Deborah Markowitz, In Pursuit of Equality: One Woman's Work to Change the Law , 11 Women's Rights L. Rep. 73 (Summer 1989)

 The 1970s brought a wave of litigation in pursuit of women's rights. Before then, state and federal laws reinforced traditional gender roles. Largely because of Ruth Bader Ginsburg's efforts as Director of the ACLU's Women's Rights Project (WRP), the U.S. Supreme Court reconsidered sex discrimination and adopted a standard of intermediate scrutiny. Before 1971, the Court upheld sex-based classifications. The standard of review for sex discrimination was the rational relation test: discrimination would be upheld if it bore a rational relationship to a legitimate objective. To attain a higher level of scrutiny, Ginsburg sought to bring "easy" cases to the Court to establish that everyone, regardless of sex, has a right to equality under the law. Once this foundation was established she hoped to convince the Court to adopt a higher level of scrutiny.

In 1971, in Reed v. Reed , the Court found a gender classification unconstitutional for the first time. The case involved an Idaho statute that created a preference for men as administrators of estates. Ginsburg argued that the law was archaic because the civil status of women was no longer subject to general legal disabilities and sex, as an unalterable trait, should be considered a suspect classification under the Equal Protection Clause. She analogized sex discrimination to segregation and attacked the stereotypes of women underlying discriminatory laws. Though the Court did not adopt strict scrutiny in the case, it did strike down the law. Ambiguity in the Court's reasoning left room for further efforts seeking a more intensive standard of review in gender discrimination cases.

Frontiero v. Richardson challenged statutes providing dependency benefits to all wives of servicemen but not to all husbands of servicewomen. Building on Reed in her amicus brief, Ginsburg again urged the Court to adopt strict scrutiny while attacking the gender stereotypes underlying the statutory structure. The supposedly "benign" classifications in the benefit scheme, she argued, actually hurt women by relegating them to a dependent place in a man's world. However, in this case, she also challenged the statutes under the Due Process clause of the 5 th Amendment and suggested an intermediate level of scrutiny as a possible compromise. The Court overturned the challenged statutes. But a plurality of only four Justices, led by Brennan, voted to adopt strict scrutiny. The other members of the eight-Justice majority followed Reed .

Because she could not get a majority of the Justices to support strict scrutiny, Ginsburg began to more forcefully advocate the adoption of an intermediate standard of review. She focused on two types of cases: social security cases, in which widowers and husbands of retirees did not receive the same benefits as widows and wives, and jury duty cases, in which challenged laws made jury service for women voluntary. The cases generated mixed results, until the Court adopted a standard of intermediate scrutiny in Craig v. Boren . In that case, a group of young men joined a liquor store owner in challenging an Oklahoma law that allowed women but not men between the ages of 18 and 21 to buy 3.2 beer. Ginsburg wrote an amicus brief arguing that the law reflected archaic stereotypes and advocated a standard of heightened, rather than strict, scrutiny in sex discrimination cases. The Court adopted a standard of intermediate scrutiny, under which classifications based on sex must serve and be substantially related to important governmental objectives. The majority opinion finally accepted Ginsburg's contention that "benign" sex classifications were harmful to women.

This paper is a nice review of the significant contributions Ruth Bader Ginsburg made to the development of gender discrimination law under the Constitution.

Revised July 23, 2003 (MD)