Forty years ago today, for the first time in its history, the Supreme Court held that a law that discriminated against women violated the Constitution. In Reed v. Reed, a unanimous Court struck down an Idaho law requiring the automatic preference of a man over a woman when both applied to be the executor of an estate. The Court recognized that women had a constitutional right to equal protection of the law, turning from a long list of previous rulings that allowed women to be excluded from juries, or the legal profession, or even bartending, on the grounds that women needed to be protected from the rough-and-tumble of the workplace or the public square, or confined to the sphere of hearth and home. The Court’s ruling was spurred by the advocacy of Ruth Bader Ginsburg, who authored Sally Reed’s Supreme Court brief and whose efforts in that case and in a series of groundbreaking Supreme Court cases in the years that followed established constitutional protection against discrimination on the basis of sex. Forty years ago today, the Supreme Court’s decision also gave new constitutional underpinnings to the statutory protections against sex discrimination in employment and an impetus and strength to an array of new statutory protections against discrimination in education, credit, and housing, as well as employment, in the years that followed. That work continues. Most recently, there is a new protection against sex discrimination in federally-funded health care, as part of the Affordable Care Act, closing yet one more gap in legal protection against discrimination women are still fighting to secure.
But let there be no mistake about it, while cause for celebration, these gains are not fixed in stone. In the last few decades since the Reed decision, none of the constitutional cases protecting women against official sex discrimination were decided without dissent. Indeed, just last year Justice Scalia flatly stated, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.” And last month, in an interview with Newsweek, Judge Bork, when asked whether he still believes that the Equal Protection Clause does not protect against sex discrimination, answered that he did, and felt justified in that belief because “women are a majority of the population now—a majority in university classrooms and a majority in all kinds of contexts. It seems to me silly to say, ‘Gee, they’re discriminated against and we need to do something about it.’ They aren’t discriminated against anymore.”
The Court’s most recent decision in a constitutional sex discrimination case proves that these protections cannot be taken for granted. This June, the Supreme Court split 4 – 4 in Flores-Villar v. United States, a case challenging a law that has different standards for an unmarried woman than an unmarried man to pass on her U.S. citizenship to a child. (Justice Kagan had worked on the case previously and so did not participate in the decision.) The tie decision had the effect of affirming the constitutionality of this blatantly discriminatory law and its unequal treatment of mothers and fathers.
While today those fighting sex discrimination have the law on our side, as the Flores-Villar case and the comments by Justice Scalia and Judge Bork remind us, important gains like those in Reed must always be defended and safeguarded. It is our job to make sure that we continue to move forward, building on the law’s promise to stand behind the effort to continue to expand the possibilities for women and girls.