What Happened to Sally Armendariz Could Not Happen to a Man
By 1978, Ruth Bader Ginsburg was commenting that the law had reached the stage where it could help a woman so long as whatever harmed her could also “happen to a man.” What happened to Sally Armendariz could not happen to a man—or at least not exactly. What happened to her would lead to the most infamous decision in the Supreme Court’s early years of groping with sex discrimination.
In early May of 1972, Sally Armendariz was driving near her home, among the farm fields of Gilroy, California, when she was rear-ended by another car. She was not easily slowed by hard knocks. She had been born twenty-nine years earlier into a Mexican-American family that had worked in California for generations, usually in the fields picking. Every time she looked at her mother, she thought of the hardship of the fields. Working before Sally was born, on one brutally hot day her mother had lain down in a field and fallen asleep, exhausted, facing up into the California sun. She woke up blind.
Looking for a route away from fieldwork, Sally Armendariz became the second child and the first daughter in her extended family to graduate from high school. At age nineteen, she found work as a secretary. For ten years she never took a sick day. No car accident, she resolved, could keep her from working.
But though her rear-ender was an accident that could “happen to a man,” its effect could not: when Sally Armendariz was hit from behind, she was four months pregnant. The afternoon after the accident, back at work, she suddenly felt ill. Her doctor told her to go home and get rest. Late that night she went into labor; an ambulance arrived to rush her and her husband to the hospital, and in the early morning she lost her child to a miscarriage.
The pain following the car accident and miscarriage became so severe that for two weeks Armendariz could not even wash dishes. Her doctor told her to stay away from her office for three weeks. At that point, in May of 1972, Sally’s husband had just become unemployed, making her the sole support for him and their eight-month-old son. Fortunately, she knew, for the past ten years she had paid 1 percent of her $394 monthly salary to California’s State Disability Insurance program, and she had never asked for a penny. The program’s purpose was to protect workers who became temporarily disabled. Assuming she could receive back some part of what she had paid out, she went to the local unemployment office in Gilroy to file a request for benefits.
The office denied her request. Had she been a man hurt in a crash, she learned, the office would have paid gladly. But the State Disability Insurance program had one significant loophole: it refused to pay benefits for any disability “arising in connection with pregnancy.” She was denied benefits because what happened to her could not, to repeat Ruth Bader Ginsburg’s words, “happen to a man.”
SALLY ARMENDARIZ WAS A FIGHTER, as she had been since high school. She and some classmates, gathered by their Catholic priest, had formed a group called the Young Christian Workers that tried to identify social problems and then work to fix them. And here she was, in the middle of a classic social problem. She demanded an appeal.
In midsummer Sally Armendariz stood before a referee for the state’s Unemployment Insurance Appeals Board. He denied her claim. He said the state’s denial of pregnancy-related disabilities allowed no exception. When she pressed him, he explained what he supposed was the state’s reasoning: unlike most disabilities, becoming pregnant was voluntary.
She asked, Missing work was voluntary? Getting hit by a car was voluntary? And being pregnant was voluntary? Did he, she asked, want the human race to come to an end? And then she told him, If he didn’t grant her three weeks of benefits, less than $100, she would sue the state of California for discrimination against women.
What he said next, she would recall for years. The referee turned off the tape recorder that had been running through their meeting. You sound serious, he told her. He said he went through this “all the time,” turning down pregnant women because the law gave him no choice. And if Sally Armendariz was gunning to bring a lawsuit, he added, in words she would always remember, “I hope you follow through. And I hope you win.”
For a worker aiming to sue the state, Armendariz had dream employers. She worked for the Gilroy office of California Rural Legal Assistance, a federally funded law firm whose purpose was to end the exploitation of California’s farm-worker community. Her office had half-a-dozen young lawyers, whom she called “the guys.” To her, they were a strange and adorable band of eastern Jewish boys, crusaders who had come west to right the wrongs with which her family lived. She had introduced them to Mexican cooking and teased them about supporting baseball teams from places like Chicago. When it came to challenging the state of California, she thought, nobody was more gung-ho than “the guys.”
One of the first guys to hear the story of Sally Armendariz was Peter Weiner, two years out of Yale Law School and one year past his clerkship with a liberal justice of the California Supreme Court. And while he was clerking, one of his fellow clerks had pounced on a case that, Weiner thought, could help Armendariz.
The clerk was Wendy Webster Williams, then fresh out of Boalt Hall, the law school of the University of California at Berkeley, class of 1970. While working in their judge’s office, she became one of Weiner’s best friends. After clerking, they both won federal fellowships that sent them to work for two years on poverty law: he with California Rural Legal Assistance and she with the Legal Aid Society, located an hour north in San Mateo. So after hearing Sally Armendariz tell her story, he phoned Wendy. His call would shape the next half-decade of her life.
WENDY WEBSTER WILLIAMS had grown up the eldest of seven children, a tall child who mixed effervescence and eloquence. After finishing her undergraduate work at the University of California at Berkeley, she went on to study English literature. Her then husband enrolled in Hastings College of the Law in San Francisco to study law. Soon she too enrolled in law school—so that she could talk to him about his work, she told friends—becoming one of the few women law students at Boalt Hall.
Williams encountered a law school where professors became known for asserting that women belonged at home, or for asking female students to justify the placement of women on juries, or for scolding female students for wasting spaces that could hold young men. Sometimes the challenge to women reached a constitutional level. Throughout her life, Williams would recall one moment in a law class, near the end of her studies, when she and some other women raised the issue that would soon—but had not yet—come to dominate the efforts of Ruth Bader Ginsburg before the Supreme Court. In a discussion concerning the “strict scrutiny” that the Court used to probe and consequently forbid discrimination against African-Americans, they made the obvious extension: shouldn’t the Court subject discrimination against women also to the rigors of “strict scrutiny”?
Williams’ professor laughed. He called her argument absurd. He proclaimed that for the Supreme Court, such serious scrutiny of discrimination against women would come “not in our lifetimes.”
Fortunately for young women fighting old laws, one professor stood out from the mostly male ranks of Berkeley’s Boalt Hall law faculty in the 1960s. She was Herma Hill Kay, a formidable but slightly reserved specialist in family law. When Berkeley appointed her in 1960, Kay became only the fourteenth woman appointed by an American law school to a tenure-track position, one that could lead to a permanent professorship. The first woman in America with such a position, Barbara Nachtrieb Armstrong, had been appointed at Berkeley in 1922. In 1957, as Professor Armstrong approached retirement, she remained Boalt’s one woman professor. That number, she insisted, must not fall to zero. It did. Three years later, Boalt hired Kay.
The only child of a Methodist minister and a schoolteacher, Kay first heard she should study law during a sixth-grade civics class in her native South Carolina. Alone among her classmates, she contended that the South deserved to have lost the Civil War. After listening to this contrary and feisty youngster, her teacher made an obvious suggestion: become a lawyer.
Kay did. After graduating from the University of Chicago Law School in 1959 as one of only three women in her class, she clerked at the California Supreme Court before going to Berkeley. To Kay, the potentially tame specialty of family law proved slowly radicalizing. It was, she found, “rife with discrimination” against women, and by the late 1960s, she had begun to work toward laws liberalizing abortion and divorce in the state of California. But to many on the faculty, her sharpest sign of distinction was that, inspired by Amelia Earhart, she flew a private plane.
Although Kay was working against sex discrimination, no organization at Boalt Hall shared that work or even met to discuss the status of women. For years, however, there had been one association intimately linked to women’s status: the Boalt Hall Law Wives Club. When the law school held institutes and conferences, the Law Wives acted as hostesses and served coffee. At the entire University of California at Berkeley in the late 1960s, so far as Kay could tell, no group gathered university women for purposes beyond the social. Then in the spring of 1969, Herma Hill Kay received a memo from someone in the president’s office, inviting female faculty and staff to gather for a discussion. Kay went. Although the organizers had no plans beyond community outreach, Kay returned to the law school with a notion. She invited all her female students to convene, perhaps as a step toward some useful organization. Her memo began, “Dear Boalt Hall Girl.”
The women who gathered, Kay thought, seemed a new breed: not passive consumers of legal education but seekers of fundamental change. They had spent summers registering voters in Mississippi or had taken part in early efforts at raising women’s consciousness of discrimination. Now together in a room, they told familiar stories: the law professor who questioned whether women should serve on juries, law firms and judges who refused to interview women for jobs, and so on. On the spot, the women decided to form a new group, the Boalt Hall Women’s Association. They would help plan a course on women in the law to be taught by Professor Kay. They would begin the “rooting out of anti-woman discrimination” in law firms. They coined a slogan: “Wanted by the Law: Women!”
Among the students who showed up, a tall woman stood out, at least to Kay, for her urgency and energy. She seemed to epitomize a phrase that showed up on bumper stickers: “Question Authority!” Wendy Webster Williams was approaching graduation. Before the Boalt Hall Women’s Association had organized its first course, she had her degree and a job, beginning in mid-1970, as law clerk for Justice Raymond J. Peters of the California Supreme Court. Immediately, Williams became caught up in the life that made law clerk in America’s upper-level courts probably the most exciting job for any recent law school graduate: providing research and information directly to the men who would decide the most important legal issues of the day.
IN THE CHAMBERS OF JUSTICE RAYMOND PETERS, Wendy Webster Williams had been working for only a few weeks when a case arrived in a memo from another justice, urging that the California Supreme Court “deny review.” The justice wanted to uphold, without scrutiny or a hearing, a decision of California’s Department of Alcoholic Beverage Control to revoke the liquor license of a few bars that had broken a California law that forbade the hiring of women to work as bartenders.
When Williams realized that the California Supreme Court was likely to uphold this decision and the law behind it, she saw travesty. She went “scooting right in to my judge,” as she put it later, and said, This won’t do! This can’t be! This is sex discrimination! Justice Peters, a formidable man then in his midsixties, looked at his young law clerk. All he said, in his gruff voice, was, Well, write me a memo, and we’ll see.
So Williams just “killed myself,” as she recalled, writing a memo saying why the California Supreme Court had to hear this bartender case. And in it, she made the case that discrimination against women demanded scrutiny—indeed, demanded strict scrutiny, the very claim Ginsburg was about to make at the U.S. Supreme Court in Reed. Justice Peters liked the memo and circulated it to his colleagues. After their conference, Peters called his young clerk. “Well,” he said, “we’re gonna review the case.”
When the brief defending the bars arrived, Williams read it and thought it was terrible. It would not help Judge Peters rule that the bars engaged illegally in sex discrimination.
The bar owners’ case lacked some luster. If ever a case was designed to bring forth judicial caricatures of women “sprightly and ribald” (in the words of Justice Felix Frankfurter from the Michigan case in the 1940s), it was this: Sail’er Inn was a topless bar. It had run afoul of the law when it tried to promote women from working as topless waitresses to working as topless bartenders.
The nudity was incidental, Williams believed; the case was about opening jobs to women. Williams needed someone to make arguments in an amicus brief that would lead not to issues of obscenity but to issues of equal protection under the Constitution. Then she could rely on that brief in her draft opinion. So Williams did something that, she later thought, might have been a bit improper. She called Boalt Hall and reached Herma Hill Kay and described the case and said, “An amicus brief HAS TO COME IN.” And Professor Kay said, An amicus brief will come in.
Professor Kay, always the teacher, didn’t sit down and write the brief. She called on the students of the Boalt Hall Women’s Association. The association had been working on its first women-in-the-law course, following the lead of the early course at NYU. Taking a course was different from taking a case, and Kay saw Sail’er Inn as a great opportunity for the students to learn how to make an argument. But some had doubts about making this argument.
The students saw this case as “the smarmiest thing,” one recalled: A group of guys wanted to look at topless women? Would half-bare bartending at Sail’er Inn advance women’s equality? After holding a debate, the Boalt Hall Women’s Association resolved that what mattered most was not the medium but the message: discrimination against women was unconstitutional. Professor Kay gave guidance on some constitutional issues, and then two of the law students, Mary Dunlap and Margaret Kemp, wrote the brief. They dug back to 1915 to find a U.S. Supreme Court case which declared that the “right to work for a living” was guaranteed by the Fourteenth Amendment to the Constitution. Forced to confront Justice Frankfurter’s ruling from the 1940s that restricted the right of women to tend bar in Michigan, they tried a tactic similar to Ginsburg’s in her brief for Sally Reed: by the 1950s, they insisted, the Court had begun to move past Frankfurter’s dismissal of “shifting social standards” and sociological insights. As for here and now, the state of California had recently declared that the opportunity to work for a living was guaranteed to women, without discrimination, as a “civil right.” The brief reached the supreme court of the state of California in December of 1970, submitted by Kay as sponsor of the Boalt Hall Women’s Association.
The brief was so good, Williams remembered, that when the Sail’er Inn lawyers arrived for oral argument, they used the Boalt Hall brief and made a fine constitutional argument in favor of letting women tend bar. Then Justice Peters and his fellow judges gathered to vote on the fate of the hard work by Williams, Kay, and the women of Boalt Hall.
WAITING ANXIOUSLY IN HER OFFICE, Wendy Williams heard the phone ring. She grabbed it. A voice barked, “Hi! This is Ray Peters.” Her heart stopped. She waited. And then he barked again: “Women’s Lib is gonna love me!”
Williams made her voice sweet and asked, “What happened, Judge?”
We voted, he told her. It’s unanimous. We’re gonna do it.
Williams was now set to draft the first decision in which any state’s supreme court declared that sex discrimination violated the Constitution. Better yet, its decision could announce that sex discrimination violated the equal protection guarantee of two constitutions: the Constitution of California and the Constitution of the United States. For both constitutions, Williams’ key challenge was the old problem of standard of review: minimal scrutiny or strict scrutiny? Although the decision in Sail’er Inn had to acknowledge that the U.S. Supreme Court had not yet “designated classifications based on sex as ‘suspect classifications’ requiring close scrutiny,” it could go on to rule that suspicion was emerging that “sex, like race and lineage, is an immutable trait, a status into which the class members are locked by accident of birth.”
These were the words that, to her delight, Ruth Bader Ginsburg only a few weeks later could splice into her Reed brief as it went to the U.S. Supreme Court. “The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage,” the Sail’er Inn opinion continued, adding with finality: “We conclude that the sexual classifications are properly treated as suspect.”
Furthermore, the ringing language of Sail’er Inn—its analogizing of sex to race, its understanding of pedestal as cage, its finding of strict scrutiny—would be quoted throughout the nation in judicial opinions and law reviews and legal texts. To students of law, this opinion spoke to issues of the country and the Constitution, not just to local issues and urban bars. No one reading the California Supreme Court opinion of May 27, 1971, would ever know that this case arose from a bar’s desire to offer martinis shaken by naked women.