November 18, 2011 - Tuesday, November 22, 2011 is the 40th Anniversary of the United States Supreme Court's landmark decision in Reed v. Reed.  This was the first case in which the High Court declared that a state statute was unconstitutional because it discriminated on the basis of sex.

In Reed v. Reed Supreme Court Justice Ruth Bader Ginsburg, then a law professor at the Rutgers University School of Law-Newark, wrote the brief that carried the day.  Justice Ginsburg’s work in this case prompted courts to subject gender classifications to ever more careful scrutiny under the Fourteenth Amendment’s Equal Protection Clause.

Reed v. Reed overturned an Idaho law that gave fathers automatic precedence over mothers in administering a deceased child’s estate.  When Sally and Cecil Reed separated, she was awarded custody of their adopted son, Richard.  However, when Richard became a teenager, a judge decided he should live with his father to prepare to be a man.  Sally objected that the father would not be a good influence and when, at age nineteen, Richard committed suicide with his father’s rifle, she believed that the father bore partial responsibility.  Richard died without a will and although he left very little property, his mother petitioned to be named administrator of his estate as an expression of her care for her son.  Idaho law provided that when a child died without a will, fathers and mothers were equally entitled to be named administrator, but that “Of several persons claiming and equally entitled to administer, males must be preferred to females.”  Relying on state law, the Idaho Supreme Court unanimously ruled in Cecil’s favor.  The court wrote, "The legislature when it enacted this statute evidently concluded that in general men are better qualified to act as an administrator than are women."

Reed v. Reed ultimately reached the United States Supreme Court which, on November 22, 1971, unanimously reversed and remanded the case to the Idaho Supreme Court.  The U.S. Supreme Court opinion, written by Chief Justice Warren E. Burger, stated:

"[W]e have concluded that the arbitrary preference established in favor of males by 15-314 of the Idaho Code cannot stand in the face of the Fourteenth Amendment’s command that no State deny the equal protection of the laws to any person within its jurisdiction.'

Reed v. Reed marked a turning point in women’s rights under the law, but the case was just the beginning of then-Professor Ginsburg’s campaign to advance gender equality.  From Reed v. Reed in 1971 to United States v. Virginia in 1996, the case that required the Virginia Military Institute to admit women, Justice Ginsburg pioneered a strategy that integrated women’s legal equality into the mainstream of American life.

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Learn more about Reed v. Reed and Justice Ruth Bader Ginsburg’s litigation:

• The Supreme Court's opinion in Reed v. Reed, 404 U.S. 71 (1971).
• Fred Strebeigh, "Standard Bearer," Legal Affairs, September-October 2003.
• Fred Strebeigh, Equal: Women Reshape American Law (2009).
• "Breaking New Ground - Reed v. Reed, 404 U.S. 71 (1971)," Supreme Court Historical Society.

Learn more about Legal Momentum’s work on gender equity and gender bias.