The Precedent of Equality


I saw a most enlightening and inspiring movie, On the Basis of Sex, a few days ago…rather, the protagonist, now American Associate Supreme Court Justice, Ruth Bader Ginsburg, is truly inspiring. I was moved….am still moved. Now, at age 86 years, the Bill Clinton nominated judge still lives by her mother’s words of wisdom, “My mother told me to be a lady. And for her, that meant be your own person, be independent.” In the film, she’s portrayed as a young civil-rights lawyer who never used coercive tactics to get her way. She represented ordinary Americans who faced bureaucratic hurdles that were embroiled in sexism and red tape. In 1972, she co-founded the Women’s Rights Project at the American Civil Liberties Union. At the time, she wanted to raise the women’s drinking age, due to a frat brother complaining about his rights. She took up his case….and won it!

Strategically, this case stood for one of the most influential and effective in the fight for gender equality. It was one of many cases that Ginsberg argued for men, but which finally worked to the advantage of women!

Curtis Craig was this frat brother. Craig and the owner of a local liquor store, that entertained nearby Oklahoma State University students, challenged a state statute that allowed the sale of weak beer to women over 18 years, but to men over 21 years. This “near beer”, as it was called, contained only 3.2% alcohol by volume (ABV). The state’s logic was: that women, being more “demure” drinkers, had refined drinking ways, and hence, could handle their alcohol, unlike their male counterparts. This,  in an of itself, was a slur on both men and women….reeking of assumptions and stereotypes.

In 1976, the case was taken to the Supreme Court, in which Ginsburg argued that the Oklahoma law violated the Fourteenth Amendment’s equal protection clause, as well as showed a clear example of gender discrimination, deserving strict scrutiny. The all-male bench of jurists concurred that, for the first time ever, “intermediate scrutiny” must apply to laws governed by gender. Issues of gender inequality had suddenly been raised in the law’s eyes.

A novice lawyer was chipping away at an age-old institution that, on a large scale, favoured men’s rights over women’s, by systematically turning the tables and arguing for male plaintiffs, while really setting a precedent for future gender equality cases. This was a very methodical, very patient tactic.

After a year, Ginsburg argued a case on behalf of another male plaintiff, a consultant who earned  less than his wife, a teacher, who died during childbirth. The male plaintiff argued that he was entitled to his wife’s Social Security benefits after her death. The law stated that these payments were reserved for widows (automatically dependents) and not for widowers, who were the assumed breadwinners of the family, having funds at their disposal. She argued that the Social Security Act Of 1935 discriminated against men solely on the basis of gender, and that intermediate scrutiny should be applied in examining such gender differences. Ginsburg won an easy verdict,  and, at the same time, legitimised women’s payments into the Social Security system.

Later on, Ginsburg argued a similar case for a widower who had applied to collect his late wife’s Social Security payments. However, a statute claimed that he was only permitted to those payments if he had received more than half his financial support from his wife. No such burden of proof was placed on widows. Ginsburg argued “assumed gainful employment was the domain in which men came first, women second.” In a near-unanimous decision, the court ruled the statute in question, unconstitutional and cited “archaic and overbroad” generalisations based on “assumptions as to [women’s] dependency.” With a singular interest in mind, Ginsburg’s precedents were compounding, as she propelled American law  toward the fact that gender was no excuse to treat people differently.

A lesser known case, shown in the film, is that of one of the first that Ginsburg argued in front of the Supreme Court – a tax law case in which a bachelor is not exempted from a caregiver tax just because he employed a caretaker to care for his 89- year old mother (who was his dependent) while he travelled for work.  A single woman in the same situation was allowed the tax break. The law sought to give a benefit to people who had to care for dependents, only it didn’t account for males being caregivers. Though Moritz, the plaintiff, got a tax refund of $600, a precedent was set….discrimination under law was on its way out, even if it meant constitutional changes had to be enforced.

Though this was a tacit way to bring about change, Ginsburg also fought directly for women. In 1973, she argued on behalf of Sharron Frontiero, an Air Force lieutenant who applied for dependent benefits for her husband. The Air Force asked her to prove that her husband was a dependent, when male members faced no such requirement. The implication was clear that women relied on their husbands, but not vice versa. The Air Force’s excuse: this was a shortcut that curbed administrative costs! Ginsburg said discrimination helps “keep a woman in her place, a place inferior to men in our society.” This was a new brand of activism…..a quiet but effective brand. By making niches for women (and men), Ginsburg created a storehouse of precedent  that the keenest legal minds fall back upon,  and still use as reference material in the fight for gender equality under the law. This is what makes her an icon. A petite woman who sees the big picture.

By Scherezade Mansukhani

Scherezade Mansukhani

Scherezade is a Clinical Child Psychologist, Part-time mother, blogger, French teacher and IATA teacher. She has worked with the differently abled, and now works on and off as a teacher.

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