(Photo by Alex Brandon / POOL / AFP) (Photo by ALEX BRANDON/POOL/AFP via Getty Images)
Yesterday there was a photo of Ruth Bader Ginsburg’s casket outside the United States Supreme Court while a hundred of her law clerks, dressed all in black, stood at attention on the outside steps of the capital. The stark photo and the hundred clerks posed below her casket reminded me the length and d depth of her extraordinary legal career.
In 1971, RBG was a Rutgers law professor. In that capacity, she joined a case on gender discrimination that had been accepted for review by the United States Supreme Court. That case was Reed vs. Reed . Allen Derr, an attorney in Boise, Idaho brought the initial action. He credits her with having been the principal brief writer. Reed vs. Reed was a unanimous decision of the Supreme Court and it was the first case to declare a law that discriminates on the basis of sex to be unconstitutional.
Here is the opinion in part with emphasis supplied:
Lynn Reed, a minor, died intestate in Ada County, Idaho, on March 29, 1967. His adoptive parents, who had separated sometime prior to his death, are the parties to this appeal. Approximately seven months after Richard’s death, his mother, appellant Sally Reed, filed a petition in the Probate Court of Ada County, seeking appointment as administratrix of her son’s estate. Prior to the date set for a hearing on the mother’s petition, appellee Cecil Reed, the father of the decedent, filed a competing petition seeking to have himself appointed administrator of the son’s estate. The probate court held a joint hearing on the two petitions and thereafter ordered that letters of administration be issued to appellee Cecil Reed upon his taking the oath and filing the bond required by law. The court treated §§ 15—312 and 15—314 of the Idaho Code as the controlling statutes and read those sections as compelling a preference for Cecil Reed because he was a male.
The court noted that the statute did not deny the right to be administrators in probate estates; but rather that it provided direction for selection when two equally entitled applicants, but of different gender had competing applications. Idaho provided that the male would always win. The Supreme Court concluded that a differentiation based on sex along establishes a class subject to scrutiny under the Equal Protection Clause. The court held:
The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ [citations]. The question presented by this case, then, is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective that is sought to be advanced by the operation of ss 15—312 and 15—314.
Apparently, Mr. Reed’s counsel spent some time arguing that the rational basis for the distinction would be reducing the workload on the probate court because holding hearings on the merits of each applicant might prove onerous. The court held:
Clearly the objective of reducing the workload on probate courts by eliminating one class of contests is not without some legitimacy. The crucial question, however, is whether s 15—314 advances that objective in a manner consistent with the command of the Equal Protection Clause. We hold that it does not. To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.
Next year will be the 50th anniversary of the court’s decision in Reed vs. Reed. This case began the momentum for other legal cases that established that laws could not discriminate on the basis of sex without coming under scrutiny by the Equal Protection Clause. Five years later, in Craig v. Boren, 429 U.S. 190 (1976), the Court’s established a new standard for sex discrimination. Under this “intermediate” or “heightened scrutiny” standard, discriminatory laws and policies must be supported by an “exceedingly persuasive justification” that is substantially related to an important government objective and cannot be based on stereotypes about gender roles.