Ginsburg's 'Grandmother Case'
THE OVERLOOK
By Tom Clavin
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Of the thousands of U.S. Supreme Court decisions rendered during the last two-plus centuries, Roe v. Wade in 1972 has gotten more attention than most, especially this year when the 2022 edition of the Supreme Court overturned it. But the year before, there was a landmark decision that has had perhaps an even greater impact on American society. It was 51 years ago this month, in October 1971, that the case of Reed v. Reed was argued before the Supreme Court.
The case was decided the next month, with the court ruling for the first time that the Equal Protection Clause of the U.S. Constitution prohibited preferential treatment based on gender. The co-author of what turned out to be the successful brief was Ruth Bader Ginsburg. The members of the Supreme Court in October 1971 were William O. Douglas, William J. Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, and the chief justice, Warren Burger. The ruling was unanimous and Justice Burger wrote the opinion.
The background: Sally and Cecil Reed were a separated married couple who were in conflict over which of them would be designated as administrator of the estate of their deceased son. Each filed a petition with the Probate Court of Ada County in Idaho asking to be named. Idaho Code specified that "males must be preferred to females" in appointing administrators of estates and thus the court appointed Cecil Reed as the administrator of the estate. Sally Reed was represented at the Probate Court by an Idaho lawyer, Allen Derr, who argued that the Fourteenth Amendment forbids discrimination based on sex.
After a series of appeals by both Sally and Cecil Reed, the U.S. Supreme Court considered the case. Its 7-0 decision held the Idaho Code's preference in favor of males was arbitrary and unconstitutional. (Two justices had died in 1971 and not yet been replaced.) The court ruled for the first time in Reed v. Reed that the Equal Protection Clause of the Fourteenth Amendment did indeed prohibit differential treatment based on sex.
Because the Idaho Code made a distinction based on sex, the court reasoned that "it thus establishes a classification subject to scrutiny under the Equal Protection Clause" and using the generic standard of scrutiny—ordinary or “rational basis review” -- asked "whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective."
Chief Justice Burger’s opinion said: “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.”
Reed v. Reed was the first major Supreme Court case that addressed that discrimination based on gender was unconstitutional because it denies equal protection. The director for the ACLU, Mel Wulf, and Ruth Bader Ginsburg wrote Sally Reed's brief. They recognized Pauli Murray and Dorothy Kenyon as co-authors of the brief, giving them credit even though they did not help on it because Ginsburg wanted to acknowledge the debt she owed them for their feminist arguments that had created a basis for her arguments.
At that time, Ginsburg was a law professor at Rutgers University and an ACLU volunteer. She later referred to Reed v. Reed as her “grandmother case” because it established her career as a champion of women’s rights.
Those who brought the case had hoped for a broader decision that would have deemed all classifications based on sex "suspect,” a category the Supreme Court reserved for race. A suspect classification would be held to a more exacting standard known as “strict scrutiny.” The ACLU established its Women's Rights Project under Ginsburg to develop cases to persuade the court to treat sex-based distinctions that way.
Hundreds of laws were changed after the Reed v. Reed ruling. Congress went through all of the provisions of the U.S. Code and changed almost all those classified overtly on the basis of gender so that the Congress and the Court were in sync. This court case created the opportunity to analyze laws that dealt with sex-based classifications.
By the way, next time you’re in Idaho, a plaque serves as a memorial to the case at the site of Sally Reed's former home (now the location of an Idaho Angler store) in Boise.
Tom Clavin is the bestselling author/co-author of 18 books, including Lightning Down: A World War II Story of Survival. The Last Hill: The Epic Story of a Ranger Battalion and the Battle That Defined WW II, with Bob Drury, will be published next Tuesday. Please go to your local bookstore or to Bookshop.org, Amazon.com, or BN.com.