(1)
Reed v. Reed Advances Equality for Women, but Must 
Always Be Defended
Marcia D. Greenberger, Co-President
National Women's Law Center
November 22, 2011
http://www.nwlc.org/our-blog/reed-v-reed-advances-equality-women-must-always-be-defended

Forty years ago today, for the first time in its
history, the Supreme Court held that a law that
discriminated against women violated the Constitution.
In Reed v. Reed, a unanimous Court struck down an Idaho
law requiring the automatic preference of a man over a
woman when both applied to be the executor of an estate.
The Court recognized that women had a constitutional
right to equal protection of the law, turning from a
long list of previous rulings that allowed women to be
excluded from juries, or the legal profession, or even
bartending, on the grounds that women needed to be
protected from the rough-and-tumble of the workplace or
the public square, or confined to the sphere of hearth
and home. The Court's ruling was spurred by the advocacy
of Ruth Bader Ginsburg, who authored Sally Reed's
Supreme Court brief and whose efforts in that case and
in a series of groundbreaking Supreme Court cases in the
years that followed established constitutional
protection against discrimination on the basis of sex.
Forty years ago today, the Supreme Court's decision also
gave new constitutional underpinnings to the statutory
protections against sex discrimination in employment and
an impetus and strength to an array of new statutory
protections against discrimination in education, credit,
and housing, as well as employment, in the years that
followed. That work continues. Most recently, there is a
new protection against sex discrimination in federally-
funded health care, as part of the Affordable Care Act,
closing yet one more gap in legal protection against
discrimination women are still fighting to secure.

But let there be no mistake about it, while cause for
celebration, these gains are not fixed in stone. In the
last few decades since the Reed decision, none of the
constitutional cases protecting women against official
sex discrimination were decided without dissent. Indeed,
just last year Justice Scalia flatly stated, "Certainly
the Constitution does not require discrimination on the
basis of sex. The only issue is whether it prohibits it.
It doesn't. Nobody ever thought that that's what it
meant. Nobody ever voted for that." And last month, in
an interview with Newsweek, Judge Bork, when asked
whether he still believes that the Equal Protection
Clause does not protect against sex discrimination,
answered that he did, and felt justified in that belief
because "women are a majority of the population now-a
majority in university classrooms and a majority in all
kinds of contexts. It seems to me silly to say, `Gee,
they're discriminated against and we need to do
something about it.' They aren't discriminated against
anymore."

The Court's most recent decision in a constitutional sex
discrimination case proves that these protections cannot
be taken for granted. This June, the Supreme Court split
4 - 4 in Flores-Villar v. United States, a case
challenging a law that has different standards for an
unmarried woman than an unmarried man to pass on her
U.S. citizenship to a child. (Justice Kagan had worked
on the case previously and so did not participate in the
decision.) The tie decision had the effect of affirming
the constitutionality of this blatantly discriminatory
law and its unequal treatment of mothers and fathers.

While today those fighting sex discrimination have the
law on our side, as the Flores-Villar case and the
comments by Justice Scalia and Judge Bork remind us,
important gains like those in Reed must always be
defended and safeguarded. It is our job to make sure
that we continue to move forward, building on the law's
promise to stand behind the effort to continue to expand
the possibilities for women and girls.

(2)
Reed v. Reed Reminds Us What's At Stake for Women 
in Constitutional Fights
Emily Martin, Vice President and General Counsel
National Women's Law Center
November 22, 2011 
http://www.nwlc.org/our-blog/reed-v-reed-reminds-us-what%E2%80%99s-stake-women-constitutional-fights

Happy anniversary! Forty years ago today, the Supreme
Court ruled for the first time in history that a law
that discriminated against women violated the
Constitution. Reed v. Reed was the first in a series of
path-breaking cases that established that the
Constitution does not permit government to discriminate
on the basis of sex unless it can prove it has an
exceedingly persuasive justification for doing so. Today
let's start giving thanks a few days early and celebrate
the cases that recognized that women are among those
persons who may not be denied equal protection of the
law under the Fourteenth Amendment.

But while these victories merit celebration, today it is
also important to remember that women still have much at
stake in current arguments about the Constitution and
its meaning. For example, a week ago, the Supreme Court
agreed to consider whether the Affordable Care Act's
expansion of Medicaid and individual responsibility
provision are constitutional. The answers to these
questions will determine the fate of the Affordable Care
Act-- legislation of tremendous importance to women's
health. The Court's decision may also affect other laws
upon which women depend. If the Court holds that the
Constitution does not permit Congress to require
individuals to obtain health insurance when they prefer
not to enter into such an economic transaction, it could
open the door to arguments that the Constitution also
does not permit Congress to (for example) require banks
to give loans to women as well as men, even if the bank
prefers not to enter into economic transaction with a
women, or require employers to consider female
applicants as well as male applicants for a position, if
the employer prefers not to enter into economic
relationships with women. If the Court hold that the
Medicaid expansion is unconstitutional because it is
coercive to tell states that they can only receive
federal funds on which state budgets depend so long as
they agree to certain conditions on how those funds are
spent, will it call into question whether it is
constitutional for Congress to tell states that if they
accept federal funding, they must agree not to
discriminate on the basis of sex in their educational
programs and activities, as Title IX requires?

Last week saw another constitutional conversation of
crucial importance to women when the House voted on a
Balanced Budget Amendment, a constitutional change that
would force major cuts to programs that women and
families depend on--at the very moment that economic
times get tough. The Amendment did not garner the two-
thirds vote necessary for approval, but this is likely
not the last time we will hear of such a proposal.

Even the protections against sex discrimination provided
by the Equal Protection Clause have been recently called
into question by Justice Scalia, and just last term the
Supreme Court tied four-four in a sex discrimination
case under the Constitution, which had the effect of
allowing a law that discriminated on the basis of sex in
awarding U.S. citizenship to survive.  Celebrate the
fortieth anniversary of Reed v. Reed by remembering much
the Constitution means for women and the work that
remains to be done to ensure that the Constitution
continues to be a powerful guarantee of women's
equality.

___________________________________________

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