Opening the door: Ruth Bader Ginsburg, law's boundaries, and the gender of opportunities.

Author:Resnik, Judith (American law professor)
Position::Symposium Honoring the Advocacy, Scholarship, and Jurisprudence of Justice Ruth Bader Ginsburg

A pervasive assumption is that nation-states have bounded legal regimes. Yet the burdens imposed on women in the name of gender and sexuality have not been circumscribed by jurisdictional lines. Rather, gender hierarchies have traveled--by way of Roman law, civil law, the common law, and religious systems--to impose constraints on women living under autocracies, republican democracies, and other political forms. The many laws supporting gender inequalities make plain that legal rules internal to a nation-state are often not indigenous to a particular polity but, instead, are regularly shaped by cross-border influences.

Similarly, efforts to interrupt inequalities know no jurisdictional bounds. In tension with the classical model of state-to-state international law production, human rights movements of this and of other eras result from diverse exchanges across jurisdictional hierarchies. Illustrative are the equality projects of earlier centuries--emancipation for slaves and equality for women of all colors--that spanned oceans through networks of local religious and secular societies communicating (before the internet) via the post, pamphleteering, and the press to demand legal reforms. (2) Indeed, one can understand women's groups as the original "NGOs"--organizations that were nongovernmental not by choice but by exclusion and yet remarkably generative.

During the twentieth century, efforts to interrupt gender hierarchies intensified. Major transnational markers include the United Nations' Universal Declaration of Human Rights (UDHR), which in 1948 recognized rights of "[e]veryone and without distinction of any kind such as race, color, sex, ... or other status." (3) A second landmark of that century is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which came into force in 1981. CEDAW aims to cabin the burdens of gender by insisting that state parties undertake "appropriate measures" ranging across "all fields" (including "the political, social, economic, and cultural") so as "to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men." (4) Now ratified by 187 countries, CEDAW has proven to be a prompt for legislation and court decisions in various jurisdictions, (5) as well as for critical commentary, including from members of the United States Senate, which has not ratified the treaty. A third transnational agreement that reflects a new appreciation for women's status is the 1998 Rome Statute, creating the International Criminal Court. This treaty is the first to recognize the impact of crimes against humanity on women and the need to have women participate not only because they are victims of such crimes but also because they should serve in decision making roles as prosecutors and judges. (6)

This stream of activities brings me, of course, to Justice Ginsburg. By border-crossing in law, we are following the route that Justice Ginsburg charted. Long before comparative law and international law were the familiar (and debated) topics that they have now become, Justice Ginsburg was exposing gender inequalities through a comparative and transnational lens. She understood that law was and is a source of gendered identities, and not only a result. Hence, she proffered examples of legal regimes whose alternative rules denaturalized the sex-gender classifications that American law had imposed.

As is familiar, in her brief filed in the United States Supreme Court in Reed v. Reed, (7) the 1970 case about the Idaho statutory preference for men over women as administrators of estates, then-lawyer Ginsburg drew on her knowledge of Sweden (8) (where she had lived and studied comparative procedure). In her brief, she mixed voluminous American sources (federal and state statutes, case law, legislative history, executive orders, and reams of statistics on women's participation in the labor market, household, juries, higher education, and law reviews) with John Stuart Mill, Simone de Beauvoir, Alexis de Tocqueville, Sojourner Truth, Swedish essays on the "Changing Roles of Men and Women," a report to the U.N. on "The Status of Women in Sweden," and the U.N. Charter. (9)

In addition, then-lawyer Ginsburg cited two German judgments. As her brief described, in the first, issued in 1959, the West German Federal Constitutional Court (which she noted was "a high court created with the model of the United States Supreme Court in close view") had invalidated a statute giving fathers a preference over mothers as children's representatives and declaring that when parents disagree, "the father decides." (10) In the other opinion, rendered in 1963 and dealing with a law according sons over daughters a preference in "agrarian inheritance law," the German Constitutional Court "relegat[ed] to the scrap heap of history" the legal distinction that "men were better equipped than women to manage property." (11)

In other words, when arguing law's obligation to reject such classifications as unconstitutional constraints on equality, Ginsburg's "brief"/essay eloquently crossed the boundaries of law, political theory, and the nation-state to track the practice and impact of sex stereotypes. Moreover, Ginsburg unabashedly identified the very court to whom she appealed for redress as a source of the harms. Ginsburg introduced her call that sex should be a suspect classification with a discussion of how the Supreme Court's decisions "contributed to the separate and unequal status of women." (12) She cited the Court's 1948 ruling upholding the exclusion of women from serving as waitresses in taverns as illustrative of "an antiquarian male attitude toward women," (13) just as Idaho's preference for male administrators exemplified the "device of law-mandated subordination of 'equally entitled' women to men, the dominant male society; exercising its political power, has secured women's place as the second sex." (14)

As Cary Franklin has detailed, (15) in bringing cases seeking equal opportunities for women and men to have the legal license to administer their children's estates (Reed v. Reed), to obtain tax deductions for care for their elderly parents (Moritz v. Commissioner of the IRS (16)), and to receive benefits once deemed only available for "mothers" (Weinberger v. Wiesenfeld (17)), Justice Ginsburg did not only aim to bend gendered assumptions about women's roles. Her male plaintiffs were gender-non-conventionalists, and her work sought to undermine the constraints imposed on all persons who were penalized for failing to conform to a social order's expectations.

Ginsburg's intervention was not to tell women and men what...

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