Radiolab - More Perfect: Sex Appeal

Episode Date: September 19, 2020

We lost a legend. Supreme Court Justice Ruth Bader Ginsburg died on September 18th, 2020. She was 87. In honor of her passing we are re-airing the More Perfect episode dedicated to one of her cases, because it offers a unique portrait of how one person can make change in the world.   This is the story of how Ginsburg, as a young lawyer at the ACLU, convinced an all-male Supreme Court to take discrimination against women seriously - using a case on discrimination against men.  This episode was reported by Julia Longoria. Special thanks to Stephen Wiesenfeld, Alison Keith, and Bob Darcy. Supreme Court archival audio comes from Oyez®, a free law project in collaboration with the Legal Information Institute at Cornell. Support Radiolab today at Radiolab.org/donate. 

Hey, it's Chad, this is Radio Lab tonight. We lost the legend. Supreme Court Justice Ruth Bader Ginsburg died, she was 87. That's a lot to think about. A few years ago, Radio Lab created a spin-off series more perfect about Supreme Court, and in one episode we told a story about RBG that has stuck with me. I think it's a story we should all listen to right now because it's a sort of a snapshot of how one person can make change in the world. In memory of Ruth Bader Ginsburg, we wanted to re-release

it for you again tonight. It comes to you from producer Julia Longoria. I'm going to ask you an utterly false question, which is where would you like to start? As if we hadn't been doing this for so damn long. Okay, so let me outline the basic dilemma that's at the heart of the story here. And I'm going to put it to you as a question. Bring it. If you were to do a control F in the Constitution, like how many times do you think the word sex comes up?

Oh. That's interesting. Six? I don't know, guessing the one was the answer. It's one, one time, in the 19th Amendment, which grants people the right to vote based on sex. Really? Yes.

That's the only time. That's the only time, which is crazy, because we all have. Is there a sex word that's not sex, like gender or something, something? No, nothing. Is there like ladies in the Constitution? Women?

No. Really? Okay, constitutionally women have a problem, Nothing. Is there like ladies in the Constitution? Women? No. Really? Okay. Constitutionally women have a problem, which is that basically we're not in the Constitution, except like in this one little spot. So when it comes to discriminating against women, some people have argued that you, there's nothing in the Constitution that says you can't do it.

Certainly, if the Constitution does not require sexual discrimination on the basis of sex Constitution doesn't require it. It simply doesn't forbid it. That's the lead Justice Antonin Scalia It doesn't mean nobody ever voted for that So where do you get it from there was nothing that said that I mean not not those words explicitly But there was nothing that says you can't discriminate. Not on the basis of sex. That's legal editor Christian Farius. We had a 14th Amendment that told people that we are Equal under the law that everyone has equal protection of the laws, but doesn't that say it? It's kind of you know, they never applied the 14th Amendment to women. They didn't apply the 15th. That's Martha Griffith's Congresswoman. When you think about the history of the 14th Amendment to women. They didn't apply the 15th. That's Martha Griffiths, Congresswoman.

When you think about the history of the 14th Amendment, as legal editor Linda Hirschman says, the 14th Amendment was passed in the aftermath of the Civil War along with the 13th and 15th. 13th Amendment abolishing slavery. 15th Amendment essentially giving black people really black men the right to vote. If you understand the 14th Amendment to be a part of that trio of amendments, you're like,

oh, okay, it was meant to bring equality to black people. When the 15th Amendment I've been written, which said every citizen could vote, in the name of heavens, why could a women vote? Why didn't you have to have the 19th Amendment? Well, of course, the answer was, they didn't you why did you have to have the 19th amendment? Well, of course the answer was they didn't consider women people There was this basic assumption in the law that you know Equality for black people is one thing but men and women They're different

It was the case that the Supreme Court had never once met a distinction between men and women it didn't like. Wendy Williams, law professor emeritus at Georgetown, what are some of the greatest hits of the ridiculous distinction? Okay, here, here, there was a case called Bradwell and it was 1873 or 4. In that case, a woman wanted to become a lawyer. Illinois bar said, no. And the justices said that that was a perfectly good rule because the justice system could be seen as not appropriate

for women. Now let's jump clear into the next century here. 1948's case, it was called Gesserit versus Cleary, that went to the Supreme Court. And the issue was whether women could be bartenders. The court thought that that was pretty humorous, that it made sense that women could not be bartenders, unless their husbands or fathers were in charge of the bar.

Both those laws, you know, women are not supposed to be at the bar. At either bar, yeah, right? Those two cases represent attitudes almost 80 years apart, that women belonged in the private sphere. That was not only their place, it was built into their bodies. And that was the assumption for a long, long time. But just about 67. There are a lot of women in this country who feel like they're being pushed around. Things had started to come to a boil.

And they've become very vocal. They call themselves the women's liberation movement. Sex and race, because they are easy, visible differences, have been the primary ways of organizing human beings into superior and inferior groups. So in the late 60s and early 70s, people like glorious dine-up. We are talking about a society in which there will be no roles other than those chosen. Free from the diseases of racism! Audrey Ward

Of sexism, of classism! They get some traction, saying, Okay, it's time to put us in the Constitution. Hurry up! Some historians say it's a constitutional convention for women. I move the adoption of the following resolution. And what you see is this push for something called the Equal Rights Amendment. The Equal Rights Amendment should be ratified. We are, we are, we are, we are.

Well, you're hopes for it. You think it will be ratified this year? It will be ratified early next year. Name was quite sure of that. In 1975, it will be ratified. But it didn't get the votes in 1975. I hope 1976 will be the year. Or in 1976. A special report on the 1977 National Women's Conference.

Or in 1977. And the movement is stalled. Why? What stalled it? Well, a lot. But much of the credit goes to this woman. Pedestically, I've held an Illinois. A woman named Billis Flasby.

I would like to thank my husband Fred for letting me come today. I love to say that because it irritates the women's livers more than anything that I said. She was a lawyer and a self-described housewife who started a movement called Stop Yara. The whole thing is misrepresented as a woman's rights and menma, in fact the principal beneficiary will be men. It will give men a great opportunity to get out from under their obligations.

Her position was that the equal rights amendment would actually strip women of the special privilege that they have that comes from being a woman. I think the laws of our country have given a very wonderful status to the married woman. And the wife has a great deal of many rights. For example, she has the legal right to be supported by her husband. And she said, if this amendment passes, there will be certain unintended consequences.

The equal rights amendment says you cannot discriminate on a count of sex. And if you want to deny a marriage license to a man and a man, or deny homosexual the right to teach in the schools or to adopt children, it is on a count of sex that you would deny it, and that would be unconstitutional under ERA. In that argument, caught on. I would caution the members of this platform committee that there are things that could happen from the passage of an ERA amendment that none of us would like to see happen.

I think that families would generation after generation deteriorate. I think that there would be homosexuals who expect preferential treatment. She said, brother, we're all in danger. You got to hear what I have to say, because you know what's going to happen if they pass the ERA. There will be women in all of our bathrooms,

women using all our stalls. They'll be wasting the paper towels. They'll be hugging the urinals. They'll be pushing the old soap squirters, pushing the hot air dryers to. If they pass the ERA, Lord, I don't know what we're gonna do. If the past year a lord, I don't know what we're gonna do. Had the Equal Rights Amendment passed, legal editor Linda Hirschman again, it would have

looked a lot like the racial civil rights movement did. But the Equal Rights Amendment did not pass. It fell three states short. To get a constitutional amendment passed turns out you need three quarters of state legislatures to say they want it. That is 38 out of 50. They only ever got 35. Dude.

So the question is, if you want to get equal rights for women, written into the law, what do you do? There's no ERA. The women's lib movement sparked a backlash. Like, what do you do? Well, enter stage left. Not, not, not, not. There she is.

This is the notorious RBG. Not the best. Ruth Bader Ginsburg. RBG can do 20 push-ups and not the so-called girl kind. Now, before she was a Supreme Court justice or a workout sensation, before all that, Ruth Ginsburg, she was at the ACLU. This was in the 70s. And one of the characteristics of Ruth Ginsburg, which exists to this day. You can hear this. It's the first time she argued in front of this prune court in 1973. When you'd ask her a question, there would be

silence. Enough silence. This is Ginsburg. enough silence. This is Ginsburg. To make a person nervous and start trying to help her answer the question. You had to wait. But we can imagine that it was in one of those long pauses. At Ruth Bitter Ginsburg rescued some of the key principles

behind the ERA, repackaged them, and marched them in through a side door. Mr. Chief Justice, and may it please the court, sex like race, is a visible characteristic bearing no necessary relationship to ability, sex like race. Has been the main the basis for unjustifying for these un-disoption. It's a very unique experience.

Yeah. It's a very unique experience. It's a very unique experience. It's a very unique experience. It's a very unique experience. It's a very unique experience. It's a very unique experience. It's a very unique experience.

It's a very unique experience. It's a very unique experience. It's a very unique experience. It's a very unique experience. It's a very unique experience? So let me walk you through it now, because it's beautiful. The ERA fight is underway and RBG and our colleagues are watching this happen, right? And they're getting worried, what if the ERA doesn't pass? So what are we gonna do if that's the case? How are we gonna get equal rights for women?

So they decided, okay, as an alternate approach, let's go back to the 14th Amendment. The 14th Amendment's immediate objective was to provide national protection for the newly freed slaves. You know, which, as we said, was designed from the beginning to be only about race. But its sweeping provisions suggest broader objectives. The states were prevented from depriving any person,

equal protection of the laws. Well, it says the word person. So that should include women. Yeah. If they could just get the courts to see it that way, then by default almost we would have a sort of ERA. And accordingly, the task was showing that the racially inflected 14th Amendment applied to sex.

So what about the law is she trying to change? What does she want the court to say? She wants the court to say that sex would be treated just like race. And here's why that's so important. When the court sees racial discrimination happening, under the 14th Amendment, it takes a really hard line. It looks at it really, really closely, or at least it's supposed to. Whereas other kinds of discrimination, not so much.

Because actually, some discrimination is necessary. The law discriminates. It has to. It discriminates between 18 year olds and 17 year olds between criminals and non-criminals. It would be chaos otherwise, right? But the courts decided that race is going to be a big red flag. They're going to ask governments, legislatures, presidents to have a compelling reason, a compelling state interest to do race discrimination. Otherwise, it's going to be unconstitutional.

You with me so far? Yes. To discriminate based on race, you need to pass a really super hard test. By the way, the legal name for this test, strict scrutiny. Oh. I know they should have called it like, we mean business or something like that. But anyway, the point was that like they took it seriously, which, you know, back in the day, they weren't doing

with sex discrimination at all. Because when legislators would come up with these laws, like this women can't be bartenders law, the Supreme Court would be like, you know, guys probably have a good reason for that. It doesn't have to be the reason, it can just be a reason. It doesn't have to be very good.

It doesn't have to be good. They could even maybe even make it up on the fly. It just has to be a reason for upholding this law. Like in the case of the bartender's law, bars are dangerous. Women need more protection. And of course, it would be like, okay, sure. So RBG needed a way to convince the court to be as intense about sex discrimination

as they were about race discrimination. But how do you convince an audience of men who are used to discriminating on the basis of sex? Who have been doing it for years? How do you convince them that discrimination is a bad thing? I think of people who want to keep women down would like nothing better than to women go off in a corner and speak only to women. Nothing would happen. This is her giving a recent talk about her 1970s strategy.

You need to persuade men that this is right for society. Part one of her strategy, choose your words carefully. I had a secretary at Columbia who said, I'm typing these things for you and jumping out all over the page, sex, sex. Don't you know that the audience you are addressing, the first association of those men with the word sex is not what you're talking about. So, why don't you use a grammar book term? Use gender.

Because you know the word sex has a charge to it. Gender is cooler. And part two of her strategy, choose your cases carefully. This is all happening in the 70s, when RBG is the head of the ACLU Women's Rights Project, so she's deciding which kinds of cases the ACLU is gonna support as they make their way to an all-male Supreme Court. And her strategy was,

if we live in a man's world right now, we need to find cases that nine men at this moment can handle. So, for example, early on in her tenure at the Women's Rights Project, the other lefty lawyers are suggesting that the women's movement needs to take up the cause of lesbian rights. And she says, not yet. And I think go slow is the right approach. She said first, we need to go after that small and insidious idea that the Supreme Court had been keeping alive for years. The laws of our country have given a very wonderful status

to the married woman. That village-slaughtly idea, that discrimination is actually good for women. Gender classifications were always rationalized as favors to women. And so, RPG decided not just to bring cases where women were the victims of discrimination. Okay, my name is Curtis Craig. She brought cases where men were the victims. Who were you as an 18-year-old? Yeah, that's a great question.

I was like any 18-year-old young man, invincible. You know, I thought I was quite the ladies' man. You name it, I mean. He made it into Lambda-Kai Alpha at Oklahoma State, and he was living at the Frat House. Our fraternity was primarily made up of wrestlers so it was when you went down the hall you were about to be taken down at any moment. You'd be thrown into the wall and you'd you'd leave a body print. What do you mean, like an indentation literally in the wall? Or like the door?

Yeah. Oh my god. Yeah, it was amazing. There was a lot of party in going on. Barbeer, Barbeer, Barbeer, Barbeer. A lot of beer. The art would be filled with beer cans. And here's the key.

If they wanted to get all that beer, they had to enlist the help of the ladies. Yeah, I mean, you know, the sorority sisters. Yes, you would have a female buyer beer and you'd go out and party. They need the women in the buyer beer? Yep. Why? Because in Oklahoma, state at the time. Oklahoma had a very silly law. Girls could buy beer at age 18, but the boys had to wait until 21.

There was something about the level of maturity, I guess, for women versus men at that time. The basic principle was that, boys got into more car accidents, so they should be trusted with less beer. And did that make you angry? Oh, absolutely. Well, it was extremely unfair. Yeah, I would say it made, I think, most men angry at the time. And a Supreme Court case was born.

So the thirsty boys at a fraternity abroad this case? So the RBG gets involved in this beer case? Yes. But this is a situation where women have rights men don't have. Why would she want to argue this case? I have imagined she'd want the opposite. Well, this is where her strategy is kind of like a Trojan horse.

If you look at this case, right? On the outside, it looks like a case about men being discriminated against. But if you think about it, beneath that discrimination is actually this kind of unspoken idea about women. So go with me on this, right? If men are irresponsible, they can't

handle beer, then women girls are more responsible and well behaved, more delicate. They could be trusted with something like beer because they won't abuse it, you know. So with that line of thinking, it's not long before you're trying to protect women, protect them from, you them from scary places like bars or courtrooms or political office. Using this case, RBG is able to walk into the court this discrimination about men, but also the discrimination against women that's attached to it or inside of it. Oh, that's clever. story in just modern world. More information about Sloan at www.Sloan.org. This is Radio Lab, I'm Chad Abumran, we are marking the passing of Supreme Court Justice Ruth Bader Ginsburg with a story from producer Julia Longoria, about a case involving boys and beer and a legal move,

which reminds you of the Wily Odysseus, because the case that Julia's about to describe became something of a Trojan horse. In the battle for women's rights. Now, the story of the Trojan horse, maybe you know this, it's ancient Greece, you've got Sparta fighting Troy, the Spartans want to get into the city of Troy, but it's this giant walled city too big they can't get in.

And so Odysseus comes up with this clever plan. We'll give the Trojans this giant wooden horse, they'll bring it into their city. They'll think it's a gift that we're retreating, which is what they thought. And then at night, our soldiers who are hidden inside the horse will come out. And they will take the city.

Now, in our case, Odysseus is RBG. The city she's trying to get into is the all male Supreme Court. But in order for this very admittedly imperfect analogy to work, we need someone in the horse to come out, the warrior in the horse, the woman warrior. And in our case, that woman warrior. She didn't even know she was gonna go into battle.

Julia, you take it from here. So, I got in the car and I drove a long time. Tiny little gravel road leading up to narrow street of houses, to Sparta, North Carolina. It's called Sparta? I know. The house and the horses and the trumps' signs. Tractor up front. Trist-passing sign.

And so I walk up to this house. It's this beautiful, cream-colored cottage perched on top of a mountain. Wow. And I can hear Whitney Houston saving all my love for you blasting. Have any trouble? Hi, no, I didn't. Are you Carolyn?

Hi, very nice to meet you. And I meet Carolyn Whitener. I'm 76, soon be 77. She. I'm a bearer and a bearer. Immediately offers me a course. I got a coolers line. Yeah.

For her. Well, you have a bear with me? No, I can't. I'm a diabetic. I can drink a little, but not much. Thank you. And I've got some brownies over here. What does she look like, describe her?

Reddish blonde hair, green eyes. She's wearing golden hoops. She has like this, this air about her that she could have been a beauty queen, you know, but she also could have been a car mechanic. I'm talking about yourself. Well, I am, so we get to talking,

I tell her a little bit about who I am, about the story. She actually told me like a French. She's like, I'm proud. I'm proud of the young women. I have a granddaughter there. I'm so proud of you. Your generation, they're finishing the fight I started. She just went to the next.

And I was essentially like, no, no, no, no. This stuff, like your story, has like a huge impact on like women like me, you know, generation. I can imagine. But see, my name was never tied in with it. It was always Craig's name. So, you know, it wasn't that big a deal. She told me she grew up bouncing around different oil fields. Well, it was an oil field trash.

That's what we were called, oil field trash. That meant Carolyn and her brother and sisters split the school year between two or three schools a year. We moved a lot. She said school didn't come easily to her, but my dad, he taught all three of us how to weld. He was a welder. How to work on a car. She was very independent. When she was about 13, they moved to Chick-a-Shea, Oklahoma. It happened in Olo, Oklahoma. And that is where she met Dwayne. That was the first boy I went with.

They met in high school. And they were roughly the same age, but he was three years ahead of her at school. And what attracted you to him? His mind, he had an excellent mind. And he was just a farm boy with no education. He never went to college, but he could have been about anything he had wanted to have been. What do you think attracted him to you?

What do you think he saw on you? I was somebody new in town. Talking to Carolyn, I got the sense she did not have any shortage of suitors. But I married him when turned 18. Thanks. I don't know if he's got ideas, but then turn that off. And when I married my husband, I was equal to him except the money.

And he didn't think anybody could handle that but him. He acted like he was rising me and he probably was. She says she was really comfortable with him. He was a quiet man with this brilliant mind. But he was pure German girl. Have you ever met a German man? Okay, they are in total control. And how does Carolyn connect to the case with the Frat Boys in RBG? Okay, so

here's what happens. It's 1962. Carolyn and Dwayne are about 20 years old at this point and they moved to a town called Stillwater, Oklahoma, to open a business. And Stillwater is a college town. It's that college town. Okay, you got Oklahoma State University right there, tons of fraternities, including Lambda with the wrestlers. Huge homecoming drawing over 40,000 alumni. We didn't know what homecoming was. Had no idea what homecoming was.

But shortly after moving to Stillwater, they opened the doors to the Hunk and Holler. And where we went in was just about three blocks, four blocks from the college. And we went into business there. A drive-through convenience store. It was like the real old gas station with the old pit and the floor. Here's how it would work. Customers pull up to the side of the convenience store

and they drive through, hunk, they're horn, holler, they're order, and you'd have to go out and widen them, come back in and get what they wanted and take it back out. So it's a lot of in and out and in and out. All night long.

You wear tennis shoes out real fast. So it was all sheer energy and guts. Homecoming night, we were supposed to close at 11. The store is flooded with customers. Till I think two or three o'clock in the morning. They're like thrilled because they've never run a business by themselves before and all these college kids are coming in and buying Kors beer,

including, of course, a steady stream of girls buying beer presumably for their boyfriends. And it, yeah, I never did get to say homecoming. All I saw was Kors coming in and out. Fast forward a few years, It's 1972 back at the university. He was tall, had long blonde hair. Curtis Craig's buddy named Mark Walker. He was the president of the Lambda Chihouse at the time. He's in a political science class. And the professor starts talking about the whole fight for the ERA, which is happening right at that moment.

the whole fight for the ERA, which is happening right at that moment. And at this point, Oklahoma hasn't ratified the ERA. And somehow the conversation turns to this beer law. Mark's like, talk about discrimination. This beer law is discrimination against us. And the professor challenged him about doing something about the bear laws if he was going to complain about him. So one day I was behind the counter. People coming in and out, Mark Walker walks into the honk and holler.

The young man came in to talk to me. She doesn't really have time to talk, she's running in and out, but he stood there, waiting patiently. I bet he was in there four hours, and he was looking at the bear license. He looks at the license, and he notices that Carolyn's name is the one on it. Because actually, my husband lost his license after he sold beer to a young man. So he put him in my name.

Anyway, at a certain point, in between all the hunks and hollers, he asked me what I thought about the beer laws. And I told him, I was very vocal about it. I always had been. She says it doesn't make any sense. We send these young men off to war. And we're being drafted at 18. Oh, we don't let them drink beer when they come back. Was that just? Not to mention the liability issues. You have these 18 year old girls coming in buying beer, slipping into their boyfriends. How am I supposed to stop that? You can't prove who buys what. So eventually when Mark Walker asked for her help,

he said he was going to do a term paper. She's like, sure, why not? I was always willing to help him because they had helped us get started. And I still thought it was a term paper. So was he not being completely honest with you then? Well, I didn't hear half of what he said. I was busy every time he came in.

So, you know, it wasn't that important at the time. So I didn't think he more about it. He left. My husband was gone. He was out of state working. And I didn't even say anything to him about it. It wasn't important. You know, I just thought it was a conversation. But it wasn't just a conversation. Because before that meeting,

Mark had gone out looking for a lawyer. That's correct. And Curtis and Mark and the other frat brothers had tried to raise some money. That was flawed in a campus town. Everybody uses their last dollar for that last bear. But they managed to find this lawyer who would do it on the cheap.

All right, well, I'm just Fred Gilbert, the turning it all. No big deal. I remember him always wearing his military boots. Actually, I believe he wore them even to the Supreme Court. Fred had worked on another male discrimination case in the past. And to him, this case was pretty straightforward. Men couldn't buy beer until they were 21, but most irresponsible and drunken woman in the state could buy it in limited quantities

at 18. Well, that was discrimination. It was kind of more a male rights case. Well, it was. And do you remember corresponding with Ruth Bader Ginsburg? Yes, I knew that Ruth Bader Ginsburg before she was on the court. Somehow Ruth Bader Ginsburg noticed this case and she watched as Fred made his way up the courts losing at every level. And by this point Ruth Bader Ginsburg was head of the women's rights project at the ACLU. She'd already argued a few cases before the Supreme Court, which had inched the court slowly toward the idea that sex was like race.

And she thought that this case was interesting. She gave Fred a call. You know, we have a problem in a personal relationship. There was no question. I was something of an unreconstructed male showviness and she was not. Fred did not see this as a women's rights case. It was just kind of an unnecessary insult to man for no reason at all. And Ruth, looking at this case, but no Fred, it's more than that.

It didn't matter to her if the plaintiff was a man or a woman because in most of those cases the discrimination against the man was derivative of a prior and worst discrimination against the woman. Here's to the ladies the fair and the weak. How do they do it? Where do they find all that energy? That seemingly inexhaustible store of pep and ginger. Again, Ruth was after the stereotype about women that was nestled inside the beer lot. That women are more responsible and well-behaved. But in order for her to make that connection, she needed Fred to write his brief in a way that would be useful to her. So, refer not just to male discrimination, but discrimination based on gender. Well, I supported her. I just never was, so I always say, a militant feminist. So like Ruth had her work cut out for her. At this point, she was getting sort of used to

dealing with these robes from the sticks. So with other local lawyers that she'd worked with in the past, Ruth had been more forceful, insisting that she make the argument, but that had backfired. So she like, it's like, okay, you argue it, right? She wrote to Fred, telling him that she didn't need to be the one to present oral argument before the court. She was fine if he'd do it. But she very gently, very persistently, was able to convince him to let her help him with his legal brief. But I think it was a couple of months later because my husband was out of state every month.

Meanwhile, back at the honken holler, Carolyn has no idea what's going on. No. No idea. And I got a phone call. My husband was on the phone. Well, I had salesmen in and I had people coming in and out. And he was, I write. He was furious.

I couldn't figure out what was going on. She was like, case? What are you talking about? Well, he had picked up a newspaper in North Carolina in a bank and it was on the front page of the newspaper with my name and about us, Sue and it looked like we sued everybody in the state of Oklahoma that was in office all the way down to the garbage man.

He's like, what did you do? We don't wanna get mixed up in this, we don't want our name on this, we don't wanna make a fuss, like this could hurt business. Like how dare you? You know, I didn't know what had happened. I really didn't know.

And eventually you should figure it out. It must have been that kid who came in here. And now it's like at the Supreme Court, what? I was back and forth on that phone with him trying to wait on customers. And I bet that took about three hours and he would not let up. I mean, he kept calling back and calling back. He called a lawyer. He was mad. And then the last phone call,

he said, I am flying back in and he said, you pick me up. A couple nights later, she drove to the airport. Picked him up and he was still mad. That was the longest car ride. As they drove back, she says he just lectured her the whole ride. I just listened to him. What did he say? I don't know what he said word to word. I just know he was strong with what he said. With my husband, it was best to just be silent. I was never afraid of him, but I knew how far to push it. Time we got from the airport to the other side.

It was about an hour and 20 minutes. That's a long hour and 20 minutes in the car where you can't get out. And over the course of that hour and 20 minutes, she said something in her, just kind of shift it. And at a certain point, she basically turned to him and was like, no. Like I know you want me to drop this case, but I'm going to fight this. He threatened me every which way.

I didn't budge. And probably the reason why I didn't budge because he fought me so hard on it. You know, I believed in it, but I had never stepped out like that. That's the first time I really put my foot down and didn't budge. I gave so much to him. I mean, I didn't get a salary for 25 years.

I didn't ask for it. I figured we were equal. I figured I worked the same hours he did. And I figured I stood beside him, not behind him and not in front of him. October 5th, 1976, the day of oral arguments. The lawyer, Fred Gilbert, I've a ran-around cross very many people that I didn't care for. I didn't care for Fred. He was so pushy.

Insists that Carolyn needs to come to DC. Or I didn't have the money to go when I didn't want to go. I never traveled anywhere by myself. What I recall that day... Curtis crack came to. Uh, I was dressed up. Suit and tie. I had borrowed a dress. Plastic. Look like leather. I was dressed up. Suit and tie had borrowed a dress.

Plastic look like leather. Walking up those stairs. High heels. I remember that distinctly. It was so big. Beautiful building. I felt like I was walking forever up those stairs. I was burning up. I was sweating. We'll hear our arguments next. 75, 628. Craig against Boran. Mr. Gilbert, you're next for season, are you ready?

Fred Gilbert starts things off. He walks up to the podium in his combat boots. The law is broad, all encompassing, and it's sweet. It says it's all females, even those that are the most drunk, most alcoholic, most immature, and most irresponsible, may purchase 3.2% per year at age 18 in absolutely unlimited quantity. The law doesn't say it in quite those words, does it? And by all accounts, you didn't exactly kill it. No, Your Honor, and the law doesn't say quite the words that all males

the justices just kept hammering Your Honor, the vendor still has that The only way he can get the leaf is to move his age back and drink Hammering and a technical sense I don't technical Yes, Your Honor, that is technical Yes, but it's complained and drafted and what is before the court Well, but you say you say what's before the court

What's before the court is your complaint. Curtis was sitting beside me and I kept punching him. What does that mean? What are they talking about? What does that mean? He kept saying, shh, shh, shh, just be quiet. This over, I'll tell you. You're not going to have to wait so much at the end of the day.

Who needs any instructions? This is the vendor who is trying to sell. I didn't understand what they were doing. The beer law that we challenged today was originally enacted in 1890. But she says what caught her ear was a moment when Justice Rankist. When he called me, when you say, we,

you're referring to your client who is the tavern keeper. A saloon keeper. Yes, Your Honor, and there's the one. I tell you, when he called me that in the Supreme Court, I came so near standing up and correcting him. And I've always wondered, did this day want it? As arguments went on, Fred did at least try to do the thing that Ruth wanted him to do.

I would say anything could be a...you could pass a law saying no Negro will drive while intoxicated. Compare sex discrimination to race discrimination. Now this relates to the public thing, but the thing is you can't discriminate, even for something like public safety, on the basis of certain criteria. Well, is the court ever held at discrimination of this sort, is it the same class as discrimination, the basis of race? Your honor this court has come very, very well I asked you a question, has it ever held? No, it has never held that it is totally

to be treated the same as race run. To make a long story short, by the end of oral argument, things weren't looking great for Fred. I mean, I think that depends on the thrust of our defense. All right, let me explain this. First of all, we do have a lot of time. At one point, he even interrupts a Supreme Court justice Which you don't do that

It just Yeah, wasn't happening. I don't have time for a parting thought. I thank you for your time. Thank you, gentlemen The case is Well you win some you lose some right ladies? What no, no, no Here comes the craziest part of the story, okay, it's like a double Trojan horse horse with inner horse because After the Fred Gilbert debacle there was another case at the Supreme Court that afternoon And it just so happened that it was a case being argued by none other than Ruth Bader Ginsburg.

Somehow she organized, I've now forgotten how, to get that argued the same day. That was on purpose? Yeah, oh yeah, oh my god, that's genius. Yeah, no, she's a genius. Mr. Chief Justice and may it please the court. Wait, you're saying she somehow managed to get herself in the court on another case on the same day? So I couldn't confirm that for sure.

I don't even know how you would do that. But what I can tell you is that she arranged to go second. Because she knew there was probably a good chance that Fred, the completely incompetent lawyer, was going to be you know less than amazing. The court was was asking him questions and he was completely incapable of answering so finally the court just went oh never mind and then when Ruth stood up to argue her case they asked her about Greg Vibor.

We had a case this morning just to be concrete involving a law that would not permit males to make certain purposes of females could make and was attacked as a discrimination against males. My question is whether we should examine that law under the same or a different standard than if it were a discrimination against the other. My answer to that question is no, in part, because such a law has an insidious impact against females. And then she told Justice Stevens, even in this case, where it seems like men are the

ones who are being discriminated against. Beneath that discrimination is a more insidious one. Against females, it stands then docile, compliant, safe to be trusted. Because your answer always depends on their finding some discrimination against females. Is it your view that there is no discrimination against males? I think there is discrimination against males? I think there is discrimination against males. If there is such discrimination,

is it to be tested by the same or by a different standard from discrimination against females? My response to that, Mr. Justice Stevens, is that almost every discrimination that operates against males operates against females as well. Is that a yes or a no answer? I just don't understand you. And are you trying to avoid the question or?

And no, I'm not trying to avoid the question. I'm trying to clarify the position that I don't know of any line that doesn't work as a two-edged sword. They go back and forth a bit. Justice Stevens is basically like, why do you keep insisting on this? Like, why do you keep saying that discrimination against men contains within it discrimination against

women. They're different and she's like no they're not different. So your case depends then on our analyzing this case as a discrimination against women? No. My case depends on your recognition that using gender as a classification, resorting to that classification is highly questionable and should be closely reviewed. She makes this point again and again, all discrimination based on gender is bad. And it should be checked with something at least approaching that hardcore standard that the court uses for race. That was really something seeing this little woman get up.

I don't know of any purely anti-male discrimination. I'll never forget that, because she was small. In the end, the women are the ones who end up hurting. Yes. She's so small in person, but she had a lot of force. Gunsburg cases submitted. About two months later, the judgment of December 20, 1976, Craig against Warren, Justice William Brennan announces that the court, we

reverse, is striking down the beer law. We hold that Oklahoma's gender-based differential does constitute an invidious violation of the Equal Protection Club. This silly beer case was basically the first time the court clearly said that when you discriminate based on gender, you need to pass a harder test. It wasn't as rigorous as race, it wasn't strict scrutiny. They settled on a standard that we now call intermediate scrutiny, and it was pretty damn close. RBG would go on to strengthen this standard over time, but this was the case.

That first got us a kind of equal rights amendment through a side door. We wished that the court had picked a less brothy case to make that announcement, but of course we were very pleased that after that. The day the decision was announced, I had just came in from work, I was at home by myself there in Stillwater. She's by herself in the kitchen in the phone rings and who calls Called National news call to tell me that we had won I

Didn't ask what we had won I Didn't ask anything I just said okay I didn't ask anything. I just said, okay, she hung up. She stood there for a little bit and then Craig called and he wanted me to come down and celebrate with the guys. They were his fraternity, fraternity. Yeah. She told them, no thanks. And then she hung up the phone and she got one more phone call. And it was my husband. He was in North Carolina again and he heard he heard something about the case but he didn't hear at all and he said what's going on now and I said we won and he says is it over? I said it's over. It's totally over with. He said good. And he hung up.

I fixed me a very good drink, vodka and coke. Sit down in the middle of the floor and that's the way I celebrated. I drank that drink all by myself and it was over with. It was over with. with. Carolyn says that for decades after this case, she didn't understand what it meant. She didn't understand what it meant as a legal principle or that it ushered in this new era for women in this country. But even so, in her own life, this case was a beginning. A couple of years after we won that case, I went in to China right after it opened up. She saved up money and went with her sister-in-law because Dwayne didn't want to come with

them. I did. She saved up money and went with her sister-in-law because Dwayne didn't want to come with them. I did. I was so curious. And we never went like the tourist went. We'd get on a train and if we saw something we wanted to stop and see we would stop. We never had a schedule. I never did really go to shop. I was just curious about the people and how they lived. I saw so much and I talked to so many people I was gone that it was like a hunger. And you grow from it.

And I just wanted to see things and that just opened the doors for me. ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿ʻ ʻ‿� What happened to Caroline in the end? She and Wayne divorced in 2007. And when you said she didn't know the effect her case had for decades, like when did she figure it out or when what how? So in around 1996, this professor, a guy named Bob Darcy calls her up and invites her to speak at a class. And she is kind of learning from the students and from the professor, like what the case actually stood for.

And then eventually the professor puts her in touch with Ruth Bader Ginsburg and they meet again in person. And it sort of starts to dawn on her. One of the letters. I don't know if that's a one. When we were sitting in her bedroom, she was looking through some old letters

and pulled out one with the spring court seal on it. Can you read it? No, I don't have my glasses. You have to read it. Okay. As I told you in 1996, when we celebrated the 20th anniversary of Craig versus Born, you are the true heroine of that case. Although no financial gain was at stake for you, you realized the potential the case had in paving the way for the court's recognition

of equal citizenship stature of men and women as constitutional principle. Yeah. I was going to get that primed. I haven't done it yet. San Ruth Feeder against Perman. I need to get it laminated for a happy prime. Producer, Julia Longoria. So that was the story that we broadcast a couple of years ago on More Perfect. That we felt called to bring back right now in honor of Ruth Bitter Ginsburg, who just passed away at age 87. It's hard to imagine the world without her and without her influence.

May she rest in peace. I'm Chad Abumarad. Thanks for listening. you