In January 1973, Ruth Bader Ginsburg, representing the American Civil Liberties Union, appeared before the U.S. Supreme Court on behalf of Sharron Frontiero.
Four years earlier, Frontiero, then a 23-year-old lieutenant in the U.S. Air Force, married a man a year older. The Air Force automatically provided a housing allowance and health benefits for the spouses of married servicemen but not for the those of married servicewomen. To receive the same benefits as a married serviceman, a married servicewoman had to prove that her income covered more than half of her dependent’s expenses.
Frontiero set out to correct what she thought was a mistake. When the complaint didn’t dislodge the policy, she sued in the federal district court in Montgomery, Ala., charging that the policy violated the Fifth Amendment’s guarantee of due process of law. The court ruled in favor of the government. Frontiero appealed to the Supreme Court.
The appeal was among a suite of cases that Ginsburg, who died on Friday at age 87, brought to advance the equality of women. Two years earlier, she had filed a friend-of-the court brief in an appeal to the Supreme Court by Sally Reed, a single mother in Idaho whom state law had disqualified from serving as administrator of her son’s estate because she was a woman.
Ginsburg’s brief in Reed’s appeal became known as the “grandmother brief” for its comprehensiveness of argument that treating women differently than men based solely on the basis of sex was suspect and warranted the same strict scrutiny as classifications based on race. The court agreed, and in Reed v. Reed, a majority of justices struck down the Idaho statute without addressing the level of scrutiny that should guide judicial review of such cases in the future.
That task fell to Ginsburg two years later in Frontiero. In oral argument before the court, Ginsburg, as she had in Reed, urged the justices to view distinctions based on sex no differently than distinctions based on race; that such distinctions are immediately suspect. Ginsburg took aim at two arguments cited by opponents of treating curtailment based solely on sex as a suspect criterion: First, that women are a majority, and, second, classifying women by sex does not imply the inferiority of women.[1]
“With respect to the numbers argument, the numerical majority was denied even the right to vote until 1920,” Ginsburg said, adding that “surely, no one would suggest that race is not a suspect criterion in the District of Columbia, because the Black population here outnumbers the white.”[2] Far from not implying inferiority, classifying people based on sex keeps “a woman in her place, a place inferior to that occupied by men in our society,” she added.
In a plurality opinion by Justice William Brennan, the court agreed with Frontiero that the disparity between men and women in the dependents policy was unconstitutional. But a majority of the court could not agree to apply the same standard to sex discrimination as it did to race discrimination.
Following the ruling, Ginsburg, who in the 1970s directed the ACLU’s Women’s Law Project, set out to persuade the court to adopt an intermediate scrutiny for sex discrimination cases. As the facts in Frontiero suggest, Ginsburg also had the insight to find cases whose facts had the power to rewire how people (including judges) might think about sex discrimination.
She found one such case that came before the court three years later. The appeal by Curtis Craig centered on an Oklahoma law that barred the sale of so-called 3.2% beer to males under the age of 21 and to females under the age of 18. The law, argued Ginsburg, denied males 18 to 20 years of age equal protection of the law.
A majority of the court agreed and, in Craig v. Boren, enshrined mid-level scrutiny as the standard of review in sex discrimination cases. Though the intermediate standard fell short of the strict scrutiny the court applied to distinctions based on race, distinctions based on sex had, thanks to Ginsburg, earned a standard of review that marked them as plainly discriminatory.
As Wendy Williams, an emeritus professor of law at Georgetown and Ginsburg’s authorized biographer, noted in 2013, Ginsburg “tweaked the Craig standard upward, bringing it closer to the race standard” 20 years later when, as a member of the court, Justice Ginsburg wrote for the majority in U.S. v. Virginia, which held that the Virginia Military Institute’s practice of admitting males only violated the 14th Amendment’s Equal Protection Clause.
Virginia’s justification for excluding all women from “citizen soldier” training for which some are qualified does not rank as “exceedingly persuasive” Justice Ginsburg wrote. (To appreciate the tweak, compare it with intermediate scrutiny, which requires laws that distinguish between people based on sex to be substantially related to an important government purpose.)
On Saturday evening, mourners were expected to hold a vigil for Ginsburg in cities across the U.S. “I think that I can speak for most women that we are devastated by her passing,” Saima Assed, an organizer in Albuquerque who helped to organize a vigil there, told the Times. “We know we lost a champion.”
[1] “Neither legislators nor judges regarded gender lines as ‘back of the bus’ regulations,” she later wrote of the second point. “Rather, these rules were said to place women on a pedestal.” In short, that discrimination somehow venerated women.
[2] Ginsburg noted that equal protection and due process of law “apply to the majority as well as to the minorities.”