Reed v. Reed

I have tried to get into multiple books but having problems; still able to skim old favorites like Liberty and Sexuality and spend much too much time online.

[ETA: I was going to talk about New York v. Uplinger, involving sodomy, but my previous entry (along with the link to Carey) really covers most of the ground.]

Rereading a bit on Doe v. Bolton, there are additional facts that make me want to read more (a previous recent entry linked a paper that covered the ground some). For instance, the lead attorney worked with the lead attorney on the other side (who deserves more attention for her good advocacy) for a while.  Also, she isn't the only woman lawyer that worked on the case for the "Doe" side; in fact, one woman involved faced off with Dorothy Beasley (Georgia) in another case.  A man did the actual argument; DB has two other Oyez.com cases.  There is a story there about the small group of women lawyers involved.  "Doe" along with "Roe" later turned against abortion (the key here is choice); her lawyers also helped her with custody issues etc.

The above came to my notice again because I listened to the oral arguments in Reed v. Reed, the dispute over who among two divorced parents would administrate their son's will that turned out to be the first in a line of sex equality cases in the 1970s. The lead attorney in Doe went to the oral argument and the recognition of the wrongs of sex/gender equality, if in embryonic form (natch), was of some assistance here in the overall effort.  As we saw in the movie, RBG worked on a court of appeals tax case beforehand though the actual case was handed down afterwards.  She assisted with the brief here but did not herself take part in oral argument until Frontiero v. Richardson.

The oral argument on both sides was rather poor, the sex equality side starting off emphasizing that he was asking for something that never was done before and comparing it to Brown v. Bd. or something.  Not really a great strategy; you are supposed to send a message that your argument is  rather mundane, baby steps really.  He (even if his mother was the first female state senator, for a brief time in 1937  to replace her husband, in Iowa) didn't seem to be clear on how the law at issue worked. And, near the end of his presentation, was offered a range of hypos (covering the ground of a range of cases to come) that his strict scrutiny approach basically teed up.  He didn't need to reach out so far.  Not that the other side did  better but he at least had precedent on his side.

The ultimate decision was thin but so was the state opinion though at least it referenced a bunch of other cases where women were also treated differently than men.  Without specifically justifying the provision at issue -- giving male relatives preferences over female [brother/sister; husband/wife] in the case of apparent ties -- such case citations at least suggest the idea is that men already were advantaged in monetary matters. The Supreme Court didn't even do that and there were a few cases involving women raising equal protection concerns over the years to cite.

[I could not find it, but the Iowa state district court did strike down the practice on both state and federal constitutional grounds.  The California courts were also starting to be sex equality friendly. Later, an intermediate Texas court struck down the sodomy ban in Lawrence v. Texas.] 

Chief Justice Burger (for a unanimous Court; then only seven members) cited an old case concerning a corporation that sold fertilizer for this principle: a regulation "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike."  Logical enough.  And, there were a range of cases by this point to determine that the Equal Protection Clause (or due process in the case of the federal government) did not just apply to race.  But, how was that rule violated here?

To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.

Why though? The time old practice here was to favor men over women because men were seen as the ones who would be skilled at such things. Yes, that is a sexist notion, but you should do the work to show why. And, it made sense for four justices in Frontiero v. Richardson to argue that implicitly sex was being treated as something warranting more than rational basis scrutiny.  Since, again, you can say that men on average might be better skilled here, if we are merely going by a tie breaker scenario.  If sex discrimination warrants more, say so.  The other justices weren't willing to say that. Eventually, a majority agreed in Craig v. Boren that sex deserved an "intermediate" level of scrutiny.

Again, there were a range of cases over years, such as Bradwell v. Illinois in the 1870s, which denied women the privilege to serve as lawyers. Only three justices dealt with the sex discrimination matter directly, the others holding such a "state privilege" was at the discretion of the state. Later on, protectionist legislation was upheld, except in one case involving the minimum wage shortly after the Nineteenth Amendment. A sex equality theme was expressed in the majority opinion though many liberals rather not cite a case that struck down a minimum wage law.  Once found a more obscure case where one justice c. 1910 wrote a dissent saying women were being discriminated against; can't recall it.

[The fact that in the depths of my mind this case sticks around and the year "1912" fit in provides a window into my life.  Doing a Google search, I quickly found the case.  Justice Lamar (who? yes) at one point noted: "A discrimination founded on the personal attributes of those engaged in the same occupation, and not on the value or the amount of the business, is arbitrary."  The case in question was a tax provision that benefited women. One wonders how a consistent application of the quoted rule would have worked then since as the majority noted various laws so differentiated.]

Goesaert v. Cleary [1948] is another case that did come up in oral argument here but was not covered in the thin final opinion. The Supreme Court there split 6-3 and upheld a law limiting the right of women to obtain a license to serve liquor as "not without a basis in reason."  To wit:

Michigan system for controlling the sale of liquor, bartenders are required to be licensed in all cities having a population of 50,000 or more, but no female may be so licensed unless she be "the wife or daughter of the male owner" of a licensed liquor establishment.

Women bartending would reasonably be held to involve "moral and social problems" to warrant such a law, the male oversight provision also justifying still allowing women waitresses in such establishments.  The dissent (Rutledge, Murphy and Douglas) saw this as invidious discrimination but the dissent did not go into much detail. Basically:

The statute arbitrarily discriminates between male and female owners of liquor establishments. A male owner, although he himself is always absent from his bar, may employ his wife and daughter as barmaids. A female owner may neither work as a barmaid herself nor employ her daughter in that position, even if a man is always present in the establishment to keep order. This inevitable result of the classification belies the assumption that the statute was motivated by a legislative solicitude for the moral and physical well-being of women who, but for the law, would be employed as barmaids. Since there could be no other conceivable justification for such discrimination against women owners of liquor establishments, the statute should be held invalid as a denial of equal protection.

This might be a matter of different tests -- a rational basis test can be upheld even if it is not a perfect fit. The fact men won't always be around, for instance, only is a problem up to a point if we play a game of averages. However, if it is an "invidious" discrimination, the fact there is something of a rational fit might not be enough.  OTOH, the dissent is fairly conclusionary, showing that there is a middle between too short and too long.

As late as the early 1960s, in Hoyt v. Florida (three justices briefly concurred), a law that allowed women to voluntarily opt-in for jury duty was upheld because even with "their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life."  Again, applying old cases, a rational basis test might determine that the tie goes to the man when dealing with financial issues like the administration of an estate.  A somewhat stricter test of reasonableness here might find an absolute rule unreasonable, but the range of limits on women historically here made it understandable.

Back in that minimum wage case in 1923, the majority said a tad prematurely:

But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller Case (p. 421) has continued "with diminishing intensity." In view of the great — not to say revolutionary — changes which have taken place since that utterance, in the contractual, political and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point.

All the same, by 1971, things had developed that -- even if the opinion did not show its work -- that mere administrative convenience (skipping a hearing to show who is best fitted) or avoiding familial disharmony was not cause enough to favor men over women here.  The basic principles of due process and equal protection need to be applied with up to date facts.

(Somewhat related.  I recently filled out my census online, after getting a notice in the mail with the proper code.  The census asked my sex -- male or female -- which warrants more than two choices.  LBGT friendly please!)