Happy 40th Reed v. Reed!

Maria SaabOn November 17, 2011, the National Women’s Law Center held a celebratory panel to honor the forty-year old landmark Supreme Court decision that held the Equal Protection Clause applied to women. The Reed v. Reed at 40: Equal Protection and Women’s Rights” panel was moderated by Nina Totenberg, NPR’s legal affairs correspondent, who posed questions to four academics and the guest of honor, Supreme Court Justice Ruth Bader Ginsburg.

Reed v. Reed was decided in 1971 on the heels of the Civil Rights Movement and changing perspectives on gender, race, and sexuality in American society. The case arrived at the United States Supreme Court after an Idaho Probate Court ruled that the mother of a deceased man could not be named the administrator of his estate because “males [are] preferred to females” in this respect. The appeal addressed the issue of how far the Equal Protection Clause of the Fourteenth Amendment could be stretched and whether women were entitled to the safeguards provided by the clause.

Justice Ginsburg was the director of the ACLU’s Women’s Rights Project when she was appointed as lead counsel for Mrs. Reed in the case. She authored the brief that would convince a bench of all-male Supreme Court Justices to strike down conceptions of over-generalization and arbitrariness of the sexes and extend the Equal Protection Clause to women. In his opinion, Chief Justice Burger stated:

“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 intra-family controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.”

-Reed v. Reed, 404 U.S. 71 (1971).

This monumental decision marked the first instance that the government recognized women were entitled to the same treatment under the law as men. As Jackie Berrien, Chair of the U.S. Equal Employment Opportunity Commission, stated, “Reed opened important doors to the constitutional analysis on sex-based classifications of the law.” Therefore, one of the main themes covered by the panel at the NWLC’s presentation was how Reed has affected American jurisprudence today.  Justice Ginsburg remarked that the decision highlights the evolution on the view of equality from the time of our Founders till the modern day. Responding to Professor Earl Maltz, a fellow panelist, who provided the perspective that originalism would have precluded the decision of Reed v. Reed, Justice Ginsburg stated, “equality was the motivating idea of our founding documents.” However, “it could not come into the constitution because the odious practice of slavery had to be retained.” She went further to say, “the genius of the United States has been the Constitution where ‘We the people” consisted of white, property owning men to now encompassing a wide variety of people.”

Case law has thus followed. The panelists gave examples of how the precedent set forward in Reed opened the door for men and women to bring forward discrimination cases under the Equal Protections Clause. This included cases about men facing adversity applying to nursing school, men applying for benefits as widowers, and homosexual individuals facing discrimination in the work place. As Nina Pillard stated during the panel discussion, Reed empowered the government to work against not only sex-based discrimination, but also other forms of discrimination as well. Jackie Berrien added that federal statute and federal enforcement have helped to address the kinds of discrimination Reed initiated a fight against- including the Fair Labor Standards Act, Title VII, and the Pregnancy Discrimination Act.

Today, it’s hard to imagine a case with the same circumstances as Reed that would foster so much controversy; it would probably be a no-brainer. For many young ladies like myself, a world where women can’t attain the same opportunities or capture the protections of certain laws because they are solely restricted to men is unthinkable. Nonetheless, the message of Reed v. Reed, even till this day, teaches both the older generations and the younger ones that everyone is entitled to the fight for the equal protection of their rights. At least in this country; we should all be thankful for that.

This event was sponsored by American University Washington College of Law, George Washington University Law School, Georgetown University Law Center, Howard University School of Law, National Women’s Law Center, the University of the District of Columbia’s David A. Clarke School of Law, and the Women’s Bar Association of the District of Columbia.

About this Author: Maria Saab is a law student intern at Workplace Fairness. Her Bachelor of Arts in International Studies combined with her career experiences working on Capitol Hill and with Barack Obama’s presidential campaign in 2008 encouraged her to pursue law school. As a hopeful lawyer, she plans on specializing in regulatory law and hopes to one day concentrate her work efforts towards policy development.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.