Why You Should Thank Ruth Bader Ginsburg for Gender-Based Protection in the Law

The year was 1976. The Oklahoma law in question prevented men under the age of 21 from purchasing beer but made it legal for women 18 and older to purchase the drink. 

The case was Craig v. Boren. Ultimately, the Supreme Court ruled against the law.

Oklahoma had argued that the gender-based distinctions in its alcohol regulations had been made for safety purposes. The state used statistics to show that the law was critical to traffic safety, arguing that men were riskier drivers than women in defense of the age differences. The Court argued that the state's statistics did not provide sufficient evidence for gender-based distinctions in the law. Further, the Court established a new standard to be used when evaluating laws that made distinctions based on gender: intermediate scrutiny. 

Prior to 1976, gender-based distinctions in the law only had to be "rationally related" to the stated goal of the law. In Craig v. Boren, for example, Oklahoma's attorneys argued that the beer law furthered safety since men had more frequent cases of automobile accidents and were thus more reckless than women. This standard is known as rational basis scrutiny. When the Supreme Court raised the legal standard of review to intermediate scrutiny in Craig v. Borenit stated that laws which made distinctions based on gender must advance important government interests through means that were substantially related to the given government interest. Legalese translation? Laws that made gender-based distinctions had to have a pretty good reason for existing on the books. 

Only women could order beer at 18 under the Oklahoma law struck down in Craig v. Boren.

Intermediate scrutiny finally gave women's rights the legal protection they deserved in the ashes of the United States' failure to pass the Equal Rights Amendment (ERA). First proposed in 1972, the ERA would have provided a constitutional ban for discrimination on the basis of sex. Earlier gender-based discrimination cases in the 1970s were decided with the ERA in mind. Four of the justices arguing in 1973's Frontiero v. Richardson wanted to apply strict scrutiny, the standard used to prevent laws that discriminate on the basis of race, to the regulation in question, which required proof of dependency for female members of the military wishing to provide their spouses with benefits. Other justices, however, argued that strict scrutiny would be required in gender cases anyway after the passage of the ERA; they compelled the other justices to wait for the amendment's passage.

The ERA, however, was never passed, and women's rights were still without constitutional protection. 

Enter Ruth Bader Ginsburg. As a practicing attorney and the director of the ACLU Women's Rights Project, Ginsburg had already argued several cases related to gender equality. She was one of the attorneys who worked on Reed v. Reed, a 1971 Supreme Court case that challenged an Idaho law which stated that men must be preferred to women when there was "more than one qualified person available to administer someone's estate." Ginsburg argued that the law violated the Equal Protection Clause of the 14th Amendment, which prevents states from making laws that deny people "the equal protection of the laws." The court agreed and struck down the Idaho law. Two years later, Ginsburg successfully used the 14th Amendment to argue against the military regulation in Frontiero v. Richardson. 

As an attorney, Ruth Bader Ginsburg directed the ACLU Women's Rights Project.

However, in spite of the earlier cases she had worked on in the name of women's rights, Craig v. Boren​ is one of Ginsburg's finest achievements as an attorney. Though Ginsburg wasn't actually the attorney who argued the case in front of the Supreme Court, she advised the attorneys on the case and wrote a brief in support of those challenging the Oklahoma law. Ginsburg notably advised Craig's attorney to avoid pushing for the highest standard of legal protection, strict scrutiny, arguing that the Court wouldn't vote in favor of extending such a high level of protection to gender in the law. The advice helped Craig's attorney make an argument that advocated for the intermediate scrutiny standard of review in the law. Laws that made distinctions based on gender could no longer exist for any rational reason. 

Years later, while serving on the Supreme Court, Ginsburg would improve the legal standards for evaluating gender cases once again in United States v. Virginiawhere the Court analyzed the constitutionality of Virginia Military Institute, an all-male public military academy in Virginia. Though Virginia had opened a second military institute for women that claimed to offer the same education, the Court ultimately ruled that its male-only admissions policy violated the 14th Amendment. Writing for the majority, Justice Ginsburg argued that "all gender-based classifications today" should be evaluable with "heightened scrutiny," raising the standard beyond what was required in the 1970s when Craig v. Boren was decided. This new standard made it more difficult to pass constitutional laws that made distinctions based on gender, providing more legal protection towards women's rights. 

Justice Ginsburg working out in her famous Super Diva! sweatshirt.

Today, Justice Ginsburg continues to be in the news as a champion of women's reproductive rights as states work to chip away at Roe v. Wade. Ruth Bader Ginsburg has found many ways to champion women's rights, but her ability to help secure constitutional protections for women following the failure of the ERA is certainly one of her most important accomplishments. First Lady Abigail Adams might not have been able to make sure her husband and the other framers "remembered the ladies" when they drafted the Constitution over 200 years ago, and the states might have failed to add an amendment to make up for this fact, but legal heroes like Justice Ginsberg found a way to give women's rights the constitutional protection they deserved.  

 

Sources: 1, 2, 3