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Equal: Women Reshape American Law, by Fred Strebeigh

Forty years ago sex discrimination in education and the judicial system was not just legal but respectable, or “only natural.” Sex discrimination in employment had just recently been prohibited by the 1964 Civil Rights Act, and employers could still engage in it with social if not formal, legal impunity. Only the most dyspeptic feminist would deny that we have made giant strides toward equality since then, and Fred Strebeigh’s compassionate and engrossing book celebrates the women who systematically removed historic legal roadblocks from our path.

While deftly explaining the legal issues in lay person’s terms, Equal focuses on the personal stories of lawyers and litigants who fought and often won landmark battles for sexual equality in the late 20th century. Most but not all were women: Equal opens with the sad tale of Paula Weisenfeld, who died giving birth to her son, leaving her husband to raise him without the federal child care benefits to which a single widowed mother would have been entitled. This rule discriminated overtly against men by covertly devaluing women, and Stephen Weisenfeld devoted himself to vindicating his late wife’s work in support of her family. He found an equally devoted advocate in the brilliant Ruth Bader Ginsberg, who attended Cornell University in the early 1950’s, Strebeigh recounts, thanks to a college fund quietly accumulated by her mother Celia, who, instead of attending college herself, had worked to put her brother through Cornell. Celia Bader died after a prolonged battle with cancer the day before her daughter’s high school graduation. A little over 20 years later, as founding Director of the ACLU’s Women’s Right Project, Ruth Bader Ginsberg argued Weisenfeld’s case before the Supreme Court, obtaining a unanimous decision in his favor. (Ginsberg has observed that it was the discriminatory effect on children that persuaded Justice Rehnquist to strike down the denial of benefits to widowed fathers.)

Weinberger v Weisenfeld, decided in 1975, was only one of several groundbreaking cases litigated by Ginsberg. The first important modern constitutional challenge to sex discrimination was Reed v Reed, which, in 1971, invalidated a preference for husbands over wives as estate administrators. Like Weisenfeld, Reed grew out of a family tragedy – the suicide of a teenage son. Reed was followed by Frontiero v Richardson, which struck down a law denying servicewomen equal rights to claim their spouses as dependents. Frontiero was a qualified victory: the Supreme Court stopped short of adopting the same, strict constitutional standards of review to sex discrimination that it applies in race discrimination cases; the disparate treatment of the sexes was, and remains, easier for judges to rationalize. But the Court increased its scrutiny of laws treating men and women differently. It’s often noted that Ginsberg relied strategically on cases, like Weisenfeld and Frontiero, in which sex stereotyping hurt men, but as she has stressed, these were not manufactured cases: they involved real people in difficult or tragic situations that were exacerbated by discriminatory policies.

Meanwhile, federal courts grappled confusedly with questions of pregnancy discrimination, which Justice Stewart famously declared was not sex discrimination, in a 1974 case upholding the constitutionality of health care plans that denied equal benefits to pregnant women. Two years later, the court upheld the denial of equal pregnancy benefits under Title VII. (Finally, Congress enacted a statutory ban on pregnancy discrimination in 1978.) Bias in the courts was not exactly uncommon, (as the pregnancy cases suggested;) and women risked challenging grossly discriminatory practices in their law schools and in upper echelons of the legal profession. Streibeigh’s account of their victories may bring some solace to women frustrated by the pace of change and the relative paucity of female judges today.

Tenacious female litigators and their clients continued the fight to implement constitutional and statutory guarantees of equality throughout the 1970s, 80’s and 90’s. As Streibeigh explains, Catherine MacKinnon’s creative legal theories helped persuade the Supreme Court to expand Title VII’s definition of sexual harassment, in the case of Meritor Savings Bank v. Vinson, involving a woman who was effectively required to have sex with her abusive boss. Her submission to his demands made this a difficult case to prove, and it led to the Court’s recognition of “hostile environment” claims. Strebeigh pays tribute to the courageous persistence of plaintiff Mechelle Vinson and her lawyer Patricia Barry.

The Vinson case was decided in 1986, about the time that the controversial and, in my view, profoundly misguided feminist anti-porn movement was in vogue, reflecting, in part, frustration with the inadequacies of legal responses to sexual violence. In 1994 Congress reacted by passing the Violence Against Women Act (VAWA,) which included provisions allowing victims of sex based violence to sue their alleged assailants for civil rights violations in federal court. Striebeigh chronicles the battle to enact this legislation, in the face of opposition from the late Chief Justice Rehnquist and mostly male federal judges who argued that the Act would flood the courts with domestic relations cases. The Association of Women Judges pushed back, and VAWA was enacted, in what proved to be a short-lived triumph for feminist coalition politics. In 2000, in United States v Morrison, (a case that might be dubbed Rehnquist’s revenge,) the Court struck down VAWA’s civil rights remedy.

The facts of this case were compelling; it involved strong, plausible allegations of rape by a female college student against two football players who escaped punishment. (She did not report the attack to the police, and college administrators did not take it seriously, even when one of the men acknowledged raping her.) But you don’t have to be an anti-feminist to support the Court’s decision in her case, (as I ruefully did) or to worry about threats to civil liberty posed by expansive notions of “hostile environments” and bans on allegedly abusive or offensive speech on campus and in the workplace. Fred Streibeigh’s < Equal is both a valuable reminder of the primitive sexism confronted by pioneering feminist lawyers and an invitation to consider the complexities of their legacies.