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September|October 2003
The Practitioner By Benjamin Smith
The Real Harm By Gabrielle S. Friedman
Standard Bearer By Fred Strebeigh
A Bigger Tent By Katharine Mieszkowski
Profiling's Gender Gap By Daniel Brook
Coming Out to America By Tyler Maroney
The Love Charm A Story By Eugene Volokh
Ex Offender By Robert J.
In Defense Of Prostitution By Heidi Fleiss as told to Nadya Labi
My Gay Divorce By Laurie Essig

Standard Bearer

Long before she joined the Supreme Court, Ruth Bader Ginsburg challenged its members to treat gender like race.

By Fred Strebeigh

IN 1971, RUTH BADER GINSBURG, A PROFESSOR OF LAW at Rutgers University, secured an important, though limited, victory in the struggle for equal rights for women. In the landmark Reed v. Reed case, involving a mother in Idaho who wished to become administrator of her dead son's estate, the Supreme Court declared for the first time that a law treating men and women differently violated the U.S. Constitution. A state could not have an automatic preference for a male administrator, the court ruled.

Working in collaboration with the ACLU, Ginsburg had begun the previous year to map out a campaign to eliminate what she called "gender lines in the law." Following the victory in Reed, the next step was the case of Sharron Frontiero, which lacked drama and emotional pull—at stake was a bit of monthly rent and a technical military rule about what level of income makes a husband "dependent" on his wife. But the case contained a lesson that Ginsburg wanted the justices to learn: that sex discrimination, as much as race discrimination, violated the equal protection guarantee of the U.S. Constitution.

Ginsburg had learned lessons about gender discrimination in her own life. After graduating at the top of her class at Cornell in 1954, she sought her first job in the surroundings of Fort Sill, Okla., where her husband, Martin, was posted when he was drafted into the Army. Despite a high rating on her civil service exam, she learned that she would have to settle for a typing job because she had become pregnant and was ineligible to travel.

Two years later, as one of only nine women (out of 500 students) at Harvard Law School, Ginsburg was invited by Erwin Griswold, a legendary dean, to attend the annual reception for recently admitted women held at his home. There the women were joined by lions of the Harvard Law faculty (Ginsburg sat next to the federal courts expert Herbert Wechsler) and asked by Griswold, as a matter of ritual, the same question: What was each doing in law school, occupying a seat that could be held by a man? Ginsburg would always remember her diffident answer: Her husband was a year ahead and she hoped studying there would help her understand his work. And she would always admire the classmate with the nerve to respond, "What better place to catch a man?"

After making law review both at Harvard and at Columbia Law School (where she transferred when her husband took a job at a Manhattan law firm), and earning grades among the top 10 students at each, Ginsburg could get neither a job at any Manhattan firm nor an interview for a clerkship with any Supreme Court justice. She came closest with Justice Felix Frankfurter. When given her name by the Harvard professor who usually selected his law clerks, Frankfurter responded by worrying that he might not like how she dressed. "I can't stand girls in pants!" he reportedly said. "Does she wear skirts?" (Told that she did, Frankfurter still declined to interview her, saying he would feel uncomfortable.)

Ginsburg also hoped to clerk for Learned Hand, a judge she held in singularly high regard. Hand declined to consider women because, he explained, he used strong language and did not want to be inhibited by their presence. Ginsburg finally landed a clerkship with a district court judge, Edmund L. Palmieri, who by coincidence frequently drove the elderly Judge Hand to work at the federal courthouse in New York City. Often, as Ginsburg rode along in the car's back seat, Judge Hand cursed freely. Ginsburg asked why he felt so free before a woman-passenger but not a woman-clerk. "Young lady," Hand replied, "here I am not looking you in the face."

SHARRON FRONTIERO'S LIFE AND CAREER TAUGHT A SIMILAR LESSON in sex discrimination. A lieutenant in the U.S. Air Force, she was supporting her husband while, with the help of the G.I. bill, he attended college near her military base in Montgomery, Ala. Under Air Force regulations, she would have been automatically entitled to extra pay for their housing had she been a married man. But for a married woman, military rules awarded extra pay for housing only if her husband could prove he was "dependent" on her. By most common-sense definitions, Sharron's husband was dependent on her, since her $8,200-a-year salary provided more than three-quarters of their household income. But the military definition required not just that she be the family breadwinner but that her husband be "dependent on her for over one-half of his support." Since the G.I. bill gave him about $200 a month, his monthly expenses of $354 failed to reach the military's dependency cutoff. So Lieutenant Frontiero did not meet the standard for an extra housing allowance—a standard that no married male lieutenant, whose wife was assumed to be dependent, would have needed to meet.

With the help of antidiscrimination lawyers from the Southern Poverty Law Center in Alabama, Sharron and Joseph Frontiero challenged the Air Force in federal district court, alleging that it denied them the "equal protection of the laws" and thus violated the U.S. Constitution. The district court ruled against them, however, finding that the law had a "rational" basis.

When the time came to appeal Frontiero to the Supreme Court, a single lawyer, Joseph Levin, was handling the SPLC's caseload. To ease his burden, he asked Mel Wulf, the legal director of the ACLU, for help in trying to get the court to hear the case. Wulf agreed, with an understanding that the ACLU would have primary responsibility for Frontiero in the Supreme Court and that any oral argument would be handled by Ginsburg, his childhood friend and the legal mind who had shaped the brief for Sally Reed.

IN THE CENTURY LEADING UP TO GINSBURG'S EFFORTS in Reed and Frontiero, the Supreme Court had consistently refused to consider women a class deserving of protection under the Fourteenth Amendment. Women's exclusion from its purview became clear on two consecutive days in April 1873. First, in the so-called Slaughterhouse Cases, five of the nine justices ruled that the amendment had been designed to secure rights for black Americans only and should not be interpreted as a guarantee against discrimination on the basis of sex. The next day, in the case of Myra Bradwell, the court ruled unanimously that the amendment did not protect women against exclusion from certain forms of work—in Bradwell's emblematic case, practicing law.

In the hundred years since Bradwell, remarkably little had changed in the Supreme Court's position on the rights of women. In fact, the court's unresponsiveness to appeals for women's rights had become codified in its use of standards of review—"levels of scrutiny"—to decide equal protection cases. The court was settling on a two-tiered approach. Applying slight scrutiny, the court upheld state laws that "discriminated," for example, between those allowed to drive (people 16 and over) and those prohibited from driving, or between those who were allowed to practice law (people who had passed bar exams) and those who were not. For such cases, the court established an easy test: Did the state law have a "rational" relationship to a "legitimate" governmental objective? If so, then the court deferred to state law.

The court was more exacting, however, if it saw a state making a distinction on grounds considered "suspect," a standard primarily applied to discrimination on the basis of race and later religion and national origin. The burden of "strict scrutiny" was such that it had been satisfied only once: the ill-fated decision to intern Americans of Japanese descent during World War II on the grounds of national security, an overriding interest. Ginsburg knew that if sex could join race, national origin, and alien status as classifications covered under the strict-scrutiny standard, the change would strike a crucial blow against discrimination in the law.

A year earlier, in Reed v. Reed, Ginsburg tried to establish the groundwork for this to happen. Collaborating on a brief with Wulf, she urged the court to apply strict scrutiny or, if not, to adopt language that might one day blossom into strict scrutiny. Resurrecting the wording of Royster Guano, an obscure ruling from 1920, Ginsburg placed a hook in Reed. Idaho's preferential treatment of men, she argued, was unconstitutional because the rule lacked "a fair and substantial relation to the object of the legislation, so that all persons similarly situated shall be treated alike." Writing for a unanimous court, Chief Justice Warren Burger took the bait, reusing the same language in writing the Reed opinion.

Terms like "fair and substantial" and "similarly situated" seemed like an innocuous departure from the rational-basis test of slight scrutiny. But Ginsburg viewed them as a crucial intermediate step that could one day provide the foundation for having the court declare sex a "suspect classification" that deserved strict scrutiny. As Ginsburg explained for a 1989 article in the Women's Rights Law Reporter, she advanced the argument of strict scrutiny as a long-term strategy, while using the language of Royster Guano as a short-term means to develop a body of precedent for bringing about the change. A year later, in the Frontiero case, Ginsburg moved a step further.

THREE MONTHS BEFORE FRONTIERO WOULD BE HEARD in the Supreme Court, the SPLC's Joseph Levin changed his mind, declaring that he wished to argue the case. For him and his colleagues at the public-interest law firm, it was the first chance to argue before the Supreme Court. Unfortunately for Ginsburg's strategy, Levin was willing to push for victory in the case at the expense of the larger goal of expanding the standard of Reed into strict scrutiny.

Ginsburg and the ACLU concentrated on preparing an amicus brief that advanced the "strict scrutiny" argument. This brief was the direct descendant of Reed. But thanks to Burger, it could cite the language of Royster Guano, now enshrined as law.

The split between Levin's and Ginsburg's briefs, which called attention to disagreement among Frontiero's supporters, would be underscored at oral argument in January 1973 when Levin used his 20 minutes to argue about rationality and Ginsburg followed with 10 minutes of her theory. During Levin's argument, the justices asked a spate of questions: Did the Frontieros' case apply only to civilian spouses? Did Levin's income figures come from a "median head count of Armed Forces males"? Was the military 98 to 99 percent male? Levin inevitably steered back to the main line of his argument: that the tough test of strict scrutiny was appealing but unnecessary for his case; that an intermediate test would suffice; and that, given such a test, the military's preferential treatment of men would surely flunk. Then, late in the presentation of his argument, as he began a rambling answer to yet another question, Levin realized he was squandering Ginsburg's promised minutes. "I have used more time than I should have," he announced, abruptly introducing "Professor Ginsburg."

Ginsburg stood at the counsel table to make her first argument before the Supreme Court—the argument for strict scrutiny that Levin had apparently wished to avoid. For the shy Ginsburg, this was an uneasy moment. It was only the second courtroom argument of her life. Later, she confessed that she hadn't eaten lunch "for fear that I might throw up."

"Amicus views this case as kin to Reed v. Reed," she began. With Reed in play, Ginsburg was on her home field. Thanks to its decision in Reed, she argued, the court could now proceed to the tough test—the test that subjected sex discrimination to strict scrutiny—without taking any radical steps. In the Harvard Law Review two months earlier, she reminded the justices, Professor Gerald Gunther, the eminent constitutional scholar and author of the most widely used law school casebook on constitutional law, had commented that Burger's decision in Reed had begun legitimating an intermediate test. Burger's decision, said Gunther, could not be explained without imputing to the court "some special sensitivity to sex as a classifying factor" or without "importing some special suspicion of sex-related means." Put another way, the court's "special suspicion" prepared the way for declaring sex a suspect classification and thus subjecting it to strict scrutiny.

As Ginsburg went into her argument for strict scrutiny, her nervousness faded. She turned her attack to her principal opposition: the brief defending the military's sex discrimination, filed for the U.S. government by Solicitor General Erwin Griswold, her former Harvard dean. That brief conceded, she said, that the main characteristic warranting strict scrutiny was present as much in sex as in race: a "visible and immutable biological characteristic," in the words of the solicitor general's brief, "that bears no necessary relation to ability."

But this concession was just a preface to the government's argument against applying strict scrutiny to sex discrimination, to which she next turned. The Fourteenth Amendment, the government had argued, had a historic purpose: to respond to discrimination not by sex but by race. But suspect classification, Ginsburg noted, had since been extended to discrimination on the basis of national origin and alien citizenship—both groups, she said, that were "not the paramount concern of the nation when the Fourteenth Amendment was adopted."

As Ginsburg's argument flowed on, her listeners pondered the odd silence of the justices. Seated next to her at the counsel table, an ACLU colleague named Brenda Feigen Fasteau began to wonder: Why had the court asked no questions? Seated far behind her in the packed gallery of the court, Martin Ginsburg, her husband, began to worry: Were the justices letting her go through the motions, in a direction that held no interest?

Still uninterrupted, Ginsburg swung to attack other arguments that sex discrimination did not deserve close scrutiny. To the government's allegation that women lacked status as a disadvantaged group because they were a majority, she responded that numerical majority may not confer political force, since "the numerical majority was denied even the right to vote until 1920." To the government's allegation that classification by sex does not imply women's inferiority, she ran through a history of such discriminations that the Supreme Court had upheld in past years: excluding women from professions as various as lawyering or bartending, from overtime pay, and from such basic responsibilities as jury service. These forms of discrimination had a common effect, she said: "They help keep [a] woman in her place, a place inferior to that occupied by men in our society." Delivered in her quiet way, the radical statements sounded reasoned and fair.

Still uninterrupted by any of the justices, Ginsburg concluded with the words of Sarah Grimke, a 19th-century abolitionist and advocate for women's rights: "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

For almost 10 minutes Ginsburg had made her case and not one justice had interrupted her. Leaving the court with Feigen Fasteau at her side, Ginsburg asked: Had something gone wrong? Why had they asked no questions? Her young colleague insisted that they must have been mesmerized.

WHEN THE JUSTICES GATHERED SOON AFTER IN CONFERENCE, the main discussion focused on whether this case was indeed "kin to Reed." If it was close kin, then regardless of their thoughts on strict scrutiny, the court should affirm. But if it was essentially unrelated, the court could reverse.

As usual in conference, the chief justice began the discussion, to be followed by his colleagues in descending order of seniority. Burger, appointed by Richard Nixon in 1969, opened by telling his colleagues that Frontiero had "nothing to do with" Reed and that Frontiero had "enormous" implications for the armed forces. Perhaps imagining a day when women might wish to end their exclusion from military combat, Burger insisted that the military "has the right to draw lines" between men and women. The chief voted to deny benefits to the Frontieros and thus to affirm the lower court.

The next seven justices disagreed. Speaking second, William O. Douglas, the famous liberal then in his 34th year on the court, portrayed this as an issue of "equal protection," a case in which the word "his" should be understood, generically, "as including 'her.' " Arguing as usual against the conservative chief, he voted to reverse. Third, William Brennan, Douglas's ally in many equal protection cases over the years, concurred. Fourth came Potter Stewart, appointed by President Eisenhower and a powerful vote at the center of the court. "This provision on its face," he said, "is grossly discriminatory" and "constitutionally invalid." He would reverse.

Byron White, more conservative than Stewart but also at the court's center, then introduced a new notion: discrimination against men. The provision, he said, "discriminates against men married to women in the service." He also voted to reverse. Next came Thurgood Marshall, who two decades before as a litigator had led the NAACP to its landmark antidiscrimination victory in Brown v. Board of Education. Months earlier, when the justices met to decide whether to hear Frontiero's case at all, Marshall had voted not to hear and thus to affirm the lower court's decision. But now, after hearing oral argument, Marshall was inclined to switch his vote and, albeit tentatively, to reverse. At this point, the necessary five votes were in place to overturn the lower court.

The next two justices, Harry Blackmun and Lewis Powell, had been appointed by Richard Nixon as part of his effort to make the court more conservative. Yet they followed Marshall's lead. Powell, like White, saw a form of "discrimination against men." That left William Rehnquist, the formidable new conservative presence on the court. Ending the discussion with an argument closely allied to the chief's opening—that this was not really an equal protection case, since the government was entitled to treat different claims differently—Justice Rehnquist voted against Sharron Frontiero.

Because Douglas emerged from the conference as the senior justice in the majority, he was entitled to assign the writing of the decision. Throughout the conference, Douglas had been scribbling notes about everyone's views and votes. The justices evidently agreed on Frontiero's close kinship to Reed, which Brennan had asserted early in the conference. But at no point had Douglas made any notation of the phrases that mattered so significantly to Ginsburg—"suspect classification" and "strict scrutiny." Ginsburg's unbroken argument seemed to have gone unheard.

Douglas assigned the opinion to Brennan, his frequent ally, and within a month Brennan had circulated a draft opinion following what he understood to be his instructions from the conference: to rule for the Frontieros for the reasons stated in Reed, and to do so, as he wrote in a memo to his colleagues, "without reaching the question whether sex constitutes a 'suspect criterion' calling for 'strict scrutiny.' " Brennan, however, had apparently been influenced by Ginsburg's argument. In the memo that circulated with his draft opinion, he suggested that this draft did not suffice. The Frontiero case, he suggested boldly, might offer what he called "an appropriate vehicle for us to recognize sex as a 'suspect criterion' "—to accord it strict scrutiny.

Brennan had been counting votes, and he supposed that he could get at least three votes for "strict scrutiny" besides his own. Marshall had begun arguing that the Reed decision went beyond the easy "rational basis" test, much as Ginsburg had claimed in oral argument, and White and Douglas were inclined to agree. Brennan needed just one more vote, and he wanted it from Stewart, who had just sent around a memo on equal protection that made Brennan hopeful.

Two weeks after his initial draft opinion, Brennan circulated a revision. In confident terms it made an announcement: "We hold today that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny." Brennan's language gave Ginsburg all that she had argued for. Douglas, White, and Marshall joined his opinion immediately.

But would Potter Stewart be the fifth vote? While Brennan waited for Stewart's response, from another chamber he received instead a strong counterattack. It came from Lewis Powell. He had planned to vote for Sharron Frontiero so long as the decision went no further than Reed. But for him this new draft, in which he told Brennan "you have now gone all the way," was an unjustifiable departure from established law.

Powell drew the attention of the justices to the most important women's rights legislation since women were granted the right to vote in 1920: the proposed Equal Rights Amendment. The ERA, passed overwhelmingly by Congress in 1972, was now under consideration by the legislatures of the states, 38 of which had to ratify it to add it to the Constitution. Its key language was simple and direct: Equality of rights under the law shall not be denied "on account of sex." Passage of the ERA, most legal experts agreed, would mandate the equivalent of strict scrutiny. Powell argued that it would be a mistake for the court to weigh in on a matter already before the will of the people.

Brennan, still hoping, drafted a strong response to Powell and sent it to all the justices. It argued that what Powell called the "will of the people" was already expressed: The ERA had won overwhelmingly in Congress and had won in a majority of state legislatures. The fact that resistance in 13 states could kill the ERA should not stop a century of injustice from being remedied. "Now is the time and this is the case," Brennan argued to Powell, for the court to correct its long-standing error by taking "the 'suspect' approach" to discrimination against women.

Justice Stewart, Brennan's target, stood unmoved. Stewart, who had been swayed by Powell's ERA argument, circulated a memo the next day saying that, though he would vote for Sharron Frontiero, he would not step beyond the decision in Reed. What exactly the decision in Reed meant for cases of sex discrimination would remain unclear. The same day that Brennan lost Stewart's vote, he received the first memo on Frontiero from Burger. After watching what Burger called the "shuttlecock" memos flying back and forth about what Reed meant, Burger finally chimed in: "The author of Reed," he said, referring to himself, "never remotely contemplated such a broad concept" as strict scrutiny. "But then," he added, "a lot of people sire offspring unintended." Burger became one of eight votes ruling that Sharron Frontiero had suffered unconstitutional sex discrimination, leaving Rehnquist as the only dissenter.

THE POLITICKING WITHIN THE COURT remained mostly hidden from Ginsburg, but she could tell that while she had failed to win "strict scrutiny," she had come close. When the court's opinions appeared in May, Ginsburg could read in Powell's published response to Brennan strong evidence that Brennan once had imagined he could win Stewart's fifth vote for strict scrutiny.

The evidence appeared in what amounted to a typo that slipped through unrevised. Powell's published response attacked not just an opinion of Brennan but the opinion of "the Court"—which, as Powell put it, "has assumed" the responsibility "to preempt by judicial action a major political decision." Ginsburg's sharp eye saw where this evidence pointed: Powell had written his opinion as a dissent against what he thought would be a Brennan win.

Two decades later, Ruth Bader Ginsburg was herself appointed to the Supreme Court. As an associate justice, she has turned her narrow loss in Frontiero into a victory. Ginsburg wrote the majority opinion in United States v. Virginia, which in 1996 held that the Fourteenth Amendment required the state of Virginia to admit women to its exclusive Virginia Military Institute. The school's all-male admissions policy was unconstitutional, Ginsburg said, because it lacked an "exceedingly persuasive justification." Without using the language of strict scrutiny, Ginsburg inched up to that standard—enough so that Rehnquist wrote a separate opinion chiding her for introducing "an element of uncertainty respecting the appropriate test."

Last May, however, Rehnquist wrote the court's opinion in Nevada Department of Human Resources v. Hibbs, which said that states can be sued for denying claims under the Family and Medical Leave Act. The decision was a striking win for feminists concerned about protecting the statute's provision for parental leave and time off to care for a sick relative. Just as important (and surprising), Rehnquist's opinion approvingly cited language from the plurality opinion in Frontiero (and the unanimous decision in Reed) as the foundation for the court's decision. "The long and extensive history of sex discrimination," Rehnquist explained on behalf of six members of the court, "prompted us to hold that measures that differentiate on the basis of gender warrant heightened scrutiny."

The change in the law is unmistakable. Equal protection for women under the law is so mainstream that one of the court's most conservative members has embraced it. Thirty years after Ruth Bader Ginsburg made her first argument before the court on which she now serves, the strategy that she helped to devise has fundamentally succeeded.

Fred Strebeigh is the author of Equality Time (forthcoming from W. W. Norton), from which this is adapted. He has written about feminist law and other topics for The New York Times Magazine, The Atlantic Monthly, and other magazines.

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