On The Basis of Sex

by Alvin G. Burstein

This biopic focuses on an early case argued by Ruth Bader Ginsburg, now in her twenty-sixth year on the Supreme Court, the second female justice to be appointed. The screenwriter, Daniel Stiepleman, is her nephew, and  unsurprisingly, the film is a warm tribute to someone who has become an icon of political liberalism in general, and of women’s rights in particular. All biopics are entertainment products, and complexity is sacrificed to achieve an emotional effect; On the Basis of Sex is an impressive feel-good film documenting an instant in the long and continuing struggle for women to be seen as fully human, more than chattel.

The film begins with Ginsburg’s matriculation into Harvard’s law school, one of the nine women in a class of about 500 to be enrolled in that year. We learn that she is married, that her husband has also enrolled, that they have an infant child. At a welcoming dinner the Dean asks the women what justifies their taking the place of a male student. He cannot not know, and the film does not take note of, how that question might resonate with Ginsburg’s failure to qualify for the minyan—the mourners who count—at the Jewish funeral of her father, who died when she was in her late teens. The film does not describe the process by which Ginsburg, who learned Hebrew as a child and served as a “junior rabbi” at summer camp, became non-observant. Nor does the film have space to tell us of her comments at a 1993 meeting of Harvard alumnae. There, Ginsburg described her failure to get a position at any New York City law firm after completing her clerkship, “I was Jewish, a woman, and a mother. The first raised one eyebrow; the second, two; the third made me indubitably inadmissible.” The biopic collapses these complexities into a job interview in which the prospective employer, who after his eyes have focused on Ginsburg’s décolletage, says that adding a woman lawyer to the firm would make wives jealous. We miss an exploration of Ginsburg’s ambivalence about Jewishness and its patriarchal element.

Another ellipsis, a factual one, is with regard to the role of the case central to the film, Moritz v. the Internal Revenue Service. Moritz is an unmarried man who had to hire a nurse to help care for his aged and disabled mother, so he could continue to work. He sought a tax deduction to help defray the cost. The IRS code specified that such deductions were limited to “a woman, widower or divorced, or a husband whose wife is incapacitated or institutionalized.” On that basis, Moritz’s request was denied. Moritz was persuaded to appeal when Ginsburg and her husband, pro bono, agreed to argue the case before the 10th Circuit Court of Appeals. Ginsburg saw this as a uniquely appropriate case to argue against discrimination on the basis of gender because the person discriminated against was a man, though her belief was that women were those most often the objects of gender-based discrimination.

Ginsburg prepared a lengthy brief. Before Moritz was heard, she shared her brief with lawyers arguing another case, Reed v. Reed. In that case a divorced couple in Idaho were both seeking to be appointed to administer the estate of their deceased son. Idaho law stipulated that “males must be preferred to females” when more than one person were qualified to be administrators of an estate. Reed v. Reed went to the Supreme Court before Mortiz was heard in the 10th Court of Appeals. Utilizing Ginsburg’s brief, Ms. Reed’s lawyers persuaded the court that the state law violated the 14th amendment to the constitution’s equal protection guarantee.

The Reed v. Reed decision by the Supreme Court was handed down before Moritz was heard in the Appellate Court, establishing a precedent that the decision for Moritz took further, invalidating myriad federal regulations that  discriminated on the basis of gender. But, to heighten the dramatic tension, and highlight the radical nature of the latter case, Ginsburg is depicted as at first stumbling, but then making an emotional statement that the world
is changing and that the law must reflect the change, winning the case.

A final point. As the movie ends, we see a young Ginsburg walking step by step up the long stairway to the Supreme Court, a metaphor for her long struggle on behalf of women’s rights. As she approaches the building the camera moves to see the women from the front—and it is an older Ginsburg herself. It is an impactful moment. If we had followed Ginsburg herself into her chambers, we would have seen a calligraph hanging on her wall reading, in Hebraic script: “Zedek, Zedek Tirdof.” It is from Deuteronomy—an injunction by Moses, “Justice, Justice You Must Seek.” It is a reminder that justice cannot be codified, must be continually searched for, and also a recognition of Ginsburg’s Jewish roots.

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