Justice Ginsburg Remembered: A Champion for Equal Protection
Today is the first time in American history a woman lies in repose in the United States Capitol. Surely there were many “firsts” for Supreme Court Justice Ruth Bader Ginsburg (“RBG”) in her lifetime, including the first female attorney to argue at the U.S. Supreme Court.
RBG was an accomplished attorney, professor, U.S. Circuit Court of Appeals Judge, and Supreme Court Justice. However, despite graduating 1st in her law school class at Columbia Law School, she was denied a clerkship with the U.S. Supreme Court due to her gender. In 1959, when RBG graduated from law school there were of course no women on the U.S. Supreme Court and, in fact, historically, women were not permitted to attend law school or practice law. As a professor at Rutgers Law School, RBG was told she would be paid less (intentionally) than men solely due to her gender.
(In 1872, Myra Bradwell, was denied admittance by the Illinois State Supreme Court, appealed to the U.S. Supreme Court claiming her rights under the Equal Protection Clause of the Fourteenth Amendment had been violated. The court ruled against her. Women remained less than 5 percent of the enrollment at ABA-approved law schools until the 1970s.[1])
Symbolic of the time, the Harvard Law Record in December 1963, published “Women Unwanted.” The article described a survey of law firms which asked, on a scale from minus 10 to plus 10, what characteristics were most desirable in applicants for law firm jobs; being a woman was rated at minus 4.9, lower than being in the lower half of the class or being African American. The reasons firms supplied for negative ratings included: “women can’t keep up the pace”; “bad relationship with the courts”; “responsibility is in the home”; and “afraid of emotional outbursts.”[2]
RBG served on the Supreme Court for 27 years and kept pace. RBG was a champion for women’s rights but really, she was a champion for equal rights, and argued several cases as an attorney on the constitutional premise of Equal Protection, and argued six cases before the U.S. Supreme Court[3].
Equal Protection means a governmental body may not deny people equal protection of its governing laws. The governing body of States must treat an individual in the same manner as others in similar conditions and circumstances. The Fifth Amendment to the U.S. Constitution requires Due Process and requires the U.S. government to practice equal protection. The Fourteenth Amendment (Equal Protection) requires states to practice equal protection. This requires state government and local government to govern and create laws that are impartial. No distinction should be drawn between people solely on differences such as race, gender, religion, culture, age; equal protection is crucial to civil rights.
According to the Fourteenth Amendment to the U.S. Constitution, a person who is a resident of a state has the right to “equal protection under the laws” and all of the privileges and immunities of the laws of the government, and may not be discriminated against because of gender, religion, ethnicity, or racial background. U.S. CONST. AMEND. 14. These rights are also protected under the Texas Constitution, which provides that “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” TEX. CONST. ART. I § 19.
One of the earliest Texas cases that went to the U.S. Supreme Court regarding equal protection of the law is Hernandez v. Texas, 347 U.S. 475 (1954). The Court ruled the protection of the 14th Amendment covers any national or ethnic groups of the United States for which discrimination could be proved. Hernandez, a criminal defendant, was denied equal protection by being tried by a jury where all persons of his race or ethnicity had been intentionally excluded. The U.S. Supreme Court decided in a unanimous decision that no person of Mexican ancestry had served on a jury in 25 years and Mexican Americans were entitled to equal protection under the Fourteenth Amendment.
Back to the here and now, in representing Texas cities an equal protection analysis is ever present when considering employment issues, policy issues or municipal enforcement or regulation. For example, any city ordinance that differentiates based on resident status must, to be valid, address a legitimate or important government interest.[4]
Oh and I haven’t had any complaints in the thirty years I have practiced law that I “can’t keep up the pace.” Thanks for that RBG.
[1] Susan Ehrlich Martin & Nancy Jurik, Doing Justice, Doing Gender: Women in Legal and Criminal Justice Occupations (2007).
[2] Judith Richards Hope, Pinstripes & Pearls: The Women of the Harvard Law School Class of ’64 Who Forged An Old-Girl Network and Paved the Way for Future Generations (2003)
[3] https://libguides.wlu.edu/c.php?g=601727&p=4166850; The Library at Washington & Lee University School of Law
[4] TEX. CONST. ART. I, § 19; Whitworth v. Bynum, 699 S.W.2d 194, 197 (Tex. 1985); U.S. CONST. AMEND. 5; U.S. CONST. AMEND. 14; Plyler v. Doe, 457 U.S. 202, 216 (1982).
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