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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, December 29, 2015

Reed v. Reed

Philosophically it can be argued with some degree of logic that the provisions of I.C. § 15-314 do discriminate against women on the basis of sex. However nature itself has established the distinction and this statute is not designed to discriminate, but is only designed to alleviate the problem of holding hearings by the court to determine eligibility to administer. This is one of those areas where a choice must be made, and the legislature by enacting I.C. § 15-314 made the determination.
Reed v. Reed (1971) began the path in which sex/gender was deemed a "suspect" (if somewhat less so than race) classification. by the U.S. Supreme Court.  Ruth Bader Ginsburg was involved in this case and it was one of many times when the principle stood out (it was a small estate but the mother of the child -- who committed suicide -- had an obvious emotional involvement, especially given an earlier divorce made favoring the father that much more complicated). Equality has big and small applications as seen in the Notorious RBG book with citations of her work including the type of caps postal workers were allowed to use. 

The lower court opinion as well as the argument by the state here showed the assumptions involved -- it was in effect obviously assumed acceptable to favor men in certain cases, here in administration of estates. The Supreme Court simply -- the opinion was rather thin for the can of worms clearly being opened here (the possible reach was seen by various hypos raised near the end of the first half of oral argument, hypos later subject to various later cases) -- noted that "[r]egardless of their sex, persons within any one of the enumerated classes of that section are similarly situated with respect to that objective." 

At times, reference is made at how brief the opinion was, but it seems to receive less criticism than Roe v. Wade in respect to alleged ipse dixit. Anyway, it goes to show what happens when previously assumed things no longer hold up to scrutiny -- basic principles of equal protection required some decent reason be offered to classify among persons. The general assumption here is that women in general are less able to administer estates given men's abilities.  There would be exceptions, such as women with more education, but classifications need not be exact.  The fact that this was merely a tiebreaker probably is a step up from various cases where men only were allowed to be involved (e.g., serving liquor in various cases). And, in time, the "decent reason" had to be done with a certain amount of finesse, especially when certain types of personal classifications were made.

We can compare this with a case from the 1950s out of Oregon, cited by the lower court here, involving "participating in wrestling competition and exhibition" that had this passage:
Obviously it intended that there should be at least one island on the sea of life reserved for man that would be impregnable to the assault of woman. It had watched her emerge from long tresses and demure ways to bobbed hair and almost complete sophistication; from a creature needing and depending upon the protection and chivalry of man to one asserting complete independence. She had already invaded practically every activity formerly considered suitable and appropriate for men only. In the field of sports she had taken up, among other games, baseball, basketball, golf, bowling, hockey, long distance swimming, and racing, in all of which she had become more or less proficient, and in some had excelled. In the business and industrial fields as an employee or as an executive, in the professions, in politics, as well as in almost every other line of human endeavor, she had matched her wits and prowess with those of mere man, and, we are frank to concede, in many instances had outdone him. In these circumstances, is it any wonder that the legislative assembly took advantage of the police power of the state in its decision to halt this ever-increasing feminine encroachment upon what for ages had been considered strictly as manly arts and privileges? Was the Act an unjust and unconstitutional discrimination against woman? Have her civil or political rights been unconstitutionally denied her? Under the circumstances, we think not.
A tad long, but such things really deserve to be read. Reed v. Reed provided a fairly blatant case, where a simple administrative hearing could be held, one which would probably in most cases determine one person is better qualified without such a blatantly arbitrary qualifier.  It would take a few years to determine that sometimes sex/gender could be acceptable as a classification at some point such as statutory rape, military service and proof of parenthood.  In each case, there was a dissent, but change usually happens first by dealing with blatant cases and not going all the way.  The hard cases, as here, might even be mostly avoided since we are dealing with a pretty easy case. 

But, as here, that might be significant; eventually, the principle applied to sexual orientation and now gender identity is developing as the next frontier.  And, at some point, there is a likely need to address the details. For instance, it is somewhat striking that after Bowers v. Hardwick in one direction deemed it "facetious" to bring same sex couples within the privacy cases ambit, Lawrence v. Texas went the other way with a similar degree of assumed obviousness.  Laws against homosexuals were invalid morals regulation as applied; the mindset behind such laws -- which include sex/gender stereotyping, was left to others. 

The changing societal and legal mindset involved was cited by the opinion and is a basic theme in Justice Kennedy's jurisprudence -- constitutional principles' contours develop over time as our knowledge and experiences changes. This clearly motivated Reed v. Reed too as the woman's movement was in full bloom and various state and federal legislation addressing sex/gender discrimination. Such things, implicitly and explicitly, affects the judgment of courts and provides a sort of democratic gloss to their activities.  Not just in this context.

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