The Equal Rights Amendment was an outright amendment, not a judicial interpretation of the existing text, so Kurland could not claim, as he had in the Brown debate, that the Court had overstepped the constitutional language and imposed its own values. He had to take a different tack. As with his attack on Brown, Kurland professed to be sympathetic to the goal of eliminating some forms of sex discrimination. But he was worried about the social disruption that would ensue. Protective labor legislation (limits on the hours women could work, for example) and protective domestic labor legislation like alimony would be swept away, leaving housewives and workers exposed to the chill winds of equal rights, he feared. The law might no longer require women to change their names upon marriage. Women would be drafted. They might have to go to the same public colleges or use the same toilets as men. Anyway, if women are aggrieved, why don’t they just use their majority status and change the laws? They’re not like black people, he argued, a real minority (whose constitutional rights Kurland had also resisted in his rabid criticisms of the school desegregation decision). Kurland always managed to come out against equality, and always from the purest of motives.
Regardless of the purity of Kurland’s motives, his article did something a fundamentalist religious alliance led by a former Bircher like Schlafly could never do. Because it came from a prestigious constitutional law professor, it made opposition to the ERA respectable. When social change depends on legal change, law professors, usually rather marginal to politics, matter a lot. Kurland’s most incendiary charges—unisex toilets, women drafted—turned out not to happen, and much of the equalization of employment practices would happen as a result of the coverage of women in the 1964 Civil Rights Act even without the ERA. But Kurland was correct about the demise of single-sex public colleges and he was right that real legal gender equality changes society a lot. That warning, in the hands of the conservative firebrand Schlafly, was enough to doom the ERA.
Liberal constitutional scholars, including Ginsburg’s ACLU colleague Norman Dorsen, lined up ten deep on the other side. But it did not help. People expected scholars at the ACLU to support the ERA. That Kurland, a respected faculty member at a major law school, weighed in against disruption of the universe of sexual stereotypes was unexpected and therefore powerful. Although they ultimately voted to support the Equal Rights Amendment, even the ACLU board of directors, when pressed by the new social developments, also fretted over the possibility of women in men’s prisons and toilets.
In classic Ginsburg style, even in the heat of battle she wrote politely to her colleague Philip Kurland and her old Harvard professor Paul Freund, who had joined him in opposition: “I am so sorry,” she penned, “to see you used this way.” Never one to give offense unless strictly necessary, in a speech published a few years later she mildly described it as “Curious” to hear such opinions from “gentlemen with extraordinary minds, and rare talent for making relevant connections.”
As Ginsburg was well aware as the ERA went down, not only did these male scholars help defeat the ERA, their prior criticism of the racial civil rights decisions made any ensuing effort to achieve equality through the existing Constitution much harder to pull off. The Court, these professors contended, overreached in reading the racially motivated Fourteenth Amendment’s equality language to forbid segregation by race. How much greater was the violation in applying the equality principles to women, who weren’t even mentioned in the Civil War amendments? Legal feminists were damned by these law professors if they did try to change the Constitution and damned if they tried to use the Constitution as it was. Truly, an “extraordinary mind” is a terrible thing to waste.
But Ginsburg was a soldier. She re-upped, writing, speaking, providing others with arguments. From 1970, when she wrote to the members of the Judiciary Committees of both houses of Congress, to the day she first became a federal judge in 1980, she was working for the enactment of the ERA. Trying to buck up her colleague Professor Joan Krauskopf, who had apparently met with a screamer at an appearance in 1974, Ginsburg instructs that she must “meet irrational arguments with facts and cool reason.” She was anointed to defend the amendment by the powerful gatekeepers who ran the opinion page at The New York Times. She gave ammunition to the League of Women Voters. She wrote a letter to the Times after some rabbi predicted the world would end. As befitted a woman already legendary for her focus, she prepared notes to deliver “Three Minutes on the ERA” on NPR.
Almost certainly at the same time the Arizona legislature was voting to kill the ERA, she stood at NYU with Norman Dorsen, addressing a huge rally in favor of the amendment. After her rousing speech to the crowd, Dorsen leaned down, as everyone does, to address the diminutive attorney, and said, “You know, this is never going to pass.” She really didn’t want to hear that, he recalled.
Like Sandra Day O’Connor, Ruth Bader Ginsburg wasn’t much for picking losers. Although she never faltered publicly in her support of the Equal Rights Amendment, she was not a legislator, so she didn’t have to choose between the amendment and her personal ambitions for her career. While the nation pondered an Equal Rights Amendment, cases like Reed v. Reed and Moritz v. Commissioner of Internal Revenue were her idea of a good plan to move women’s equality along. Congress stripped her of the Moritz appeal by changing the unjust law and mooting it out. But cases were breaking out everywhere.
THE WOMEN’S RIGHTS PROJECT HAS A THOUSAND MOTHERS
As she turned to the ACLU as the focus of her activism, Ginsburg was keenly aware of the organization’s checkered feminist past. Although they had nothing to do with the brief in Reed v. Reed, she put the names of the two women, Dorothy Kenyon and Pauli Murray, who had fought the ACLU board for decades to recognize women’s claims, on the cover of the brief. She knew whose shoulders she stood on. (Kenyon died within months.)
After the 1970 ACLU Biennial Conference had teed up the issue of women’s rights, the newly formed Equality Committee began flooding the board with policy positions. “Sex,” along with “race, color, religion and national origin,” should be included in all civil rights legislation; the Fifth and Fourteenth Amendments require equal treatment regardless of sex, and legislation and education to “combat” discrimination against women should be pursued full throttle.
The ACLU board set limits on its commitment to equality broadly defined. Sex discrimination in employment would be opposed, but, even with the exception for “reasonable bases for differentiation,” the board could not accept the idea of women in combat. When they voted, the ACLU agreed to leave the military out of their policy position. It would take more than forty years until the U.S. military removed the last barriers for women in the armed services. The academic freedom committee resisted the proposal that all private colleges should become coed, fretting over men’s and women’s freedom to associate only with their own kind.
While the solons of the civil liberties union dithered over Harvard and Wellesley, Professor Ginsburg simply moved forward to integrate her own school. Rutgers University was a sex-segregated public college, with Rutgers College, a men’s school, and Douglass College, a smaller, separate school for women. After the board of directors refused to dismantle this structure, then dean Richard McCormick appealed for help to his feminist colleague at the law school. On April 13, 1971, Ginsburg wrote to acting Rutgers president Richard Schlatter, informing him that a recent federal decision ordering the University of Virginia to integrate women “renders Rutgers College vulnerable” to a similar action. And so Rutgers admitted women to the men’s school and disbanded Douglass College.
Worse than the threat to private single-sex colleges, from the standpoint of the ACLU old guard, the 1970 conference took direct aim at the ACLU itself. The ACLU must, it recommended, “take affirmative and vigorous action … to increase significantly the representation of women on all policy making bodies and committees of the organization. Token representation will no longer be acceptable.” The ACLU, the rebels of 1970 resolved, had
“underutilized the potentialities and talents of women in its organization.”
In October 1971, the ACLU board voted unanimously to add women’s rights as a new priority. On December 4, a panel of women appeared before the board to argue for a women’s rights project. One of the presenters at the December meeting was “Prof. Ginzberg [sic] Rutgers University and Harvard University law professor.” (In her presentation, Ginsburg told her now-routine story about the century of Supreme Court decisions against women—that they could be discouraged from serving on juries in Hoyt v. Florida or, in Goesaert v. Cleary, forbidden to tend bars—a sorry history punctuated by the victory in Reed v. Reed a month before the ACLU board met.)
This laconic note of her Harvard status in the ACLU minutes speaks volumes. Some years into the feminist movement, during the fall semester of 1971, Ginsburg was visiting at Harvard Law School, which had just noticed it had no permanent female faculty. When the ACLU board met, it was not at all clear that Harvard would offer the lowly Rutgers professor a permanent position. In fact, when Harvard Law School hesitated and asked her to come back for a second term visit, she spurned them, accepting an offer from Columbia instead. When the exquisitely status-conscious directors of the ACLU surveyed the women before them, Ginsburg was the closest thing to a tenured Harvard professor. If the ACLU was going to wrap the civil liberties mantle around the unruly feminist revolution, it would at least have a clubbable spokesman. By the time the December board meeting adjourned, the budget for 1972 included the additional legal costs of a Women’s Rights Project.
Executive Director Aryeh Neier often set up special projects addressing issues of paramount importance to him with employees answerable directly to him. At an earlier time he believed that the black civil rights struggle was the driving force in other struggles for civil rights. Now he believed women’s rights had taken the lead. And he had identified Ginsburg as his designated hitter.
He had good reason. When hiring, he always asked for a writing sample. And once he saw hers, he knew he didn’t need to look any further. Not only was she a brilliant thinker and writer, Neier thought, she was someone who commanded sober attention. “I wanted someone who would take an issue which at that moment was the subject of a certain amount of mockery and who would deal with it with the gravitas which it deserved.”
As the Rutgers student skit had shown, if there’s one thing Ruth Bader Ginsburg had, it was gravitas. And she had theory. No Separate Categories. That was her overriding and lifelong message. There was another advantage, too. Picking Ginsburg out of the pool of women lawyers available in 1971 did not trigger the angry jealousy that often erupts when a movement leader emerges. As the activist Ann Freedman put it, “When that person is as talented and exceptional as everyone acknowledges Ruth always has been, it’s not surprising that when opportunities open up people want her to play those roles. No one says, ‘You’re making Ruth the head of that?’”
Within two months of the 1971 presentation, Neier reported to the board that the Women’s Rights Project would begin, and Ruth Bader Ginsburg would be the director. Since she was going to move from Rutgers Law School to Columbia, the ACLU would split her time with her new employer.
Despite the founding of the Women’s Rights Project, the ACLU had hardly turned into a female paradise. In the wake of the 1970 meeting, the women’s caucus devised a plan to survey the affiliates for their female ranks and numbers and actively recruit women for the highest-ranking jobs. Most radical of all, they proposed to expand the heavily male, insular national board and establish quotas for female representation.
The female activists triggered two years of gender conflict at the liberal organization. A committee to implement the women’s representation policy produced a robust proposal accompanied by an unsigned “supporting memorandum.” The memorandum, prepared by the newly founded ACLU Women’s Rights Project, has Ginsburg’s fingerprints all over it. It begins with an excerpt from her brief for the ACLU in Reed v. Reed. Moving, as usual, from one dry case citation to another in a businesslike way, the memo innocently inserts the ACLU’s own policy on racial affirmative action into the middle of the argument. One of Ginsburg’s favorite themes—that women are socialized such that they cannot “push on an open door”—answers the argument she saw coming that a majority such as women don’t need quotas.
This time even Ginsburg’s friendly persuasion did not work. Good limousine liberals, the ACLU board members declined to apply their own quota standards to themselves. The histories rarely record that the Thurgood Marshall of the women’s movement failed to convince her own institution to move affirmatively on gender. By 1974, women finally began to make a substantial appearance in the national and local ACLU boardrooms.
Faced with a battle she couldn’t win, Ruth, typically, turned a deaf ear. Despite the ACLU’s reluctance to serve as a role model for other institutions, the Women’s Rights Project, designed to force gender change, worked beyond anyone’s fondest dreams. Ruth Bader Ginsburg had a gift for partnerships, and her relationship with the ACLU was no exception. They even had a honeymoon suite. Neier, a legendary fund-raiser, had spotted the offices of the bankrupt Johns Manville Company in midtown Manhattan and got the lease for a song. For perhaps the first time in history, the civil rights organization challenged the establishment from “wood paneled offices,” Neier remembers with glee. “Ruth was there more than she was at Columbia. After all, she lived on the Upper East Side. And it didn’t hurt that the surroundings were so pleasant.”
Aware of Ginsburg’s weaknesses as well as her strengths, Neier hired a second woman—the movement activist Brenda Feigen Fasteau, right off the masthead of the new Ms. magazine. The ACLU was the ideal location for Ginsburg’s careful, incremental strategy. Most social-change law firms have to root around for plaintiffs, using their informal movement connections to identify the issues that are appropriate for litigation and hoping for appealing individuals and fact patterns. In its national network of chapters with a well-established reputation for litigating peoples’ grievances, the ACLU had a built-in pipeline to every imaginable potential plaintiff. It didn’t hurt that the chapters were part of the national women’s initiative, and that the ACLU had charged its chapters with developing women’s initiatives of their own. Feigen Fasteau was busy identifying a laundry list of areas for action: employment, credit, public aid to discriminating private institutions, education, training—and, what turned out to be a nonstarter for the project, reproductive control.
The trove of litigation possibilities turned up by the Women and the Law movement paled beside the population of aggrieved American women. Once the lens of gender equality was put on American law, complaints arrived with alarming speed. Letters, they got letters. “I have paid into Social Security for twenty-five years,” writes Mary Ferrari of Richmond, California, “and was denied Social Security Benefits for my husband.” Shelly Lutzker made scores of telephone calls for jobs after an airline laid her off for being pregnant, but the New York employment office did not believe her efforts were sincere. She was, after all, pregnant. Toni Strausbaugh, nine-year marine veteran and single mother of two, wanted to enlist in the National Guard but was barred because of her dependent children. Air force second lieutenant Carol Pyles wanted her commission reinstated after being discharged for pregnancy. Debra Monsoor was trying to make it at a strip mine in Wyoming. She was paid less, harassed physically and verbally, and denied any chance at training or promotion.
Angry women who couldn’t get promoted, couldn’t find out the criteria for promotion, suspected unequal pay, couldn’t see the collective bargaining agreement, were qualified but rejected—all wrote to the ACLU, which could not handle even a small percentage of the grievances that came pouring in. This posed a big problem for the orderly Professor Ginsburg, who wanted to follow Thurgood Marshall’s example and bring the most obvious cases to the Supreme Court first, paving the way for the more radical issues to follow. Thus, discrimination between sexes for who
could administer estates, case Reed v. Reed, came before cases with real social heft, challenging pregnancy discrimination or the male-only draft. Ginsburg had her capable hands full trying to ride herd on the “uppity women” who wanted to sue everyone and take their places in the ranks of the equal.
One problem she did not have to deal with (and therefore could not control) was the core feminist issue, abortion, which the Supreme Court ultimately would decide in Roe v. Wade in 1973. Indeed, Justice O’Connor, then state senate majority leader, had a much closer, and politically more perilous, relationship to this hot issue than Ginsburg, the feminist icon. In 1970, three years before Roe v. Wade, O’Connor had supported an unsuccessful bill to repeal the sweeping Arizona criminal prohibition against abortion. After Roe, which struck down all such laws, she resisted state efforts to pass a stricter law than the Court would allow and to petition Congress to stop the practice. Although O’Connor was hardly a champion of choice—she supported efforts to stop the state from funding abortions for poor women and supported laws allowing hospital workers to refuse to participate in them—Arizona abortion opponents still tried to stop her appointment to the Supreme Court when the time came.
The ACLU was legal counsel in one of the two companion cases that go by the name Roe v. Wade, but Ginsburg was protected from the abortion problem for a crass reason. Aryeh Neier was eager to tap into the resources of the Ford Foundation for the ACLU, and, he says, Ford, while explicitly open to appeals from the burgeoning feminist movement, would not fund anything related to abortion. Ginsburg’s separation from the abortion issue was thus an accident of history but one with profound consequences. She might never have been confirmed to the Supreme Court had she been involved in the ACLU’s extensive efforts to secure abortion rights for women. On the flip side, the abortion litigation, which was spun off to the nascent ACLU Reproductive Freedom Project, did not benefit from Ginsburg’s theoretical grounding, discipline, and strategic bent.
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