Justice Ruth Bader Ginsburg’s Contribution to Constitutional Equality: From an “Empty Cupboard” to Greater Inclusion

Linda McClain

 “A prime part of the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.” Justice Ruth Bader Ginsburg made this declaration in her majority opinion in United States v. Virginia (“VMI”) (1996), in which the Court held that Virginia’s exclusion of women from the Virginia Military Institute violated the Equal Protection Clause of the Fourteenth Amendment. Those words seem an apt place to begin a reflection on her momentous contribution—as a litigator and justice—to constitutional equality. Earlier in her legal career, in explaining the state of affairs when she began her pioneering litigation with the ACLU’s Women’s Rights Project (“WRP”) in the 1970s, Ginsburg  observed that except for “the franchise” (the Nineteenth Amendment), “the Constitution remained an empty cupboard for people seeking to promote the equal status and stature of men and women under the law.” Later, as a justice writing the majority opinion in VMI, Justice Ginsburg recounted the Nation’s “‘long and unfortunate history of sex discrimination,’” quoting Frontiero v. Richardson (1973)—one of the cases she successfully litigated—to support the Court’s pivot to more “skeptical scrutiny” of governmental action that used gender classifications to deny rights or opportunities.

As Justice Ginsburg notes in VMI, Reed v. Reed (1971) began the shift to a more inclusive “story” of equality rights with respect to women. But Ginsburg had always insisted that men also  had a stake in gender equality and in ending governmental reliance on stereotypes that constrained individuals based on sex. That men were the plaintiffs in some of her landmark victories with the WRP reveals that conviction, as well as the pragmatic judgment that male justices might more easily perceive sex discrimination experienced by a man.

In Sessions v. Morales-Santana (2017), Justice Ginsburg reiterated that the Court’s skepticism about gender-based differentials pertained to disadvantageous treatment of men as well as of women. Writing for the majority, Justice Ginsburg’s opinion held unconstitutional a provision of the Nationality Act of 1940 that treated unwed U.S.-citizen fathers less favorably than U.S.-citizen mothers with respect to conferring citizenship on their child. The relevant statutes, she noted, were “from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are,” including that the unwed mother was “the natural and sole guardian of a nonmarital child.” Ginsburg drew on what was by now a “half century” of Supreme Court jurisprudence—including her own opinion in VMI—that viewed with “suspicion” laws relying on this kind of “overbroad generalization about the different talents, capacities, or preferences of males and females.” That jurisprudence recognized  that laws reinforcing stereotypes about women as the presumed “primary family caregiver” may “disserve men who exercise responsibility for raising their children.” There are echoes here of Ginsburg’s early advocacy in Moritz v. Commissioner of Internal Revenue (1972) for a man providing care for his elderly mother who was denied governmental benefits that would have gone to a daughter providing the same care.

To be sure, this jurisprudence about gender equality—so focused on the comparative treatment of women and men—may itself feel anachronistic to present-day equality advocates in light of more complex understandings of gender, gender identity, and gender discrimination. In this regard, it is useful to return to Justice Ginsburg’s observation about the “story” of the Constitution expanding to include groups once ignored or excluded as “our comprehension of ‘We the People’ expand[s].”

Consider civil marriage equality. In Bostic v. Rainey (2014), federal district judge Arenda Wright Allen concluded her opinion striking down Virginia’s defense of marriage law by quoting Ginsburg’s language from VMI. In Obergefell v. Hodges (2015), Justice Kennedy’s majority opinion affirming same-sex couples’ fundamental right to marry also reveals Justice Ginsburg’s influence when he observes that the Court’s evolving interpretation of the Equal Protection Clause recognizes “that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” He elaborates that, even into the 1970s and 1980s, “invidious sex-based classifications in marriage remained common” and  “denied the equal dignity of men and women.” He implicitly references the Court’s gender revolution when he writes that, “[r]esponding to a new awareness,” the Court used equal protection principles “to invalidate laws imposing sex-based inequality on marriage.”

Consider also Bostock v. Clayton County (2020), a significant if surprising victory for LBGTQ equality.  Justice Gorsuch held—in a majority opinion joined by Justice Ginsburg—that discrimination because an employee is gay or transgender necessarily and inevitably is discrimination “based on sex” under Title VII. Such analysis from a conservative justice may signal absorption and further development of the antistereotyping premises behind Ginsburg’s equality project. 

Justice Ginsburg’s arguments as a litigator and analysis as a justice not only brought about a new awareness of gender inequality but also laid the groundwork for an expanding awareness of gender roles and identity and created precedents for other excluded groups to rely upon. The  cupboard, as she has left it, is no longer entirely empty.

(This post also appeared today on the Human Rights at Home Blog)