“So, anything goes?” Justice Ruth Bader Ginsburg asked counsel Roy Englert on Monday at the Supreme Court, in a re-enactment of the 1948 Supreme Court case Goesaert v. Cleary, an event sponsored by the Supreme Court Historical Society and the Women’s Bar Association for the District of Columbia, which celebrates its 100th anniversary on May 17. “Anything the legislature wants to do with regard to women’s occupations, as long as someone could conceive of some basis for it, that’s good enough” for the statute to be constitutional.
“Yes, that’s very well stated,” Englert responded matter-of-factly, in defense of Michigan’s ban on licensing women as bartenders (with an exception for the wives and daughters of male bar owners). “That is my understanding of the current doctrine of this court,” he added, expressing a view that the court accepted nearly 70 years ago.
Englert was at the lectern to rebut the argument put forth moments before by Deanne Maynard, who argued on behalf of Valentine Goesaert. In 1947, Goesaert, the owner of a bar in Dearborn, Michigan, challenged the Michigan law. A year later, Anne Davidow, Goesaert’s original counsel, became the first person to argue – albeit unsuccessfully – before the Supreme Court that the equal protection clause of the 14th Amendment prohibits discrimination on the basis of sex.
As Maynard re-argued on Monday, “the gender line this statute draws is an arbitrary one.” “Courts must ensure reasons given for classifications are not a mere excuse to disadvantage one class of people,” she continued, and “there is no fit” between Michigan’s stated aim – the protection of women – and the realities of this law. For instance, a male pub owner could leave his wife to tend bar alone while he was away, but a female owner could not tend bar alone even if she hired a muscular man as bouncer.
Maynard suggested an alternative basis for the Michigan law, one that Judge Patricia Millett of the U.S. Court of Appeals for the District of Columbia Circuit had offered in her introduction to the event. As Millett first explained, an alliance arose in Michigan between “drys,” who even after the repeal of Prohibition still sought to limit the prevalence of alcohol in society, and the Michigan Bartenders Union, an all-male organization that wanted to limit competition from women. Millett noted that during World War II, many women served as bartenders – “Bessie the Bartender joins Rosie the Riveter.” Banning the licensing of female bartenders served the purposes of both groups.
Ginsburg, who sat in the middle seat normally occupied by Chief Justice John Roberts, did not spare Maynard or Englert any tough questions that they might have faced in 1948. “She’s a hot bench all by herself,” Maynard said afterward. For instance, cutting off Maynard almost immediately after Maynard began her argument, Ginsburg asked if the Supreme Court had ever declared unconstitutional a state law regulating liquor. Englert seized on this point, and began his time at the lectern by declaring firmly that the court had never done so – nor had it ever struck down a gender-based distinction under the 14th Amendment.
After the oral argument was over, Ginsburg explained that in the original opinion for the court, Justice Felix Frankfurter – despite referencing the presence of female bartenders in Shakespeare and throughout history – had upheld “the prerogative of legislatures to draw a sharp line between the sexes.” Although three justices dissented, “no justice contested the legitimacy of a total ban on women bartenders,” Ginsburg noted. Instead, the dissenters would have struck down the law because it made an irrational exception for certain women: A total ban, they believed, would have been more rational.
Ginsburg told the audience that her constitutional law casebook in the late 1950s presented this case “as an illustration of the court’s retreat from the Lochner decision championing liberty to contract.” “Not a word was said in the casebook or by my professor,” Ginsburg continued, “about the blatant gender-based discrimination infecting the Michigan law.”
“I will not attempt to substitute a different opinion for the one that the court wrote in 1948,” Ginsburg said. Although this case “might have been the turning-point case on gender discrimination,” instead “the court lagged pretty far behind social reality” until 1971, when the court in Reed v. Reed ruled that the equal protection clause of the 14th Amendment prohibited discrimination on the basis of sex, and 1973, when the court in Frontiero v. Richardson held that a stricter standard than rational basis review applied to classifications on the basis of sex. Notably, Ginsburg did not mention her involvement in either of those two landmark cases.
The connection, however, did not escape Maynard. “It’s hard not to come away from that with a renewed appreciation for everything that Justice Ginsburg and other women and men who fought for equal rights have accomplished.” Maynard said afterwards. “To re-argue to her what she as an advocate ultimately got reversed was a once-in-a-lifetime experience.”
Maynard said she was particularly pleased her two daughters could watch in the audience. “It’s especially important for me to have them to realize the strides that we’ve made as a society in recognizing everything women can do and that they can be everything they want to be.”
His role as advocate completed, – “someone had to play the villain,” he said – Englert echoed Maynard’s sentiments, welcoming the chance “to reflect on where we came from and what kinds of attitudes there were in the lifetimes of people still living.” Englert added that while preparing for the event, he was surprised to realize that West Coast Hotel Co. v. Parrish, often seen as a landmark progressive decision, still contains “shocking retrograde language about discrimination between men and women.”
Such realizations are exactly what the event organizers intend. The re-enactment series is named for Frank Jones, a former president of the society. According to Jennifer Lowe, director of programs and strategic planning, Jones favored re-enactments for the “novel, new and different way” the experience “teaches people about Supreme Court cases.”
On May 10, the Supreme Court Historical Society and the Supreme Court Fellows Alumni Association host a “Look Back” at Gideon v. Wainwright. Speakers will include Judge James Boasberg, Judge Timothy Dyk, Jelahn Stewart and Elizabeth Woodcock. More information about the event is available on the society’s website.