1971 November 22

Breakthrough: Women Covered by Equal Protection Clause of the 14th Amendment


In Reed v. Reed, decided on this day, the Supreme Court for the first time held that the Equal Protection Clause of the Fourteenth Amendment prohibited differential treatment based on sex. Sally and Cecil Reed, who were married but separated, were in dispute over who controlled the estate of their deceased son. Utah state law gave preference to husbands in such situations, and Cecil was appointed administrator of the estate. The Supreme Court ruled that under the Fourteenth Amendment this was an unconstitutional distinction based on sex. The decision was a historic breakthrough for constitutional protection of women’s rights.

The brief for Sally Reed was written by Ruth Bader Ginsburg (August 10, 1993) for the ACLU Women’s Rights Project. She added the names of Pauli Murray (see July 1, 1985) and Dorothy Kenyon (see February 12, 1972) to the brief, in recognition of their earlier pioneering work on behalf of women’s rights. (Kenyon has the distinction of being the first person actually named by Senator Joe McCarthy as an alleged Communist in the U.S. government on March 8, 1950.) Pauli Murray is widely credited with being the first person to argue that women were covered by the Equal Protection Clause of the Fourteenth Amendment, which she did so in a paper commissioned by President Kennedy’s Commission on the Status of Women. The Commission issued its report on October 11, 1963.

The Court: “To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment. . . .”

Don’t miss: Linda Hirshman, Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World (2015)

Learn more at the ACLU Tribute to Ginsburg, Murray and Kenyon: https://www.aclu.org/womens-rights/tribute-legacy-ruth-bader-ginsburg-and-wrp-staff

Read: Gail Collins, When Everything Changed: The Amazing Journey of American Women from 1960 to the Present (2009)

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