This past fall, I shared my reflections after the passing of legend, Justice Ruth Bader Ginsburg. As we celebrate Women’s History Month, I would be remiss if I did not revisit those thoughts on her legacy for her birthday, March 15.
September 18, 2020 is a day that ended with the tragic news of the passing of Justice Ruth Bader Ginsburg. The Friday night announcement came while I was listening to a documentary of Former Texas Governor, Ann Richards, on Youtube. I would like to think that this activity is not abnormal for a forty something year old without any children. The jury is still out on that.
Ann Richards was the first elected female Governor of Texas, who was known for her Feminism and one-liners. She was unabashedly liberal and fervently pro-choice. I had reached the point in the documentary when Ann was sworn in as Governor. Ann quoted former President John F. Kennedy and stated, “[y]ears ago John Kennedy said that ‘Life isn’t fair’ and Life isn’t fair, but Government absolutely must be.” To me, this was Ann’s affirmation that the Equal Protection Clause to the Constitution would apply to her administration. Ironically, it was at this moment that I felt the vibration of my cell phone. I read, “Ruth died.” My heart immediately sank. Few people in the legal community are known simply by their first name. Justice Ginsburg was eighty seven and news reports throughout the tumultuous year of 2020 had reported the recurrence of Justice Ginsburg’s cancer, but by all accounts, she was still working. She was the one Justice that many Americans knew would be on their side when an issue came before the Court, which pertained to the Appellant’s equal protection under the law. In a moment, that stalwart supporter was gone.
On their surface, Ann Richards and Justice Ginsburg could not be more different. Ann was sharped-tonged and gregarious. Justice Ginsburg was reserved and scholarly. However, as I took pause from the horrific news that I heard, I realized that like Ann Richards, Justice Ruth Ginsburg was a known Feminist who also fervently fought for the equal protection for all Americans. She also believed that government must be fair to all Americans. The focus of this article will be on her advocacy for those beyond her gender as much has been written regarding her Feminist roots.
In 1973, a future Justice Ginsburg argued before an all male Supreme Court on behalf of the ACLU and in support of the position of spouses of female service members who were denied benefits associated with the female service member’s uniformed service to our country. In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, Sharron Frontiero was a lieutenant in the United States Air Force. She sought an increase in the quarters allowances, housing and medical benefits for her husband on the grounds that he was a “dependent.” Said benefits would have automatically been granted with respect to a wife of a male member of the uniformed services. However, Frontiero’s application was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support.
Future Justice Ginsburg argued that the statute at issue, 10 U.S.C. 1076, unreasonably discriminated on the basis of sex in violation of the Due Process Clause of the Fifth Amendment. She argued two fold: first, as a procedural matter, a female service member is required to demonstrate her spouse’s dependency while no such burden is placed on a male service member and second, if a male service member had not provided one-half of his spouse’s support, then the spouse would still receive the benefits; whereas, a similarly situated female member’s spouse would be denied such benefits. At the outset, Future Justice Ginsburg argued that classifications based upon sex, race, alienage and national origin are inherently suspect and must require close judicial scrutiny.
This Women’s History Month, I hope that our firm along with the many other legal professional’s honor RBG’s legacy in our work towards a diverse and representative legal industry.