Depoliticizing the Death of Ruth Bader Ginsburg
Yesterday, September 18, 2020, Ruth Bader Ginsburg died of pancreatic cancer at age 87. Instagram stories and newspapers have highlighted this news, claiming her tremendous impact on women's rights. So, what did RBG do for women? The answer: more than you think. In fact, more than it seems is imaginable for a single person in their lifetime.
In my organization the Bipartisan Feminist Project, we teach a class called the Bipartisan Advocacy Program, a workshop to educate students on women's rights legislation and how to engage in political activism - activism which RBG epitomized. The first time I taught this class, I was reviewing slide 28 of our presentation: the protections women receive under the U.S. Constitution. The lack of an Equal Rights Amendment (ERA) in the U.S. Constitution means that women are not explicitly protected under it.
"Still, a primary argument which Republicans use against the ERA is that the 14th Amendment already prohibits sex discrimination," I shared with the class. "This isn't true." I continued. "The 14th Amendment guarantees equality among people of all ethnicities, races, and national origins. Gender is not mentioned in it's text. By 1976, the Supreme Court ruled that the 14th Amendment provides some protections for women; however, under it, sex discrimination is only put under 'intermediate scrutiny' rather than 'strict scrutiny,' meaning institutions can get away with a little more discrimination."
"That's ridiculous," one student interjected, chuckling. Let's call her Mary. "The 14th Amendment obviously doesn't provide enough protection for women."
The presentation concluded with Mary's shock oscillating through my mind. Women and men share most legal rights today. Does the Constitution really not protect us? I thought. I opened my computer and searched for an article which could give me the full legal history of women's rights. It turns out that twenty years after RBG litigated in Craig vs. Boren to establish "intermediate scrutiny" for sex discrimination, she ruled as a Supreme Court Justice in U.S. vs. Virginia that, "a party seeking to uphold government action based on sex must establish 'exceeding persuasive justification' for the classification." At the hands of Ruth Bader Ginsburg, strong gender equality under the Constitution was initiated and completed.
The more you delve into women's rights, the more you will find that many of the basic rights we enjoy today are attributable to Ruth Bader Ginsburg. She ultimately established the protections of the Equal Rights Amendment before it even passed.
In U.S. vs. Virginia, this meant striking down the male-only admissions policy at the Virginia Military Institute, establishing a standard for gender equality in public institutions.
Now, how has Ruth Bader Ginsberg's death been politicized?
The tension which remains around the Equal Rights Amendment and the ruling made in U.S. vs. Virginia has translated into political tension around Ruth Bader Ginsburg's death. While many Democrats remain concerned about U.S. vs. Virginia and other cases potentially being overturned by conservative justices, Republicans tend to worry less about these social justice concerns.
The first step to depoliticizing RBG's death and moving forward as a nation is understanding where each side is coming from. Democrats see her death as a greater reason to vote blue in November because Biden may appoint judges who are more likely to maintain her legacy. At the same time, Republicans respect the life RBG has lived; however, they tend to focus more on concerns which they feel directly impact their lives such as the job market and the economy - meaning many of them will still decide to vote for Trump.
So, where is common ground?
Ruth Bader Ginsburg has expressed in multiple interviews that the Equal Rights Amendment should be a 2020 priority. The ERA is a potentially bipartisan Amendment which would enshrine gender equality as a main tenet of the U.S. Constitution while insulating against future drawbacks of women's rights.
While some Republicans object that this Amendment is just a ploy to expand abortion - the ERA on the state-level has proven to be a quite separate issue from abortion, with some states who ratified it expanding abortion and others continuing to restrict it. The ERA has the power to fight for equal pay and equal access while allowing abortion activists to continue fighting for abortion separately.
Ruth Bader Ginsburg is the cause and emblem of much gender equality in the United States, and living proof that identifying a problem can be a catalyst for powerful change which alters the situation of one's self and millions of others in the future.
References
ERA Education Project, Doesn't the 14th Amendment Already Guarantee Women Equal Rights Under the Law?
Stolberg, Sheryl Gay. “House Votes to Extend Deadline of the Equal Rights Amendment.” New York Times. 2020. https://www.nytimes.com/2020/02/13/us/politics/equal-rights-amendment.html
Millhiser, Ian. "How the Democrats’ takeover of Virginia could end up preserving Ruth Bader Ginsburg’s legacy," Vox. 8 Nov. 2019. https://www.vox.com/2019/11/8/20952728/democrats-virginia-ruth-bader-ginsburg-equal-rights-amendment
Equal Rights Amendment. https://www.equalrightsamendment.org/faq