EQUAL: Women Reshape American Law

reviewed by Barbara Kate Repa

Author Fred Strebeigh, a lecturer on writing at Yale University, dismisses the notion that a white male may not be the best person for the job of chronicling women's legal rights by noting that during his months spent researching, only one person asked him point-blank: "Shouldn't they get a broad to write that book?"

In fact, his vantage point, from the outside in, seems to give this collection of observations a fresh perspective and save it from becoming yet another recounting of "firsts" for women in the law.

Equal: Women Reshape American Law begins with a detailed biography of Ruth Bader Ginsberg, who Strebeigh hints egged him on to write the book by allowing him unbridled access to the files in her storage room. It then details cases and causes involving women's legal rights and wrongs?many of them springing from California?in five sections titled Scrutiny, Pregnancy, Lawyering, Harassment, and Violence.

There are memorable victories: Equal Rights Advocates founder Wendy Williams, with support from Boalt Hall's Herma Hill Kay, winning the first case recognizing that sex discrimination violates both state and federal constitutions. The practical result of that case, Sail'er Inn, Inc. v. Kirby (5 Cal. 3d 1 (1971)), was that women employed in a California bar were allowed to work as topless bartenders as well as topless waitresses. Nevertheless, it was a step in some right direction.

There are also confounding defeats: Geduldig v. Aiello (417 U.S. 484 (1974)), in which the U.S. Supreme Court denied pregnant women health benefits based on the specious distinction that the underlying California insurance program discriminated not between women and men but between "pregnant women" and "nonpregnant persons."

And there are accounts of dozens of women who had roles in moving and shaking the law as both lawyers and judges. Now familiar legal icons, these women include:

? Noted litigator Ruth Weyand, who was rejected by the University of Chicago Law School in 1930 when the registrar told her "the faculty was not keen on admitting women because they knew we only came to find husbands."

? Susan Deller Ross, who, as a neophyte in the general counsel's office at the Equal Employment Opportunity Commission (EEOC) in 1970, was posed a hypothetical by a male colleague about hiring practices at a construction company: "Shouldn't the cost of getting a new Porta Potty be a reason why the construction company shouldn't have to hire women?"

? Diane Blank, who, after being denied interviews with top Wall Street law firms in 1968, later sued and spearheaded a study of hiring practices in which one of the committee chairs enthused that women are especially suited for work in trusts and estates "because they work well with widows and orphans."

Though Strebeigh's tone throughout is studious and workmanlike, he does dish?and does so most deliciously in the Harassment section. There readers learn, for example, that when Catharine MacKinnon's opus Sexual Harassment of Working Women (Yale University Press, 1979) criticized the reasoning of "one appellate judge" whose opinion did not recognize sexual harassment as discrimination, that judge was MacKinnon's own father. And the book shines a light on a memo Clarence Thomas wrote before assuming the helm of the EEOC, opining that hostile-environment harassment "undoubtedly led to a barrage of trivial complaints against employers around the nation."

Indeed, the author's greatest strength is in weaving together people, history, and the law. He paints arguments before the U.S. Supreme Court?usually staid snoozers?that seem like theater by presaging how the justices would rule after volleying their questions.

He also provides admirable detail in describing the people behind groundbreaking legislation, including Victoria Nourse, who drafted the Violence Against Women Act (VAWA) first introduced by then-Senator Joe Biden in 1990. The draft won support from groups as diverse as The Chicago Catholic Women, No More Nice Girls, and the American Home Economics Association. But before the bill was even introduced to Congress, it was waylaid by attacks from the Judicial Conference of the United States, led by Chief Justice William Rehnquist, claiming that it would double the federal court caseload by "federalizing" domestic-relations cases.

Here, the book loses some of its focus on women in the law and devolves into a deadening description of the gamesmanship behind various legal groups, until VAWA became law in 1994.

More interesting is Strebeigh's description of the first case to test that legislation in the U.S. Supreme Court less than a decade ago, when a freshman at Virginia Tech who alleged she was gang-raped by members of the football team sought to invoke VAWA. In a 5?4 opinion, the Court held that Congress had overstepped its bounds in enacting VAWA, which did not regulate an activity that affected interstate commerce or redress harm caused by the state (United States v. Morrison, 529 U.S. 598 (2000)). In his opinion for the majority, Chief Justice Rehnquist cited and revitalized an ancient holding by Justice Joseph Bradley in Civil Rights Cases (109 U.S. 3 (1883).)

It was Bradley who in 1872 had denied Myra Bradwell the right to practice law based on gender differences ordained by no less than "the law of the Creator" that limited women to "the noble and benign offices of wife and mother." His reasoning: "The natural and proper timidity and delicacy which belong to the female sex evidently unfits it for many of the occupations of civil life." (Bradwell v. Illinois, 83 U.S. 130 (1872).)

That was then, but that is now, too?as the law, in its majestic equality, still sees much that "unfits" women. Fittingly, Equal ends on that downbeat observation: "The Supreme Court, as ever mostly male, closed the twentieth century by reaffirming a nineteenth-century justice who claimed ... women were protected, thanks to the Creator, by men."

Barbara Kate Repa is a lawyer, author, and editor in San Francisco who covered the U.S. Supreme Court as a legal journalist.

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