Friday, June 18, 2021

Barrett on RBG and the Dumbbell-Lifting Case

John Q. Barrett, St. John's University School of Law, has posted Ruth Bader Ginsburg: Litigating Against Gender Discrimination...and Remembering One Such New York Case, which appears in 16 Judicial Notice 51-61 (2021).

This tribute to Justice Ginsburg, published by the Historical Society of the New York Courts, focuses on her New York State ties and activities.

Ruth Bader Ginsburg was born and raised in Brooklyn and graduated from Cornell University and, later, Columbia Law School. She became a New York lawyer and, in time, a law professor at Columbia and, in 1972, co-director of the American Civil Liberties Union’s Women’s Rights Project.

From her ACLU base in New York City, Professor Ginsburg litigated pathmaking cases regarding the equal rights of women and men. She participated in thirty-four cases before the Supreme Court of the United States, including presenting oral arguments to the Justices in six cases.

This article describes that history, and also Ginsburg’s participation in one New York City gender discrimination case that went up to the New York Court of Appeals, the State’s high court, but not, ultimately, to the U.S. Supreme Court. The New York Civil Liberties Union (NYCLU), the national ACLU’s New York City affiliate, brought this case, Sontag v. Bronstein. It concerned a dumbbell-lifting test that New York City’s civil service commission imposed as a job qualification on two women who were school audio-visual aides; because they failed the weight-lifting test, the City moved to dismiss them from their jobs. They sued, claiming gender discrimination. Their lead attorney was NYCLU lawyer Eve Cary. Joining her on the brief in the New York Court of Appeals was then-Professor Ginsburg. They won—the dumbbell test was sexist government harassment of women, not a bona fide job test.

Justice Ginsburg always remembered the Sontag case, its striking facts, and Eve Cary’s powerful brief. Justice Ginsburg kept that brief close at hand, including as she wrote the Supreme Court’s 1996 landmark gender equality decision, United States v. Virginia. In many senses, that decision was a culmination of the constitutional lawyering that Cary, Ginsburg, and their NYCLU and ACLU colleagues had done, including in Sontag, two decades earlier.

--Dan Ernst