Many feminists were frustrated by the cryptic reasoning in the Reed v. Reed opinion, which was confined to the narrow issue presented in the case and did not address the larger question of the appropriate standard of review for sex-based legal classifications. ERA proponents argued that Reed proved the need for a new amendment (see Document 21). Ruth Bader Ginsburg, an ERA proponent herself and later Supreme Court justice, nevertheless worried that an overly narrow interpretation of Reed would handicap her litigation strategy. This letter to the editor of the Women's Rights Law Reporter, a new feminist legal publication, indicated Ginsburg's concern that ERA proponents' criticism of Reed would undermine her arguments to the Supreme Court that the Fourteenth Amendment prohibited discrimination against women.
April 14th, 1972
Ms. Elizabeth Langer
Women's Rights Law Reporter
Rutgers Law School
180 University Avenue
Newark, Mew Jersey 07102
Received your letter and Rawalt's statement in today's mail. I didn't count the words of my piece and don't know whether I went over your limit. If you have trouble fitting it in, let me know.
Some advise as a member of the advisory board of WRLR. Consider very carefully whether the Rawalt statement should be published. One can support ERA with utmost vigor — and use Reed to demonstrate that any other route would be debilitating — without resorting to a broadside that is not only inaccurate but also harmful in cases now pending.
As to the harm, we are using Reed for whatever positive value it can yield in pending litigation — see e.g. our tennis case brief, available at the clinic office. And the two cases I cite in my piece are examples of results achievable if the affirmative is emphasized. ERA is 3, maybe 4 years away from becoming effective. In the interim, statements that Reed upholds old precedents (it didn't — it simply said nothing about them) could be turned against women who seek relief now.
On the inaccuracy, in addition to the statement that precedents were upheld, the attribution of Muller solely to union labor advocates (with the clear implication that they were male) is a half truth. The lion's share of the work on the Brandeis brief in Muller was done by Josephine Goldmark whose subsequent book reprints the brief in full. I suppose few people with her appreciation of the effect of sweat shop conditions and the resulting fatigue could resist settling for half a loaf when the alternative was continuation of 12 hour days, 6 day weeks.
On the general proposition — I suppose the 14th amendment will go on permitting States to treat different classes of persons
Ms. Elizabeth Langer
April 14th 1872
in different ways — and properly so when a criterion based on differences in ability or need is employed — e.g. the sick aged handicapped; classifications by income for purposes of a progressive income tax. In addition to the footnote in the Bisectudt v.
case, a further example of the view of the Court that does make an on "sex is a valid basis for classification" is the opinion in Starley v. Illinois, and especially Douglas's concurrence.
Ruth Bader Ginsburg
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