What follows are materials chosen by the authors from Justice Ginsburg’s time as an advocate for gender equality. The three selected cases, which Justice Ginsburg litigated and won, are among the many she handled in the 1970s as part of her work to dismantle gender discrimination in the United States. Justice Ginsburg discussed each of these cases in the conversation featured in the first section.
This section begins with the brief that Justice Ginsburg and her husband, Martin Ginsburg, filed in Moritz v. Commissioner of Internal Revenue, 469 F.2d 466 (C.A.10 1972), cert. denied, 412 U. S. 906 (1973). Charles Moritz, a never married man who cared for his mother, was denied a caregiver tax deduction that a woman in his position would have received. Representing himself in Tax Court, his brief was direct and straightforward, arguing: “If I were a dutiful daughter, I would get this deduction. I am a dutiful son. It should make no difference.” Together, the Ginsburgs took over his case on appeal to the United States Court of Appeals for the Tenth Circuit, contending that the discriminatory tax deduction provision should be held unconstitutional. This brief was the first of many that Justice Ginsburg filed in a series of pathmarking gender discrimination cases throughout the 1970s. Here, the Ginsburgs assert that Mr. Moritz should prevail under existing standards, but also argue that the appellate court should move beyond those standards and apply heightened scrutiny to gender-based distinctions in the law, something courts had not yet done. Notably, the Ginsburgs also contend that upon holding the statute unconstitutional the court should not declare the provision inoperative, but instead should “declar[e] the statute equally operative upon all persons similarly situated,” thereby permitting Mr. Moritz his deduction.
As Justice Ginsburg noted in the conversation featured in the first section, while she and Marty were litigating Moritz before the United States Court of Appeals for the Tenth Circuit, Congress amended the relevant law to permit all caregivers to claim the deduction going forward. The government nevertheless urged the Supreme Court to review Mr. Moritz’s case, fearing the precedential impact of the Tenth Circuit’s decision. In so doing, the government appended to its brief to the Court a list of every provision in the United States Code that differentiated on the basis of sex. As Justice Ginsburg described the list, “there it was, right in front of us, all the laws that needed to be changed or eliminated, through legislative amendment preferably, if not, through litigation. It was our road map, a pearl beyond price, that list of federal statutes differentiating on the basis of gender.”
Included next are the transcripts of Justice Ginsburg’s Supreme Court arguments in Frontiero v. Richardson, 411 U. S. 677 (1973), and Weinberger v. Wiesenfeld, 420 U. S. 636 (1975), two cases, following on the heels of Moritz, in which she again successfully challenged laws that discriminated based on gender.
In Frontiero, the first case Justice Ginsburg argued before the Supreme Court, she spoke uninterrupted for the entirety of her almost eleven-minute presentation. The case involved a challenge brought by Sharron Frontiero, a lieutenant in the United States Air Force, to a federal statute that granted fewer dependency benefits to male spouses of female servicepersons than to female spouses of male servicepersons. Justice Ginsburg convinced eight of the nine members of the Supreme Court that the law violated the Fifth Amendment to the United States Constitution by treating the genders unequally.
Justice William J. Brennan, Jr., authored a plurality opinion in the case on behalf of four justices. He would have applied heightened, or “strict,” scrutiny to laws that differentiate on the basis of gender, the same level of scrutiny that the Supreme Court applies to laws that differentiate on the basis of race. But four concurring justices would not go so far. Justice Lewis F. Powell, Jr., wrote a concurrence maintaining that there was no reason to decide whether strict scrutiny should apply to gender-based classifications because the statute at issue was problematic under any level of scrutiny and such a decision might prove unnecessary in the event that the then-pending Equal Rights Amendment witnessed ratification. Justice Ginsburg never did convince five members of the Supreme Court that classifications based on gender should receive the same level of scrutiny as those based on race. All the same, in 1982, the Supreme Court held in Mississippi University for Women v. Hogan, 458 U. S. 718, that laws differentiating on the basis of gender are inherently suspect unless the government demonstrates an “exceedingly persuasive justification” for any distinction drawn.
Wiesenfeld proved another victory for Justice Ginsburg before the Supreme Court. Here, as in Moritz, Justice Ginsburg’s client was a man, Stephen Wiesenfeld. His wife, Paula, had died in childbirth delivering their son, Jason Paul. In the wake of her death, Wiesenfeld wished to stay home to raise their son. When Wiesenfeld applied for social security survivor benefits on behalf of himself and Jason, citing his wife’s contributions from her years of work as a teacher, he was denied the benefits that a surviving female spouse would have received. Wiesenfeld wrote a letter to the editor of his local newspaper describing his plight and asking, “I wonder if Gloria Steinem knows about this?” Once the letter came to the attention of Justice Ginsburg, she offered to represent Wiesenfeld and took on his case from the beginning. Justice Ginsburg knew that if it eventually made its way to the all-male Supreme Court, she could now put a relatable face to how gender discrimination hurts not just women, but both genders—an important part of her litigation strategy. To that end, when she argued Wiesenfeld’s case before the Court, Justice Ginsburg invited her client to sit by her side at counsel’s table, a rare occurrence in Supreme Court arguments.
The result was a unanimous 8-0 victory in which the Supreme Court held that the relevant social security provision was as problematic as the classification invalidated in Frontiero. In an opinion for the Court, Justice Brennan wrote, “such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families’ support.” As Justice Ginsburg noted in the conversation featured in the first section, it was in Wiesenfeld that she finally won a vote from then-Justice William H. Rehnquist (later Chief Justice), who concurred in the result on the basis that “it is irrational to distinguish between mothers and fathers when the sole question is whether a child of a deceased contributing worker should have the opportunity to receive the full-time attention of the only parent remaining to it.”