On the first day of her confirmation hearings, Ruth Bader Ginsburg told the story of Gwendolyn Hoyt. Hoyt was convicted in 1957 of the murder of her husband. Her jury was made up entirely of men, because the state in which she was tried virtually excluded women from jury service. The state was Florida. No woman had served on any jury there until 1949. The first woman elected to the Florida legislature introduced a bill to require women to serve. After a long debate in which opponents said they did not want "their wives and sisters exposed to the embarrassment of hearing filthy evidence," a compromise bill was passed that provided that women's names would be added to the jury pool only if they went to the county courthouse and registered their willingness to be considered eligible.
When Gwendolyn Hoyt came to trial in Tampa in 1957, only 218 of the more than 46,000 women voters in Hillsborough County had registered; the jury commissioner placed only 10 of those women's names in a pool of 10,000 names. It was no surprise that Gwendolyn Hoyt was tried by a jury of six men.
Hoyt protested that she was not being tried by a jury drawn from a cross-section of the community, a jury of her peers. That claim was denied by the trial judge, by the Florida Supreme Court and, in 1961, by a unanimous U.S. Supreme Court. "Woman is the center of home and family life," wrote Justice John Marshall Harlan; if the state of Florida wished to offer women easy excuses from jury service, it could do so. The fact that offering some women the privilege of exemption put at risk the right of women like Gwendolyn Hoyt to a jury drawn from an authentic cross-section of the community did not distress most of the justices. As the assistant attorney-general for the state of Florida had argued, if men and women were truly equal, Hoyt should have had no objection to being judged by men.
Raya Dreben, a young graduate of Harvard Law School whose struggles in the early stages of her career were much like those Ginsburg experienced, assisted a Boston attorney, Herbert Ehrmann, in preparing for the Supreme Court. At Dreben's urging, the American Civil Liberties Union filed an amicus curiae brief in support of Hoyt. It was probably the first time that the ACLU had filed such a brief in a sex-discrimination case. The brief was written by Dorothy Kenyon, an ACLU director who had been one of the first women to graduate from New York University Law School. She had spent decades fighting for equal jury service for women in New York. The developments in the case were followed closely by Kenyon's close friend and colleague, the African American lawyer Pauli Murray, who had decided to go to law school in part because of her fury at convictions of blacks by "poll tax" juries.
Murray was to keep the need to reverse the decision in the Hoyt case on the feminist agenda in her own work as counsel for the Commission on the Status of Women, which John F. Kennedy appointed in 1963. Exclusion from jury service, Murray believed, illustrated more clearly than perhaps any other issue the "failure of the courts to recognize sex discrimination for what it is and its common features with other types of arbitrary discrimination."
Following acquittals in the murders of Viola Liuzzo and Jonathan Daniels during the civil rights struggle in Alabama, a state in which all women were barred from serving on juries and no black men were called to service, Pauli Murray and Dorothy Kenyon together argued White v. Crook (1966). This was a case, brought jointly by the ACLU and the Justice Department, that struck down the arbitrary exclusion of women from jury pools. "Jury service is a form of participation in the processes of government, a responsibility and a right that should be shared by all citizens, regardless of sex," said the U.S. Court of Appeals for the 5th Judicial Circuit.
In 1970, at the age of 82, Kenyon joined a women's liberation parade celebrating the 50th anniversary of suffrage organized in New York City "by women young enough to be her great-grandchildren." They offered her an automobile in which to ride, but she insisted on walking. "I wanted them to know I was with them," she told reporters. By 1971 she was dying of cancer; Pauli Murray was to give her eulogy.
But before Kenyon died, Ruth Bader Ginsburg had begun to work on the ACLU's Women's Rights Project. The project was committed to persuading the Supreme Court to reverse its decisions on three major 20th century cases that had sustained sex discrimination; one of those cases was Hoyt. Gwendolyn Hoyt had by then been released from prison (she now lives a quiet and exemplary life in her home town). And when Ginsburg completed writing the brief for Reed v. Reed in 1971, in which she was to persuade the Supreme Court to rule for the first time that arbitrary discrimination on the basis of gender was a denial of equal treatment under the law, she placed on it, as co-authors, the names of two women who had not written a word of it but who, in their lives and work, had made it possible. In acknowledgment of the intellectual debt that contemporary feminist legal argument owes to "those brave women," she has said, the title page of the plaintiff's brief in Reed bears the names not only of Ruth Bader Ginsburg but also of Dorothy Kenyon and Pauli Murray.
The writer is professor of history at the University of Iowa. She is writing a book about women and civic obligation.