Air Force Lieutenant Sharron Frontiero and her husband Joseph discuss their court case with the news media, January 9, 1971. Photo Credit: Bettmann via Getty Images
By David Kurlander
The death of Supreme Court Justice Ruth Bader Ginsburg has set off a flurry of reminiscences about her humor, her fiery argumentation, and her role in the women’s rights movement. Those attributes were never more on display than in the 1973 Supreme Court case Frontiero v. Richardson, the first time that Ginsburg—then a legal advocate for women’s rights— gave an oral argument before the Court. A closer examination of the often-prejudicial reactions of both the news media and of the male lawyers involved in the case highlights just how much resistance and dismissiveness RBG faced as she built her advocacy, and how much the ghosts of that judgment are still with us today…
During 1970, 23-year-old First Lieutenant Sharron Frontiero served as a physical therapist at Maxwell Air Force Base in Alabama while her husband Joseph—a Navy veteran—studied at Huntingdon College in nearby Montgomery. While the Air Force automatically offered spousal benefits to male service members, they required that females prove that their husbands were “one-half” dependent on them. Sharron didn’t cover quite half of Joseph’s income, as he received a monthly payment via the G.I. Bill from his service in the Navy.
Sharron Frontiero tried to secure the benefits within the Air Force bureaucracy, but was stymied at every turn. “I had people telling me, ‘You’re lucky we let you into the military at all,’” she later reflected. The Frontieros decided to sue the Secretary of Defense (first Melvin Laird, then his replacement Elliot Richardson) under the Fifth Amendment’s Due Process Clause. After the United States District Court for the Middle District of Alabama ruled against them, Sharron and Joseph reached out to Joseph Levin, a young civil rights attorney who had lectured at Huntingdon. Levin was putting together what would become the Southern Poverty Law Center (SPLC) and agreed to take on the work pro bono with his law team, two fellow 20-something-year-old male lawyers Morris Dees and Chuck Abernathy.
Meanwhile in New York, Ruth Bader Ginsburg, then a law professor at Rutgers, was building the Women’s Right’s Project (WRP) at the American Civil Liberties Union—an initiative she developed to push for the implementation of the still-elusive Equal Rights Amendment and to argue that gender discrimination cases should be reviewed with “strict scrutiny,” a legal standard that already existed for cases involving racial inequality. In 1971, as Frontiero’s case was moving through the courts, Ginsburg scored an early, partial victory in the Supreme Court case Reed v. Reed. Ginsburg wrote the brief for petitioner Sally Reed, who argued that she was passed over in favor of her ex-husband in administering the estate of their deceased son solely because she was a woman. Although the Supreme Court did not adopt the“strict scrutiny” standard, their larger ruling in favor of Reed signaled that they might be willing to move further.
As they prepped the Frontiero case for appeal in 1972, the nascent SPLC faction reached out to Ginsburg for assistance with their brief. The two groups attempted to divvy up responsibilities, but the men wanted to argue the case narrowly and to avoid focus on the “strict scrutiny” classification. They also were wary of Ginsburg giving an oral argument.
The proto-SPLC reasoning was ostensibly strategic; the activist Warren Court had given way to Warren Burger’s far less flashy ethos, and, in Abernathy’s words to Ginsburg via letter, they wanted to “keep a Nixonian low profile.” Ginsburg wrote back to Abernathy, “I am not very good at self-advertisement, but believe you have some understanding of the knowledge of the women’s rights area I have developed over the past two years.” Levin volleyed back that it didn’t make “one iota of difference whether a male or female” argued before the Court” and that he wasn’t sure when they had “become ‘assistants’ in our own case.” To make a long story short, the two groups presented their arguments separately, although the tensions seemingly abated. As historian Jane Sherron de Hart wrote in her revelatory Ginsburg biography, “‘Frustrated’—the word she later chose to describe her emotions—hardly captured Ginsburg’s feelings at the time.” Ironies abounded.
On January 23, 1973, Ginsburg went forward with her first oral argument before the Supreme Court. Her 10-minute appearance is the stuff of legend, simultaneously legalistic and full of historical flourishes. Near her conclusion, Ginsburg argued again that the “strict scrutiny” standard should apply to gender discrimination cases, even invoking, in a now-iconic utterance, the arguable mother of the women’s suffrage movement: “Asking the Court to declare sex a suspect criterion, amicus urges a position forcibly stated in 1837 by Sarah Grimké, noted abolitionist and advocate of equal rights for men and women,” Ginsburg stated. “She spoke not elegantly, but with unmistakable clarity. She said, ‘I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.’”
That May, the Supreme Court held in an 8-1 decision that the unequal benefits were unconstitutional. Hundreds of Federal statutes, including much of Social Security would be impacted as a result. Justice William Brennan opined on the long history of legal gender bias, writing, “Traditionally, such discrimination was rationalized by an attitude of romantic paternalism which, in practical effect, put women not on a pedestal, but in a cage.” Yet even with Brennan’s lofty rhetoric, Ginsburg’s secondary goal with the case—the establishment of “strict scrutiny” classification—fell one vote short. Today, gender discrimination cases are still only judged under an “intermediate scrutiny” standard.
Despite the importance of the ruling, the New York Times still issued a decidedly gimmicky headline in their coverage of Sharon and Joseph Frontieros’ reactions: “A ‘Flaming Feminist’ Lauds Court.” Even with the seeming editorial condescension, however, the giddiness and passion of both Sharon and Joseph came through. “Some of the guys at work find it hard to believe that I do half the housework and iron my own shirts,” Joseph explained. “But it doesn’t bother me. I mean, Sharron works too, and is just as tired when she gets home.” Sharron added:“It was worth the fight.”
Justice Ginsburg’s fight has come to an end, but—as we approach what promises to be a tense and morally-complex nomination process—the stories of her resilience against strong push-back and the lives that her work changed are more essential than ever before.
For more on Frontiero v. Richardson, check out Penn Law Professor Serena Mayeri’s riveting essay, ‘When the Trouble Started: The Story of Frontiero v. Richardson” or listen to Lauren Moxley Beatty’s engaging “The Ginsburg Tapes” podcast episode on the case. The petitioner, now Sharon Cohen, also appeared in the compelling 2015 documentary RBG.
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