By Deborah Hopkins, January 2, 2019
Yesterday, as my last official event of the holiday season, I went to see a movie with a friend. Those of you who know me are probably not surprised to learn that my friend and I opted to see On the Basis of Sex, a film focused on Ruth Bader Ginsburg’s fight for gender equality as an attorney in the 1970s, long before she was a Supreme Court Justice. If you don’t recall the history or you haven’t seen the film, then you might be surprised to learn that the key legal case in this fight was a Tenth Circuit appeal over a statute that provided tax deductions for caregivers. Justice Ginsburg’s client was a male caregiver who was exempted from the tax deduction, while similarly situated women who were caregivers were allowed to claim the deduction. Justice Ginsburg viewed this issue as a violation of the 14th Amendment’s Equal Protection Clause, found in Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [emphasis added]
The apex of the movie focuses on her oral argument in front of the Tenth Circuit judges. I won’t spoil the film if you don’t know the real-life ending, but I can tell you the primary argument discussed change, and how the interpretation or reach of the law may need to change as society changes; after all, society doesn’t wait for the law to catch up to it before it charges ahead.
During her argument on the topic of gender protection, a judge challenges her: “The word ‘woman’ does not appear even once in the U.S. Constitution.” Justice Ginsburg’s reply: “Nor does the word ‘freedom,’ your honor.”
Now before you start kicking and screaming and writing emails telling me that Hollywood ruins movies by riddling them with inaccuracies, that the Bill of Rights actually does contain the word “freedom” and that the Bill of Rights is a part of the Constitution, just take a deep breath, count to three, and read on. I know the Bill of Rights uses that word, and I know that the Bill of Rights is part of the Constitution. I think the point being made in the argument is this: In the original text of the Constitution, the word “freedom” was never used, and as America grew and changed so did the reach of the Constitution, the highest law in the land. This growth included the Bill of Rights, which was added to the Constitution in 1791, four years after the original document was ratified.
The truth is, America changes every day. Women in America could not vote until 1920, when the 19th Amendment was ratified. Women in America were not given the legal right to serve on a jury until, in some states such as Mississippi, the late 1960s. (Interesting note: Mississippi was the first state to allow women to independently own property, in 1839. Go figure.) In some states, women could legally be denied the right to practice law until 1971. Women could not apply for bank accounts or credit cards unless a husband or male relative approved, until the passage of the Equal Credit Opportunity Act in 1974. And on and on it goes.
I have done all the things listed above, but had I been born century earlier I would not have been able to do any of them because the law forbade it.
Whether by Constitutional amendment, the passing of legislation, or the interpretation of the courts and administrative bodies, the law changes almost every day. While the movie may not be entirely historically accurate (after all, that’s Hollywood), it does highlight this reality. And though the focus of this film was the fight for gender equality, thousands of movies could be made, and articles written, about other struggles Americans have faced, and are still facing today, on the bases of categories that were not legally recognized until the very recent past: race, color, religion, disability, national origin, age, and genetic information, just to name a few. The fight continues.
And at FELTG in 2019, we promise to continue to bring you the most current information about the law as it pertains to you, and as it changes. It’s what we’re here for – after all, it’s in our mission statement.
Here’s to hoping 2019 is the best year yet, despite the rocky start, with whatever changes may come. [email protected]
