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1977

Women and the Law: A Dialogue with Ruth Bader Ginsburg

The Feminist Press

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This work is made publicly available by the City University of New York (CUNY). Contact: [email protected] Women and the Law: that the Supreme Court had said yes to a Breadwinners and Dependents woman; the first time the Court recog­ A Dialogue with In 197 3, a major precedent was set in nized women as victims of discrimination. Ruth Bader Ginsburg Frontiero v. Richardson (411 U.S. 677). Married military men were paid a housing With this issue, we begin a dialogue on A Favor allowance and provided free medical and women and the law. We are interested in to the Ladies receiving brief comments as well as longer dental care for their wives. Servicewomen essays on legal issues of general concern. AWIS: When was that? who were married received no housing GINSBURG: 1971. The Reed case was allowance and no free medical or dental Ruth Bader Ginsburg is a professor of law also significant because it was a unanimous care for their husbands unless the woman at Columbia University. Many of the cases decision. Until 1971, when a woman came proved that she contributed more than she bas argued have been pivotal in the to the Court with a complaint of discrimi­ half her husband's support (more than Supreme Court's recognition of the exist· nation against her, the Court found some three-quarters support of the family unit). ence of women's rights in this country. reason to uphold the law. Efforts to use Lt. Sharron Frontiero was supplying more The following discussion was held in the 14th Amendment to give women the than half of the total family income. April 1975 with representatives of the right to vote failed, and it took a consti· However, since her husband was providing Association of Women in Science (A WIS). tutional amendment to correct this. just over half of his own support, or one· It is reprinted, with permission, from the Efforts to obtain a Supreme Court declara· quarter of the family support, he didn't Spring 1975 (Vol. IV, No. 2) issue of the tion that women should be on juries the qualify for medical or dental benefits, and AWIS Newsletter. same way men are were not successful the family unit didn't qualify for a housing AWIS: Professor Ginsburg, having argued until this year. Laws that restricted allowance. The Supreme Court said that several important sex-discrimination cases women's opportunities in the labor market this was unconstitutional. Four of the before the Supreme Court, which one were accepted on the grounds that they Justices joined in an opinion declaring that would you consider pivotal in terms of helped and protected women, even if they sex classifications should be reviewed with women's rights? meant a woman could not bid for a job the same stringency as race classifications. GINSBURG: Each case that has been which she wanted because she was not per· Four others purported to apply the test successful in the Supreme Court has been mitted to work more than a certain number that what the legislature does must be an important advance. The first case in of hours per day. Almost every time a rational. Eight Justices agreed that it was which the Supreme Court responded to a classification based on sex came before the irrational to give these benefits to the woman's complaint of sex discrimination Court, the Justices ruled that the gender serviceman for his family and not to the under the Constitution was Reed v. Reed line would be regarded as a favor to the servicewoman for her family. Frontiero (414 U.S. 71). In that case, I prepared the ladies. In Reed v. Reed, the Supreme v. Richardson was very important, more brief together with ACLU's legal director Court said that legislatures could not con· important than Reed v. Reed, because it and several law students. Idaho lawyers tinue to make these gross classifications hit at the line drawn most frequently in the law between men and women, a line argued the case. It was a very simple legal based on sex alone. issue; the statute stated that when two per· that types males as breadwinners, females asdependents . Our social security laws are sons were related to a decedent in the same Children Declared Parentless based on that model. As Martha Griffiths degree, and both wanted to be appointed The next case, Stanley v. Illinois (405 has put it, when our social security laws administrator of the estate, and one was U.S. 645), followed soon after Reed. came in in the late 1930s, they presumed female and the other was male, the male Peter Stanley had lived with a woman 18 a land where all men were breadwinners had to be preferred to the female. Almost years, the couple had three children, and and all women were men's dependents. anyone would recognize that the statute she died. They had never married and the As we progress in time, that pattern be­ was discriminatory, and you might think state declared the children paren tless. comes less and less true. When you type the issue too obvious to yield a major Peter Stanley, with the aid of a legal ser· the woman as a dependent and you benefit precedent. However, it was tremendously vices attorney, challenged the law that her only when she conforms to that vision, significant in that it represented the first declared him a nonparent. The legislation you disadvantage her when she's working. time ever in the history of the country was based on the presumption that a So the Frontiero case was a vital break· woman, married or not, loved her children, through. The decision indicated that the and would want them; a man who was not Court was going to take a close look at married would have no affection for these classifications that treat breadwinner as a children, and would not want custody . synonym for man, and dependent as a The Court said in 1972 that although this synonym for woman. may be true in a great many cases, it's not true in all cases, and that Peter Stanley should have a presumed right to custody. 25 The ERA

AWIS: What do you feel are the pros and cons of the Equal Rights Amendment? GINSBURG: First, I should disclose my clear partisanship on this issue. I am a strong proponent of the ERA. I think it is necessary because we've never had in our Constitution any statement reflecting the view of our Constitution-makers that women should have equal rights with men. Certainly, in the 18th century that was very far from the minds of the founding fathers. They lived in a world where married women had no independent prop­ erty or contract rights and the husband was the boss. This was the system we in­ herited from England. The notion was that husband and wife were one, and the hus­ band was the one . Nor was sex equality in the minds of the framers of the 14th Mrs. Robinson's Beauty Parlor for Negroes, c. 1919. Byron Collection, Museum of the City of New Amendment. The Reconstruction Con­ York. Between 1880 and 1920, the number of women who listed themselves for the New York City census as hairdressers jumped from 410 to 3,691. From "Women at Work" exhibition. gress dealt with the burning issue of that day, one that eclipsed all others ~ eradica­ The most recent case developing the of wage-earner or woman in lieu of home­ tion of the odi_ous institution of black Frontiero theme was Weinberger v. maker. slavery. There has never been deliberate Wiesenfeld (decided March 19, 197 5 ), and attention by anyone responsible for our it involved exactly the same type of as­ Labels That fundamental law to the proposition that sumption on the part of the legislature. Are Subterfuges men and women should be treated equally If a wage-earning ma~ dies and leaves a under the law. Because it is such a funda­ AWIS: Can you discuss any pending cases? child and spouse, the child and widow mental principle, it should be reflected GINSBURG: Yes, several cases involve get social security benefits on the assump­ directly in the Constitution. principal wage-earner tests in employment. tion that the widow will want to stay home AWIS: Senator Ervin, a Constitutional The Constitutional cases must involve and take care of the child. If a wage-earn­ authority, feels there are enough safe­ government employment, or employment­ ing woman dies leaving a spouse with minor guards in the Constitution as it now stands. related social security benefits,because the children in his care, the law doesn't pro­ What is he referring to? Constitutional protection is only against vide any benefits for the widower. The GINSBURG: I don't think Sen. Ervin has state action, not private action. One such Congressional assumption was that no given this issue the very careful attention case involves a federal agency that paid father would want to stay home and take he has given to some other areas of the certain fringe benefits to a worker if that care of the child. We don't even give him law where he is a great Constitutional ex­ worker supplied 55 percent or more of the the choice. He's supposed to be out there pert. In part his views are colored by his family income. The classification is not winning bread; he 's not supposed to be at own life experiences and by his own inter­ based on sex, at least on the face of it. home. The whole effort in the several sex­ nalization of notions many men hold The principal wage-earner gets the benefits discrimination cases I helped brief and today: that all differentials between men and the other doesn't. In practice, how­ argued as an ACLU attorney (including and women created by the law are designed ever, that test says: the men get it and the Frontiero and Wiesenfeld) was to get the to favor women . I think there is some of women don't. Historically, women have courts to appreciate that classification by that southern gentlemanly chivalry behind been underpaid. They are pushed into gender is invidious, and just as invidious as the position that he takes . I have read "woman's work" that gets paid less, and classification by the color of your skin, what he has said in the Congressional de­ even when they do the same work as men, your religion, or where your ancestors bates, and I think part of the problem is they're not paid the same. We're trying to came from. The law should be neutral. that he has just shut his mind to the other challenge labels that are subterfuges for It's perfectly all right for the law to class­ side. Nobody who reads Constitutional discrimination that was once established ify on the basis of a function a person per­ history can really think that during the by male and female classifications. forms, so it can deal with a homemaker or past century the equal protection clause a wage-earner, but it can't use man in lieu has been a meaningful protection for

26 women. It was no protection at all until man who wants access to the woman's should be available for all workers. 1971, and even now the Court does feel W.C. or a woman who wants access to the Sen. Ervin is also troubled by the pros­ the restraint of history. It can go only so man's? Another objection is that ERA pect of the military service for women. far in dynamically interpreting a provision would eliminate the protective legislation I don't think he's ever taken a serious look that was not intended to have anything.to for women, but Sen. Ervin should know at the other side of that coin. At the do with women. that is also a disingenuous objection. Title present time there are women who want VII of the Civil Rights Act of 1964 says military careers or access to the military Storming the W.C. that for employment purposes men and academies and who don't have the same women are to be treated equally and that opportunities as men. There are highly Some of the objections that Senator any protective law must protect both sexes. restrictive quotas for women who want to Ervin has raised border on the ridiculous. It should be apparent that many protective enlist; they have to meet higher qualifica­ For example, he said in debate in Congress laws have been used to protect men's jobs tions than men, and they are denied many that we are not going to have separate from women's competition. However, training and educational opportunities bathrooms anymore. But he knows that protective (or restrictive) labor legislation open to men. If you have a sex-neutral there are many instances where two Con­ for women only is dead as a Constitutional system, that doesn't mean every woman stitutional principles have to be harmonized issue; it's been handled on a statutory level will be packed off to war. All the amend­ and the Supreme Court has said there is a under Title VII and the ERA won't con- ment prohibits is drawing the line on the right to privacy, as a matter of Constitu­ tribute anything new in that area. ERA basis of sex. Distinctions, of course, may tional principle. Try to imagine who would would simply duplicate the statutory com­ be made on the basis of individual quali­ challenge that type of separation. Is it a mand that safety and health protection fications. If draft calls are ever reinstituted,

., Two Views of Maternity. Left, "Mother About to Wash Her Sleepy Child" (1880), by Mary Cassatt. Oil on canvas. Source: Los Angeles County Museum of Art. Right, "Maternity" (1946), by Dorothea Tanning. Oil on canvas. Source: Collection of Jeffrey H. Loria. Both from "Women Artists: 1550-1950" exhibition, Brooklyn Museum.

27 exemptions could be provided for indi­ much more helpful avenue is Title VII GINSBURG: I don't think the universities viduals with primary responsibility for the where the woman who feels she's been the have moved very much under Affirmative care of children, for example. And women victim of discrimination doesn't have to Action-there is no clout behind any of as well as men who cannot pass physical rely on any federal agency to make her HEW's directives . However, there is some­ fitness tests would be screened out. case for her. She has to file an administra­ thing about establishing a legal norm, even tive complaint with the Equal Employment if it doesn't get enforced the way it should A Fair Shake Opportunity Commission, but if the Com­ be. Discrimination is no longer as respect­ in Academia? mission doesn't act or accomplish the de­ able as it once was. sired result, she can go right into court with AWIS: Is it legal for graduate schools to her own representative and be her own A Postscript put restrictions on women? Some depart­ "champion ." ments have said women cannot marry or The following is a postscript added by have children during their graduate Ruth Bader Ginsburg in 1977 : The Letter But education. Not the Spirit Since 197 5, the Supreme Court's perform­ GINSBURG: Absolutely illegal. That is ance in gender-discrimination cases has clear under the HEW higher education AWIS: Have the courts begun to recog­ been unsteady. The Court has ruled that a guidelines. They cannot differentiate in nize that some institutions are supporting state may not establish different majority their treatment of male and female em­ the letter of the law, but certainly not the ages for girls and boys for purposes of pur­ ployees. As far as their students are con­ spirit of the law? chasing 3.2 beer (Craig v. Boren , 1976). cerned, that is covered by Title IX of the GINSBURG: Yes. You can see that in one It has held that Congress may not differ­ Educational Amendments of 1972. Title case in particular, against the University of entiate by gender in allocating old-age and IX guidelines are about to be issued in Pittsburgh in the Sharon Johnson case . survivors' benefits to the spouse of a wage­ final form and they prohibit that kind of (Principal counsel for plaintiff was Sylvia earner covered by social security (Califano differential. If you want to have a rule Roberts.) It's far from over, but there's v. Goldfarb, 1977). Attempting to dis­ that says anybody who has children can't already one spectacular district court tinguish genuinely compensatory legisla­ be a student or teacher here, that's per­ opinion, granting temporary injunctive tion from laws rooted in "romantic pa­ haps an option; but you can't limit that to relief. The University was stopped from ternalism" and "role-typing," the Court any woman. And what institution and throwing her out while they argued the upheld the more favorable social security department would shun men who have merits of the case . The University would benefit calculation accorded working married or become fathers? have liked to have gotten rid of her and women until 1972 (Califano v. Webster, AWIS: What about women who have then she would have had to fight her way 1977). All these decisions are on the plus dropped out of programs for these reasons ­ back in from the outside. The court said side. On the other hand, the Court de­ do they have avenues to get back into she had shown enough to indicate that a clared, in General Electric v. Gilbert, school? And what about lost benefits? vast pattern of discrimination against 197 6, that discrimination based on preg­ GINSBURG: The woman would have a women and blacks might exist in the Uni­ nancy is not gender-based discrimination problem if she doesn't make a timely ob­ versity from top to bottom. In this case, at all! And confronted with the question jection to discriminatory treatment, when EEOC had conducted an investigation of of whether Philadelphia could exclude the law is there to protect her. all job categories from the bottom rung girls from Central High, the city 's oldest AWIS: HEW has the authority to bar funds up to the tenure ranks, and the figures they and most prestigious public secondary to employers who discriminate on the basis came up with created large suspicions. The school, the Court threw up its hands. of sex, many complaints have been filed, court said: based on the evidence presented, Split down the middle after reading the and yet no funds have been barred. Why she keeps her job during the period of the briefs and hearing arguments, the Justices not? lawsuit. We're not deciding ultimately could take no action, and the judgment GINSBURG: Because first of all it's a who's right or wrong, she's shown us a handed down (2-1 for the School District) matter of low priority for HEW . Second, strong enough case for us to say, the remains the last word in the controvers y government officials don't want to use the status quo should be maintained pending ( Vorchh eim er v. School District of Phila­ ultimate sanction. They prefer to deal a full hearing and determination. delphia , 1977) . with universities in terms of gentle persua ­ AWIS: Do you think Affirmative Action Still conspicuous is the Court's tendency s10n. has helped women in the university? to shy away from doctrinal developm ent . AWIS: Have they been successful in using The Equal Rights Amendment would re­ these other avenues? lieve the Court's anxiety, its reluctance to GINSBURG: No, I think that women who shape new Constitutional doctrine without want a fair shake in academia cannot , ely a firm root for that doctrine in the nation's on HEW to achieve the result for them . A fundamental instrument of government. D

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