Congress sided with the ERA’s proponents, so debating the arch-enemy of women’s equality, Phyllis Schlafly, became a routine part of my life, always involving an argument about toilets and jails. On the “Tomorrow Show,” “Good Morning America,” and in college auditoriums, I explained that the legislative history accumulated during the ERA hearings would allow the government to make provisions for separate bathroom and prison facilities for women and men, because of the constitutional privacy mandates.
The ACLU, Ruth Bader Ginsburg, and Me
An inside look at the two lawyers who shepherded women's rights to the top of the ACLU's list of priorities — and the Supreme Court.
By Brenda Feigen
May 27, 2020
In the early 1970s the National Board of the American Civil Liberties Union declared women's rights its top legal and legislative priority, creating the national Women's Rights Project late in 1971. Ruth Bader Ginsburg, then a law professor at Rutgers University and the ACLU’s pick for director, played a major role in winning the first Supreme Court decision that held a state statute unconstitutional because of sex discrimination. Meanwhile, I was then National Legislative Vice President for the National Organization for Women (NOW), and was spending a substantial amount of time appearing in debates and on television talk shows arguing for the passage of the Equal Rights Amendment.
Alongside my work at NOW, Gloria Steinem and I were about to announce the launch of Ms. Magazine in early January 1972 — but my career was soon to change direction. I received a phone call one evening that same month from Mel Wulf, then legal director of the ACLU, asking if I would be interested in directing the newly-established Women's Rights Project with Professor Ruth Bader Ginsburg. Because of her simultaneous work at Rutgers, she wanted a partner to run it with her. In later years, Ruth would explain her desire to direct the Women’s Rights Project: "I wanted to be part of a general human rights agenda. Civil liberties are an essential part of the overall human rights concern — the equality of all people and the ability to be free."
I was enormously flattered. I had only practiced law for about six months at a big corporate firm in midtown Manhattan. I was aware of Professor Ginsburg’s role in a recent Supreme Court case, but because of my involvement in Ms. I had mixed feelings. I asked Mel to give me a few weeks to think about the offer. Mel had seen me on television in a debate with the noxious Phyllis Schlafly. The ACLU wanted to proceed but agreed to wait for my decision.
I finally decided that there were lots of women who could work on Ms., but few feminist lawyers around to do the job at the ACLU. So, after sisterly hugs and tearful farewells, I relocated to my new offices on Fifth Avenue and 20th Street in February 1972.
On my first day at the ACLU, Ruth appeared late in the morning. She was a soft-spoken, thoughtful woman, with large, intelligent eyes. She had entered Harvard Law School exactly 10 years before I had. The percentage of women in her class was 2 percent, while that in my 1969 class had been 6 percent.
One of the qualities that first struck me about Ruth was her generosity. She insisted that my title — like hers — be "Director", not "Co-Director." Right before I took the job, I made a point of reading the Supreme Court’s opinion in Reed v. Reed. For the first time in history, a majority of the justices agreed that women were a protected class deserving recognition under the Equal Protection Clause of the Fourteenth Amendment. There had to be, they said, a rational relationship between a classification based on sex and a legitimate state interest.
Ruth and her co-counsel had successfully challenged Idaho's automatic preference for male administrators of decedents' estates over similarly situated females. For me, the decision in Reed was total vindication for the humiliation I had suffered at the hands of esteemed Professor Paul Freund not many years earlier when he’d embarrassed me in front of my whole constitutional law class. Freund had mocked my outrage at a Supreme Court opinion upholding a Michigan statute that prevented women from working in a bar unless their husband or father was present. I had the feeling now that a whole new age was dawning for women that would mark the beginning of feminist jurisprudence in America.
During our first day in the office together, Ruth launched into a discussion of several cases that were on their way up to the Supreme Court and might be of interest to us. Soon we drafted a press release announcing the official formation of the Women's Rights Project. We wanted the ACLU affiliates to know that we were there to help; we were encouraging them to tell us about any lawsuits they were contemplating bringing on behalf of women. Ruth was very cautious, wanting to avoid making any bad law.
Every day at about 11:00 a.m., Ruth would call me at the office and I would greet her with "Hi Ruth, how are you?" or "What's new?" My questions would be met with: "Have you read the advance sheets yet?" or "Brenda, there's such an interesting case the court just accepted!" Ruth, as far as I could tell, talked, thought, and probably even dreamed about the law any time she wasn't spending with her husband or children. She wasted few if any moments on little pleasantries.
Just as the project was getting started, the ACLU’s national office moved up to 40th Street and Madison Avenue. Our announcement attracted law students and others who wanted to help. We needed more space and we got it, across the hall from the rest of the office that was heavily staffed with men. The day we moved in, I posted a bright yellow “WOMEN WORKING” sign on the door leading into our offices. Ruth thought that was terrific.
Not long after we launched into our work, Ruth and I traveled to Boulder, Colorado for the ACLU national lawyers’ conference.
After we gave the Women’s Rights Project presentation and explained our strategy, Ruth and I started talking about the beautiful weather, and I happened to mention that it was a great day for horseback riding. To my shock, Ruth countered that she loved to ride and suggested we find a place to rent horses. Honestly, I couldn't imagine her on a horse, but I also doubted that she’d say she liked to do something that she wasn’t good at. I can’t, therefore, say that I was shocked when she proved herself to be a real horsewoman.
Both of us, having spent most of our lives in the East, had grown accustomed to English saddles. But it doesn’t make any sense to ride out on the range in anything but a Western saddle, so that’s what we chose. Ruth wasn’t riding in precise, perfect circles, or even doing Western dressage (which might seem to fit her character more). Instead, we spent our time galloping out in the desert, my favorite thing to do on horseback. Ruth rode freely, at times wildly, but always in control. This is a woman who knows how to work — and play — hard, I realized happily. The desert was beautiful, and it was a terrific afternoon.
Back in the office, Ruth and I agreed on the importance of the Equal Rights Amendment (ERA), which by March 1972 had been passed by both houses of Congress and sent to the states for ratification.
"It is the bedrock issue,” Ruth later told Newsweek Magazine in 1979. “[Without the ERA], the Supreme Court has no gun at its head."
I appeared on numerous television shows to debate, among others, Phyllis Schlafly, as well as Naval Admiral Hyman Rickover and Army General William Westmoreland. They shouted about how bad it would be if women were drafted to serve their country alongside men. In fact, during the congressional hearings, we were implored by Sen. Sam Ervin to allow an amendment to the ERA which would have exempted women from military duty. We adamantly refused any special treatment, or any amendments to the ERA.
Both Schlafly and Marabel Morgan, author of “The Total Woman,” continued to harp on how the ERA would end marriage as we know it, lead to widespread divorce, and cause “housewives” to be abandoned by their husbands, deprived by courts of alimony. During one of our television debates, Schlafly even tried to cite a case to support this absurdity. I interjected right there, on the air, that there was no such case and that she had made it up. She turned red and was clearly flustered.
Meanwhile, the Women’s Rights Project continued to put the emphasis on winning equal rights for women in the many cases and policy proposals coming our way. In 1972, we pushed for passage of Title IX. Working alongside my friend, Olympic Gold Medal winner, Donna de Varona, we were successful — the legislation passed. It prohibited sex discrimination in all education programs and activities that received federal funds. From then on, the money universities spent on athletics would have to be allocated equally to women's and men’s programs. The result has been that women’s sports, in general, have garnered huge audiences they never had before.
That same year, the Supreme Court agreed to review the three-judge federal district court ruling in Frontiero v. Richardson. Sharron Frontiero, a married Air Force officer, was denied the same housing and medical allowance for her husband that her male cohorts in the Air Force automatically received for their wives. The federal statute providing such allowances for spouses of military personnel stated that while all wives were automatically entitled to such funds, husbands had to prove that they were more than half dependent on their wives for support. Sharron and her husband thought this was unfair.
The government was now appealing directly to the Supreme Court. Ruth worried that bad law would be made if we didn’t intervene at least by filing a brief on behalf of the Women’s Rights Project. We all knew what a monumental task this would be, especially because Sharron’s lawyer insisted that he file his own brief, with no input from us.
Our greatest concern was to get the court to apply a higher level of scrutiny to sex discrimination cases than they had in the Reed case. The court ruled that there had to be a “rational state interest” in maintaining a sex-based classification. Here, the government’s argument was that the statutes allowing benefits for “dependents” of male service members presumed such dependent status of wives solely for “administrative convenience.” We worried that the court might decide that giving benefits to husbands and, therefore, causing a greater cost to the government, would be the necessary rational state interest — and that we would lose.
We wanted the court to apply a higher level of scrutiny both because we cared about the outcome of the case on the merits, and also because this was our chance to get sex discrimination to be treated by the court, and the nation as a whole, as a suspect classification — just as reprehensible as race discrimination. After all, the Equal Rights Amendment hadn’t yet been ratified.
The Women’s Rights Project team fell into a pattern of drafting the brief after we outlined the arguments we wanted to make. Ruth would create the argument, we would draft a section and then hand it back to her for re-writing and editing. What emerged from this process would go down in legal history, as Ruth wrote about the reasons that women should be treated as first-class citizens. She didn't confine her observations to old cases and legal precedent. Instead, she took sections from ancient opinions which revealed just how antiquated the government's position was. She showed how men have traditionally viewed women and their role in society by quoting Thomas Jefferson, Alexis de Tocqueville, Blackstone, Alfred Lord Tennyson, Henrik Ibsen, Gunnar Myrdal, and Grover Cleveland, among others.
She even used the court’s own language in Bradwell v. Illinois to show the ignorance of the justices when they agreed with the state that, because she was a woman, Myra Bradwell had no right to practice law in Illinois. Much to my enormous personal pleasure (and my desire for revenge, still lingering from law school), Ruth cited Goessart v. Cleary, the case challenging the Michigan law that essentially prevented women from bartending, stating “that like the classification challenged here, [it] was difficult to construe as a measure intended to assist women ‘in the struggle for subsistence’ or to safeguard women’s competitive position.”
She added that it was “retrogressive in its day and is intolerable a generation later … Goessart was said by the appellant,” wrote Ruth approvingly, “to be ‘an unchivalrous desire of male bartenders to try to monopolize the calling.’”
She then went through a history of the struggle for women’s suffrage, citing passages from the “Declaration of Sentiments” drafted at the 1848 Seneca Falls Women’s Rights Convention; she quoted Susan B. Anthony, Elizabeth Cady Stanton, and Sojourner Truth, all the way up to the 1963 statement from the President’s Commission on the Status of Women and language in the 1964 Civil Rights Act, as well as the legislative history of Equal Rights Amendment.
Observing Ruth’s process, I realized that as with any other kind of writing, the point was to capture the attention of the readers — in this situation, nine relatively old men — and persuade them that our position was the only tenable one, using all the ammunition we had.
After reading the defendant's reply brief, and presumably after he’d read our amicus brief, we received a call from Joe Levin, one of Sharron Frontiero’s lawyers. He wanted to know if the ACLU would be interested in writing a joint reply brief. Ruth jumped at the opportunity. She wanted the case handled properly all along, so the more control we had the better.
Unfortunately, we soon began to realize that there was no way that Sharron’s original lawyers would be able to argue the case before the court like Ruth could.
The briefs were submitted, and our worst fears were realized. The main brief for the Frontieros was embarrassingly inferior. I wondered how to negotiate with them to let Ruth do the oral argument. Ultimately, the main lawyer for the Frontieros was glad to have our help, but he wanted to argue the case. After some back and forth, I managed to get them to agree that Ruth would have 10 of the allotted 30 minutes to present our part of the argument.
While Ruth prepared to synthesize the amicus and reply briefs into a 10-minute argument, I scurried around collecting cites to various statutes and reporters, all in very big, heavy volumes that I would take with me to the Supreme Court in Washington D.C.
Early on the day of the argument, Ruth, her husband Marty, and I arrived at court. She and I were escorted to the counsel table, where I stacked up my opened books in order of the cases Ruth would cite as precedent. The other lawyer for Sharron Frontiero, Joe Levin, looked nervous as he seated himself at our table.
As the clerk finally called out the familiar "Oyez, oyez..." and then "the Justices of the Supreme Court,” I felt my heart pounding. Here I was, 28 years old, standing before the nine justices of the Supreme Court as they filed in behind the bench. Once we had settled down, our male colleague went first, unimpressively, but without doing any real damage.
When it was Ruth’s turn, she stood and slowly but clearly declared: "May it please the court." She made our arguments brilliantly, pausing for effect, her voice changing to signal a different point or quote. As she spoke, without any fanfare, she gave the cite to each case, adding the year. I felt a bit silly for having put so much time and energy into having all the cases with cites available, but I was mesmerized by her performance.
Suddenly, I realized that Ruth was concluding her remarks and not a single justice had asked a question. This was virtually unprecedented. Should we be worried? Had she done something wrong? But as I looked at those nine men, I saw the same fascination in them that I felt. They weren't bored; they seemed thrilled to see their craft performed so brilliantly.
The government lawyers tried lamely to defend the federal statute: In their opinion, there was a rational relationship between the difference in the way male and female officers were treated and the rule that had been established to define dependency. Some of the justices grilled them in an apparent effort to get an even better defense of the statute.
In the lobby of the Supreme Court, Marty came up to Ruth and kissed her congratulations, grinning from ear to ear. Then, as though he were talking to a 10-year-old, he began to tell Ruth how to take the shuttle back to New York. He had to stay in Washington, but she and I were more than ready to return home. Finally, I told him that it was okay; I knew how to get to the shuttle and had done it many times. He looked relieved. And the truth is that as he had been explaining to Ruth how to get back to New York, I saw on her face a confused look, as though comprehending that task was a bit much after the day’s events. There had been nothing condescending or macho about Marty's concern.
As we made our way home, I was reeling from the experience of being present for what was probably the best oral argument those justices had ever heard. I couldn't see how they could disagree with a word we’d written, or a sentence Ruth had said. It was then that I became convinced — and, shortly thereafter, told Ruth — that I was sure she’d be the next Democratic appointee to the U.S. Supreme Court. Who knew that it would take 21 years for my prophecy to become fact.
On May 14, 1973, the Supreme Court issued its decision in the Frontiero case. Eight of the nine justices agreed that the Air Force was wrongly discriminating against female officers by denying their dependents benefits on the same terms as those offered to the dependent wives of male officers. But only four of the justices, a plurality led by Justice Brennan, agreed with our argument that sex should be a suspect classification. Justice Stewart, in an opinion concurring on the merits, simply stated that "sex is an invidious classification." So we were deprived of a majority opinion that would have eliminated the need for the ERA.
Sometime in June 1973, Ruth and I received a call from the U.S. Commission on Civil Rights asking if we would be interested in drawing up a list of all the federal statutes that distinguished on the basis of sex. After FBI security checks and with the assurance of assistance from her class of law students, we set a date for a meeting in Washington in late July to hammer out the details — yet another exciting project for the Women’s Rights Project.
Exactly 20 years after the Frontiero case, Ruth took her seat on the Supreme Court. I spoke with her shortly afterward at the celebration of the 40th anniversary of the first class of women to graduate from Harvard Law School. She happily told me that her 3-year-old granddaughter would be celebrating her birthday the next day in the Supreme Court rotunda. Three years later, Ruth wrote the majority opinion in the Virginia Military Institute case in which the court definitively established that there would have to be an exceedingly persuasive justification for any distinction based on sex to remain on the books (in this case, admitting only men) — or in practice.
In the years since we worked together, I’ve visited Ruth a number of times when I’ve been in D.C. and have been one of her guests during some very important oral arguments. During the Defense of Marriage Act hearing, I could barely hear when, sotto voce, she murmured that the government wanted to perpetuate the “skim milk marriages” (i.e. domestic partnerships) forced on gays and lesbians who wanted to commit before then. On one of my later visits, she proudly told me that she was delighted she had persuaded “Tony” Kennedy to include an equal protection section in the marriage cases, so same-sex couples would be entitled to get married and be treated exactly the same way opposite sex couples do.
Ruth has given me books she’s contributed to, some opinions, including from-the-bench dissents that’s she’s penned — and also a book of Marty’s favorite recipes.
It’s amazing to know this woman with whom I did such important work, whose intellect I so admire. It’s more than heartening that she is still on the bench today, amidst such uncertain and tumultuous times — particularly as the court leans further right.
Brenda Feigen, a Harvard Law School graduate, directed the ACLU’s Women’s Rights Project with now- Supreme Court Justice Ruth Bader Ginsburg. She served as national Legislative Vice President of NOW and was a co-founder of Ms. Magazine and the National Women’s Political Caucus. She produced the big budget movie, “Navy SEALS,” and authored her memoir, Not One of the Boys: Living Life as a Feminist, published by Alfred A. Knopf in 2000. She has a daughter and two grandsons and lives in Los Angeles with her spouse, Joanne Parrent. Brenda is depicted in the current FX on Hulu mini-series, “Mrs. America.”