By Michael J. Parker, Esq. 

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.

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. Her advocacy for those beyond her gender, is just one of the many reasons she remains an icon among the legal community.

One specific case that stands out to me is when Ginsburg set her attention on the Social Security Act. In 1975, Ginsburg argued the case Weinberger v. Weisenfeld, 420 U.S. 636, 95 S.Ct 1225 before the United States Supreme Court. On June 5, 1972, Paula Wiesenfeld died in child birth leaving her husband Stephen with the sole responsibility for the care of their infant son, Jason Paul. Mr. Wiesenfeld applied for survivors’ benefits under the Social Security Act for himself and his son. The Social Security Administration awarded benefits for his son but denied Mr. Wiesenfeld’s claim.

Wiesenfeld made a claim under 42 U.S.C. § 402 (g), then known as “Mother’s insurance benefits.” The act specifically stated that only a widow or surviving divorced mother would be entitled to benefits if certain other, non-germane factors to this case, were met. The Act specifically did not provide for Widowers’ benefits. Ginsburg argued that this statutory scheme, like Frontiero, violated the equal protection secured under the Fifth Amendment. The Court agreed stating “In Frontiero the challenged classification based on sex [was] premised on overbroad generalizations that could not be tolerated under the Constitution…[The] assumption…was that female spouses of servicemen would normally be dependent upon their husbands while male spouses of servicewomen would not.” Frontiero at 507. The Court then applied this standard to §402 (g) and stated, “[a] virtually identical “archaic and over broad” generalization not tolerated under the Constitution underlies the distinction drawn by §402(g), namely, that male workers’ earnings are vital to support of their families, while earnings of female wage earners do not significantly contribute to their families’ support.” Wiesenfeld at 523. The Court further stated, “the Constitution also forbids the gender-based differentiation that results in the efforts of female workers required to pay social security taxes producing less protection for their families than is produced by the efforts of men.” Id. at 646.

On April 14, 1980, President Jimmy Carter appointed Ginsburg to a seat on the prestigious United States Court of Appeals for the District of Columbia Circuit based in large part on her tremendous advocacy for litigants who were discriminated on the basis of sex. In 1993, based upon the recommendation of Republican Senator Orrin Hatch, President William Clinton nominated Judge Ginsburg to serve as the second woman nominated to the Supreme Court. The United States Senate confirmed her by a vote of 96-3. She assumed office as Associate Justice for the Supreme Court on August 10, 1993.

Justice Ginsburg continued her defense of individuals being discriminated against until her death. She joined in the landmark civil rights decision in Obergefell v. Hodges, 576 U.S. 644 whereby the Supreme Court ruled that the fundamental right to marry is guaranteed to same sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Finally, just months before her passing, Justice Ginsburg joined with the majority to rule that federal law prohibits employment discrimination against LGBTQ workers in the landmark decision Bostock v. Clayton County, 139 S.Ct. 1599.

Justice Ginsburg was a brilliant legal scholar and defender of the discriminated. She was known as the great dissenter when the Court began its shift to the right. In one instance, she read her dissent aloud in front of the Court in the matter of Ledbetter v. Goodyear Tire & Rubber when the Court denied Ledbetter’s claim because she had not filed her action within 180 days from her first pay check even though, as Justice Ginsburg noted, every pay check where Ledbetter was not paid the same as her male peers of equal training and qualification represented a new injury. Her dissent made clear to Congress that it was their duty to act to remedy this injustice. Fortunately, Congress did act, and President Obama signed the Lilly Ledbetter Fair Pay Act into law on January 29, 2009. On September 18, 2020, the United States lost a Titan and perhaps the greatest defender of those who request equal protection under the law. To paraphrase Ann Richards, Life isn’t fair, but our government must be fair. We shall see if this rings true into the future.

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