Justice Ginsburg Speaks About Gender Equality

Justice Ruth Bader Ginsburg spoke Thursday about a landmark Supreme Court decision stemming from a state law that favored men over women.  The law existed in 1971 at a time when Ginsburg was working as a young lawyer and law professor with an expertise in gender discrimination.

It was an Idaho probate law that read “males must be preferred to females” when more than one person was equally qualified to administer an estate.  Long before she took the bench as a Supreme Court Justice, Ginsburg challenged the law and won the decision.

In the case-Reed v. Reed-the Supreme Court, for the first time in history, applied the Equal Protection Clause of the 14th Amendment to strike down a law that discriminated against women. Ginsburg told an audience gathered to celebrate the 40th anniversary of the decision that the case was a turning point that lead to a series of other cases striking down laws that discriminated on the basis of sex.

The 78–year-old justice said, “We had many other cases before the court in the 60's but they were all variations on that same theme. ‘Males must be preferred before women’ does not recognize women’s equal citizenship stature.”

Ginsburg was speaking at an event sponsored by the National Women’s Law Center (NWLC) and several universities. She was scheduled to speak only at the end of the panel discussion, but she arrived at the beginning, and commented frequently-without notes on each expert’s remarks.

Reed v. Reed involved a woman, Sally Reed, who sought to be appointed the administrator of her son’s estate after he had killed himself. The boy’s father, Cecil Reed, filed a competing petition seeking to have himself appointed administrator. The couple was divorced and the estate was minimal.

The probate court designated the father the administrator of the estate citing the law that specified that “males must be preferred to females” when more than one person was equally qualified to administer an estate. When the case eventually reached the Supreme Court, the justices struck down the statute unanimously.

“By providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause,” wrote Chief Justice Warren E. Burger.

Emily Martin, general counsel of the NWLC said, “Reed really represented a historic change that began to fulfill the promise of the broad language of the Equal Protection Clause which does prohibit denying any person equal protection of the law.”

Ginsburg was challenged on the panel by Professor Earl Maltz, of Rutgers University Law School.  ”I’m here as the official representative of the dark side,” he said to laughter. “I believe that Reed v. Reed was wrongly decided.” Maltz called himself an “unrepentant originalist” and said, “I believe that in constitutional cases judges should be bound by the meaning that can be derived by the legal materials that were available to those who drafted and ratified the relevant constitutional provision.”

“The historical record does not support the widely shared view that in 1866 the language of the 14th Amendment would have been understood to constitutionalize an open ended notion of liberty equality,” he said. “The evidence on this point is particularly strong with respect to the Equal Protection Clause.”

Ginsburg responded, “I have a different originalist view. I count myself as an originalist too, but in a quite different way from the professor,” she said. “Equality was the motivating idea, it was what the Declaration of Independence started with but it couldn’t come into the original Constitution because of the odious practice of slavery that was retained,” she said. “I think the genius of the United States has been from the original Constitution where ‘we the people’ were white property-owning men to what it has become today. That it is ever more embracive including Native Americans … people who were once held in human bondage, women, aliens who come to our shores.  So ‘we the people’ has a marvelous diversity which it lacked in the beginning.”

Ginsburg was  asked about the role of women on the Supreme Court and she noted that for the first time in history, three women are now sitting on the bench. She talked about the period of time beginning with Justice Sandra Day O’Connor’s retirement in 2006 when she was the only woman on the bench.

“I was alone,” she said, “and I’m not a very large person. It wasn’t the right picture,” she said.  ”But now there I am toward the center and Justice Kagan is to my left and Justice Sotomayor to my right, ” she said.  ”And for those of you who have attended a court hearing lately will know my two newest colleagues are hardly shrinking violets.”