-a-day workhorse and a no-nonsense taskmaster -- friendly enough, quietly empathetic, but a strict perfectionist. "Oh my God, she didn't miss the dotting of a single i," Feigan recalls. "There was something very sweet, very vulnerable, about her, but she wasn't the kind of person you would chat with."

Her morning greeting was, often as not, "Have you read the advance sheets yet?" -- referring to the earliest official versions of court opinions. She rarely laughed; in fact, a colleague thought she recognized Ginsburg at a Broadway show, but the woman in question was laughing hysterically. Couldn't be Ruth. (To the colleague's amazement, it was.)

Her social status fascinated some of the more radical lawyers on staff. Ginsburg was married to one of Manhattan's leading tax attorneys, and a member of the Metropolitan Opera Guild. Sylvia Law, an abortion rights lawyer, remembers a party at Ginsburg's Upper East Side home, celebrating the publication of a book on gender discrimination co-written by Ruth Ginsburg. Canapes were served by liveried butlers.

For all her diligence, Ginsburg could not cover everything, so she was stunned one morning to read that the Supreme Court had agreed to hear a gender discimination case brought by the Miami branch of the ACLU.

It was the case of Mel Kahn, a widower, challenging a special property tax exemption given to widows under Florida law. A young Miami attorney, Bill Hoppe, was new to the ACLU; when he lost in the Florida Supreme Court, he never realized he needed to notify the national office that he was appealing in federal court.

"National called and said, very nicely, 'Who are you, and who gave you permission to use the ACLU name in the Supreme Court?' " Hoppe remembers. "And they said they wanted Ruth Ginsburg to take over the case."

Ginsburg hated the Kahn case. It was not, she believed, plainly irrational to give a special edge to widowed women, given that past discrimination against women tended to leave them at a disadvantage. What's more, according to a 1975 letter Ginsburg shared with Markowitz, she worried that Kahn would upset one of her reliable votes: Justice William O. Douglas. "His widowed mother had a very rough time financially," Ginsburg noted in the letter. He might not like a case challenging widows' benefits.

"She was always very concerned about where the justices were coming from personally," says Kathleen Peratis Frank. "She picked up that legal realism at Harvard."

Sure enough, Kahn lost 7 to 2. Douglas wrote the opinion. After two big wins, here was a setback.

But Ginsburg had carefully avoided asking for anything more in the Kahn case than the "rational basis" standard. What she had in mind for the court was an intermediate standard, between the one the justices had begun applying and the lofty "strict scrutiny" standard applied to racial classifications. For that, she needed a better case.

Challenging Society's Gender-Based Assumptions

As it turned out, she had a good case in the pipeline already. Stephen Wiesenfeld was another widower; his wife had died in childbirth. He wanted to spend his time raising his infant son, so, to support them, he applied for survivor benefits from his wife's Social Security. Widows automatically received the benefits, but Wiesenfeld was required to prove he was dependent on his wife's earnings, and he could not.

Here, Ginsburg felt, was a chance to show how the law wrongly assumed that all women were dependent, and all men had someone else to raise their children. These assumptions, she believed, did no one any good. Her plaintiff was a man, yet she could argue Wiesenfeld as a women's rights case. The facts showed that a woman's Social Security benefits provided less for her survivors than a man's would.

In the Wiesenfeld brief, Ginsburg introduced her idea of intermediate, or "heightened," scrutiny.

She won half of what she sought: The court unanimously struck down the law in the Wiesenfeld case. But once again it stopped short of establishing any heightened scrutiny of gender distinctions. Brennan's majority opinion took the position that the injured party in the case was the baby. (A later Ginsburg victory, Califano v. Goldfarb, extended the benefit to widowers without dependent children.)

Still, progress was made. Brennan went on to say that "the mere recitation of a benign, compensatory purpose is not an automatic shield" for laws that draw lines by sex. That seemed to imply some higher standard for gender classifications than mere "rational basis," but the higher standard was not spelled out. Another case was needed.

A footnote: Stephen Wiesenfeld's devotion to his son deeply touched Ruth Ginsburg. She threw a party for him, and stayed close as the child grew. Years after she won the case, she sent a gift for the boy's bar mitzvah. (In her chambers today at the U.S. Circuit Court of Appeals for the District of Columbia, Ginsburg has a photograph on prominent display. It shows her son-in-law gazing adoringly at his newborn child. "This is my dream for society," she tells visitors. "Fathers loving and caring for and helping to raise their kids.")

A 'Gossamer' Case Knocks Down Barrier

Ginsburg's strategy for winning a higher standard of scrutiny in gender bias cases paid off, at last, in 1976. The victory came in a case that, frankly, struck her as frivolous: An underage Oklahoma fraternity boy was suing for the right to buy beer. Also joining the suit was the owner of the Honk 'n' Holler convenience store, who wanted to sell the beer to him.

Craig v. Boren was a "gossamer" case, Ginsburg later wrote, a "nonweighty interest pressed by thirsty boys." For all her careful steps, Ginsburg's winner came on a woozy draft of luck.

An Oklahoma law, intended to cut down on drunk driving, allowed girls to buy weak "3.2" beer at 18, but boys couldn't buy until they were 21. The law reminded Ginsburg of a nursery rhyme, she told Deborah Markowitz: Boys were snips and snails and puppy dog tails; girls were sugar and spice and everything nice.

Oklahoma attorney Fred Gilbert handled the appeal, but Ginsburg counseled him on his arguments, and filed a friend of the court brief. "We don't have 5 votes for {strict scrutiny}, so play that down," Ginsburg wrote Gilbert, according to Markowitz. "Urge instead 'heightened scrutiny.' "

Six justices signed Brennan's opinion holding that a higher standard than mere "rational basis" must justify legal lines drawn by sex. "Classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives," the court held. The burden of proof had shifted. Gender distinctions would no longer get the benefit of the doubt.

In this case, Craig v. Boren, the Supreme Court acknowledged, as Ginsburg told Markowitz, that the "familiar stereotype: the active boy, aggressive and assertive; the passive girl, docile and submissive," was not fit to be written into law. As Justice John Paul Stevens wrote in his concurring opinion: "There is only one Equal Protection Clause. . . . "

In the decade-long span of her campaign, Ruth Ginsburg became one of America's leading lawyers, honored with choice assignments to boards, committees and delegations of the American Bar Association; selected to the prestigious council of the American Law Institute and the board of the American Bar Foundation. She became a hot commodity on the law school lecture circuit. She appeared "on anyone's list" of female candidates for top federal judgeships, according to Washington lawyer Terry Adamson, an official in the Carter-era Justice Department. Her name was widely mentioned as a future Supreme Court justice.

Such was her status when she argued her last case before the high court, in 1978. Duren v. Missouri challenged laws and practices that made jury duty voluntary for women in that state. To Ginsburg, optional jury duty sent a message that women's service was unnecessary to important government functions.

She argued the case along with a young Kansas City public defender, Lee Nation. Nation had studied Frontiero in law school; he was in awe to be working with Ginsburg. But when he met her, he says, "what struck me was that she was very kind. Not condescending at all."

Ginsburg's last case before the court was another winner; her last question from the bench was the most memorable of her career. Justice (now Chief Justice) William H. Rehnquist -- always the one least inclined to vote for Ginsburg -- leaned toward his microphone at the end of her oral presentation.

"You won't settle for putting Susan B. Anthony on the new dollar, then?" he asked, slyly.

An answer, one fit to sum up not just a case but a career, jumped to Ginsburg's mind, she later recalled. "We won't settle for tokens," she considered saying.

But Ruth Ginsburg, ever cautious, said nothing.

Staff researcher Ann O'Hanlon contributed to this report.

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