Opinion: Created equal, protected equally

Today marks the 40th anniversary of the U.S. Supreme Court's decision in Reed v. Reed. That's when, for the first time, our nation's highest court said that a law that discriminated against women was unconstitutional -- that it violated the Fourteenth Amendment's guarantee of "equal protection of the laws."

The equal protection clause of the Fourteenth Amendment to the U.S. Constitution says, "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." Those words were added as a result of the Civil War, when the issue was the rights of former slaves. But they remained just words on a page until the people and the courts insisted they be given meaning.

On Nov. 22, 1971, in the Reed case, the Court struck down an Idaho statute that said "males must be preferred to females" as administrators of estates. Sally Reed and her estranged husband, Cecil, both sought to be the administrator of their deceased son's estate. Because of the statute, Cecil was appointed administrator. Sally sued and challenged the constitutionality of the statute's mandatory preference for men.

Working for Sally Reed was a young law professor affiliated with the American Civil Liberties Union, now-Supreme Court Justice Ruth Bader Ginsburg. The Supreme Court (at the time still an all-male institution) agreed with Ginsburg and Sally Reed, and held unanimously that to "give a mandatory preference to members of either sex over members of the other . . . is . . . forbidden by the Equal Protection clause of the Fourteenth Amendment." The decision, quite simply, changed the United States.

The constitutional requirement that women and men be treated equally led to later court decisions saying that women could not be excluded from juries or from formerly all-male schools, and that women and men could not be treated differently when applying for survivor benefits or alimony. Finally, more than a century after the Fourteenth Amendment was adopted, the right of women to equal protection was judicially recognized, and the courthouse doors were opened to women whose rights were violated.

How big a change this was can be seen by comparing Reed with the court's prior decision in Bradwell v. Illinois. In 1872, Myra Bradwell complained to the U.S. Supreme Court that the state of Illinois violated her rights under the Fourteenth Amendment when it refused, solely because of her sex, to grant her a license to practice law. In an 8-1 decision, the Court held that Illinois could forbid women from becoming lawyers without violating the Constitution.

To add insult to constitutional injury, a concurring opinion joined by three of the Bradwell justices stated: "The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and function of womanhood."

Clearly, those justices didn't think that a woman's place was in the courthouse, and a little thing like a constitutional amendment wasn't going to change their minds.

Just as clearly, our judiciary made great strides in the 100 years between Bradwell and Reed. But we cannot rest assured that the court will uphold women's constitutional rights. In an interview published just last January, Supreme Court Justice Antonin Scalia stated, "Certainly the Constitution does not require discrimination based on sex. The only question is whether it prohibits it. It doesn't."

So on the 40th anniversary of Reed v. Reed, we urge our Supreme Court to uphold the principle it declared on that day -- and we urge the American people to hold all three branches of our government accountable for upholding that principle of the Constitution: that no person shall be denied equal protection of the laws.