Sisters in Law (10 page)

This time even Ginsburg's friendly persuasion did not work. Good limousine liberals, the ACLU board members declined to apply their own quota standards to themselves. The histories rarely record that the Thurgood Marshall of the women's movement failed to convince her own institution to move affirmatively on gender. By 1974, women finally began to make a substantial appearance in the national and local ACLU boardrooms.

Faced with a battle she couldn't win, Ruth, typically, turned a deaf ear. Despite the ACLU's reluctance to serve as a role model for other institutions, the Women's Rights Project, designed to force gender change, worked beyond anyone's fondest dreams. Ruth Bader Ginsburg had a gift for partnerships, and her relationship
with the ACLU was no exception. They even had a honeymoon suite. Neier, a legendary fund-raiser, had spotted the offices of the bankrupt Johns Manville Company in midtown Manhattan and got the lease for a song. For perhaps the first time in history, the civil rights organization challenged the establishment from “wood paneled offices,” Neier remembers with glee. “Ruth was there more than she was at Columbia. After all, she lived on the Upper East Side. And it didn't hurt that the surroundings were so pleasant.”

Aware of Ginsburg's weaknesses as well as her strengths, Neier hired a second woman—the movement activist Brenda Feigen Fasteau, right off the masthead of the new
Ms.
magazine. The ACLU was the ideal location for Ginsburg's careful, incremental strategy. Most social-change law firms have to root around for plaintiffs, using their informal movement connections to identify the issues that are appropriate for litigation and hoping for appealing individuals and fact patterns. In its national network of chapters with a well-established reputation for litigating peoples' grievances, the ACLU had a built-in pipeline to every imaginable potential plaintiff. It didn't hurt that the chapters were part of the national women's initiative, and that the ACLU had charged its chapters with developing women's initiatives of their own. Feigen Fasteau was busy identifying a laundry list of areas for action: employment, credit, public aid to discriminating private institutions, education, training—and, what turned out to be a nonstarter for the project, reproductive control.

The trove of litigation possibilities turned up by the Women and the Law movement paled beside the population of aggrieved American women. Once the lens of gender equality was put on American law, complaints arrived with alarming speed. Letters, they got letters. “I have paid into Social Security for twenty-five years,” writes Mary Ferrari of Richmond, California, “and was denied Social Security Benefits for my husband.” Shelly Lutzker made scores of telephone calls for jobs after an airline laid her off for being pregnant, but the New York employment office did not believe her efforts were sincere. She was, after all, pregnant. Toni Strausbaugh, nine-year marine veteran and single mother of two,
wanted to enlist in the National Guard but was barred because of her dependent children. Air force second lieutenant Carol Pyles wanted her commission reinstated after being discharged for pregnancy. Debra Monsoor was trying to make it at a strip mine in Wyoming. She was paid less, harassed physically and verbally, and denied any chance at training or promotion.

Angry women who couldn't get promoted, couldn't find out the criteria for promotion, suspected unequal pay, couldn't see the collective bargaining agreement, were qualified but rejected—all wrote to the ACLU, which could not handle even a small percentage of the grievances that came pouring in. This posed a big problem for the orderly Professor Ginsburg, who wanted to follow Thurgood Marshall's example and bring the most obvious cases to the Supreme Court first, paving the way for the more radical issues to follow. Thus, discrimination between sexes for who could administer estates, case
Reed v. Reed
, came before cases with real social heft, challenging pregnancy discrimination or the male-only draft. Ginsburg had her capable hands full trying to ride herd on the “uppity women” who wanted to sue everyone and take their places in the ranks of the equal.

One problem she did not have to deal with (and therefore could not control) was the core feminist issue, abortion, which the Supreme Court ultimately would decide in
Roe v. Wade
in 1973. Indeed, Justice O'Connor, then state senate majority leader, had a much closer, and politically more perilous, relationship to this hot issue than Ginsburg, the feminist icon. In 1970, three years before
Roe v. Wade
, O'Connor had supported an unsuccessful bill to repeal the sweeping Arizona criminal prohibition against abortion. After
Roe
, which struck down all such laws, she resisted state efforts to pass a stricter law than the Court would allow and to petition Congress to stop the practice. Although O'Connor was hardly a champion of choice—she supported efforts to stop the state from funding abortions for poor women and supported laws allowing hospital workers to refuse to participate in them—Arizona abortion opponents still tried to stop her appointment to the Supreme Court when the time came.

The ACLU was legal counsel in one of the two companion cases that go by the name
Roe v. Wade
, but Ginsburg was protected from the abortion problem for a crass reason. Aryeh Neier was eager to tap into the resources of the Ford Foundation for the ACLU, and, he says, Ford, while explicitly open to appeals from the burgeoning feminist movement, would not fund anything related to abortion. Ginsburg's separation from the abortion issue was thus an accident of history but one with profound consequences. She might never have been confirmed to the Supreme Court had she been involved in the ACLU's extensive efforts to secure abortion rights for women. On the flip side, the abortion litigation, which was spun off to the nascent ACLU Reproductive Freedom Project, did not benefit from Ginsburg's theoretical grounding, discipline, and strategic bent.

Maddeningly, to Ginsburg, she came within a hairsbreadth of presenting the issue in the perfect case for female self-determination, deliciously, a case of forced abortion. In 1970, the air force sent Captain Susan Struck home from Vietnam, on the grounds that she was pregnant. Take a free government abortion, the air force offered, or we'll discharge you. Instead, Struck sued. Tossing her out of her government job because she had a baby instead of the proffered abortion violated the Constitution, she claimed. While litigating, Struck, a Catholic, had the baby and gave it up for adoption. In 1971, the Supreme Court agreed to hear her plea. Boy, did Ginsburg want to argue that one.

It is unimaginable that in 1972 the Supreme Court would have allowed the government to force an abortion on a woman as a condition of her keeping her job and military career. People have largely forgotten, but all the reproductive rights cases including
Roe
go back to a 1947 decision forbidding the government to sterilize criminals. Despite the abortion opponents' propaganda, the seminal reproductive rights decisions did not involve bead-wearing hippies wanting to have sex without consequences in the mud of Woodstock. It was the right to
have
a child that the Court protected first, in a time perilously close to the Nazi era of racial sterilizations. From that principle sprang the decisions that the
government could not force people to reproduce any more than it could forbid them from doing so.

Struck
had everything. In addition to proposing the forced abortion, the air force then punished Susan Struck for having had a baby at all, even though she was no longer responsible for it, treating pregnancy, which happens only to women, differently from any other disability. Men with drug and alcohol disabilities were treated better than women who got pregnant. And the government said it was for their own good! So the Struck case could have given birth to a sound, equality-based abortion decision and it also could have forestalled the risible later cases where the Court denied that pregnancy discrimination was a woman's issue.

But Ginsburg's nemesis from Harvard, the former “what are you women doing here” dean, Erwin Griswold, got in the way. By 1972, Griswold was serving as the chief government lawyer, the solicitor general of the United States. He thought the government was about to lose the
Struck
case, in the highest court in the land, weakening its ability to discriminate against pregnant women in other contexts. So he pressured the air force to repeal its policy and reinstate Captain Struck. Then he told the Supreme Court the case was moot; there was no dispute left. The Court dismissed Struck's case.

Within a few years the justices decided two cases in ways that were less favorable to women than Ginsburg hoped to have achieved. They decided
Roe v. Wade
, the abortion case, on sweeping privacy grounds instead of as an extension of the principle of women's equality. Resting on the fragile concept of “privacy,” the abortion decision was politically vulnerable to claims that the “private” decision was just an arbitrary “private” choice, rather than a path to women's equality under the law. In two other cases the year after
Roe v. Wade
, the Court allowed the government to exclude pregnancy from disability benefits to save the government money.

Other than abortion rights, for the rest of the decade and for years after Ginsburg left to go on the federal bench in 1981, the ACLU Women's Rights Project was the go-to place for women's legal rights. The 1970s—the Neier years—may have been the
high-water mark of the ACLU's social power. In the late stage of the Vietnam War, the Pentagon Papers and the Nixon impeachment catapulted issues of rights onto the front burner and kept them there. And Neier was by all accounts a gonzo fund-raiser. The ACLU got money from Ford, from Carnegie, and from Neier's personal piggy bank, the Playboy Foundation. The WRP had four full-time lawyers, social activists, staff, and a country full of volunteer cooperating attorneys.

By 1980 the ACLU women's initiative had gotten over a million dollars from the Ford Foundation alone. Susan Berresford, a program officer at Ford, was at the forefront of moving the foundation into its role as a funder of the feminist revolution. The ACLU brought its new “star” Ginsburg to meet the folks at Ford, and Berresford took an instant liking to her, because “she had a calm, clear, powerful argument . . . and she was compelling and smart and calm in a way that added to her certainty, she was so confident about it.” Berresford's boss at Ford, Michael Svirdoff, was a wise-cracking guy with a limited tolerance for what he called “sensitivity meetings.” The clear, calm Ginsburg was perfect for him.

Ginsburg's imperturbability was to be sorely tested when, in 1973, the Ford Foundation funded a meeting that Ginsburg convened along with Sylvia Roberts, the head lawyer from the National Organization for Women. Their agenda was to bring all the lawyers doing women's rights litigation around the country to a hotel conference room and try to set some priorities and divide the work. Ginsburg was always very concerned that the cases reach the Court in the order most likely to generate a growing structure of favorable decisions.

The conference is a textbook example of Ginsburg's finesse in managing the women's legal revolution. Everyone should agree, Ginsburg and Roberts decided in the early days of conference planning, that litigation would be their method and they wouldn't spend all their time at the conference reinventing the wheel. In her characteristically tidy way, Ginsburg suggested how the participants should think about the issue. Should they set priorities on issues? Should they present issues in a particular order? How
should they publicize, share, support their efforts? Buried right in the middle of the list was the thing she actually cared about: “Identification of cases ripe for Supreme Court adjudication and of cases in which Supreme Court resolution should not (yet) be sought.”

But the left is never tidy. When the answers to Ginsburg's questions came back, one of the participants, Mary Eastwood, suggested that the first night be devoted to the “legal philosophy of feminism” with a special emphasis on “factionalism in the women's rights movement.” Ginsburg, by contrast, had hoped that the time would be spent on “what they wish to come from our meeting.” But when the feminist lawyers arrived at the basement conference room of the Sheraton Russell Hotel, on the first night of the conference, April 26, they received a case study to discuss: “Daisy, Sheryl and Joan,” who “live in a lovely big house in the country with a dog and three cats” and wished to adopt some children, but “the county adoption agency turned them down because of a rumor (true) that Daisy and Sheryl were a Lesbian couple, and in any event, ‘three adults is not a family but a commune.'” Is lesbianism a feminist issue, Eastwood asked. And the movement lawyers were off to the races.

“Everything that concerns women is important,” Ginsburg's co-moderator Sylvia Roberts suggested. “Lesbianism allows greater freedom for alternative life-styles and thus helps women and men break out of sex roles,” the newly minted law professor Barbara Babcock added. “In New York,” the old movement hand Janice Goodman volunteered, “many women say lesbianism is the forefront of the movement.”

Ginsburg was a liberal, but she did not espouse the '60s mantra that no one is free until everyone is free. “Not all feminist issues should be litigated now,” she said, “because some are losers, given the current political climate, and could set back our efforts to develop favorable law. For example, it's the wrong time to challenge veterans' preferences.” As to litigating lesbianism, she innocently reminded the gathering, “A student note in a recent Yale Law Journal deals with the impact of the ERA on same-sex marriage. The note takes the position that a ban on them [same-sex marriages]
would be unconstitutional under ERA. That note is now being used by opponents of ERA to scare off supporters.” (The 1973 note writer was prescient; in 1993 the first court to legitimate same-sex marriage, in Hawaii, made its decision based on the Equal Rights Amendment to the state constitution.) Same-sex marriage did not concern Ginsburg at that moment. Until the day it stopped twitching, passing the Equal Rights Amendment was always her priority. Being Ginsburg, however, she put her argument in the mouths of others, in this case the Yale law student.