« The case of Moritz v. Commissioner of Internal Revenue » – Mathilde Spiers

 

Fig. 1. Portrait de Ruth Bader Ginsburg, 2000.

The case of Moritz v. Commissioner of Internal Revenue was the first to challenge traditional gender roles which were still enforced in the United States (and in most western civilizations) in the 1970s. It was also the first case Ruth Bader Ginsburg defended as a lawyer, even though she had graduated from Columbia Law School more than ten years prior. As a woman in the judicial field, she experienced first-hand the gender discrimination that was rampant in most jobs and careers and understood that the case of Moritz v. Commissioner of Internal Revenue would pave the way for gender equality if she won it.

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     She was born Joan Ruth Bader in Brooklyn, New York, in 1933, of European Jewish parents. As there were several other girls named Joan in her class when she started school, her mother Celia suggested she be called Ruth to avoid confusion, but her family and friends called her Kiki (a nickname given by her late sister Marilyn). Celia died from cancer just a few days short of her daughter’s graduation from James Madison High School, but never ceased to inspire Ruth. She went on to attend Cornell University, where she met her husband Martin Ginsburg, and from which she graduated with honors at the age of 21. She then attended Harvard Law School, where she was one of only nine women in her class of five hundred men. When Martin was diagnosed with cancer, she attended his classes in his stead, all the while being top of her own class and taking care of their infant daughter. Martin then found a job in a New York law firm, forcing the family to move and Ruth to finish law school at Columbia. She graduated first of her class in 1959.

     Despite her excellent credentials, she found that her gender, motherhood, and being Jewish hindered her career as she struggled to find employment. But one of her Columbia professors convinced Judge Edmund Palmieri to give her a clerkship, which she held for two years. She was later hired by Rutgers School of Law as an assistant professor in 1963, though with a low salary due to her husband’s high paying job. She earned tenure there in 1969. The following year she was asked to introduce and moderate a law student panel discussion about women’s liberation. She published two law reviews articles on the subject and taught a seminar on gender discrimination. She then worked alongside the American Civil Liberties Union (ACLU) to draft briefs on two federal cases. The first was Moritz v. Commissioner of Internal Revenue and was brought to her attention by Martin. The second was Reed v. Reed, about an Idaho state law expressly preferring men over women for administering the estates of people who had died without a will.

     During that decade she was a leading figure in gender-discrimination litigation, as she became founding counsel for the ACLU’s Women’s Rights Project and cowrote a casebook about gender discrimination. She was also the first tenured female faculty member at Columbia Law School. She wrote countless law review articles and contributed to many Supreme Court briefs in cases of gender discrimination. In 1980 Jimmy Carter appointed her to the US Court of Appeals for the District of Columbia Circuit in Washington, where she developed her reputation as a pragmatic liberal with a keen sense for detail. In June of 1993, then President Bill Clinton announced her nomination to the Supreme Court. She was endorsed unanimously by the Senate Judiciary Committee and confirmed by the full Senate in August of that year. She thus became the second woman to ever be confirmed as a Supreme Court Justice (out of four) after Sandra Day O’Connor. Since her confirmation, she has been known for siding with other liberal justices, while maintaining good relations with the more conservative ones.

 

     Her status as a woman has made her the recurrent victim of gender bias and discrimination in the form of condescension, mansplaining, and general rude behavior towards her. Over the course of more than fifty years, Ginsburg has made it her life’s mission to break down the barriers to equality, one law at a time. And it all started with a certain Charles Moritz.

     The case of Moritz v. Commissioner of Internal Revenue was the case which set in motion a reverse in gender inequality precedents. The very fact that the case dealt with gender-based discrimination fueled the respondent’s drive to see the petitioner’s (Mr Moritz) requests denied. Their strategy was to list all the federal laws which treat men and women differently, which implied that deciding in favor of the appellant would amount to opening Pandora’s box in terms of inspiration for women to seek making every law discriminating against people based on their gender unconstitutional. But instead of ensuring their victory, this strategy provided feminist jurists with all the data they would need to further their cause of gender equality, as each law listed could mark the next step in that struggle. Ginsburg knew that the plaintiff being male would make the judges more receptive to the concept of gender discrimination and to the notion that it was harmful. She acknowledged the fact that in order to win the war to grant more rights to women, the first battle would have to be about granting men more rights than what they already had.

 

     The facts of the case were quite simple: Charles Moritz was an unmarried journalist in his early sixties who had needed to hire a caretaker for his ailing mother, a feat that would have provided him a tax deduction had he been a woman, a widower, a divorce, or a man whose wife was incapacitated. His male and unmarried status made Moritz’ application for such a deduction inadmissible according to federal tax law.

     Ginsburg split the time arguing the case before the judges with her husband, who was a tax law specialist, while she was a novice in court, and would focus her time on constitutional law. However, she quickly found that the judges were not receptive to her cause, and that despite her aforementioned excellent credentials, they still preferred reducing her to her gender. It is easy now to imagine that sexism and misogyny must have then felt to her too finite, impossible to change. James Bozarth’s (counsel for the respondent) mentions of “the natural order of things” and how working towards gender equality amounted to “radical social change” inspired Ginsburg to fight back.

     When she took back the stage for “rebuttal”, she decided to appeal to the judges’ common sense by exposing what most women had endured because of gender, going back a hundred years. First referring to Myra Bradwell, the first woman to attempt to pass the bar exam (in Illinois in the late 1860s), who was denied that “privilege” and became the first person to challenge their prescribed gender role. She furthered her argument saying that Bradwell’s being denied admission to the Bar Exam set a precedent of gender inequality, and as time went on more and more precedents came to be, gender discrimination became part of a legacy, of a culture of traditions and morality. She explained that this legacy is too ancient, that “it belongs to an America that no longer exists”, then told the judges about the 178 laws which differentiated on the basis of sex, as per the brief the government provided, and called those laws outdated, requiring the courts to set new precedents rather than “overturning a century of [those] precedents”. One of the judges quipped that the word “woman” does not appear even once in the United States constitution, to which Ginsburg clapped back, “Nor does the word freedom, your Honor”.

      She then talked directly about section 214’s (the law that she is trying to have declared unconstitutional) objective, saying it is not to protect women or discriminate against men, but to give caregivers the opportunity to work outside the home, and as such the law should be fixed to reflect its intent, by extending the tax deduction to unmarried men. She continued by saying Mr Moritz invites and deserves respect and admiration and is what “[their] children should aspire to be” because he has “surpassed the limitations that the rest of us and our laws seek to force upon him”. She finished her statement by saying that the courts should “protect the country’s right to change”.

     Among her many inspirations, Ruth Bade Ginsburg has acknowledged a few: Simone de Beauvoir (with her book about The Second Sex), Dorothy Kenyon, Pauli Murray, her mother Celia, her daughter Jane, and a certain quote by Martin’s Harvard Law professor, Paul A. Freund, who said, “the Court should never be affected by the weather of the day but inevitably they will be influenced by the climate of the era”.

 

Mathilde Spiers


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