Justice Ruth Bader Ginsburg and the U.S. Military
As Justice Ruth Bader Ginsburg’s coffin was carried up the steps of the Capitol to lie in state in September, the soldiers who carried the first woman to be so honored were led by another woman of distinction: U.S. Army Capt. Shaye Haver, company commander, 1st Battalion, 3rd Infantry Regiment — the famed “Old Guard” responsible for funerals and other ceremonial duties in the nation’s capital. Haver was one of the first women to complete the Army’s Ranger School, closed to women until 2015. While Army Rangers are sometimes referred to as “door kickers,” in many ways it was Ginsburg who kicked open doors Haver would later walk through.
Many Americans are familiar with Ginsburg’s legacy as an attorney, judge, and Supreme Court justice. In addition, a number of the cases she tried and judged emerged from U.S. military policy and had a direct impact on the men and women who serve. The Department of Defense has sometimes used national security and military readiness as excuses to maintain discriminatory practices, such as the limit on women’s service to two percent of military end strength until 1967. Today’s military has become more equitable since the start of the all-volunteer force in 1972 when the military draft, which was purely male, was no longer relied upon to fill the ranks. Much of that progress has been due to Ginsburg.
Three cases profiled here exemplify Ginsburg’s work in support of equal protection: Struck v. Secretary of Defense, Frontiero v. Richardson, and United States v. Virginia. Each addresses fundamental disparities based on sex previously expressed in military policy. The changes to these military policies go beyond equal opportunity and protection to foster improved personnel policy and readiness across the force by making both male and female personnel available for more positions. While these cases removed certain forms of sex discrimination within the military, it was not until 2015 (after another and still ongoing legal battle) that women were able to serve in all military occupations. Gaps, however, remain.
Struck v. Secretary of Defense
The 1972 case Struck v. Secretary of Defense is seminal not only because it changed the policy of pregnancy discrimination in the Air Force, but showed the progress of Ginsburg’s perspectives on sex discrimination. The case originated in 1970 when Air Force Capt. Susan Struck, serving as a nurse in Vietnam, found out she was pregnant. Air Force and Department of Defense policy at the time maintained that pregnancy or giving birth while on active duty would result in separation from service or an abortion to continue serving. Struck was a practicing Catholic, and abortion was antithetical to her religion. She planned to give the child up for adoption.
The crux of the case revolved around equal protection, given that pregnancy is an experience unique to women, a “temporary disability” treated differently than other medical ailments that result in temporary leave from duty. Struck contested the involuntary honorary discharge as unconstitutional on the grounds of equal protection, fundamental rights, and freedom of religion. With representation from the American Civil Liberties Union and Ginsburg as general counsel for the Women’s Rights Project, Struck was able to receive a monthly stay on her discharge. Struck lost the stay in district court and the United States Court of Appeals for the Ninth Circuit. The Supreme Court was to hear oral arguments until the solicitor general recommended the Air Force waive Struck’s discharge and change its policy regarding automatic separation in the case of pregnancy. Justice Lewis F. Powell’s reflection on the case was that the equal protection argument and the issue of pregnancy discrimination was worthy of greater attention: “where the sex discrimination touches upon some aspect of the procreative process a higher standard of scrutiny should be applied.” The Struck case continued to set a standard that sex-based discrimination was not permitted under law, following the 1971 Reed v. Reed case which challenged an Idaho state law favoring males over females in who should be the executor of an estate. The issue of what standard of scrutiny to apply to sex discrimination would become a critical issue in subsequent cases.
The court never heard oral arguments, but Ginsburg’s prepared arguments clarify her approach to sex discrimination, which would have other lasting effects. While pregnancy discrimination had traditionally been framed as benignly benefiting women, Ginsburg argued such policies serve to hold women back in society and reinforce traditional sex roles:
presumably well-meaning exaltation of woman’s unique role in bearing children has, in effect, restrained women from developing their individual talents and capacities and has impelled them to accept a dependent, subordinate status in society.
The case sets forward obviously different sex roles: Male servicemembers were encouraged to continue serving even as parents, while women were not. The guiding assumption, and thus regulation, was that women were unfit for service as mothers, although men were suited to serve as fathers. Women’s identity, therefore, was used to put them in a different class than their male peers, effectively giving them inferior social status (an argument later expanded upon in United States v. Virginia).
Furthermore, the Struck case sits within the canon of sex discrimination as one that may have nullified the need for Roe v. Wade, which occurred the year following, had the Air Force not changed its policy to permit pregnant women to serve. Ginsburg noted Struck has a stronger legal foundation because of its grounding in equal protection, while Roe is premised on women’s privacy in the conduct of her personal and medical life. While Struck is generally forgotten because the court never heard oral arguments, it shows the importance of sex discrimination arguments and Ginsburg’s overarching strategy. Regardless, the case forced an update in Department of Defense policy, which after the formal inclusion of women in service in 1948 maintained any pregnancy — voluntary, involuntary, or the result of abuse — had been grounds for dismissal. The policy had resulted in as many as 7,000 women discharged from service before policy changed in 1976.
Frontiero v. Richardson
In 1972, Justice Ginsburg co-founded the Women’s Rights Project at the American Civil Liberties Union. As the organization’s general counsel, she took on a case that would be known as Frontiero v. Richardson. The case would be the first of six, five of which she won, that she would argue before the Supreme Court. The client in the case was Air Force Lt. Sharon Frontiero who sought the “with dependent” rate for housing as well as medical and dental benefits for her civilian husband. Military rules at the time stated that in order to qualify for these benefits a woman must prove that her civilian husband was in fact “dependent,” defined as the wife providing more than half of the household income. No such requirement existed for male military members married to civilian wives (with same-sex relationships still grounds for a court martial in the military at that time).
Frontiero and her husband filed suit in district court, lost, and appealed directly to the Supreme Court on the grounds that Frontiero was being deprived of due process. Joseph J. Levin, Jr., of the Southern Poverty Law Center, represented Frontiero with Ginsburg arguing before the court as amicus curiae (literally “friend of the court”). The Southern Poverty Law Center sought Ginsburg’s help because she had been instrumental in a different landmark sex discrimination case, Reed v. Reed. However, although Ginsburg and others had prevailed unanimously in Reed, they failed to get the court to treat sex discrimination with “strict scrutiny.” Strict scrutiny is a form of judicial review that weighs the constitutionality of a law versus “compelling government interest” in maintaining it. The standard is typically used in equal protection cases. Under a strict scrutiny standard, laws discriminating on the basis of sex, or gender in today’s parlance, would essentially have to meet the same high standard as those based on race to pass constitutional muster. In Frontiero, Ginsburg would again seek the strict scrutiny standard.
In oral arguments before the court, Ginsburg stated,
Sex like race is a visible, immutable characteristic bearing no necessary relationship to ability. Sex like race has been made the basis for unjustified or at least unproved assumptions, concerning an individual’s potential to perform or to contribute to society.
For Ginsburg and the American Civil Liberties Union, this case went far beyond the military and had the potential to serve as the basis for dismantling a host of laws across the country that discriminated for one reason or another on the basis of sex.
Ginsburg closed her argument before the court with a quotation that could arguably be considered the summation of her entire life’s work:
In asking the Court to declare sex a suspect criterion, amicus urges a position forcibly stated in 1837 by Sara Grimke, noted abolitionist and advocate of equal rights for men and women. She spoke not elegantly, but with unmistakable clarity. She said, ‘I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.’
Frontiero won her case in an 8-1 decision, however, Ginsburg still fell short of her goal of setting strict scrutiny as the legal standard in sex discrimination cases. Justice William J. Brennan, Jr. wrote a plurality decision which did recognize sex as a suspect class and therefore subject to strict scrutiny but only Justices William O. Douglas, Byron R. White, and Thurgood Marshall would sign on to that approach. Justices Lewis F. Powell, Jr. and Potter Stewart found in Frontiero’s favor, but would not support the strict scrutiny standard. Ginsburg would have to return to the court another day. Had one more justice endorsed the strict scrutiny standard giving a clear majority, the standard would have become binding precedent in future cases. Still, the military would no longer be able to treat female and male dependents differently when it came to pay and benefits.
United States v. Virginia
In 1995, Virginia Military Institute was Virginia’s only exclusively male public undergraduate higher learning institution. Despite the name, only about 15 percent of the graduates entered the U.S. military. Between 1988 and 1990, Virginia Military Institute received inquiries concerning admission from 347 young women, but did not answer any of them. The Department of Justice challenged Virginia and Virginia Military Institute alleging that the school’s male-only admissions policy was unconstitutional. On appeal from a District Court ruling favoring the school and the state, the Fourth Circuit reversed: It found Virginia Military Institute’s admissions policy to be unconstitutional.
In response to the Fourth Circuit’s reversal, Virginia got creative and proposed to create the Virginia Women’s Institute for Leadership at Mary Baldwin College as a parallel program for women. According to the Supreme Court Historical Society, the Virginia Women’s Institute for Leadership would not rely on Virginia Military Institute’s “adversarial method” of training cadets, but “would rely instead on a cooperative method aimed at building up self-esteem rather than destroying it.” This approach would remove the barracks life uniforms, teach self-defense, and take courses through a pre-existing ROTC program. On appeal from the District Court’s support for the plan, the Fourth Circuit ruled that despite the difference in prestige between Virginia Military Institute and the Virginia Women’s Institute for Leadership, the two programs would offer “substantively comparable” educational benefits. The United States appealed to the Supreme Court.
Ginsburg was now an associate justice hearing the case, having been appointed by President Bill Clinton in 1993. Paul Bender, principal deputy solicitor general of the United States, argued the case for the government. Theodore Olsen, who would become solicitor general of the United States in 2001, argued for Virginia.
In her questioning of Bender, Ginsburg asked if he agreed with a point made by women in the military that “if women are to be leaders in life and in the military, then men have got to become accustomed to taking commands from women, and men won’t become accustomed to that if women aren’t let in.” Bender replied that he did and felt it was also true in the professions and corporate leadership.
Ultimately, the United States prevailed and the case was decided in a 7-1 decision (Justice Clarence Thomas did not participate in the case since his son Jamal was attending Virginia Military Institute). Ginsburg wrote the decision. Despite her more than two-decade quest to achieve the strict scrutiny standard for cases involving sex discrimination, Ginsburg still fell a little bit short in the Virginia Military Institute case, though she did make some progress.
The prevailing standard on sex discrimination intermediate scrutiny, somewhere between rational basis and strict scrutiny, was established in a 1976 case, Craig v. Boren. This case should be near and dear to military members (and War on the Rocks readers) for a completely different reason: It involved the right of men to buy beer. Under an Oklahoma law regulating the sale of beer with an alcohol content of 3.2 percent or higher, about half the level found in ordinary beer, women were allowed to purchase the beer at 18, but men were barred from doing so until they turned 21. Ginsburg, then still working for the American Civil Liberties Union, filed an amicus curiae brief in the Craig case. The law was struck down in a 7‑2 decision. Brennan wrote the decision and — joined by four other justices — established a new standard of review. “To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Brennan cited both Reed and Frontiero in the decision.
Relying on the existing intermediate scrutiny standard, Ginsburg wrote in the Virginia decision that “Parties who seek to defend gender based government action must demonstrate an ‘exceedingly persuasive justification’ for that action,” and that “The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Notably William Rehnquist, now chief justice, who had been the lone dissenter in Frontiero, agreed with the court’s decision, though he reaffirmed the Craig standard and challenged Ginsburg’s reasoning.
In response to the decision, Virginia Military Institute considered taking the school private, though that would have entailed coming up with about $9 million in funding that the state annually provided to the school at the time. Ultimately, in 1996, the board voted to open the school to women. In 2019, about 13 percent of the students at Virginia Military Institute were women. Several years ago, one of us (Levinson) got to ask Ginsburg what was the case she was most proud of during her tenure on the court. She replied without hesitation that it was the Virginia Military Institute case, adding not only because what it did for Virginia Military Institute, but because of what the case meant for women under the law.
Conclusion
Military policy has been a proving ground for sex discrimination of various types, as evidenced by these three cases. Arguments from Struck v. Secretary of Defense, such that it is “uneconomical and unwise to dismiss an officer” on the basis of pregnancy, remain salient today. Recent lawsuits, not (yet) heard by the Supreme Court, illustrate ongoing fights for equal treatment against “categorical exclusion of women.” Following the lawsuit Hegar, et al. v. Hagel in 2013, the Department of Defense changed its policy to remove restrictions for women serving in combat specialties in 2015. However, following this change, an evolving case — most recently called the Service Women’s Action Network (SWAN) v. Mattis — has contested the constitutionality of the Department of Defense’s implementation plans. The 2017 case, Service Women’s Action Network (SWAN) v. Mattis, heard in the U.S. District Court for the Northern District of California, argued that the policy of assigning “Leaders First” — a policy that required two female officers or non-commissioned officers in a unit prior to assigning female junior enlisted — maintained limitations on women’s assignment to combat units. The Marine Corps took so long to implement the 2015 policy that Congress mandated gender integration to the platoon level in 2019.
Another case, National Coalition for Men v. Selective Service System, heard by the District Court for the Southern District of Texas in 2019, contests the 1981 Rostker v. Goldberg decision by the Supreme Court that found requiring only men to register for the draft was constitutional. The National Coalition for Men case argues restricting selective service registration violates the equal protection clause and that the 2019 District Court decision found Rostker v. Goldberg was no longer valid because women can now serve in combat roles. Subsequently overturned in the Fifth Circuit, the case may yet wind up before the Supreme Court. Sex discrimination and barriers to equal treatment due to assumptions about traditional gender roles remain complicated and contested in the courts. For example, Karnoski v. Trump, an open case in the United States District Court for the Western District of Washington, challenges the barring of transgender individuals from service.
While these ongoing cases will not be heard by Ginsburg, her guidance and championing of gender equality has left a lasting impact. In some ways similar to how desegregating the military along racial lines preceded and influenced desegregation of American society at large, changes in the military’s policies toward women often preceded and influenced the role of women in the life of the nation. The Pregnancy Discrimination Act, which amended title VII of the 1964 Civil Rights Act, outlawed pregnancy discrimination in private sector employment in 1978, six years after the military had wrestled with the issue in Struck. It is undoubtedly true that the U.S. military, and the American society it serves, treat women under the law far differently and far more equitably than in the 1970s, and perhaps no single person is more responsible for that than the late Justice Ruth Bader Ginsburg.
Emma Moore is a research associate at the Center for a New American Security and a non-resident fellow at the Brute Krulak Center for Innovation and Creativity at Marine Corps University.
Robert Levinson is a retired lieutenant colonel in the United States Air Force with more than 20 years of service who now works as a defense analyst in Washington, D.C. His uncle was a classmate of Justice Ginsburg’s when she began her legal studies at Harvard Law School before transferring to Columbia. As part of Duke University’s summer class in national security law, he had the opportunity to hear Justice Ginsburg speak and ask her a question about her most significant cases.
Image: U.S. Air Force (Photo by Airman 1st Class Spencer Slocum)
