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Ginsburg's Reed v. Reed brief won equal protection for women

Ruth Bader Ginsburg wrote the brief in Reed v. Reed (1971), the first case in which the Supreme Court extended the Constitution's equal protection guarantee to women.

Ruth Bader Ginsburg
Ruth Bader Ginsburg · 1933–2020
Person
Ruth Bader Ginsburg
Lived
1933–2020
Field
Constitutional Law
From
American

The story

Sally and Cecil Reed were a separated couple in Idaho whose son had died. Each asked the probate court in Ada County to be named administrator of his small estate, worth less than $1,000. Idaho law stated that when several people were equally entitled, males must be preferred to females, and the court appointed Cecil. Sally challenged the rule, and after a series of appeals her case reached the United States Supreme Court.

Sally Reed was represented at the Court by the Idaho lawyer Allen Derr. Ruth Bader Ginsburg, then a professor at Rutgers, volunteered to write the ACLU's brief, working with the ACLU legal director Mel Wulf. She listed Pauli Murray and Dorothy Kenyon as authors even though they had not worked on it, a symbolic way of acknowledging the intellectual debt that feminist legal argument owed them. She also cited two German court decisions, an early sign of her interest in comparative law.

On 22 November 1971 the Court ruled unanimously for Sally Reed. It held that giving a mandatory preference to one sex simply to avoid hearings on the merits was exactly the kind of arbitrary choice the Equal Protection Clause forbids. For the first time, the Supreme Court used the Fourteenth Amendment's guarantee of equal protection to strike down a law that treated women and men differently.

The ruling applied only the ordinary test of whether a law has a rational basis, and Ginsburg and her colleagues had hoped for more: a ruling that sex, like race, was a suspect classification. To pursue that goal the ACLU created its Women's Rights Project under her leadership in 1972. In the cases that followed, including Frontiero v. Richardson and Craig v. Boren, the Court moved to a tougher standard, known as intermediate scrutiny, for laws based on sex.

Reed's effects went well beyond one estate. Hundreds of laws were changed after the decision, and Congress went through the US Code revising almost every provision that openly classified people by sex. The case opened the door to decades of rulings against sex discrimination, and it was the first major step in the legal strategy that made Ginsburg the country's leading advocate for equal rights.

Why it matters

Reed v. Reed opened the door to decades of rulings striking down laws that discriminated on the basis of sex.

About Ruth Bader Ginsburg

U.S. Supreme Court Justice; pioneer of gender equality jurisprudence; co-founded the ACLU Women's Rights Project.

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Ruth Bader Ginsburg
1933–2020 · Constitutional Law
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Another act of tikkun olam. This is part of tikkun olam, the Jewish idea of repairing the world, and every one of us can add to it.

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