REMEMBERING RBG: Weinberger vs. Wiesenfeld – advancing gender discrimination law
As the seven day mourning period of shiva has ended, I am moving to a remembrance of RBG. Over this thirty day period, I will high-light the case law, in which Ginsburg was an advocate or a jurist, that fundamentally changed the landscape of civil rights and constitutional law.
In this early period, Ginsburg worked as a law professor and a volunteer lawyer for the ACLU’s Women’s Rights Project. She began to methodically build a body of law protecting against gender discrimination. Part of her plan was to show that gender discrimination also hurt men. She selected cases to show that gender discrimination was not purely a “women’s rights” issue, but also that it affected both genders unfairly. One of her strategies at the Women’s Rights Project was to bring cases with male plaintiffs affected by gender discrimination laws before the male-dominated court. In this case, the court was unanimous in support of Wiesenfeld’s claim to widower benefits. Judge Rehnquist concurred, but only because the regulation, as applied, was harmful to the child.
In reviewing this case, it is helpful to know that in the year prior, Ginsburg lost a gender discrimination case in Kahn vs. Shevin when the court upheld a state statute which conferred a tax benefit on widows, but not widowers, on the ground that the differentiation was reasonably designed to further the state policy of cushioning the financial impact of the death of a spouse upon the sex for which that loss imposes a disproportionate burden. The selection of cases brought to the court during the 1970s shows the methodical approach to creating favorable gender discrimination law.