JENNIFER EGAN
A March 11, 1973, New York Times article begins: “A woman lawyer from New York and the Women’s Rights Project of the American Civil Liberties Union in Newark have joined forces in an attempt to obtain Social Security benefits for a widowed father.”
Apparently, a “woman lawyer” was something different from a lawyer in 1973, a distinction unimaginable today. That progress is due in part to Ruth Bader Ginsburg (the “woman lawyer”), who litigated several landmark cases to establish gender equality in American law.
The widowed father described in the Times was twenty-nine-year-old Stephen Wiesenfeld of New Jersey. His wife, Paula, had died in childbirth in 1972, leaving him the sole parent of a newborn son, Jason. Paula, a high school math teacher working on her PhD, had earned significantly more money than her husband, who was a freelance computer consultant. For the seven years of her employment, Paula had paid the maximum into Social Security. Had she been male and left a widow behind, that widow would have received Social Security benefits (called “Mother’s insurance benefits”) to help her raise her child. But because Stephen Wiesenfeld was a father, not a mother, he was denied these benefits despite his wish to be his infant son’s primary caregiver.
“I intend to raise my son,” Wiesenfeld told the Times when Ginsburg, director of the ACLU Women’s Rights Project, filed a complaint on his behalf in district court. “I want to be a father to him. I realize I cannot be a mother, but I don’t want the tie between us broken.”
A three-judge district court ruled unanimously in Wiesenfeld’s favor, deeming the Social Security statute discriminatory on the basis of sex and therefore unconstitutional. Caspar Weinberger, secretary of health, education and welfare (later secretary of defense under President Ronald Reagan), appealed the decision to the Supreme Court in 1974. The brief supplied by Ginsburg and the ACLU’s legal director, Melvin Wulf, exposed the skein of prejudices that underlay existing practice: “The… ‘child in care’ Social Security benefit… reflects the familiar stereotype that, throughout this Nation’s history, has operated to devalue women’s efforts in the economic sector.… Just as the female insured individual’s status as a breadwinner is denigrated, so the parental status of her surviving spouse is discounted.”
In crackling prose characteristic of Ginsburg legal utterances, the brief argued that the government’s calculus would result in a loss for everyone, especially the child, “who supplies the raison d’être for the benefit in question.”
“It is invidious discrimination to provide less protection for the families of female wage earners than for the families of male wage earners, to deny to widowed fathers the same opportunity to attend to child rearing that is accorded widowed mothers, and to deny to a child whose mother has died the opportunity to be cared for personally by its sole surviving parent.”
To a contemporary eye, these arguments might seem self-evident, but Caspar Weinberger had countered with an array of sallies, including a suggestion that giving benefits only to widows was a way of remedying past discrimination against women. To that, the Ginsburg brief offered this tart riposte: “The case at bar presents a classic example of the double-edged discrimination characteristic of laws that chivalrous gentlemen, sitting in all male chambers, misconceive as a favor to the ladies.”
Ginsburg cited recent legal victories (some of which she had helped to bring about) that provided legal precedents for gender equality. One of these, Reed v. Reed (1971), involved an estranged married couple in Idaho, Sally Reed and Cecil Reed, both of whom applied to serve as administrators of the estate of their son, Richard, who had died as a teenager. The pathos of these facts—estranged parents confronting the premature death of their child—radiate distractingly through the legal language. Though Richard Reed’s cause of death was not specified in the legal documents, it was suicide.
As Richard’s parents, Cecil and Sally Reed were related to him equally. But a probate court ruled in favor of Cecil, following an Idaho statute that stipulated, “Of several persons claiming and equally entitled to administer, males must be preferred to females.”
Sally Reed sued in district court, which overturned the probate court’s decision as a violation of the equal protection clause of the Fourteenth Amendment to the Constitution. But the Idaho Supreme Court, to which Cecil Reed appealed, sided with the original probate court in granting him administration of his son’s estate.
“Philosophically it can be argued with some degree of logic that the provisions of [the statute] do discriminate against women on the basis of sex,” the decision conceded. “However nature itself has established the distinction and this statute… is only designed to alleviate the problem of holding hearings by the court to determine eligibility to administer.” In other words, discriminating on the basis of gender (given that “nature itself” created two of them) is a lot easier than having to decide on an individual basis which party is more qualified.
And, the court went on, men generally are more qualified: “The legislature when it enacted this statute evidently concluded that in general men are better qualified to act as an administrator than are women.”
According to a description of Reed v. Reed on the National Women’s Law Center website, Sally Reed reported that her husband had been abusive to her and to their son, whom she’d raised alone until he was a teenager. At that point, Cecil Reed was awarded partial custody of the boy and took out an insurance policy on his life. Richard, known as “Skip,” was found dead in his father’s basement of a wound from his father’s rifle. Hard to imagine a scenario whereby Cecil Reed would have been deemed more qualified than Sally Reed to administer their son’s small estate.
The brief that Ginsburg submitted on behalf of the ACLU to the US Supreme Court, to which Sally Reed appealed, pillories the Idaho Supreme Court’s decision as “one example of a wider pattern of discrimination against women which infects many areas of American society.”
She argued that gender discrimination was not merely unjust but insidious: by assigning second-class status to women, the court was denying them a chance to prove they deserved better: “If a legislature can bar a woman from service as a fiduciary on the basis of once popular, but never proved, assumptions that women are less qualified than men are to perform such services, then the myth becomes insulated from attack, because the law deprives women of the opportunity to prove it false.”
The US Supreme Court ruled unanimously in favor of Sally Reed, declaring that differential treatment based solely on gender was a violation of the Fourteenth Amendment’s equal protection clause and declaring the Idaho statute arbitrary and unconstitutional. It was the Supreme Court’s first ruling against gender-based discrimination under the Constitution. The decision required that hundreds of laws be rewritten and set a crucial precedent.
In her argument to the Supreme Court on behalf of Stephen Wiesenfeld, Ginsburg cited Reed v. Reed and a handful of other cases (including another landmark decision, Frontiero v. Richardson, which she had worked on in 1973) to claim that the government’s move to deny Wiesenfeld Social Security benefits was arbitrary, unjust, and outmoded. “In providing a ‘mother’s benefit,’ but no father’s benefit, Congress assumed a division of parental responsibility along gender lines: breadwinner was synonymous with father, child tenderer with mother. Increasing female participation in the paid labor force has placed in clear focus the invidious quality of this rigid sex-role delineation.”
In 1975, the Supreme Court ruled unanimously in Stephen Wiesenfeld’s favor.
Nearly twenty years later, in 1993, Wiesenfeld was the last witness to speak during four days of confirmation hearings for Ruth Bader Ginsburg’s appointment to the Supreme Court. With a lush, graying beard and a congenial air verging on playful, Wiesenfeld, who had never remarried, recounted the facts of his case. “We were among the pioneers in alternate family lifestyles,” he said of his wife, Paula, and himself. “It was our plan that I would take on the primary household chores, including those related to the raising of our son, Jason.”
Joe Biden, then the chairman of the US Senate Committee on the Judiciary, thanked Wiesenfeld for his testimony and added, “I shared a similar fate that you did in 1972 and raised two children with a professional wife who had passed away, and it is amazing how much has changed.”
Stephen Wiesenfeld returned to the Supreme Court in May 2014, nearly forty years after his landmark lawsuit. This time his purpose was to be remarried, at age seventy-one, by Justice Ruth Bader Ginsburg. His son, Jason (at whose Florida wedding Justice Ginsburg had officiated in 1998), and other family members, were also present.