Pod Insights Radiolab More Perfect: Sex Appeal About this episode In 2017 our sister show, More Perfect aired an episode all about RBG, In September of 2020, we lost Supreme Court Justice Ruth Bader Ginsburg to the annals of history. She was 87. Given the atmosphere around reproductive rights, gender and law, we decided to re-air this 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.
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.
EPISODE CREDITS: Reported by - Julia LongoriaProduced by - Julia Longoria
Original music and sound design contributed by - Alex Overington
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Transcript 10,846 words · 8 speakers
0:00 Speaker 00 Radiolab is supported by Dell. Gifts mean more when they have the power to unwrap more of who you are. This Black Friday, give a gift that goes beyond the box. The Dell XPS 13 laptop. Dell says it is the thinnest, lightest XPS laptop yet, with a long battery life, beautiful design, powerful performance with Intel Core processors. The XPS laptop, according to Dell, unlocks more of what you love. Plus, at dell.com, you will find perks like Dell Rewards, fast free shipping, flexible financing, big savings. Head to dell.com/deals. That's dell.com/deals.
0:43 Speaker 01 Hey, y'all. Lulu here. Okay, so before we get going with today's show, I'm gonna hand it off to producer Sarah Akari, who's going to tell us a brief story.
0:53 Speaker 02 Yes. Okay, so this is a story that starts in the middle of the night a few months ago in Waco, Texas, when a man named John Low is startled awake.
1:04 Speaker 03 So I hear a horrible, loud, sort of gurgly, gaspy, snoring type sound.
1:13 Speaker 02 He turns his head and he realizes it's coming from his wife, Angie, who's lying next to him in bed.
1:19 Speaker 03 She is laying flat on her back, and her head is tilted way off to the side. But then, when I turned her head, her eyes are wide open, just glassy. And I can see her lips are starting to turn blue. And I cannot wake her, no matter how hard I try.
1:41 Speaker 02 He has this horrible realization that his wife is likely having some kind of cardiac arrest. And for an instant, he does what any of us would do. He freezes.
1:53 Speaker 02 But then-
1:54 Speaker 03 This was where the Radiolab episode, "How to Save a Life," came into play.
2:00 Speaker 02 John told me that not long before this moment-
2:02 Speaker 03 Just a few weeks before-
2:05 Speaker 02 He had heard an episode we released called, "How to Save a Life," in which Dr. slash Radiolab correspondent, Avir Mitra, told everyone about a new way of doing CPR.
2:15 Speaker 04 Sort of a new form of CPR that's trying to make things a lot simpler, and it's just hands-only CPR, where it's literally just push hard and fast on the chest.
2:23 Speaker 02 Of course, there is a particular method to it. Definitely listen to the episode for more on how to do it. But the idea is, there's no mouth-to-mouth, there's no counting breaths, just pushing on the chest.
2:34 Speaker 04 That's it.
2:36 Speaker 02 Now, John had actually heard about this technique a couple of months earlier when he was in a CPR training at work.
2:42 Speaker 03 But at the same time, I am, you know, a middle-aged guy, out of shape, overweight. I have just kind of always, in the back of my mind, assumed I would be on the receiving end of CPR.
2:57 Speaker 02 So he told me that that night with Angie-
3:00 Speaker 03 Because I had just listened to that episode of Radiolab.
3:03 Speaker 02 The hands-only technique had sort of been refreshed in his mind.
3:06 Speaker 03 Correct.
3:07 Speaker 02 Along with one other thing Avir had said.
3:09 Speaker 03 When he was talking about the curve-
3:12 Speaker 04 So this is a survival curve.
3:14 Speaker 02 He had talked about how, when a heart stops, like in a cardiac arrest-
3:17 Speaker 04 It really comes down to time. Every minute that passes, your chances of coming back just exponentially decreases.
3:23 Speaker 02 Unless you start CPR as soon as possible.
3:26 Speaker 03 So I just knew we had to act immediately. This wasn't a, oh, I'll call 911 and wait till they get there, kind of situation. This was, she is going to die unless I start doing something right now.
3:39 Speaker 02 And so the part of him that's frozen thaws. He calls 911.
3:44 Speaker 03 And while I was on the phone with 911-
3:47 Speaker 02 He's starting to do things that he'd heard about in the episode, getting Angie off the bed and-
3:51 Speaker 03 Onto the floor.
3:53 Speaker 02 Getting his hands ready.
3:54 Speaker 03 For the hands-only chest compressions.
3:56 Speaker 02 And what it means is that, all in all, starting from the moment that he first notices something going wrong with Angie-
4:02 Speaker 03 I had her on the floor and started chest compressions in maybe 30, 45 seconds.
4:07 Speaker 02 Just pushing.
4:18 Speaker 02 And now...
4:20 Speaker 05 Hi, Sarah.
4:20 Speaker 02 Oh, my god, hello. It's clear every second made a difference.
4:24 Speaker 05 How are you feeling? I really feel very good.
4:28 Speaker 02 Yeah, this, of course, is none other than Angie Lowe.
4:32 Speaker 05 I would say that I feel better than even before.
4:35 Speaker 02 Oh, and what Angie would later learn is that night, John did six and a half minutes of hands-only CPR, no small feet, and then an ambulance arrived and took her to the hospital.
4:46 Speaker 05 And then, once I woke up, we were still, both of us, were just, in different ways, just processing everything that had happened.
4:53 Speaker 02 Over the next few weeks, as she stayed in the hospital to recover...
4:56 Speaker 05 I was feeling a little bit lonely in all of that.
4:59 Speaker 02 And so, one day...
5:00 Speaker 05 John said, "I really want you to hear this episode." And so, we listened to it together.
5:03 Speaker 02 And she says it got her thinking about this idea called "The Chain of Survival."
5:08 Speaker 05 Where, you know, as soon as that cardiac arrest begins, it begins with identifying the cardiac arrest and then CPR, and then the AED in the first responders and the advanced care at the hospital, and then the post-care, which is like cardiac rehab, you know, what I'm doing right now. And with each step being done, your chances of survival just go up and up and up.
5:31 Speaker 02 And she and John have both been thinking a lot about all the people that were a part of her chain of survival.
5:36 Speaker 03 Once everything was stabilized with Angie and we knew we were in a good place, that she was doing well, we just had this period of just immense gratitude. We brought a barbecue, you know, catered barbecue, over to the fire department. We bought trays of cookies to bring up to the ICU nurses that took care of Angie. We contacted the folks over at the AMR ambulance service to thank them. And because Radiolab and that episode really did play a part in this whole experience and Angie's outcome, we were just kind of filled with immense gratitude.
6:21 Speaker 03 So I wanted to just let y'all know how thankful I was for everything that you do at Radiolab, but specifically for that episode and helping me help Angie through that horrible, you know, potentially tragic event.
6:39 Speaker 05 Yeah. And we're, you know, we're really private people. You know, we're kind of, in a sense, we're shy. But we knew we had to get the word out to all of you, you know, at Radiolab, that people are listening and they're paying attention and that your job is so important.
6:57 Speaker 02 That's incredible, you guys. I mean, I know, I speak for everybody on the show when I say that knowing that we were one small part of that chain of survival is like mind blowing and just so, I think we were all just so grateful that it made a difference.
7:15 Speaker 05 We're so glad.
7:16 Speaker 01 And just coasting on that swell of gratitude, we wanted to thank you, all of you listening, whether you ever do chest compressions on someone or not. You are helping keep us alive at Radiolab, simply by listening to the show each week, maybe by sharing it with your friends, perhaps by donating or becoming a member. Radiolab is alive because of you. You are part of our chain of survival. And if you are feeling moved to support us, you can sign up to become a member at any time at radiolab.org/donate. On with the show. This is Radiolab. I'm Lulu Miller. It is Women's History Month, sort of a weird time to be celebrating, you know, with the
8:01 Speaker 01 overturning of Roe v. Wade, the elimination of certain Title IX protections, and recent attempts to freeze government funding to proposals that use the word woman, or women, or gender. Sort of feels like an avalanche of rights being stripped away. And all this kind of got me thinking about how rights are won. You know, sometimes it's straightforward. The founding fathers believed certain people should get rights, wrote them down, and boom, there they were. But sometimes it is sneakier. And so today, we're bringing you a story about one of the all-time greatest sneaks. It is a story of brilliant legal strategy, of navigating loopholes and Trojan horses and beer. So much beer. And so, cheers.
8:50 Speaker 01 In honor of a more side door entrance to legal rights, happy Women's History Month, please enjoy a tale from our sister show, More Perfect, that originally aired a few years back called Sex Appeal.
9:02 Speaker 03 Wait, you're listening.
9:04 Speaker 06 Okay.
9:05 Speaker 03 All right.
9:06 Speaker 06 Okay.
9:08 Speaker 03 All right.
9:09 Speaker 06 You're listening to Radiolab.
9:12 Speaker 03 Radiolab.
9:13 Speaker 06 From...
9:14 Speaker 03 WNYC.
9:17 Speaker 03 R.E.Y.
9:22 Speaker 03 This is More Perfect. I'm Chad Abumrad. Today, a story from our producer, Julie Longoria.
9:28 Speaker 07 So I've been working on an episode about sex discrimination for like, months now.
9:33 Speaker 03 Yeah.
9:34 Speaker 07 And we're supposed to release it. Sexual harassment scandals have engulfed Harvey Weinstein, Senator Al Franken, comedian Louis C.K. This week. Actor Kevin Spacey. Candidate Roy Moore today. The story we're gonna tell is not about sexual harassment, but I can't think straight with all the stuff that's happening. Look at what's happening with...
9:53 Speaker 00 You call that a tipping point. You call that a watershed moment. Thousands posted the claims online using the simple phrase, "Me too." This has been happening since the beginning of time, but now people are finally talking about it.
10:04 Speaker 07 And I can't help but think that we've seen this before. This outcry for public change and a backlash. They claim there's a war on women out there. No one takes them seriously.
10:16 Speaker 04 If you can't handle some of the basic stuff that's become a problem in the workforce today, like, you don't belong in the workforce.
10:22 Speaker 07 Like, we're in our respective corners and... We need men to help us. Letting out a big scream. How do people not know? But when things quiet down...
10:38 Speaker 07 Will there be a change?
10:42 Speaker 03 And what kind of change is the kind that will stick?
10:48 Speaker 03 Today's story is about a time in the not-so-distant past when there was a similarly loud, raucous division in our country over sexual equality, and one woman...
10:58 Speaker 07 Quietly.
11:00 Speaker 03 Strategically.
11:01 Speaker 07 ...laid the foundation for real change. The honor of all the Chief Justices and the Associate Justices of the Supreme Supreme Court of the United States. Oh, yea, oh, yea, oh, yea. All persons having business before the Honorable the Supreme Court of the United States are admonished to draw near and give their attention. For the court is now sitting. God save the United States in this honorable court.
11:58 Speaker 03 Here we are. I'm gonna ask you an utterly false question, which is, where would you like to start?
12:04 Speaker 03 As if we haven't been doing this for so damn long.
12:08 Speaker 07 OK. So let me outline the basic dilemma that's at the heart of the story here.
12:14 Speaker 03 All right.
12:14 Speaker 07 And I'm gonna put it to you as a question.
12:17 Speaker 03 Bring it.
12:17 Speaker 07 If you were to do a Ctrl+F in the Constitution, like, how many times do you think the word "sex" comes up?
12:24 Speaker 03 Oh.
12:27 Speaker 03 That's interesting.
12:30 Speaker 03 Six? I'm guessing what was the answer?
12:34 Speaker 07 It's one, one time, in the 19th Amendment, which grants people the right to vote based on sex.
12:42 Speaker 03 Really?
12:42 Speaker 07 Yes.
12:43 Speaker 03 That's the only time?
12:43 Speaker 07 That's the only time, which is crazy, because we already have--
12:46 Speaker 03 Was there, like, a non-- Is there a sex word that's not sex? Like, gender or something, something?
12:50 Speaker 07 No, nothing.
12:52 Speaker 03 Is there, like, ladies in the Constitution? Women?
12:55 Speaker 07 No.
12:55 Speaker 03 Really?
12:56 Speaker 07 OK, 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, the Constitution does not require sexual discrimination on the basis--
13:18 Speaker 06 Basis of sex. Constitution doesn't require it. It simply doesn't forbid it.
13:23 Speaker 07 That's the late Justice Antonin Scalia.
13:25 Speaker 06 It doesn't. Nobody ever voted for that. So where do you get it from?
13:31 Speaker 03 There was nothing that said that. I mean, not those words explicitly, but there was nothing that says you can't discriminate?
13:37 Speaker 00 Not on the basis of sex.
13:39 Speaker 07 That's legal editor Christian Farias.
13:41 Speaker 00 We had a 14th Amendment that told people that we're equal under the law, that everyone has the equal protection of the laws. But doesn't that say, man, it's kind of not?
13:50 Speaker 06 They never applied the 14th Amendment to women. They didn't apply the 15th.
13:54 Speaker 07 That's Martha Griffiths, Congresswoman. When you think about the history of the 14th Amendment. As legal editor Linda Hirschman says.
14:01 Speaker 01 The 14th Amendment was passed in the aftermath of the Civil War.
14:05 Speaker 07 Along with the 13th and the 15th.
14:07 Speaker 01 13th Amendment abolishing slavery.
14:09 Speaker 07 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, OK, it was meant to bring equality to black people.
14:22 Speaker 06 When the 15th Amendment had been written, which said every citizen could vote, in the name of heavens, why couldn't women vote? Why did you have to have the 19th Amendment? Well, of course, the answer was they didn't consider women people.
14:42 Speaker 07 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.
14:53 Speaker 06 It was the case that the Supreme Court had never once met a distinction between men and women it didn't like.
15:01 Speaker 07 Wendy Williams, law professor emeritus at Georgetown. What are some of my greatest hits of the ridiculous distinction?
15:08 Speaker 06 OK, here, there was a case called Bradwell, and it was 1873 or '04. In that case, a woman wanted to become a lawyer.
15:19 Speaker 07 Illinois bars said, no.
15:21 Speaker 06 And the justices said that that was a perfectly good rule because the justice system.
15:28 Speaker 07 Could be seen as not appropriate for women. Now, let's jump clear into the next century here. 1948. This case, it was called Gesert 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.
15:59 Speaker 07 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.
16:26 Speaker 07 But just about 67.
16:33 Speaker 03 There are a lot of women in this country who feel that they're being pushed around.
16:36 Speaker 07 Things, things had started to come to a boil.
16:41 Speaker 03 And they've become very vocal. They call themselves the Women's Liberation Movement.
16:44 Speaker 06 Sex and race, because they are easy, visible differences, have been the primary ways of organizing human beings into superior and inferior groups.
16:53 Speaker 07 So in the late 60s and early 70s, people like Glorious Dyno.
16:56 Speaker 06 We are talking about a society in which there will be no roles other than those chosen.
17:02 Speaker 07 Free from the diseases of racism! Audre Lorde. Of sexism, of classism! They get some traction, saying, "Okay, it's time to put us in the Constitution. Hurry up."
17:13 Speaker 06 Some historians say it's a constitutional convention for women. I move the adoption of the following resolution.
17:20 Speaker 07 And what you see is this push for something called the Equal Rights Amendment.
17:24 Speaker 06 The Equal Rights Amendment should be ratified!
17:37 Speaker 07 What are your hopes for it? Do you think it will be ratified this year? It will be ratified early next year. I'm 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.
17:54 Speaker 00 A special report on the 1977 National Women's Conference.
17:58 Speaker 07 Or in 1977. And the movement is stalled.
18:04 Speaker 03 Why? What stalled it?
18:05 Speaker 07 Well, a lot. But much of the credit goes to this woman.
18:12 Speaker 06 Phyllis Schlafly of Alden, Illinois.
18:14 Speaker 07 A woman named Phyllis Schlafly. 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 say. She was a lawyer and a self-described housewife who started a movement called Stop ERA. The whole thing is misrepresented as a women's rights amendment. 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. Certainly not. I think the laws of our country have given a very wonderful status to the married woman.
18:56 Speaker 07 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 account of sex. And if you want to deny a marriage license to a man and a man, or deny a homosexual the right to teach in the schools or to adopt children, it is on account of sex that you would deny it, and that would be unconstitutional under ERA. And that argument caught on.
19:33 Speaker 06 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. He said, "Brother, we're all in danger."
19:53 Speaker 04 Had the Equal Rights Amendment passed.
20:22 Speaker 07 Legal editor Linda Hirschman again.
20:23 Speaker 01 It would have looked a lot like the racial civil rights movement did. But the Equal Rights Amendment did not pass.
20:31 Speaker 07 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.
21:11 Speaker 03 There she is. This is the notorious RBG.
21:16 Speaker 07 Ruth Bader Ginsburg. RBG can do 20 pushups and not the so-called girl kind. Now, before she was a Supreme Court Justice.
21:24 Speaker 06 Feminist icon.
21:25 Speaker 07 Or a workout sensation. Now, just show us all the moves. Before all that, Ruth Ginsburg, she was at the ACLU. This was in the 70s.
21:34 Speaker 01 And one of the characteristics of Ruth Ginsburg, which exists to this day.
21:41 Speaker 07 You can hear this. It's the first time she argued in front of the Supreme Court in 1973.
21:47 Speaker 01 When you'd ask her a question, there would be silence. Enough silence.
21:54 Speaker 07 Mrs. Ginsburg.
22:00 Speaker 07 To make a person nervous and start trying to help her answer the question. Sounds very good. You had to wait. But we can imagine that it was in one of those long pauses that Ruth Bader 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 made the basis for unjustified, or at least unproved, assumptions concerning an individual's gender.
22:51 Speaker 03 Wait, so back it up a second. What exactly did RBG do?
22:55 Speaker 07 So let me walk you through it now, because it's beautiful.
23:00 Speaker 07 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 going to do if that's the case? How are we going to get equal rights for women? So they decided, okay, as an alternate approach, let's go back to the 14th Amendment.
23:17 Speaker 03 The 14th Amendment's immediate objective was to provide national protection for the newly freed slaves.
23:24 Speaker 07 You know, which, as we said, was designed from the beginning to be only about race.
23:28 Speaker 03 But its sweeping provisions suggest broader objectives. The states were prevented from depriving any person equal protection of the laws.
23:38 Speaker 07 Well, it says the word "person," so that should include women.
23:43 Speaker 03 Yeah.
23:44 Speaker 07 If they could just get the courts to see it that way, then by default, almost, we would have a sort of ERA.
23:51 Speaker 01 And accordingly, the task was showing that the racially inflected 14th Amendment applied to sex.
24:00 Speaker 07 So what about the law is she trying to change? What does she want the court to say?
24:05 Speaker 01 She wants the court to say that sex would be treated just like race.
24:11 Speaker 07 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.
24:30 Speaker 01 The law discriminates. It has to.
24:32 Speaker 07 It discriminates between 18-year-olds and 17-year-olds, between criminals and non-criminals.
24:37 Speaker 01 There would be chaos otherwise, right?
24:39 Speaker 07 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.
24:48 Speaker 01 A compelling state interest.
24:49 Speaker 07 To do race discrimination. Otherwise, it's going to be unconstitutional. You with me so far?
24:55 Speaker 03 Yes. To discriminate based on race, you need to pass a really super hard test.
25:01 Speaker 07 By the way, the legal name for this test?
25:03 Speaker 03 Oh, God.
25:03 Speaker 07 Strict scrutiny.
25:05 Speaker 03 Ugh.
25:07 Speaker 07 I know, they should have called it like, "We Mean Business," or something like that. But anyway, the point was that they took it seriously, which, you know, back in the day, they weren't doing with sex discrimination at all. Because when legislatures would come up with these laws, like this women can't be bartenders law, the Supreme Court would be like, you know, you guys probably have a good reason for that.
25:29 Speaker 03 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.
25:40 Speaker 07 Like in the case of the bartenders law, bars are dangerous. Women need more protection.
25:45 Speaker 03 And courts would be like, OK, sure.
25:48 Speaker 07 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've been doing it for years? How do you convince them that discrimination is a bad thing? That's coming up after a quick break.
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26:41 Speaker 00 This episode is sponsored by BetterHelp. I live far from my family. Every year at Thanksgiving, I get the same question. Where am I going for the holiday? After years of getting caught at airports, or spending tons of money, or getting the seasonal flu, my answer: nowhere. I have finally said, "No more to travel at Thanksgiving." But it did take a lot of guts to call it off, because when it comes to the holidays, there are all of these expectations of how to celebrate, where to celebrate, and who with. Going against the grain can be hard. Therapy can help. BetterHelp says it has therapists that are licensed, experienced professionals, bringing at least three years and over 1,000 hours of hands-on experience to people.
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29:57 Speaker 01 Lulu, Radiolab. So just before the break, Ruth Bader Ginsburg needed a way to convince an audience of men that discrimination on the basis of sex is wrong.
30:06 Speaker 06 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.
30:16 Speaker 01 This is her giving a recent talk about her 1970s strategy.
30:19 Speaker 06 You need to persuade men that this is right for society.
30:25 Speaker 01 Part one of her strategy? Choose your words carefully.
30:29 Speaker 06 I had a secretary at Columbia who said, "I'm typing these things for you."
30:35 Speaker 07 And jumping out all over the pages, sex, sex.
30:41 Speaker 07 Don't you know that the audience you are addressing, that the first association of those men with the word sex is not what you're talking about?
30:54 Speaker 07 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 going to 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.
31:35 Speaker 07 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. So the laws of our country have given a very wonderful status to the married woman. That philish, laughly idea that discrimination is actually good for women. Gender classifications were always rationalized
32:17 Speaker 07 as favors to women. And so RBG decided not just to bring cases where women were the victims of discrimination.
32:27 Speaker 03 Okay, my name is Curtis Craig.
32:30 Speaker 07 She brought cases where men were the victims. Who were you as an 18-year-old?
32:35 Speaker 03 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.
32:46 Speaker 03 You name it. I mean, I.
32:48 Speaker 07 He made it into Lambda Chi Alpha at Oklahoma State. And he was living. Oh, oh, yeah. At the frat house.
32:55 Speaker 03 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 leave a body print.
33:09 Speaker 07 What do you mean? Like an indentation literally in the wall? Or like the dirt?
33:12 Speaker 03 Yeah.
33:13 Speaker 07 Oh, my God.
33:14 Speaker 03 Yeah, it was amazing. There was a lot of partying going on.
33:19 Speaker 07 More beer, more beer, more beer, more beer. Lot of beer.
33:25 Speaker 03 The yard would be filled with beer cans.
33:27 Speaker 07 And here's the key. If they wanted to get all that beer. They had to enlist the help of the ladies.
33:34 Speaker 03 Yeah, I mean.
33:35 Speaker 07 You know, the sorority sisters.
33:37 Speaker 03 Yes, you would have a female buy you beer and you'd go out and party. They needed the women to buy the beer?
33:44 Speaker 07 Yep.
33:45 Speaker 03 Why?
33:46 Speaker 07 Because in Oklahoma State at the time.
33:48 Speaker 01 Oklahoma had a very silly law. Girls could buy beer at age 18, but the boys had to wait until 21.
33:57 Speaker 03 There was something about the level of maturity, I guess, for women versus men at that time.
34:02 Speaker 07 The basic principle was that boys got into more car accidents, so they should be trusted with less beer?
34:10 Speaker 03 Huh.
34:11 Speaker 07 And did that make you angry?
34:12 Speaker 03 Oh, absolutely. Well, it was extremely unfair. Yeah, I would say it made, I think, most men angry at the time.
34:20 Speaker 07 And a Supreme Court case was born.
34:23 Speaker 01 So the thirsty boys at the fraternity brought this case.
34:32 Speaker 03 So the RBG gets involved in this beer case?
34:35 Speaker 07 Yes.
34:36 Speaker 03 But this is a situation where women have rights men don't have. Why would she want to argue this case? I'd imagine she'd want the opposite.
34:46 Speaker 07 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.
35:00 Speaker 03 Yeah.
35:01 Speaker 07 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 can 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 know, scary places like bars or courtrooms-
35:37 Speaker 03 Interesting.
35:39 Speaker 07 ...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.
35:54 Speaker 03 Wow, that's clever.
35:55 Speaker 07 We're just getting started.
36:16 Speaker 03 More Perfect continues in a minute.
36:34 Speaker 03 This is More Perfect. I'm Jad Abumrad, here with Julie Galongoria, who's telling us the story of a case involving boys and beer that became a kind of Trojan horse
36:47 Speaker 03 in the battle for women's rights.
36:50 Speaker 03 Now, the story of the Trojan horse, maybe you know this. It's, you know, 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.
37:25 Speaker 03 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.
37:44 Speaker 07 And in our case, that woman warrior,
37:51 Speaker 07 she didn't even know she was gonna go into battle.
37:55 Speaker 03 Julia, you take it from here.
37:56 Speaker 07 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.
38:10 Speaker 03 It's called Sparta?
38:11 Speaker 07 I know. Pows and horses and Trump signs.
38:18 Speaker 07 Tractor up front, no trespassing sign. And so I walk up to this house. It's this beautiful cream-colored cottage perched on top of a mountain.
38:28 Speaker 03 Wow.
38:29 Speaker 07 And I can hear Whitney Houston's "Saving All My Love For You" blasting. You having trouble? Hi, no, I didn't. Are you Carolyn? Uh huh. Hi, very nice to meet you. And I meet Carolyn Whitner. I'm 76, soon be 77. She... I have a beer, you want a beer? Immediately offers me a course. I've got a first line. Yeah?
38:57 Speaker 07 Will you have a beer 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.
39:06 Speaker 03 What does she look like? Describe her.
39:08 Speaker 07 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. Well, tell me 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 upfront, she's like, I'm proud. I'm proud of the young...
39:33 Speaker 02 Young women, I have a granddaughter that's
39:35 Speaker 07 I'm so proud of you. Your generation, they're finishing the fight I started. 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?
39:48 Speaker 02 I can imagine.
39:52 Speaker 02 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.
40:02 Speaker 07 She told me she grew up bouncing around different oil fields.
40:05 Speaker 02 I was an oilfield trash. That's what we were called, oilfield trash.
40:11 Speaker 07 That meant Carolyn and her brother and sister split the school year between two or three schools a year.
40:17 Speaker 02 We moved a lot.
40:18 Speaker 07 She says school didn't come easily to her.
40:19 Speaker 02 But my dad, he taught all three of us how to weld. He was a welder, how to work on a car.
40:25 Speaker 07 She was very independent. And when she was about 13, they moved to Chickasha, Oklahoma.
40:33 Speaker 07 And that is where she met Dwayne.
40:37 Speaker 02 That was the first boy I went with.
40:39 Speaker 07 They met in high school. And they were roughly the same age, but he was three years ahead of her in school. And what attracted you to him?
40:47 Speaker 02 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'd have wanted to have been.
41:00 Speaker 07 What do you think attracted him to you? Like, what do you think he saw in you?
41:06 Speaker 02 I was somebody new in town.
41:08 Speaker 07 Talking to Carolyn, I got the sense she did not have any shortage of suitors.
41:12 Speaker 02 But I married him when I turned 18.
41:23 Speaker 02 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 raising men. He probably was.
41:38 Speaker 07 She says she was really comfortable with him. He was a quiet man with this brilliant mind.
41:44 Speaker 02 But he just, he was pure German girl.
41:48 Speaker 06 Have you ever met a German man? Okay, they are in total control.
41:54 Speaker 03 And how does Carolyn connect to the case with the frat boys in RBG?
41:58 Speaker 07 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
42:15 Speaker 07 is a college town. It's that college town, okay? You've got Oklahoma State University right there, tons of fraternities, including Lambda with the Rustlers. Huge homecoming, drawing over 40,000 alumni.
42:27 Speaker 06 We didn't know what homecoming was. Had no idea what homecoming was.
42:31 Speaker 07 But shortly after moving to Stillwater, they opened the doors to the hunk and holler.
42:40 Speaker 06 And where we went in was just about three blocks, four blocks from the college. And we went into business there.
42:47 Speaker 07 A drive-through convenience store.
42:49 Speaker 06 It was like the real old gas station with the oil pit in the floor.
42:54 Speaker 07 Here's how it would work. Customers pull up to the side of the convenience store and
42:58 Speaker 06 They'd drive through,
43:00 Speaker 07 hunk their horn, holler their order.
43:04 Speaker 06 And you'd have to go out and wait on them, come back in and get what they wanted, and take it back out.
43:10 Speaker 07 So it's a lot of in and out, and in and out.
43:15 Speaker 07 All night long.
43:16 Speaker 06 You'd wear tennis shoes out real fast. So it was all sheer energy and guts.
43:22 Speaker 07 Homecoming night.
43:23 Speaker 06 We were supposed to close at 11.
43:24 Speaker 07 The store is flooded with customers.
43:27 Speaker 06 Till, I think, 2 or 3 o'clock in the morning.
43:31 Speaker 07 They're like thrilled because they've never run a business by themselves before. And all these college kids are coming in and buying Coors beer. Including, of course, a steady stream of girls buying beer, presumably for their boyfriends.
43:44 Speaker 06 And it, yeah, I never did get to
43:46 Speaker 02 See homecoming. All I saw was cars coming in and out.
43:51 Speaker 07 Fast forward a few years, it's 1972, back at the university.
43:55 Speaker 03 He was tall, had long blond hair.
43:58 Speaker 07 Curtis Craig's buddy named Mark Walker.
44:00 Speaker 03 He was the president of the Lamb and Cai House at the time.
44:02 Speaker 07 Is in a political science class. And the professor starts talking about 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.
44:23 Speaker 03 And the professor challenged him about doing something about the beer laws if he was going to complain about them.
44:29 Speaker 07 So one day.
44:30 Speaker 02 I was behind the counter, people coming in and out.
44:33 Speaker 07 Mark Walker walks into the honk and holler.
44:36 Speaker 02 A young man came in to talk to me.
44:38 Speaker 07 She doesn't really have time to talk, she's running in and out.
44:41 Speaker 02 But he stood there.
44:43 Speaker 07 Waiting patiently.
44:44 Speaker 02 I bet he was in there four hours. And he was looking at the beer license.
44:48 Speaker 07 He looks at the license, and he notices that Carolyn's name is the one on it. Because actually.
44:53 Speaker 02 My husband lost his license.
44:55 Speaker 07 After he sold beer to a young man.
44:57 Speaker 02 So he put them in my name.
45:00 Speaker 07 Anyway, at a certain point, in between all the honks and hollers.
45:03 Speaker 02 He asked me what I thought about the beer laws. And I told him. I was very vocal about it. I always had been.
45:12 Speaker 07 She says, it doesn't make any sense. We send these young men off to war.
45:15 Speaker 02 They were being drafted at 18.
45:17 Speaker 07 Oh, we don't let them drink beer when they come back?
45:19 Speaker 02 Was that just?
45:20 Speaker 07 Not to mention the liability issues. You have these 18-year-old girls coming in, buying beer, slipping it to their boyfriends. How am I supposed to stop that?
45:27 Speaker 02 You can't prove who buys what.
45:31 Speaker 07 So eventually, when Mark Walker asked for her help.
45:34 Speaker 02 He said he was going to do a term paper.
45:37 Speaker 07 She's like, sure, why not?
45:38 Speaker 02 I was always willing to help them because they had helped us get started. And I still thought it was a term paper.
45:46 Speaker 07 So was he not being completely honest with you then?
45:50 Speaker 02 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 any 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.
46:15 Speaker 07 But it wasn't just a conversation. Because before that meeting, Mark had gone out looking for a lawyer.
46:21 Speaker 03 That's correct.
46:22 Speaker 07 And Curtis and Mark and the other frat brothers had tried to raise some money.
46:26 Speaker 03 That was flawed in a campus town. Everybody uses their last dollar for that last beer.
46:32 Speaker 07 But they managed to find this lawyer who would do it on the cheap.
46:36 Speaker 03 All right, well, I'm just Fred Gilbert, attorney at law. No big thing, no big deal. I remember him always wearing his military boots. Actually, I believe he wore them even to the Supreme Court.
46:47 Speaker 07 Fred had worked on another male discrimination case in the past. And to him, this case was pretty straightforward.
46:53 Speaker 03 Men couldn't buy beer until they were 21, but the most irresponsible and drunken woman in the state could buy it in unlimited quantities at 18. Well, that was discrimination. It was kind of more a male rights case. Well, it was.
47:09 Speaker 07 And do you remember corresponding with Ruth Bader Ginsburg?
47:13 Speaker 03 Yes, I knew Ruth Bader Ginsburg before she was on the court.
47:18 Speaker 07 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.
47:45 Speaker 03 You know, we have a problem in a personal relationship. It was no question. I was something of an unreconstructed male chauvinist, and she was not.
47:55 Speaker 07 Fred did not see this as a women's rights case.
47:58 Speaker 03 It was just kind of an unnecessary insult to men for no reason at all.
48:02 Speaker 07 And Ruth, looking at this case, thought, no, Fred, it's more than that.
48:07 Speaker 05 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 worse discrimination against the woman.
48:21 Speaker 05 Here's to the ladies.
48:22 Speaker 07 Air 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 loft. 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.
48:53 Speaker 03 Well, I supported her. I just never was, shall we say, a militant feminist.
49:01 Speaker 07 So like Ruth had her work cut out for her.
49:03 Speaker 01 At this point, she was getting sort of used to dealing with these rubes from the sticks.
49:07 Speaker 07 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.
49:15 Speaker 01 So she like, it's like, OK, you argue it, right?
49:18 Speaker 07 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.
49:32 Speaker 02 But I think it was a couple of months later, because my husband was out of state every month.
49:40 Speaker 07 Meanwhile, back at the honk and holler, Carolyn has no idea what's going on.
49:43 Speaker 02 No.
49:45 Speaker 07 No idea.
49:46 Speaker 02 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 irate. He was furious. I couldn't figure out what was going on.
50:02 Speaker 07 She was like, case? What are you talking about?
50:04 Speaker 02 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 suing. It looked like we sued everybody in the state of Oklahoma that was in office all the way down to the garbage man.
50:24 Speaker 07 He's like, what did you do? How are you? We don't want to get mixed up in this. We don't want our name on this. We don't want to make a fuss. Like, this could hurt business. Like, how dare you?
50:33 Speaker 02 You know, I didn't know what had happened. I really didn't know.
50:36 Speaker 07 And eventually, she figured out it must have been that kid who came in here. And now it's like at the Supreme Court? What?
50:43 Speaker 02 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."
51:05 Speaker 07 Couple nights later, she drove to the airport.
51:07 Speaker 02 Picked him up and he was still mad.
51:15 Speaker 02 That was the longest car ride.
51:20 Speaker 02 As they drove back, she says, he just lectured her the whole ride. I just listened to him.
51:26 Speaker 07 What did he say?
51:27 Speaker 02 I don't know what he said, word to word. I just know he was strong with what he said.
51:37 Speaker 02 With my husband, it was best to just be silent.
51:43 Speaker 02 I was never afraid of him, but I knew how far to push it.
51:51 Speaker 02 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.
52:01 Speaker 07 And over the course of that hour and 20 minutes, she said something in her just kind of shifted.
52:10 Speaker 07 And at a certain point, she basically turned to him and was like, "No."
52:16 Speaker 07 Like, "I know you want me to drop this case, but I'm gonna fight this."
52:20 Speaker 02 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.
52:31 Speaker 02 You know, I believed in it. I had never stepped out like that. That's the first time I really put my foot down and didn't budge.
52:43 Speaker 02 I gave so much to him.
52:45 Speaker 01 I didn't get a salary for 25 years. I didn't ask for it.
52:53 Speaker 01 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. Coming up, Carolyn goes to court. Stay tuned.
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54:39 Speaker 03 I'm Urlan Woods.
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55:11 Speaker 07 Radiolab Lulu, when we left off, the Supreme Court was getting ready to hear a case about gender discrimination. That's gender discrimination against men. I'll let Julia take it from here. October 5th, 1976, the day of oral arguments. The lawyer, Fred Gilbert...
55:28 Speaker 02 I haven't ran across very many people that I didn't care for. I didn't care for Fred. He was so pushy.
55:35 Speaker 07 Insists that Carolyn needs to come to DC.
55:37 Speaker 02 I didn't have the money to go, and I didn't want to go. I never traveled anywhere by myself.
55:42 Speaker 03 What I recall that day...
55:44 Speaker 07 Curtis Craig came too.
55:45 Speaker 03 I was dressed up.
55:46 Speaker 07 Suit and tie.
55:47 Speaker 02 I had borrowed a dress. Plastic, looked like leather.
55:51 Speaker 03 Walking up those stairs...
55:52 Speaker 02 High heels.
55:53 Speaker 03 I remember that distinctly.
55:55 Speaker 02 It was so big.
55:56 Speaker 03 Beautiful building.
55:57 Speaker 02 I felt like I was walking forever up those stairs. I was burning up. I was sweating.
56:05 Speaker 03 We'll hear arguments next in 75, 628, Craig against Boran. Mr. Gilbert, you may proceed whenever you're ready.
56:15 Speaker 07 Fred Gilbert starts things off. He walks up to the podium in his combat boots.
56:20 Speaker 03 The law is broad and all-encompassing, and it's sweet. It says that all females, even those that are the most drunk, most alcoholic, most immature, and most irresponsible, may purchase 3.2% beer at age 18 in absolutely unlimited quantities. The law doesn't say it in quite those words, does it?
56:40 Speaker 07 And by all accounts, he didn't exactly kill it.
56:44 Speaker 03 No, Your Honor, and the law doesn't say it in quite the words that all males... The justices just kept hammering. Your Honor, the vendor still has to... The only way he can get relief is to move his age back and drink. Hammering. In a technical sense... I don't technical what? Yes, Your Honor, that is technical. The complaint is 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.
57:09 Speaker 02 Curtis was sitting beside me, and I kept... punching him, "What does that mean? What are they talking about? What does that mean?" And he's kept saying, "Shh, shh, just be quiet. 'Cause it's over. I'll tell you." I didn't understand what they were doing.
57:27 Speaker 07 But she says what caught her ear was a moment when justice Rehnquist...
57:35 Speaker 02 When he called me...
57:36 Speaker 03 And when you say "we," you're referring to your client who is the tavern keeper?
57:42 Speaker 02 A saloon keeper. Yes, Your Honor, and the... 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 to this day why I didn't.
57:53 Speaker 07 As arguments went on, Fred did at least try to do the thing that Ruth wanted him to do.
57:59 Speaker 02 Your Honor, I would say anything could be... You could pass a law saying, "No Negro will drive while intoxicated."
58:07 Speaker 07 Compare sex discrimination to race discrimination.
58:10 Speaker 02 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.
58:18 Speaker 03 Well, has the court ever held that discrimination of this sort is of the same class as discrimination on the basis of race?
58:24 Speaker 02 Your Honor, this court has come very, very close.
58:27 Speaker 03 Well, I asked you a question. Has it ever held?
58:30 Speaker 02 No, it has never held that it is totally to be treated the same as race, Your Honor.
58:34 Speaker 07 To make a long story short, by the end of oral argument, things weren't looking great for Fred.
58:41 Speaker 03 I mean, I think that depends on the thrust of our decision.
58:44 Speaker 02 All right, let me explain this. First of all, we do...
58:46 Speaker 07 At one point, he even interrupts a Supreme Court justice, which you don't do that. It just, uh, yeah, wasn't happening.
58:59 Speaker 02 Well, I don't have time for a parting thought. I thank you for your time.
59:01 Speaker 03 Thank you, gentlemen. The case is submitted. Well, you win some, you lose some, right, ladies?
59:07 Speaker 07 What? No, no, no, no.
59:11 Speaker 07 Here comes the craziest part of the story.
59:13 Speaker 01 Okay.
59:14 Speaker 07 It's like a double Trojan horse. Horse within a horse. Because after the Fred Gilbert debacle, there was another case at the Supreme Court that afternoon.
59:26 Speaker 07 And it just so happened
59:30 Speaker 07 that it was a case being argued by none other than Ruth Bader Ginsburg.
59:37 Speaker 01 Somehow she organized, I've now forgotten how, to get that argued the same day.
59:41 Speaker 07 That was on purpose?
59:42 Speaker 01 Yeah, oh yeah.
59:43 Speaker 07 Oh my god, that's genius.
59:45 Speaker 01 Yeah, no, she's a genius.
59:48 Speaker 01 Wait, you're saying she somehow managed to get herself in the court on another case on the same day?
59:53 Speaker 07 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
1:00:05 Speaker 01 the completely incompetent lawyer
1:00:07 Speaker 07 was gonna be, you know, less than amazing.
1:00:10 Speaker 01 The court 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 Beborn. We had a case this morning, just to be concrete, involving a law that would not permit males to make certain purchases that females could make. It was attacked as a discrimination against males.
1:00:29 Speaker 07 Yes.
1:00:29 Speaker 01 My question is whether we should examine that law under a same or a different standard than if it were a discrimination against the other sex.
1:00:36 Speaker 07 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.
1:00:57 Speaker 01 But your answer always depends on they're finding some discrimination against females. Is it your view that there is no discrimination against males?
1:01:06 Speaker 07 I think there is discrimination against males.
1:01:09 Speaker 01 Now, if there is such discrimination, is it to be tested by the same or by a different standard from discrimination against females?
1:01:14 Speaker 07 My response to that, Mr. Justice Stevens, is that almost every 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? 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 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 females? No.
1:01:58 Speaker 07 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.
1:02:23 Speaker 00 That was really something, seeing this little woman get up.
1:02:28 Speaker 07 I don't know of any purely anti male discrimination.
1:02:31 Speaker 00 I'll never forget that because she was small.
1:02:34 Speaker 07 In the end, the women are the ones who end up hurting. Yes.
1:02:37 Speaker 00 She's so small in person, but she had a lot of force.
1:02:43 Speaker 07 The case is submitted. About two months later. The judgment and opinion. December 20th, 1976. Craig against Borum. Justice William Brennan announces at the court.
1:02:59 Speaker 03 We reverse.
1:03:01 Speaker 07 Is striking down the beer law.
1:03:03 Speaker 03 We hold that Oklahoma's gender based differential does constitute an invidious violation of the equal protection clause.
1:03:12 Speaker 07 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.
1:03:38 Speaker 07 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 frothy case to make that announcement. But of course, we were very, very pleased that after that. The day the decision was announced.
1:04:04 Speaker 02 I had just came in from work. I was at home by myself there in Stillwater.
1:04:08 Speaker 07 She's by herself in the kitchen. And the phone rings, and who calls?
1:04:13 Speaker 02 Who called? National News called to tell me that we had won. I didn't ask what we had won. I didn't ask anything. I just said, "Okay."
1:04:29 Speaker 07 She hung up.
1:04:29 Speaker 02 Stood there for a little bit, and then Craig called, and he wanted me to come down and celebrate with the guys there, his fraternity.
1:04:38 Speaker 07 She told him, "No, thanks." And then she hangs up the phone, and she gets one more phone call.
1:04:44 Speaker 02 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 it all. And he said, "What's going on now?" And I said, "We won."
1:04:59 Speaker 07 And he says, "Is it over?"
1:05:01 Speaker 02 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. Sat 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.
1:05:29 Speaker 07 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.
1:05:57 Speaker 02 Probably a couple of years after we won that case, I went into China right after it opened up.
1:06:04 Speaker 07 She saved up money and went with her sister-in-law because Dwayne didn't want to come with them.
1:06:09 Speaker 02 I did. I was so curious. And we never went like the tourists 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. And 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 while I was gone that it was like a hunger.
1:06:43 Speaker 02 And you grow from it. And I just wanted to see things. And that just opened the doors for me.
1:07:49 Speaker 07 What happened to Carolyn in the end? She and Dwayne divorced in 2007. Huh.
1:07:55 Speaker 03 And when you said she didn't know the effect her case had for decades, like, when did she figure it out? Or when did-- what, how?
1:08:03 Speaker 07 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.
1:08:30 Speaker 02 One of the letters. I don't know if that's the one.
1:08:34 Speaker 07 When we were sitting in her bedroom, she was looking through some old letters and pulled out one with the Supreme Court seal on it.
1:08:42 Speaker 02 Can you read it? No, I don't have my glasses. You'll have to read it.
1:08:46 Speaker 07 "Dear Carolyn, 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 realize 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."
1:09:06 Speaker 02 Yeah. I was gonna get that framed. I haven't done it yet.
1:09:14 Speaker 07 Signed Ruth Bader Ginsburg.
1:09:16 Speaker 02 I need to get it laminated before I have it framed.
1:09:24 Speaker 03 Producer Julia Longoria.
1:09:29 Speaker 03 I'm Jad Abumrad. Thank you for listening. And here is More Perfect in Radio Labs, David Gable, to read the credits. Supreme Court audio is from Oyez, a free law project in collaboration with the Legal Information Institute at Cornell. Leadership support for More Perfect is provided by the Joyce Foundation. Additional funding is provided by the Charles Evans Hughes Memorial Foundation.
1:09:57 Speaker 03 That's it? I want to read more! More Perfect is produced by me, Jad Abumrad, Susie Lechtenberg, Jenny Lawton, Julia Longoria, Kelly Prime, Sean Ramaswaram, who's no longer here, Alex Obruch, and Sarah Kari. I didn't even get to say it.
1:10:18 Speaker 03 Anytime. I love you. I love doing this. I used to do it. I did voiceovers when I lived in Japan because I was a native. I used to sing at Tokyo Disneyland and my side gig on my days off was recording voiceovers at a little Japanese studio. I did a lot of language lessons for kids. Listen and repeat.
1:11:23 Speaker 07 Hi, my name is Teresa. I'm calling from Colchester in Essex, UK. Leadership support for Radiolab's science programming is provided by the Gordon and Betty Moore Foundation, Science Sandbox, the Seymour Foundation Initiative, and the John Templeton Foundation. Foundational support for Radiolab was provided by the Alfred P. Sloan Foundation.
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