WRP gratefully acknowledges the work of intern Sandra

Pullman in researching and drafting this Tribute.

I. THE PIONEER

In the words of Ruth Bader Ginsburg, SupremeCourt Justice and founder of the Women’s RightsProject at the ACLU, “Women’s rights are an essen-tial part of the overall human rights agenda, trainedon the equal dignity and ability to live in freedom allpeople should enjoy.”

Ginsburg has been a pioneer for gender equalitythroughout her distinguished career. While singu-lar in her achievements, she was far from alone inher pursuits and received much support from tal-ented, dedicated women all along the way. CeliaBader provided a strong role model for her daugh-ter at an early age. Ginsburg recalls, “My mothertold me two things constantly. One was to be a lady,and the other was to be independent. The study oflaw was unusual for women of my generation. Formost girls growing up in the ‘40s, the most impor-tant degree was not your B.A., but your M.R.S.”

Ginsburg attended law school, not originally forwomen’s rights work, but “for personal, selfishreasons. I thought I could do a lawyer’s job betterthan any other. I have no talent in the arts, but I dowrite fairly well and analyze problems clearly.”1

Although she arrived without a civil rights agenda,the treatment Ginsburg received as a woman in lawschool honed her feminist instincts. One of only ninewomen at Harvard Law School in 1956, Ginsburg andher female classmates were asked by the dean why

< Ruth Bader Ginsburg in the 1970s.

3

TRIBUTE:

The Legacy of Ruth Bader Ginsburg and WRP Staff

2

they were occupying seats that would other-wise be filled by men. Despite her discom-fort, self-doubt, and misgivings, Ginsburgproved to be a stellar student, making lawreview at Harvard in 1957, and then again atColumbia Law School, where she finishedher studies in order to keep the familytogether when her husband graduated fromHarvard and accepted a job in New York.(Her daughter was born 14 months beforeGinsburg entered law school.) This majoraccomplishment at two top schools wasunprecedented by any student, male orfemale. Upon graduating from Columbia in1959, Ginsburg tied for first in her class. Still,when she was recommended for a clerkshipwith Supreme Court Justice Felix Frank-furter by Albert Sachs, a professor at Har-vard Law School, Frankfurter respondedthat he wasn’t ready to hire a woman andasked Sachs to recommend a man.

Ginsburg had worked for a top law firmin New York during the summer of hersecond year in law school. “I thought I haddone a terrific job, and I expected them tooffer me a job on graduation,” sherecalled.2 Despite her performance, therewas no job offer. Nor was there an offerfrom any of the twelve firms with which sheinterviewed; only two gave her a follow-upinterview.

In the end, Ginsburg was hired to clerkfor Judge Edmund L. Palmieri of the U.S.District Court for the Southern District ofNew York from 1959 to 1961. She receivedoffers from law firms after that job, but shechose to work on Columbia Law School’sInternational Procedure Project instead,co-authoring a book on Sweden’s legalsystem and translating Sweden’s JudicialCode into English.

Continuing in academia, Ginsburg joinedthe faculty of Rutgers Law School in 1963,but her status as a woman still put her at adisadvantage. When she discovered thather salary was lower than that of her malecolleagues, she joined an equal pay cam-paign with other women teaching at theuniversity, which resulted in substantialincreases for all the complainants.

Prompted by her own experiences,

Ginsburg began to handle sex discrimina-tion complaints referred to her by the NewJersey affiliate of the American Civil Liber-ties Union. Ginsburg envisioned that menand women would “create new traditionsby their actions, if artificial barriers areremoved, and avenues of opportunity heldopen to them.”3 The ACLU Women’s RightsProject was born in 1972 under Ginsburg’sleadership, in order to remove these barri-ers and open these opportunities. Thatsame year, Ginsburg became the firstwoman to be granted tenure at ColumbiaLaw School.

II. THE TRAILBLAZERS

Ginsburg’s experiences with sex discrimi-nation inspired her to lead the ACLU’scampaign for gender equality, but she wasnot the first person to see the need for theACLU to dedicate its efforts to women’srights. Pauli Murray and Dorothy Kenyon,longtime members of the Board of Direc-tors beginning in 1930 and 1965, respec-tively, had worked to put gender equalitywork on the ACLU’s agenda.

Dorothy Kenyon was appointed to theLeague of Nations Committee on the LegalStatus of Women from 1938 to 1940 andfrom 1947 to 1950 served as the first U.S.delegate to the U.N. Commission on theStatus of Women. A New York City munici-pal justice from 1939 to 1940, she claimedthe title for life. “Judge Kenyon” later wrotethe ACLU amicus brief in Hoyt v. Florida, 386U.S. 57 (1961), a Supreme Court case thatconsidered (and rejected) a challenge to astate law that required men to serve onjuries but excluded women unless theyvolunteered.

Pauli Murray became an activist byfighting racial discrimination, when shedefended an indigent black sharecropperaccused of murder, agitated against lynch-ing, and was jailed for her protests as afreedom rider in the 1960s. As Murrayexplained, “I entered law school preoccu-pied with the racial struggle and single-mindedly bent upon becoming a civil rights

lawyer, but I graduated an unabashed fem-inist as well.” Informed by her own experi-ences as a black woman, she drewconnections between the legal status ofwomen and that of African-Americans,using the term “Jane Crow” in her scholar-ship. She joined the ACLU Equality Com-mittee, where she pushed the organizationto focus on sex discrimination and to usethe Constitution to challenge it. In 1961,Murray was appointed to the President’sCommission on the Status of Women’sCommittee on Civil and Political Rights,and in 1966, along with Betty Friedan, shewas one of thirty co-founders of theNational Organization for Women (NOW),which she labeled “the NAACP for women.”

Throughout Murray’s and Kenyon’scareers, opposition to women’s rightsremained pervasive and powerful. Whenthe Equal Rights Amendment was re-pro-posed in the late 1940s – having beenintroduced almost annually since it wasinitially proposed in 1923 – even the ACLUvoted to oppose it. Kenyon and Murrayworked intensely behind the scenes and in1970 convinced the Board to reconsider itsregressive position. Ginsburg too was astrong supporter of the ERA, explaining,“The amendment would eliminate the his-torical impediment to unqualified judicialrecognition of equal rights and responsi-bilities for men and women as constitu-tional principle…and it would serve as aclear statement of the nation’s moral andlegal commitment to a system in whichwomen and men stand as full and equalindividuals before the law.”4

Kenyon was also one of the strongestadvocates for the establishment of theWomen’s Rights Project at the ACLU. AtKenyon’s funeral in 1972, just after theWRP was founded, Murray reflected, “Ithink when future historians assess theimportant issues of the twentieth centurythey may well conclude that Judge DorothyKenyon was one of the giants who stood inbold relief against the American sky.”

Recognizing their efforts on behalf ofwomen’s equality at the ACLU and else-where, Ginsburg listed both Murray’s and

Kenyon’s names on the groundbreakingbrief she authored for the ACLU in Reed v.Reed, 404 U.S. 71 (1971), even though Mur-ray and Kenyon did not directly contributeto it. In Reed, the United States SupremeCourt invalidated an Idaho statute thatautomatically gave preference to men forappointment as administrator of adeceased person’s estate. In so doing, theCourt extended the Constitution’s EqualProtection guarantee to women for thefirst time. Ginsburg has said that her creditto Murray and Kenyon was a symbolic ges-ture to reflect “the intellectual debt whichcontemporary feminist legal argumentowed [them].”5

III. GINSBURG’S SUPPORTING CAST

In the early ‘70s, observes Susan DellerRoss, who joined WRP as a staff attorney in1975, the ACLU was “lukewarm towardswomen’s rights issues; it took someone ofGinsburg’s vision and leadership to estab-lish the Women’s Rights Project.” Accord-ing to one contemporary observer, theReed opinion was “a call to arms” andGinsburg was the “General” leading thisforay.6 Under her guidance, “Troops wereassembled, and a strategy for attack waspainstakingly planned.”7

In 1972, as part of this effort, Brenda

Feigen was contacted by Mel Wulf, thelegal director of the ACLU; Ruth BaderGinsburg was looking for a co-director forthe newly formed Women’s Rights Project.“It was a great honor,” Feigen remembers.Still, she needed time to consider. Feigen,whose legal expertise had previouslyproved invaluable in her work as legislativevice president of NOW, had just launchedMs. magazine with Gloria Steinem, and shehesitated to leave her fledgling publication.Finally, with a “blessing from Gloria,” asFeigen puts it, she joined WRP in late 1972.

The two founding directors sought outan unused area in the ACLU office, wherethey hung the sign: “WOMEN WORKING.”In those early years, there was much workto be done. “We knocked down a lot of bar-riers for women, not only on the substan-tive level. We also challenged what type ofjudicial scrutiny applied to gender discrim-ination under the Equal Protection Clauseof the 14th Amendment,” Feigen explains.Kathleen Peratis, who became WRP’sdirector in 1974, agrees that establishingheightened scrutiny for sex classificationsunder the Equal Protection Clause wasperhaps the decade’s greatest achieve-ment. Prior to that time, while the govern-ment’s discrimination based on race wassubject to the strictest scrutiny, discrimi-nation based on gender was permissible ifany reason at all could be hypothesized forthe differential treatment. In Frontiero v.

Richardson, 411 U.S. 677 (1973), the firstcase that Ginsburg argued before theSupreme Court, WRP advocated for theapplication of strict scrutiny to gender dis-crimination just as the concept applied torace discrimination. Four Justices sup-ported this view, one vote shy of a majority.Through a series of decisions in the wakeof Frontiero, an intermediate standard ofreview was established, a standard requir-ing the government to show that any sexclassification it defended had a “substan-tial relationship” to an “important stateinterest.”

In describing Frontiero, which she co-counseled, Feigen expresses great respectfor Ginsburg’s advocacy. “It was brilliant,”she gushes. “I’ve never heard an oral argu-ment as unbelievably cogent as hers.”Ginsburg spoke from memory, citing casesand speaking about women’s history with-out ever turning to her notes or checkingany citations. “Not a single Justice asked asingle question; I think they were mesmer-ized by her,” Feigen declares.

Ginsburg herself describes the experi-ence as a bit more tumultuous. “I was ter-ribly nervous. In fact, I didn’t eat lunch forfear that I might throw up.” Yet she eventu-ally found her rhythm. “Two minutes intomy argument, the fear dissolved. Suddenly,I realized that here before me were thenine leading jurists of America, a captiveaudience. I felt a surge of power that car-

3

T R I B U T E : R U T H B A D E R G I N S B U R G

< Sharron Frontierro Cohen, plaintiff inFrontiero v. Richardson, the first case that Ginsburg argued in front of the Supreme Court.

4

ried me through.”8 In the end, Ginsburgseemed physically drained by the effort. AsFeigen left the courtroom with her, Gins-burg seemed hardly able to process direc-tions to the airport shuttle, and Feigengladly escorted her home to New York.Feigen laughs, thinking back on her col-league’s behavior. “Literally, her head is inthe law, and sometimes in the opera,” sheremarks of Ginsburg.

Deb Ellis, a WRP staff attorney in the mid-80s, applauds Ginsburg’s tactic of occasion-ally using male plaintiffs in equal protectioncases, including Frontiero, to demonstratethat sex-based distinctions harm men andwomen—indeed, entire families. SharronFrontiero’s husband, Joseph, wasn’t eligiblefor spousal benefits from her work in theuniformed forces because he failed to proveeconomic dependency on his wife, a condi-tion not required for wives of male membersto qualify for the same benefits. While somewould have focused solely on the injusticesuch rules work on women, Ginsburgrejected differential treatment based ongender as inherently harmful to all involved.

In Weinberger v. Wiesenfeld, 420 U.S. 636(1975), Ginsburg continued to develop thisanalysis when she successfully arguedagainst a provision in the Social SecurityAct that denied to widowed fathers benefitsafforded to widowed mothers. She madethe case that the classification discrimi-nated against working women, whose

social security taxes garnered fewer familybenefits than the taxes paid for workingmen. She also argued that the law deniedmen the same opportunity as women tocare personally for their children.

Ginsburg and Feigen practiced an egali-tarian approach not only in their legalarguments, but also in their own familylives. “Both of us agreed that we didn’twant to deprive the fathers of our childrenof the experience of being fathers – or thechildren of having fathers involved in theirdaily lives,” Feigen explains. In fact, sherecalls Ginsburg’s annoyance one day withofficials at her son’s school, who invariablycalled her at work when he was sick or,more often, in trouble. Ginsburg told themthat day that her son had two parents. Shewould appreciate it if they would alternatecalls. That time, it was her husband’s turn.

As a staff attorney from 1976 to 1979, JillGoodman also remembers Ginsburg nego-tiating her roles as a lawyer and a mother.On one occasion Ginsburg was doing finaledits on a Supreme Court brief the eveningbefore Thanksgiving with an eye on theclock, keenly aware of just when her col-lege-age daughter would be arrivinghome–obviously eager to see her daugh-ter, but steadfastly committed to finishingthe work at hand without compromise.

Margaret Moses, who came to WRP asan attorney in 1978, taught a gender dis-crimination class at Columbia in conjunc-

tion with Ginsburg during her time there.She recalls the example her co-teacher setin the home. For the last class in the fall of1979, Moses invited all the students over toher apartment for dinner. “Ruth’s husband,Marty, and mine cooked in the kitchenwhile we taught the class,” Moses remi-nisces. “It was a nice way to end a genderdiscrimination seminar!”

IV. EMERGING LEADERSHIPUNDER GINSBURG’S GUIDANCE

Brenda Feigen left WRP in 1974 to pursuefull-time advocacy for the Equal RightsAmendment. That same year, Ginsburgjoined the ACLU Board of Directors, havingbecome General Counsel in 1973. ThoughGinsburg remained heavily involved inWRP’s work until 1980, the original direc-tors had moved on; in their place, KathleenPeratis took over the helm of WRP.

As director, Peratis continued to findgreat success in gender discrimination liti-gation. She recalls that employers wereunprepared for such lawsuits and were illequipped to mount valid defenses. “It wasa time when we filed a case and practicallygot a result in the return mail!” sheexclaims. Peratis admits that the tideseemed to be going so strongly in herfavor, she once considered a lawsuit

> Margaret Moses taught a gender discrimination class in conjunction with Ginsburg in the late 1970s.

5

T R I B U T E : R U T H B A D E R G I N S B U R G

against the entire state of Georgia and itsemployers at all levels for discriminationagainst women.

In the press, WRP and its new leader’spreeminence in advancing women’s rightswas duly noted. The victory in Turner v.Dept. of Employment Security, 423 U.S. 44(1975), which struck down a law makingpregnant women ineligible for unemploy-ment benefits, was covered on the frontpage of the New York Times. Peratis wasquoted in the article and described asbeing pregnant during the litigation. Later,Aryeh Neier, then executive director of theACLU, remarked, “Only the queen of Eng-land and Kathleen Peratis have their preg-nancies announced in the Times!”

Pregnancy discrimination cases were akey part of WRP’s agenda during thisperiod; however, one of the most success-ful efforts mounted by WRP began with asetback. In General Electric Co. v. Gilbert,429 U.S. 125 (1976), the Supreme Courtrejected the reasoning of WRP’s friend-of-the-court brief that pregnancy discrimina-tion in the workplace was tantamount tosex discrimination. Such discrimination,the Court concluded, did not treat womenand men differently; rather, it treated preg-nant women differently from nonpregnantpersons. After losing that battle, WRP staffattorney Susan Deller Ross helped rallyWRP’s supporters to form the Coalition toEnd Discrimination Against Pregnant

Workers. Ginsburg and Ross co-authored acolumn for the New York Times, calling forlegislators to mend the law post-Gilbert,and they continued lobbying, reporting, andtestifying in Congress. The result of theirefforts was the passage of the PregnancyDiscrimination Act in 1978, an amendmentto Title VII that established that pregnancydiscrimination in the workplace is unlawfulsex discrimination.

During these years, WRP set an exampleof accommodating working mothers at theoffice. To balance the competing demandsof family and career, women brought theirnewborn children to work with them. “Weestablished a little day care center in theoffice for Kathleen [Peratis], who also had anew baby, and me,” recalls Susan DellerRoss, who was hired in August 1975 andgave birth that November. College studentswere hired to look after the infants, and thelawyers would breastfeed during the day.“It was wild,” Jill Goodman recalls of thelawyers working with their children by theirside. “Now that I’ve had my own children, Irealize how really wild that was.” ThoughGoodman didn’t then have any children, shecontributed to the day care on occasion. “Ican remember taking a stroller out whenSusan needed to work,” she recalls.

This tradition continued in later years.Joan Bertin gave birth to two children thatshe describes as “ACLU babies” in her fif-teen years with the WRP from 1979 to

1994. She kept a crib and baby’s swing inher office and took occasional nursingbreaks from round-the-clock depositions.Bertin considered the setup a “very work-able compromise.” But not everyone at theACLU shared that point of view. Rossrecalls hearing others complain, “If webrought our babies to work, then theyshould be able to bring their dogs.” Never-theless, Mary Heen, who as a staff attorneyin the early 80s occupied the office nextdoor to Bertin and her baby, insists that thearrangement worked out quite well: “Forme it was no problem; I love the fact thatshe was able to do that—but I imagine itwas exhausting.”

At work in the bustling ACLU office in the1970s, WRP staff addressed a host ofissues before legislators and administra-tors as well as in the courts. One of themajor battles was over forced steriliza-tions, particularly for poor women in theSouth. Many women had been told thatthey had to undergo surgical sterilizationor risk losing their jobs or welfare benefitsand were thus coerced into giving up theirright to bear children. In the late 1970s,Feigen helped Senator Edward Kennedy’sstaff formulate federal regulations on ster-ilization procedures, specifically establish-ing consent requirements.

When Joan Bertin arrived at WRP in1979, sterilization was still a major issue.One of the cases in which she was most

< Susan Deller Ross, former WRP staff attorney.

6

emotionally invested involved a lawsuitagainst American Cyanamid, which hadrequired its female workers to be sterilizedto keep their jobs—and later eliminatedthose very jobs. Bertin worked closely withthe women’s union to fight for their rightsand the rights of all employees to a safeworkplace, securing a favorable settlementout of court. Bertin and WRP continued toremain heavily involved in similar cases,and the issue was ultimately resolvedfavorably in the Supreme Court. In addition,the ACLU Reproductive Freedom Projectwas founded as a separate entity to handlecases pertaining to women’s reproductiverights and control over their bodies.

Marjorie Mazen Smith joined WRP inlate 1976, and though she describes her-self as a “jack of all trades” because of thevariety of cases she litigated in her sixteenmonths on staff, two of her major casesdealt with gender restrictions in the UnitedStates Navy. In 1977, in Beeman v. Midden-dorf, 425 F. Supp. 713 (D.D.C. 1977), WRPsuccessfully challenged a rule barringwomen in the customs service from work-ing aboard navy ships. One year later, inOwens v. Brown, 455 F. Supp. 291 (D.D.C.1978), Smith challenged a similar ban thatexcluded all women from working on navyvessels in any capacity. Ginsburg oversawSmith’s work, and the two received a sum-mary judgment ruling in their favor fromthe federal district court. Later, whenSmith wrote to congratulate Justice Gins-burg on her appointment to the SupremeCourt in 1993, Ginsburg thanked her inwriting and included the line: “Recentpress reports about the Navy recalled forme the great job you did before Judge Sir-ica.” Smith was surprised and flattered tohear the praise of her work recalled somany years later. She framed the letterand keeps it to this day.

During this period, in cases representingwomen in the military and in other nontra-ditional occupations, such as policing andfirefighting, WRP began its work to helpwomen gain entry to traditionally “male”jobs that continues to this day. KathleenPeratis had a particular interest in employ-

ment-related issues and the protection ofworking women. One of the many employ-ment discrimination cases she brought atWRP was a challenge to the City ofPhiladelphia’s refusal to hire women aspolice officers in Brace v. O’Neil, 1979 WL157 (E.D. Pa. 1979). In the case, WRP suc-cessfully rebutted the City’s assertion thatwomen couldn’t do the job.

Susan Deller Ross also worked to cham-pion the rights of women in the workplace,fighting not only for those women whowished to do jobs traditionally held by men,but for the rights of women in traditionallyfemale occupations. In Christensen v. Iowa,563 F.2d 353 (8th Cir. 1977), the Universityof Northern Iowa’s own job evaluationshowed that the all-female secretarialworkforce’s wages should be the same asthose of the all-male groundskeepersbecause the jobs were of equal value to theUniversity. The University neverthelesspaid the men more than the women,claiming that the market required them todo so. Ross and Peratis represented thefemale clerical employees in their sex dis-crimination lawsuit. Ross’s appellate briefto the Eighth Circuit advanced the idea ofcomparable worth in the workplace, usingthe employer’s own evaluation to arguethat the secretaries were in fact entitled tothe same pay with the groundskeepers,despite the fact that they performed differ-ent tasks. Although WRP lost this case, theinfluential comparable worth theory wasfirst formulated here.

By the end of Ginsburg’s tenure at theACLU, her reputation preceded her, recallsMargaret Moses, who came to WRP in 1978specifically to join her favorite law profes-sor. At the time, the U.S. Attorney’s officehad also made Moses a job offer, and herprospective boss dismissed the ACLU as avalid alternative. Yet when Moses explainedthat she was considering the Women’sRights Project because Ruth Bader Gins-burg was one of the four general counsels,she noticed a funny look on his face. “He’dhad Ruth as a professor at Rutgers,” Mosesrecalls. “And at that point, I think he under-stood that I really might turn down the U.S.

Attorney’s office for the WRP.” She did justthat. Moses did not regret her decision, asthe experience of working with Ginsburgproved to be illuminating. “She was anexcellent role model—that combination ofbeing brilliant and working very hard set ahigh standard to do the very best you could,to try to emulate her,” Moses explains.

Isabelle Katz Pinzler, who worked atWRP from 1978 to 1994, arrived toward theend of Ginsburg’s tenure and recalls beingsomewhat intimidated by her at first. Sheremembers that the staff would work veryhard on a brief, but would hand it to Gins-burg labeled “rough draft” because theyhad learned that even the most thoroughlyedited brief would come back as “a sea ofred.” Jill Goodman also admits that attimes “it was scary” working for Ginsburg,describing her as “meticulous” abouteverything she did. Ginsburg acknowledgesthat she is, in general, “fussy about thequality of the product.”9 Goodman puts itanother way: “Ruth was almost a differentspecies,” she jokes, describing the unbe-lievable level at which Ginsburg worked.

It was not that Ginsburg did not appreci-ate their work, Pinzler is quick to explain;rather, Ginsburg taught them to write crispsentences and get to the heart of a matter.“She taught me so much about usingwords precisely, to mean exactly what Iwant them to mean, no more, no less,”agrees Goodman. Overall, Goodman feltshe had learned much about the profes-sion from Ginsburg. “She has an auraabout her, of intelligence and care—careabout the law, and the craft of lawyering,and the trajectory of the law.”

These qualities did not go unnoticed out-side the ACLU. In 1980, Ginsburg wasappointed a Judge of the United StatesCourt of Appeals for the District of Colum-bia Circuit, marking the end of her time asan ACLU litigator. More than a decadelater, President Clinton nominated her asan Associate Justice of the Supreme Court,and she took her seat August 10, 1993.

WRP was conceived by Ruth Bader Gins-burg to fight for equal treatment of bothgenders. “The Project was so integral in

7

establishing the principle of equal rights,”asserts Mary Heen. She describes Gins-burg’s vision of “filling the empty cup-board.” The way the WRP founder saw it,the Constitution contained grandly generalclauses (Due Process, Equal Protection)that could be used to advance women’s fullcitizenship stature. Until the 1970s, thedocument had rarely been recognized bycourts as relevant to women’s claim toequality. But Ginsburg sensed growthpotential. By the time Ginsburg took herplace on the bench, she had done much tostock the cupboard. WRP was prepared tocontinue the fight for women’s rights intothe next decade and beyond.

V. NEW FACES, NEW ISSUES

After the original founder left the ACLU,WRP continued to evolve. Its emphasisbroadened from Equal Protection litiga-tion, which was a central focus for Gins-burg, to include more extensive efforts tosecure the rights promised women by TitleVII and other antidiscrimination statutes.

Isabelle Katz Pinzler and Jill Goodman: Women in the Military

Isabelle Katz Pinzler describes her tenureas the Director of the WRP in the 1980s

after Ginsburg’s departure as a time for a“consolidation of gains” in the women’srights movement. “It wasn’t as dramatic orheadline-making as when Ruth wasthere,” she acknowledges. Still, the periodwas an important time to enforce recentlyearned rights. “It was a lot of hard workwith less glory,” Pinzler concludes.

One of the most important cases thatPinzler worked on after Ginsburg left wasRostker v. Goldberg, 453 U.S. 57 (1981),which she co-counseled. The issue waswhether requiring selective service regis-tration only of men violated the constitu-tional guarantee of equal protection. WRPlost the case, and the Supreme Courtupheld Congress’ prerogative to classify onthe basis of gender in selective service reg-istration. Nevertheless, Pinzler believesthat time and history have reduced the loss.In today’s all-volunteer army, the militarycan no longer afford to overlook women’scontributions. She sees it as a triumph thatmost people now honor “our men andwomen in uniform,” rather than “our boys.”

Jill Goodman also sought women’sequal treatment in the military, though sheinitially approached this work with uneasi-ness. “I came of age in an antiwar era,” sheexplains. “We weren’t just antiwar. Wewere anti-military. But I learned from ourplaintiffs about the role of the military, notjust in society, but in the personal lives ofcitizens.” Goodman elaborates, “The mili-

tary is a remarkable opportunity for manypeople in this country. It helps them to getout of small towns; to gain education, jobtraining and experience; to serve; and toachieve status in their eyes and the eyes ofthe world.” With a predominately male mili-tary that excludes women from combat,“women are deprived of that credential.”Goodman describes how the experience ofgetting to know her plaintiffs, both officersand enlisted women, broadened her per-spective. “I’ve never felt the same way aboutthe military since,” she acknowledges.

Mary Heen and Deb Ellis: Equal Treatment in Insurance

In a series of cases, WRP relied on Title VIIto challenge employer-provided pensionplans that required women to pay morethan men for the same benefit, or that pro-vided lower monthly benefits to womenthan to men. These disparities were pur-portedly justified by women’s longer pro-jected life spans; individual women’scontributions or benefits were calculatedbased on conclusions about how womenon average would fare under such plans. InManhart v. Los Angeles Department of Water& Power, 435 U.S. 702 (1978), a case inwhich WRP filed a friend-of-the-courtbrief, the Supreme Court held that a retire-ment plan that required women to con-tribute more than men to obtain the same

T R I B U T E : R U T H B A D E R G I N S B U R G

< Isabelle Katz Pinzler.

8

benefit violated Title VII. WRP attorneyschallenged the mirror version of this dis-criminatory arrangement in Peters v. WayneState University, 463 U.S. 1223 (1983); there,women and men paid equal sums into theretirement plan, but women received lowermonthly benefits than their male counter-parts upon retirement. WRP lost on appeal,but immediately thereafter, the SupremeCourt decided Arizona Governing Committeefor Tax Deferred Annuity and Deferred Com-pensation Plans v. Norris 463 U.S. 1073(1983)—another case in which WRP haddrafted a friend-of-the-court brief—andheld that this kind of arrangement violatedTitle VII. The Court reversed the appealscourt’s decision in Peters in light of Norris,and the case was resolved favorably soonthereafter. The principles established inthese cases required all employer-spon-sored insurance and pension plans to treatmen and women equally.

Mary Heen is proud of her role in helpingto establish this Title VII precedent pro-hibiting discriminatory employer-providedpension plans. However, Title VII prohibitssex discrimination only on the job. WRPwas involved in an effort to pass federallegislation to prohibit private insurers fromdiscriminating in other contexts. But asHeen observes, “We were never successfulin public relations with regards to non-employment insurers.” Heen identifies theissue as “one huge area still waiting forreform as a matter of principle.” Deb Ellisagrees that differential treatment of menand women in private insurance policieswas one of the unresolved issues of hertenure at WRP from 1986 to 1989. WRPattempted to use the Equal Rights Amend-ments in state constitutions to challengesuch insurance plans. “We had some suc-cess, but not a lot,” Ellis recalls. The litiga-tion proved difficult, because in somecases, differential rates benefit women,although in other cases, women are disad-vantaged. “The difficulty is that the differ-ence to any one woman is slight—notenough to sue—and the insurance compa-nies are extremely powerful,” Ellisexplains. Even in 2005, private insurers still

commonly use sex-based rates for healthand life insurance. “The principle is impor-tant,” Ellis maintains. “This is one area ofAmerican life where companies areallowed to make sex-based distinctionswhen distinctions based on race or ethnic-ity would be unacceptable.”

Though Ginsburg no longer had any for-mal affiliation with the ACLU when WRPlitigated these issues in the 80s, she waspleased to see the staff’s continuing effortsin pursuit of gender equality. As Heenrecalls, “Ruth Bader Ginsburg wasappointed to the U.S. Court of Appeals in1980 before I began as a staff counsel atthe ACLU—so I never had the opportunityto work with her. However, she sent me abrief note after seeing a letter to the NewYork Times I had written arguing for theelimination of sex discrimination in insur-ance. It was a generous and encouragingthing for her to do, and it meant a lot to meto receive it from her.”

A Joint Effort: Pregnancy Discrimination

When Ginsburg became an assistant pro-fessor of law at Rutgers Law School in1963, pregnancy discrimination remaineda tremendous barrier to working women.Fearing that her year-to-year contractwould not be renewed if her pregnancyshowed, she took measures to conceal herstate. “I got through the spring semesterwithout detection, with the help of awardrobe one size larger than mine, bor-rowed from my mother-in-law,” sherecalls. She ultimately gave birth beforethe fall semester began.10

Fighting discrimination on the basis ofpregnancy has been an ongoing battle ofthe Women’s Rights Project since itsinception, and almost every staff memberhas been involved at one point. Thelongest-running case has been Knox-Schillinger v. TWA, which began in the1970s. “Kathleen Peratis left it on mydoorstep like a foundling,” recalls IsabelleKatz Pinzler, who joined WRP in 1978 andlater took over as director until 1994. The

suit challenged TWA’s practice of firingfemale flight attendants upon learning oftheir pregnancies. To prove that impendingmotherhood was not an indicator of incom-petence, “we made damn sure the lawyerwho appeared in it was pregnant,” Pinzlerdeclares. The case dragged on for yearsand was passed on to whoever was preg-nant at the time, since the office alwaysseemed to have someone expecting. In2003, more than twenty years after it waslaunched, the case was back in court, todetermine TWA’s obligations, in view of itsbankruptcy, to the flight attendants withwhom it had long ago settled. Upon hear-ing of the delayed resolution, Mary Heen,who had worked as co-counsel on thecase, was amazed. “That’s more than twicethe length of the Odyssey!” she exclaimed.“Let justice be done!”

One of the most contentious women’srights cases, which divided the ACLU, dealtwith the rights of pregnant women. In Cali-fornia Federal Savings and Loan v. Guerra,479 U.S. 272 (1987), the question waswhether Title VII permitted a state torequire employers to offer women child-birth leave while requiring no leave forother disabilities. The ACLU of SouthernCalifornia argued that Title VII permittedthis. WRP and the national ACLU dis-agreed. They asserted that the PregnancyDiscrimination Act’s mandate that preg-nancy be treated like any other disabilitymeant that if leave were provided for child-birth, the same entitlement to leave mustbe extended to all employees temporarilydisabled. The Court agreed with the ACLUof Southern California. It held that thePregnancy Discrimination Act was a floor,not a ceiling, for the rights of pregnantworkers and did not prohibit a state fromrequiring childbirth leave.

Joan Bertin was particularly involved inpregnancy discrimination cases during hertenure from 1979 to 1994 at WRP. Shefocused on fighting discrimination based onemployer assertions that a workplaceposed a hazard to any fetus a woman mightconceive. This became a very specializedarea of litigation, and Bertin spearheaded a

9

T R I B U T E : R U T H B A D E R G I N S B U R G

nearly twelve-year campaign that resultedin an important victory before the SupremeCourt. “We fought tooth and nail on everyground,” Bertin recalls. In UAW v. JohnsonControls, 499 U.S. 187 (1991), a case in whichWRP filed a friend-of-the-court brief, theCourt held that Title VII prohibits employersfrom keeping women out of jobs that mightexpose their fetuses to hazardous sub-stances. The key, Bertin believes, was rec-ognizing that the solution to workplacehazards wasn’t to eliminate pregnant work-ers, but to eliminate the hazards they faced.

Jackie Berrien arrived at the ACLU in1989, at the height of WRP’s challenges toemployers’ fetal protection policies. Shedescribes a suit against the Odeon restau-rant as her “personal favorite.” The casewas brought on behalf of a maitre d’ whowas removed from her position when herbosses decided they didn’t wish to employa visibly pregnant woman. In a depositionbefore the trial, the owners justified theiractions by insisting that a pregnant womanshouldn’t be near heat and knives in thekitchen. “It was one of the oddest justifica-tions I’d ever heard,” Berrien notes. “Godknows no pregnant woman has ever beenexposed to heat and knives in a kitchen!”Immediately after that deposition, the casesettled in the woman’s favor.

Berrien herself did much public educa-tion work around the rights of pregnantteens in schools, and she hoped to litigatecases establishing these rights. “My gutalways told me that those cases existed,young women being forced out of school[because of pregnancy], but we couldn’tidentify many.” The good news was that thethreat of ACLU litigation was often enoughto resolve any such complaints; in general,a phone call to explain the law was suffi-cient to protect the rights of the pregnantstudent. Yet for civil rights and civil libertieslawyers looking to set precedent in thisarea, such easy settlements are not alwaysperfectly aligned with personal and profes-sional agendas. “It was for me a real pointof maturing as an attorney, recognizing thatthe most important thing is a favorable out-come for your client, though sometimes

that isn’t reconciled with what you’re tryingto do professionally,” Berrien concludes.

Berrien points out that at the time of herand Kary Moss’s arrival at WRP, there was“an explosion of the crack cocaine trade.”As a result, WRP had much work to doaddressing the application of drug controlpolicies to pregnant women, as theallegedly unique harm from the drug to afetus in utero was thought to justifyextreme measures infringing on women’srights. Many women were being criminallyprosecuted for child abuse or delivery ofdrugs to a minor due to drug and alcoholaddiction during pregnancy. In the mid-80s, Berrien and Moss had publishedsome of the first literature on criminalprosecution of expectant mothers for sub-stance abuse. In Kentucky v. Welch, 864S.W.2d 280 (Ky. 1993), WRP succeeded inpersuading the Kentucky Supreme Courtto overturn a Kentucky woman’s convictionfor child abuse when the conviction wasbased solely on evidence that she hadtaken illegal drugs while pregnant.

Moss also addressed access to healthcare for pregnant women. One of her law-suits challenged a private hospital’s refusalto accept pregnant women for drug andalcohol treatment. “We need to stop blam-ing women for their addictions,” Mossinsists. She brought in the health carecommunity to work with her, as a nationaldebate emerged on the issue.

Years later, the work accomplished byWRP staff and others on this issue contin-ued to have a positive impact. In 2001, inFerguson v. City of Charleston, 532 U.S. 67(2001), the Court held in an opinion joinedby Justice Ginsburg that a public hospital’spolicy of testing all pregnant patients’ urinefor cocaine and reporting positive resultsto the police violated the Fourth Amend-ment. The hospital had argued that thepolicy was motivated by a special need toprotect the health of the fetus. (WRP and theReproductive Freedom Project submitted afriend-of-the-court brief in the case.)Berrien notes, “I was struck by how muchthe Court was rejecting” the hospital’s justi-fication even at oral argument. Though the

crack cocaine crisis of the late ‘80s had pre-cipitated many harsh measures againstdrug users, by that time there was a grow-ing acknowledgment, Berrien explains, that“the line between medical treatment andprosecution was a dangerous one to cross.”More people understood that prosecutingpregnant drug users risked driving womenaway from medical help, and almost allcourts that had considered the issue hadoverturned such prosecutions. Neverthe-less, this fight continues. For instance, in2003, a full decade after the Welch case,WRP attorneys returned to court to suc-cessfully defend this precedent whenanother Kentucky woman was prosecutedfor child abuse based on evidence that shehad used drugs during her pregnancy.

Jackie Berrien: Intersectionality

Jackie Berrien explains that when shejoined WRP in 1989, “there was a very con-scious and deliberate effort to make theProject more overtly and directly respon-sive to the needs of women of color.” TheACLU’s legal director wanted to advancethe organization’s progress on issues ofrace and poverty, engaging constituenciesnot traditionally involved with the ACLU.“Now it’s probably a routine part of think-ing at the ACLU, but it was not common inthe early stages,” Berrien notes. Describ-ing the increased engagement of WRP andthe ACLU with questions of racial inequal-ity, Berrien explains, “Some of the ground-work was laid when I was there.”

Berrien, who is today the assistantdirector of the NAACP Legal Defense Fund,explains, “I was always interested in issuesthat connected race and gender.” Even incases with a traditional women’s rightsfocus, such as WRP’s challenge to the all-male admission policy of the Citadel, apublic military college in South Carolina,Berrien was able to apply a unique lens.For instance, she helped draft the compar-ison of sex segregation and race segrega-tion in education in WRP’s legal briefs.Later, in the legal battles over the all-maleadmission policy of the Virginia Military

10

Institute (VMI), VMI attempted to defend itsexclusionary admissions by arguing that awomen’s leadership academy created atanother Virginia college constituted a “sep-arate but equal” opportunity for women.Justice Ginsburg authored the opinion inUnited States v. Virginia, 518 U.S. 515 (1996),that rejected this justification, just as simi-lar “separate but equal” arguments hadbeen rejected in Brown v. Board ofEducation. “These parallels were alwaysvery interesting to me,” Berrien explains.

While Berrien was at the ACLU, a move-ment began to create all-male publicschools in inner cities, under the assump-tion that single-sex education would benefitAfrican-American boys and young men. Ata roundtable at the National Urban Leagueand in a publication for the ColumbiaTeacher’s College, Berrien argued againstthe notion. Rather than a solution to theeducational needs for the black commu-nity, she saw the concept as a “superficialquick fix” for what she identified as a“broader problem not by any means limitedto boys.” The push for single-sex educationin inner city school districts continues withrenewed strength today.

Sara Mandelbaum: Equal Access to Education

Arriving in 1992, Sara Mandelbaumremained at WRP after Isabelle Katz Pin-

zler and Joan Bertin ended their 15-yearterms. Mandelbaum had definite ideas ofwhat was needed in the area of women’srights: “I wanted to do cases that could noteasily be done by private lawyers.” Sheexplains that the private bar had taken onmany Title VII cases against large corpora-tions, because that was where large finan-cial settlements could be obtained.Mandelbaum wanted WRP to representwomen with few legal resources, women ofcolor, and poor women. When women inWestchester asked her to bring a suitagainst a country club that denied themgolfing rights on a par with men, she took apass.

Education was a key area for Mandel-baum. She represented teenage girlsdenied entrance to the National HonorSociety because they were pregnant andgirls who were told they were too fat to becheerleaders. And when it came to single-sex education, she rigorously challengedgender-segregated study in publicschools. Mandelbaum sought to discreditthe widely held belief that men and womenare best served by separate academicenvironments. The cases in the 1990schallenging all-male schools, sheexplains, were very significant in beginningto rebut this notion.

The most high-profile case brought byWRP in this arena was Shannon Faulkner’sagainst the Citadel, which ended in victory

in 1995. Faulkner was a high school stu-dent who was initially admitted to the all-male academy based on her qualifications,and later denied entrance when the Citadelrealized she was a woman. The highly visi-ble litigation “gave the Project a real asso-ciation with education cases, which led toother opportunities in that area.” Duringthis time period, WRP attorneys also con-sulted with the U.S. Justice Department inits challenge to VMI’s all-male policy andfiled friend-of-the-court briefs in supportof women’s admission. Both cases wereultimately successful, and “winning wasvery, very exciting,” Mandelbaum recalls.In the Supreme Court decision strikingdown VMI’s all-male admissions, JusticeGinsburg’s opinion rejected the use ofsocial science data that purported to provethat men and women learned differently,data from which VMI was “drawing fright-ening conclusions,” according to Mandel-baum. For Mandelbaum, an important partof the case was the Supreme Court’srefusal to credit a technique she identifiesas one often used by anti-feminists—reliance on “pseudo-science” to justify dis-criminatory policies.

VI. CONTINUING CAREERS

Beyond WRP, the former staff’s pathshave been as varied as their interestswhile at the Project.

> Kary Moss.

11

T R I B U T E : R U T H B A D E R G I N S B U R G

Ruth Bader Ginsburg has been on the federalbench for twenty-five years. In 1993, shebecame the second woman ever to serveon the United States Supreme Court.Throughout that time she has continued tobe a leading voice for gender equality,women’s interests, and civil rights and lib-erties. Before and since her elevation tothe Court, she has been a living illustrationof the remarkable power of precise andpersuasive legal analysis and has inspiredwomen’s advocates across the country andthe world.

Brenda Feigen has published her memoirs,entitled Not One of the Boys: Living Life as aFeminist, and currently practices enter-tainment law in Los Angeles.

Kathleen Peratis is currently a partner at theNew York law firm Outten and Golden,where she specializes in sexual harass-ment and employment discriminationcases.

Susan Deller Ross considers her currentwork for women’s rights in Africa as “goingforth in the spirit of the ACLU Women’sRights Project.” She is Director of theInternational Women’s Human RightsClinic at the Georgetown University LawCenter, following a stint at the U.S. JusticeDepartment’s Civil Rights Division. Underher guidance, students take cases involv-ing domestic violence, trafficking in womenand girls, domestic servitude, sex-baseddivorce laws, female genital mutilation,and many other cases of institutionalizedmale supremacy in African nations. Rossdescribes her students’ work as “just likeearly sex discrimination cases under ourConstitution.”

Marjorie Smith believes that she has been“a general citizen in the area” of women’srights since leaving WRP. She has workedfor the Department of Consumer Affairs,Manhattan Family Court, New York City’sLegal Aid Society, and as a partner in pri-vate practice for many years. Today, Smithis an assistant professor at Brooklyn Law

School and Assistant Director of the Sec-ond Look Program Clinic in charge of pris-oner assistance.Jill Goodman took a job with the Office ofCivil Rights in the U.S. Department of Edu-cation and then worked for eight years atthe New York Attorney General’s Office.Today, Goodman works for the New YorkState Judicial Committee on Women in theCourts, where much of her time is spentaddressing violence against women,including domestic violence, sexual vio-lence, and the closely related issues ofprostitution and trafficking. WRP did notspecifically confront these issues duringher tenure; however, Goodman says, “Ihave come to believe they are at the root ofthe unequal status of women, both as itscause and effect.” The WRP agrees, andfighting violence against women is animportant part of its agenda today.

After leaving WRP, Isabelle Katz Pinzler

served in the Department of Justice underPresident Clinton. She then became spe-cial counsel to the NOW Legal Defense andEducation Fund and a visiting professor atNew York Law School. She recalls thinkingabout the future of WRP when she wasDirector and admits that there were timeswhen she did not think that the Projectwould survive. It was harder to raise moneywithout Ginsburg’s fame and credibilityattached to WRP. Yet today WRP forges onstronger than ever, led by Lenora Lapidus,who was once a WRP intern under Pinzler.“So that’s a little continuity for you,” Pinzlerpoints out.

Margaret Moses carried her feminist sensi-bilities with her when she went to a smallprivate firm. “I stayed involved in women’srights,” she explains, pointing to her workfor the Women’s Equity Action League inWashington, D.C., Moses worked in privatepractice and then became a professor atLoyola University of Chicago School of Law.“I’ve liked it all,” she says of her career. “It’sall been very good.”

Joan Bertin declares, “I’m still a feminist!”

She believes that her background as awomen’s rights advocate benefits hertoday in her work at the National CoalitionAgainst Censorship.

Mary Heen went into private practice forthree years, doing tax work, and completedan L.L.M. at New York University LawSchool. Today she is a professor at the Uni-versity of Richmond Law School, teachingtax and feminist legal theory. “I love it,”Heen says of teaching. WRP has had aninfluence on her academic career: “Mywritings explore the connections betweentax policy and social policy—includingissues related to work-related child care,welfare-to-work programs implementedthrough the tax code, and budget policyissues.”

Deb Ellis left WRP in 1989 to become LegalDirector of the ACLU of New Jersey. Shethen became Legal Director of the NOWLegal Defense and Education Fund, wherein 1992 she argued Bray v. AlexandriaWomen’s Health Clinic, 506 U.S. 263 (1993),before the United States Supreme Court.Today, Ellis is the Assistant Dean for PublicInterest Law at NYU Law School, whereshe teaches Sex Discrimination Law. Shebelieves the challenge now is to make thegains of the women’s movement real forwomen with the least resources, an effortshe is glad to see the current WRP pursu-ing on several fronts.

Kary Moss left WRP when she had her firstchild; she decided she’d like to start a fam-ily in a “calmer environment.” She and herhusband moved back to Michigan to benear her family. Today she is the executivedirector of the ACLU of Michigan. Shebelieves that the biggest threat to women’srights is “the public perceptions that thestruggle is over.”

Jackie Berrien departed from WRP in May1992 because, she “was interested in get-ting a chance to do more trial-level work.”At the Voting Rights Project of the Lawyers’Committee for Civil Rights, “I got it—a ton

12

of it!” Today Berrien is the assistant directorof the NAACP Legal Defense Fund, and shelooks back fondly on her time at the WRP.

Sara Mandelbaum left WRP to stay homefull-time with her two children. “I love prac-ticing law and doing women’s rights work,”she acknowledges, “but there are a lot ofother things in life.” Describing her currentpursuits in art and child rearing, she com-ments, “I’m exercising the right side of mybrain.” Mandelbaum is pleased with herwork at WRP. “We made our contributionsto moving in the right direction—we leave itto people after us to keep it up.” <

ENDNOTES: 1ATHENA International, Ruth Bader Ginsburg, at

http://www.athenafoundation.org/award/bios/ruth.html.2ELINOR PORTER SWIGER, WOMEN LAWYERS AT

WORK 51, 58 (1978).3 KENNETH M. DAVIDSON, RUTH BADER GINSBURG,

& HERMA H. KAY, SEX-BASED DISCRIMINATION: TEXT,

CASE, AND MATERIALS xii-xiii (1974).4 Id. at 116.5AMY LEIGH CAMPBELL, RAISING THE BAR: RUTH BADER

GINSBURG AND THE ACLU WOMEN’S RIGHTS PROJECT

(2003).6 SWIGER, supra note 2, at 51.7 Id.8 Id. at 52.9 Id. at 64.10 ATHENA INTERNATIONAL, supra note 1