Feature November 8, 2017

Reed v. Reed and the Fight for Gender Equality

A grey-brown sandstone memorial sitting on the front lawn of the Idaho Angler on Vista Avenue in Boise, Idaho, sports a plaque and photo of Boisean Sally Reed. It celebrates an Idahoan whose outrage, determination and persistence in the fight for gender equality fueled a landmark U.S. Supreme Court decision to recognize women’s equality under the law. To many, November 22, 1971, may not seem all that long ago. But in its decision in Reed v. Reed, the Court held for the first time in the nation’s history that a statute discriminating on the basis of gender violates the Equal Protection Clause of the U.S. Constitution’s 14th Amendment. Sally Reed, the plaintiff in that seminal case, along with fellow Boiseans—her attorney, Allen Derr, and the judge, Charles “Chick” Donaldson—and the iconic future Supreme Court Justice Ruth Bader Ginsburg, will be forever linked in the annals of legal history for their critical roles in persuading the High Court to expand equal protection of the law to encompass Constitutional protections for women’s rights.

Reed v. Reed, a story born in tragedy, became a pivotal American legal story. On March 12, 1967, a damp, gray day, 16-year-old Richard Lynn “Skip” Reed, who had been in and out of trouble at school and with the law, apparently took his own life with one of his father’s guns in his father’s basement in Boise. Sally Reed doubted, for the rest of her life, that her son had committed suicide. For a time, Derr shared her doubt.

Skip left behind a clarinet, a few books and phonograph records, some personal belongings, and $495 in a college savings account created by his mother. Reed v. Reed, the historic Supreme Court ruling that Justice Ginsburg has called a “turning point case” in our nation’s law, involved an estate worth less than $700.

Unsurprisingly, Skip Reed, 16 at the time of his death, had not left a will. His adoptive parents, Cecil and Sally Reed, had divorced in 1958. Sally petitioned the probate court to serve as administrator of Skip’s estate. Cecil declared Sally “too dumb” to manage the estate, and filed a petition of his own. The probate judge ruled that he was bound by an 1864 Idaho law, enacted by the Idaho Territory legislature, which provided that in cases in which a man and a woman applied to serve as executor, and both are equally entitled to administer the estate, that “males must be preferred over females.” In their enactment of the statute, Idaho legislators determined that men “have a better head for business than women.” Accordingly, the probate court appointed Cecil as executor of his son’s estate.

Sally Reed

Sally Reed was more than discouraged that “women could be stepped on like that.” She was outraged, and sought a new attorney to represent her in an appeal. But lawyers in Boise, and surrounding areas, were not interested in taking her case. Attorney after attorney—16 in all—refused to represent her. Her case, they said, was weak, and an appeal would be futile. The statute that governed the probate court’s appointment of an administrator had never been repealed and, in fact, had been upheld by the courts. Sally would be wasting her money, they said. In fact, Sally had very little money. She had, over the years, worked as a secretary and bookkeeper but earned most of her income by ironing, baking, baby sitting and caring for disabled veterans and other elderly persons, in her home on the lot now occupied by the Idaho Angler.

But Sally persisted in search of a lawyer who would carry her appeal. Friends recommended Allen Derr, then a 43-year old Boise attorney who had practiced law for a dozen years and had served in the Marine Corps in World War II. When Sally called Derr, she was, indeed, placing an emergency call, seeking legal counsel for equal protection of the law. Derr, the 17th attorney whom Sally had asked to represent her, answered the call and told Sally, candidly, that while they faced an uphill fight, it was one worth waging. The 1864 statute, he believed should be held unconstitutional as a violation of the Equal Protection Clause of the 14th Amendment.

Derr’s decision to represent Sally as a pro bono client had significant financial implications for his small law firm, which consisted of a brother, Jack Derr, and a young attorney, Jesse Walters, a future member of the Idaho Supreme Court. Walters’ admiration for his old partner runs deep. “I learned from the best,” Walters, an octogenarian, said in a recent interview.

Derr called a meeting of the partners and sought their views on whether he should represent Sally Reed. “It was an important issue,” Walters explained, “because Allen was the principal breadwinner in the firm. If he took the case, it meant that he would have less time to earn money for the firm. But we agreed he should represent Sally. It was a very important issue, and it was the right thing to do.”

Derr had little tolerance for discrimination. He was deeply disturbed by his experience in the Marine Corps, where he observed routine discrimination against African-Americans soldiers. After the war, while a student at the University of Idaho, he confronted further racial discrimination when, in his capacity as assistant executive secretary of his fraternity—Tau Kappa Epsilon—he traveled throughout the nation to ensure that chapters wishing to enroll African-Americans could do so, over the objections of alumni.

Derr’s antipathy toward discrimination had a lot to do with the influence of his mother, according to his widow, Judy Peavey-Derr, a former Ada County Commissioner. “Allen attributed his disdain for discrimination, racial or otherwise, to his mother’s teaching,” she explained. His mother, Hattie Derr, filled out the Idaho State Senate term of her husband, Alfred, in 1937, when he dealt with appendicitis. She thus became the first woman in the history of Idaho to serve in the state Senate. Alfred served five terms in the state senate and ran, unsuccessfully, for governor in 1958.

There was little reason for Derr and Reed to expect a favorable outcome in their appeal of the probate court ruling to the Fourth Judicial District of Idaho. After all, the 1864 statute was the greybeard of all statutes enacted by the Idaho Legislature, and it had never been repealed by the legislature or overturned by an Idaho court. But they were pleasantly surprised when Judge Charles R. Donaldson, a Methodist minister’s son, in only his fourth year as a district judge, held on December 2, 1968, that the Idaho law was unconstitutional as a violation of the Equal Protection Clause.

Judge Donaldson’s ruling was remarkable in that he was the first Idaho jurist, and one of the very first in the nation, to declare a statute unconstitutional on grounds of gender discrimination. Indeed, the U.S. Supreme Court, even during the years of the Warren Court, had refused to reach such a holding, despite repeated appeals for it to do so.

Donaldson wrote, in language anticipating the Supreme Court’s final disposition of the case in 1971: “The Court can see no reasonable basis for the classification which gives preference of males over females.” In rejecting the rationale of the statute—men have a better head for business for women—Judge Donaldson presciently wrote: “The Court feels that this statement has no basis in fact in this modern age and society. There are occasions when a woman would be more qualified than a man and vice versa.”

Judge Donaldson, a trim, athletic man with a mustache reminiscent of those worn by legendary Supreme Court Justices Oliver Wendell Holmes and Charles Evans Hughes, had rendered a courageous decision. It exhibited what lawyers and court watchers observed in him, “a steel beneath that congenial surface,” in the words of the veteran Boise attorney, Eugene Thomas who, to this day, remains the only Idahoan ever to have served as President of the American Bar Association.

Judge Donaldson’s ground-breaking opinion in Reed v. Reed brought him considerable and well-deserved notoriety in Idaho. However, because he had previously ruled on the case, when Donaldson was elected to the Idaho Supreme Court in 1968 he was forced to recuse himself from Cecil Reed’s appeal to the state’s high court in 1970. There was little Donaldson could do but watch as his fellow Justices, by a vote of 5-0, unanimously reversed his earlier decision.

Allen Derr and Sally Reed certainly had their work cut out for them, if they wished to make a successful appeal to the Supreme Court, for no one before them had succeeded in what they sought to accomplish: to persuade the Court to declare unconstitutional a statute on grounds of gender discrimination. What’s more, they could not have known that their appeal would provide a platform for the career launch of one of America’s greatest legal figures.

Professor Ruth Bader Ginsburg, a 38-year old member of the Rutgers Law School faculty, respected within the legal field, but little known beyond it, had been searching for a case that might represent a vehicle for her to promote the legal theories and arguments against gender discrimination that she had burnished in a spate of law review articles, seminars and speeches. When she saw the case filings for Reed v. Reed, she contacted Melvin Wulf, Director of the American Civil Liberties Union (ACLU), to ask if the ACLU might be involved in this case. If so, Ginsburg declared, she wished to be part of the proceedings.

Women’s Liberation March from Farrugut Square to Lafayette Park, Washington, D.C., August 26, 1970

The ACLU’s collaboration with Allen Derr in bringing the case before the Court was a fruitful marriage for both. Professor Ginsburg wrote a brilliant brief—her first to the U.S. Supreme Court—on behalf of Sally Reed. Her brief—which would become the model for years to come in cases urging the Court to hold that the 14th Amendment embodied equal citizenship for women—drew a clear parallel between the racial discrimination suffered by African-Americans and the pervasive gender discrimination endured by women. While Professor Ginsburg’s brief eloquently appealed to the Court to strike down acts of gender discrimination under the same strict scrutiny that the Justices had employed in Brown v. Board of Education (1954) to invalidate segregation in public schools, she also wisely prodded members of the Court to recognize that there was nothing rational about the Idaho statute.

The ACLU had hoped that one of its own attorneys, the future Congresswoman from Washington, D.C., Eleanor Holmes Norton, then the second ranking lawyer on staff, could deliver oral argument. ACLU officials believed, Justice Ginsburg said in an interview this summer, that it was important for an African-American woman to make the argument. Ginsburg did not share the ACLU’s view.

The ACLU’s preference made little difference since Sally Reed wanted Allen Derr to deliver the argument to the Court. Derr had laid out for his client the advantages of having an ACLU attorney appear before the Court, but Sally told Derr: “You’ve taken me this far; I want you to make the argument.” And so he did appear before the Court—for the first and last time.

“My knees were shaking,” Derr previously said of his experience before the Court, a common anxiety shared by members of the Bar who have stood at the podium before the Court, inside the majestic marble palace. In his opening sentence to the Justices, Derr illuminated the historic importance of Reed: “We are here today to ask you to do something that this Court has never done since the Fourteenth Amendment was adopted in 1868 and that is to declare a state statute that distinguished between—that classifies between—males and females as unconstitutional.”

And with a flourish, he invoked the heart of Professor Ginsburg’s powerful brief when, placing beyond all doubt the historic potential of Reed v. Reed, he drew the Justices’ attention to what he considered a parallel case, America’s greatest civil rights case, Brown v. Board of Education (1954), in which it declared unconstitutional segregation in public schools on grounds that it violates the Equal Protection Clause of the 14th Amendment. Reed v. Reed, he told the Court, “could have a significance for women somewhat akin to what Brown v. Board of Education” had done for African-Americans.

The Supreme Court, on November 22, 1971, in a unanimous opinion written by Chief Justice Warren Burger, held that the Idaho statute, which favored males over females, was arbitrary and violated the Equal Protection Clause of the 14th Amendment. The Court explained that the statute failed even the lowest of review standards, the rational basis test: there was nothing reasonable about the preference for men in naming an executor for an estate. While Derr and Ginsburg had hoped that the Court might apply the strict scrutiny doctrine, the highest standard of judicial review, which would outlaw every resort to gender distinction in the law unless the state had a “compelling governmental” interest, as it had in cases of race discrimination, they had earned a historic victory. As Justice Ginsburg recently observed,” We hoped to bring five or six cases to the Court, with hopes that it would recognize, over time, that strict scrutiny should apply to cases of gender discrimination.”

The odds of winning the case were long. As Ginsburg stated in 1976, “The possibility of getting a favorable decision seemed nil. The Supreme Court had held the line so long.” The Court had mixed reasons for failing to invoke the strict scrutiny test. For one, the Justices believed that the proposed Equal Rights Amendment, which had passed the House of Representatives as they deliberated on the merits of Reed v. Reed, and was expected, shortly, to receive approval by the U.S. Senate, and win ratification by state legislatures en route to becoming part of the Constitution, obviated the need to declare all acts of gender discrimination unconstitutional. The ERA would do that, they believed, and better for the American people, rather than the Court, to make that historic determination. For another, alas, some members of the Court probably believed that there might be circumstances in which distinctions between men and women might be appropriately drawn.

The Court, to this day, never has applied the strict scrutiny doctrine to matters of gender discrimination, although it did, after Reed v. Reed, invoke a higher standard, that of intermediate scrutiny, which would require states to produce “exceedingly persuasive justification” in defense of laws that drew gender distinctions between men and women.

Now, years later, when asked about the importance of the tests or standards applied to acts of gender discrimination, now Justice Ginsburg cautioned her audience not to be overly worried about the standard applied by the Court. It is more important, she said, to note what had been achieved. Reed v. Reed, she emphasized, was a “turning point case.” “Before that,” she stated, “the Supreme Court never saw a sex classification that it didn’t like.”

Reed v. Reed had opened the floodgates for subsequent Supreme Court decisions that struck down acts of gender discrimination, including those cases argued by Professor Ginsburg in the 1970s, and those sheparded and superintended by Justice Ginsburg after her appointment to the bench. Across the years, Ginsburg brought razor-sharp analysis and enviable rhetorical gifts to her role as an advocate: “I ask no favor for our sex; all I ask is for our brethren to take their feet off our necks.”

Boise’s three heroes reacted with surprise when they received word of the Court’s decision on November 22, 1971. Derr was representing a client in a Boise courtroom when a local reporter informed him afterward that he had ruled in favor of Sally Reed. “I couldn’t believe it,” Derr said. “I was as surprised as I had ever been.” “Sally was stoic,” he added. “She didn’t show any emotion. She never showed any emotion. She got into this because of what she thought was right.”

When word of the ruling reached the Idaho Supreme Court, it was from a clerk who informed the justices, then gathered in conference. The members of the court, hearing the decision, were surprised as well to learn that their unanimous ruling had been overturned by the U.S. Supreme Court—unanimously. But one member—Justice Charles Donaldson– was very pleased, for Chief Justice Burger’s opinion had invoked the rationale that that he applied when, as a state district judge, he had upheld Sally Reed’s claim.

“Justice Donaldson was very proud of his ruling,” Bill Vasconcellos, then a clerk for the Justice, and now Senior Vice President at UBS Financial Services, in Boise, explained. “He probably looked around the room and felt, ‘I told you so.’”

The Boise heroes in this landmark case have all passed away. Justice Donaldson was the first to go. He suffered a sudden heart attack while swimming laps at the YMCA in Boise on Oct. 9, 1987, and died that afternoon. Donaldson had served on the Board of Directors at the YMCA and swam laps nearly every day. He was 68 years old. Sally Reed passed away on Sept. 26, 2002. She was, apparently, 93, but according to Derr, it was hard to tell because she never spoke about her age. Derr passed away on June 10, 2013, with his wife, Judy Peavey-Derr, sister Jane Betts, and old friends, law partner at the time of Reed v. Reed, Jesse Walters, and his wife, Harriet, at his side. To the end of his life, Derr was widely admired by members of the Idaho Bar and by all who valued gender equality.

The remaining hero in the story of Reed v. Reed is Justice Ginsburg, who has become an American icon, both in popular culture—“the notorious RBG”—for her daily workout regimen, which includes 20 pushups, and in the world of law, not merely for her leadership on the Supreme Court, but for her life-long commitment to the cause of gender equality. She is the living embodiment of a voice and champion for equal rights, harking back to her speeches and articles since the days when John F. Kennedy was serving in the White House. Justice Ginsburg is still going strong, “full steam,” in her words, at the age of 84, and serving in her 25th year on the Supreme Court. Tributes from across the nation and, indeed, across the world, pour into her office on a daily basis.

At the funeral for Sally Reed, on October 5, 2002, Allen Derr read a letter from Justice Ruth Bader Ginsburg that paid tribute to a courageous Idahoan, who was outraged when a probate court decision stepped on her rights. “Sally Reed lived to see the good that came from her brave decision to challenge an unjust law,” Justice Ginsburg wrote.

So much of “the good” that Sally lived to see was a function of Justice Ginsburg’s hard work and persistence in fighting gender discrimination. Reed and Derr and Donaldson and Ginsburg played pivotal, indeed, heroic roles in the story of the landmark decision in Reed v. Reed. You don’t need many heroes, if you choose wisely.







This article appears in the Fall 2017 Issue of Territory Magazine.