Taking Inequality to Court

Friday, 01 May 2009 07:45 By Maya Schenwar, Truthout | name.

Taking Inequality to Court

    Equal: Women Reshape American Law
    Fred Strebeigh
    W. W. Norton & Co., 2009

"The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage." -Associate Justice Raymond E. Peters, California Supreme Court, Sail'er Inn v. Kirby

    In May 1972, while driving home, California secretary Sally Armendariz's car was rear-ended by another car. Armendariz had never taken a sick day in her ten years on the job, and was proud of her record. She went right back to work the day after her accident. However, after a few hours, she began to feel sick, and her doctor advised her to go home. Armendariz was four months pregnant with her second child - no sense in taking chances. That night, she began to feel labor pains. She and her husband were rushed to the hospital. Come morning, Armendariz had miscarried.

    Experiencing severe pain in the weeks after her accident and miscarriage, Armendariz attempted to sign up for California's State Disability Insurance, intended to support temporarily disabled workers. Yet, the state found a catch: Its insurance would not pay for any disability "arising in connection with pregnancy." Armendariz decided to challenge the decision.

    A year earlier, the California Department of Alcoholic Beverage Control had revoked the liquor license of a bar called Sail'er Inn, for breaking a law banning women from working as bartenders. Sail'er Inn was a topless bar; the managers had attempted to promote women from topless waitress to topless bartender status. The bar's owners fought the revocation.

    What do these two cases have in common? What does the right to receive disability have to do with the right to hire women to serve beer topless? Both cases call into question differential treatment for women, and both proved pivotal in reconceptualizing the way law and gender intersect in America. In fact, the Sail'er Inn conclusion allowed for "strict scrutiny" of cases involving sex discrimination, changing the course of women's rights cases for years to come.

    In the masterful "Equal: Women Reshape American Law," author Fred Strebeigh strings together dozens of such cases, and the lives of those who fought for them. Following these stories and revealing their intersections, Strebeigh traces the roots of a legal revolution that has integrally transformed courtrooms, classrooms and our national mindset over the past four decades.

    The route to equality through the courts is a rocky path, rife with crags and roadblocks. Strebeigh confronts a central question early on: In a system based strictly on the Constitution and legal precedent, how do we work against gender discrimination, when so much of past law - not to mention much of the history of humanity - is steeped in sexism?

    One critical step toward that goal, according to Strebeigh: Get some women in the courtroom. Well into the 1960s, women made up only 5 percent of American law students. The tiny number of working women lawyers were often relegated to sectors deemed appropriate for their gender, such as trusts and estates. When Supreme Court Justice Ruth Bader Ginsburg entered Harvard Law School in 1956 - just six years after women were first allowed to apply - her class was composed of nine women and 500 men. The school's dean gathered the female students at the beginning of the year and demanded to know why they had come to law school.

    However, in the late 1960s, male law students lost their deferments from Vietnam, and law schools began to edge their gates open. The women who made their way inside increasingly challenged the practices that ghettoized them within the profession. Why couldn't women teach law? Become partners in a law firm? Become litigators? Work as judges - even preside over the Supreme Court? The weak explanations they received mirrored the explanations offered for legally sanctioned gender discrimination in the larger world: Women were naturally more suited to motherhood than to a heavy work schedule, other lawyers (and their wives) would find it unseemly to work beside a woman, pregnancy or menstrual cycles might interfere with the job. Some applicants were even grilled about their methods of birth control. Strebeigh writes of one late-'60s law firm applicant who was told, "You won't have anyone to eat lunch with - the only other women we have are secretaries."

    Whether or not they'd signed up for a feminist education - and, Strebeigh notes, many of those who emerged as the most prominent feminists had not - women entering law school in the 1960s and 1970s were often treated to a firsthand crash course in gender discrimination. Up until now, men had not only established law school policy and taught classes that defined gender barriers within the academy; they had also argued the cases and made the decisions that legally solidified gender barriers outside of it. With their feet firmly in the door, the new women lawyers took on both fronts. Pioneering professors, like Ruth Bader Ginsburg at Rutgers, initiated courses on women and the law - a subject not previously taught. Enterprising students, such as those in NYU's Women's Rights Committee, fought to be eligible for law scholarships. (Washington, DC, Congresswoman Eleanor Holmes Norton was turned down for a prestigious NYU Law scholarship in 1959 because, according to the letter, it was reserved for "future public leaders," and thus, for men.) And, as the 1970s rolled forward and more women lawyers graduated, they took discriminatory law firms to court. In 1983, the Supreme Court ruled that law firms could not use discriminatory criteria when deciding which lawyers to promote to partner status.

    As they fought for their own right to practice law, these new women lawyers merged their personal struggle with broader concerns about women's equality. They brought subjects to light that had never been addressed seriously in court. Pregnancy discrimination, sexual harassment and violence against women all came to the fore. Strebeigh devotes a section of the book to each of these, drawing out the most influential court cases. He distills the underlying questions that resurface in case after case, triggered by entrenched stereotypes yet cloaked as new conundrums. One recurring dilemma emerges: how to prove that discrimination is in fact based on gender? Even in the most seemingly obvious cases, a resistant court or a tricky attorney can obscure the issue beyond hope. For example, in the notorious Geduldig v. Aiello, the Supreme Court ruled that the Constitution permits discrimination against "pregnant persons" (disregarding, of course, all gender-based considerations). And in what Strebeigh deems the first federal decision on sexual harassment, a federal judge reasoned that an EPA administrative assistant was discriminated against (i.e., harassed) based on the fact that she was pretty and nonconsenting, not because she was female.

    Strebeigh makes no pretense of providing neat resolutions. The difficulty of proving gender-based discrimination continued into the 1990s' battles over the Violence Against Women Act, and it persists today. Likewise, the author chronicles the persistence of a pesky clash of mindsets that has a history of pushing itself to the forefront of civil rights struggles: the "separate but equal" debate. When it came to women's rights, "separate but equal" laws tended to justify themselves by referring to "natural" arguments, including religious memes and antiquated doctrines. (Marital rape exemptions, in use through the early 1980s, were partially based in the thinking of the 18th-century English jurist Lord Matthew Hale, who declared marriage to be a "contract" in which the wife "hath given up herself.") Women were refused certain jobs to shield them from danger or indecency, and forced out of work while pregnant or after being pregnant to protect their health. In an early 1970s case argued by Ruth Bader Ginsburg, the husband of a working woman who died in childbirth was not eligible for her Social Security benefits to care for his family - her work was devalued even after death, Strebeigh notes. Ginsburg wrote in a brief that the case presented "a classic example of the double-edged discrimination characteristic of laws that chivalrous gentlemen, sitting in chambers, misconceive as a favor to the ladies."

    Again, the death-knell question arises: Within a court system based on centuries-old principles and codified rulings, can a new legal framework, based on revised social understandings, grow into being? Strebeigh notes that many judges leaned toward "no." Supreme Court Justice Felix Frankfurter (who later denied Ginsburg a clerkship based on her gender) ascertained in a 1948 civil rights case that "the Constitution does not require legislatures to reflect sociological insight, or shifting social standards." Yet the lawyers that Strebeigh chronicles came up with a triumphant answer: Law can change fundamentally because it has. Working creatively, often pulling in seemingly unrelated cases and obscure rulings, the movement's advocates used civil rights laws originally constructed to deal with race to argue against sex discrimination. They linked the injustice perpetrated against women to the oppression of African-Americans, beginning with colonial times. (Ginsburg 's early law students cited Dolly Madison's observation that, in the early United States, the woman was viewed as the "chief slave of the harem.") They showed that discrimination law had evolved to the point that, according to MacKinnon, "courts have been brought to see that many practices are unquestionably racist, practices which they allow to persist in their sexist forms." They then set out to use civil rights legislation - already in place to combat racism - to defend against sexism. Such efforts had a hand in producing the 1994 Violence Against Women Act (VAWA), whose civil rights provision, intended to protect against attacks based on a person's sex, takes after the Civil Rights Act of 1871, which does the same for race.

    Strebeigh tracks the battle over VAWA at ground level, guiding the reader through arduously drafted briefs, long-lingering court decisions and desperate midnight meetings. He follows close on the heels of his cast of lawyers as they swerve to avoid sexist precedents, struggle to prove that gender-based violence really is a form of discrimination and toil against the oft-asserted notion that VAWA would "flood the courts" with trivial domestic scuffles. Well into the second half of "Equal," the reader may begin to experience the aching frustration that VAWA's advocates - including its sponsor, then-Sen. Joe Biden - must have felt years into the struggle. At several points, an involuntary "Why don't they get it?" escaped from my lips as I read, no doubt spreading some of the 1970s feminists' aggravation to the occupants of the cafe where I sat with my book.

    Contrary to reader expectations (or, at least, the expectations of this reader), the frustration does not quietly abate as the end of the book nears. Its last chapter describes a legal challenge to VAWA's civil rights section, resulting in one of the book's most wrenching court battles. "Equal" is no linear voyage toward equality for all. The path is carved with endless zigzags - cases won and lost, mixed verdicts and an ending which leaves one scrambling for a next page that isn't there yet. Though the book offers many triumphs, there is no "happily ever after."

    However, the lack of a neatly wrapped-up resolution should not prevent readers from plunging in. Not only is this book an indispensable history lesson, it's also a fascinating read. With its mountains of impeccable research and intimidating 582 pages, "Equal" could easily have emerged as an insufferable collection of documents and verdicts. Instead, Strebeigh brings his characters to life, deftly weaving the personal stories of lawyers and plaintiffs. We learn about Ruth Bader Ginsburg 's journey through law school in the late 1950s, Sandra Day O'Conner's early dating life (she and William Rehnquist were an item in law school) and Catherine MacKinnon's complex relationship with Marxism - and with her conservative judge father. We also endure the painful narratives of the survivors who initiate the book's lawsuits: a bank employee whose supervisor forces her into the vault to be raped, a lab worker who was forced to leave her job due to physical side effects caused by eight years of intense sexual harassment by her boss, a college freshmen gang-raped in her dormitory. Often, these women must suffer through years of legal squabbling, and sometimes, the long, dark tunnel ends in a glaringly disappointing verdict.

    "Equal" brings to light perhaps the most obstructive force in the fight for women's rights and liberation: the predicament of not being taken seriously. The book depicts the institutionalized stereotypes of vengeful wives bringing rape cases and vindictive female employees suing for sexual harassment, showcasing the overwhelming tendency of courts to "disbelieve women." During one sexual harassment case, the referee asks the plaintiff whether her boss was simply a "pain in the neck." When she responds emphasizing the situation's severity, the referee rejoins, "Oh, so he's one of these Male Chauvinist Pigs?" The dismissive vibe makes its way all the way up to the Supreme Court: In attacking VAWA, Justice Rehnquist asserts that the federal courts should be reserved for "important national interests." Strebeigh wonders "why the issue of violence against women was not important and not national."

    Yet, as much as "Equal" conveys the gravity of the struggle, it also emphasizes the magnitude of the past half-century's progress. As we watch the court victories rack up and the sexist assumptions being slowly, slowly amputated from the body of American law, we develop a new appreciation for the rights we might previously have taken for granted. Nowadays, 47 percent of law students are women. New laws allow recourse for pregnancy discrimination, job discrimination, sexual harassment and rape. It is no longer acceptable to justify discrimination in terms of divinely determined gender roles - at least not in the courtroom. And the law firm applicant of the '60s who was denied work based on her birth control method could now choose to sue in a heartbeat.

    Strebeigh does not claim to have written a completed history. In fact, his closing chapters serve as an ardent reminder that the movement is not over. He calls on readers to "vote for equality," urging a new consciousness in which women's issues are treated - contrary to Rehnquist's protestations - as "important national interests." "Equal" does a great service for this cause. In bringing to life the day-to-day realities of the women's rights struggle, the book reminds us that its days continue, that the zigzagging path has yet to reach its end, if such an end can be imagined.

    Hope lies in the second half of the book's title: "Women Reshape American Law." As Strebeigh conveys it, American law is pliable. It is not simply a series of echoes of 18th-century precedent. American law has the potential to be interactive, subject to imagination and innovation, susceptible to new voices and old suffering. In his last chapter, Strebeigh quotes a dissent by Ruth Bader Ginsburg in a 2007 abortion case, in which she charged Justice Kennedy with supporting "ancient notions" of how women should be viewed under the Constitution. Bolstered by the examples set forth in "Equal," we can move forward in this young century with the knowledge that "ancient notions" need not prevail.

Last modified on Friday, 01 May 2009 08:35