Julia Longoria: I’m Julia Longoria. This is The Experiment.
And this week, we’re going to revisit a story I reported a little while back for a different show, called More Perfect. It’s hosted by Jad Abumrad from Radiolab, and it’s all about the Supreme Court. But, really, it’s about the same things we explore on The Experiment—the ideals of our country that we strive for and the messy, imperfect pursuit of those ideals.
This is a story about a young Ruth Bader Ginsburg. Before she got on the Supreme Court, she was a lawyer trying to convince an all-male Supreme Court to make gender equality a reality.
(Supreme Court recordings play, overlaid with legal-drama music.)
Jad Abumrad: Here we are. I’m going to ask you an utterly false question, which is “Where would you like to start?” [Julia laughs.] As if we haven’t been doing this for so damn long.
Longoria: Okay. So let me outline the basic dilemma that’s at the heart of the story here.
Abumrad: All right.
Longoria: And I’m gonna put it to you as a question.
Abumrad: Bring it.
Longoria: If you were to do a Control-F in the Constitution, like, how many times do you think the word sex comes up?
Abumrad: Oh. [A long pause.] That’s interesting. Six? [Both laugh.] I don’t know. I’m guessing. What’s the answer?
Longoria: It’s one! One time, in the Nineteenth Amendment, which grants people the right to vote based on sex.
Abumrad: (Incredulous.) That’s the only time?
Longoria: That’s the only time. Which is crazy, because we already have …
Abumrad: What is it, like, a non…? Is there a sex word that’s not sex, like gender or something-something?
Longoria: No. Nothing.
Abumrad: Is there, like, ladies in the Constitution?
Longoria: (Laughing.) No.
Longoria: (As if to stop Abumrad from asking.) No!
Abumrad: (Shocked.) Really?
Longoria: Okay. Constitutionally, women have a problem, which is that basically we’re not in the Constitution [Both chuckle.] except, like, in this one little spot. So when it comes to discriminating against women, some people have argued that [A breath.] there’s nothing in the Constitution that says you can’t do it.
Justice Antonin Scalia: Certainly the Constitution does not require sexual discrimination on the basis of sex. The Constitution doesn’t require it. It simply doesn’t forbid it.
Longoria: That’s the late Justice Antonin Scalia.
Scalia: It doesn’t. Nobody ever voted for that. So where do you get it from?
Abumrad: There was nothing that said that? I mean, not—not those words explicitly—but there was nothing that says you can’t discriminate?
Cristian Farias: Uh, not on the basis of sex.
Longoria: (Parenthetically.) That’s legal editor Cristian Farias.
Farias: We had a Fourteenth Amendment that told people that we’re equal under the law—that everyone has equal protection of the laws.
Abumrad: But doesn’t that say? I mean that’s kinda? Eh? No?
Representative Martha Griffiths: They never applied the Fourteenth Amendment to women. They didn’t apply the Fifteenth.
Longoria: That’s Martha Griffiths, congresswoman.
Farias: When you think about the history of the Fourteenth Amendment …
(After the sounds of a banjo tuning, twangy hoedown music starts to play.)
Longoria: As legal editor Linda Hirshman says …
Hirshman: The Fourteenth Amendment was passed in the aftermath of the Civil War.
Longoria: Along with the Thirteenth and the Fifteenth.
Hirshman: Thirteenth Amendment abolishing slavery.
Longoria: The Fifteenth Amendment essentially giving Black people—really, Black men—the right to vote.
Farias: If you understand the Fourteenth Amendment to be a part of that trio of amendments, you’re like, Oh, okay. It was meant to bring equality to Black people.
(The music ends with a final strum.)
Griffiths: When the Fifteenth 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 Ninteenth Amendment? Well, of course, the answer was they didn’t consider women people.
(The opening vocal arrangement for “Mr. Sandman” plays, remixed and with an indistinct spoken-word track overlaid.)
Longoria: 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.
(Bass enters into the remix as all the voices exit the song.)
Wendy Williams: It was the case that the Supreme Court had never once met a distinction between men and women it didn’t like.
Longoria: (Parenthetically.) Wendy Williams, law professor emeritus at Georgetown.
Longoria: (Chuckling.) Uh, what are some, like, greatest hits of the ridiculous distinctions?
Williams: Okay. Here—here … [Stuttering for a moment.] There was a case called Bradwell, and it was 1873 or ’74. In that case, a woman wanted to become a lawyer.
Longoria: (Parenthetically.) Illinois Bar said, “No.”
Williams: The justices said that that was a perfectly good rule because the justice system could be seen as not appropriate for women.
Now let’s jump clear into the next century here.
Longoria: (Parenthetically.) 1948.
Williams: This case—it was called Goesaert v. 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.
(Bouncy, heavy, remixed vocals create an upbeat arrangement around a soft piano melody.)
Longoria: Both those laws, you know: “Women are not supposed to be at the bar.”
Williams: At either bar!
Longoria: (Laughs.) Yeah, right?
Williams: 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.
Longoria: (Parenthetically.) And that was the assumption for a long, long time.
Williams: But just about ’67 …
(A twang, then persistent rock music plays. It’s the late ’60s.)
Dick Cavett: There are a lot of women in this country who feel that they’re being pushed around.
Williams: … Things—things had started to come to a boil.
Cavett: And they’ve become very vocal. They call themselves the “women’s-liberation movement.”
Gloria Steinem: (In the 1971 Address to the Women of America.) Sex and race, because they are easy, visible differences, have been the primary ways of organizing human beings into superior and inferior groups.
(The music becomes bouncier and poppier.)
Longoria: So in the late ’60s and early ’70s, people like Gloria Steinem …
Steinem: We are talking about a society in which there will be no roles other than those chosen.
Audre Lorde: Free from the diseases of racism …
Longoria: Audre Lorde.
Lorde: … of sexism, of classism, and of homophobia.
Longoria: They get some traction saying, “Okay. It’s time to put us in the Constitution. Hurry up.”
Reporter: Some historians say it’s a constitutional convention for women.
Convention attendee: I move the adoption of the following resolution.
Longoria: And what you see is this push for something called the Equal Rights Amendment.
Convention attendee: The Equal Rights Amendment should be ratified.
(Cheers, then, people chant, “ERA! ERA!” for a long while.)
Reporter: What are your hopes for it? Do you think it will be ratified this year?
Representative Griffiths: It will be ratified early next year. I am quite sure of that. In 1975 it will be ratified.
Longoria: But it didn’t get the votes in 1975.
(The music droops.)
Betty Ford: I hope that 1976 will be the year …
Longoria: Or in 1976.
Announcer: (Over singing.) A special report on the 1977 National Women’s Conference …
Longoria: Or in 1977.
Reporter: And the movement is stalled.
Abumrad: Why? What stalled it?
Longoria: Well, a lot. [Abumrad chuckles.] But much of the credit goes to this woman.
Announcer: Phyllis Schlafly of Alton, Illinois.
Longoria: A woman named Phyllis Schlafly.
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 libbers more than anything that I say. (Laughter.)
Longoria: She was a lawyer and a self-described housewife who started a movement called “Stop ERA.”
Schlafly: 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. Their obligations …
Longoria: Her position was that the Equal Rights Amendment would actually strip women of this special privilege that they have that comes from being a woman.
Schlafly: Certainly not. I think the laws of our country have given a very wonderful status to the married woman. And the wife has a great deal of many rights. For example, she has the legal right to be supported by her husband. This is regardless …
Longoria: And she said, if this amendment passes, there will be certain unintended consequences.
Schlafly: (Yelling.) 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.
Longoria: And that argument caught on.
Judge Charles Pickering: 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.
Unidentified voice: I think the family would, generation after generation, deteriorate. I think that there would be homosexuals who would expect preferential treatment.
Singer: (Singing over a plucky acoustic banjo track.) He said, “Brother, we’re all in danger. You gotta hear what I have to say, ’cause you know what’s going to happen if they pass the ERA. There will be women in all of our bathrooms, women using all our stalls. They’ll be wasting the paper towels. They’ll be hogging the urinals. They’ll be pushing the old soap squirters, pushing hot-air dryers too. If they pass the ERA, lord, I don’t know what we’re going to do.”
(The banjo plays a final note, then quiets.)
Hirshman: Had the Equal Rights Amendment passed—
Longoria: Legal editor Linda Hirshman again.
Hirshman: —it would have looked a lot like the racial civil-rights movement did. But the Equal Rights Amendment did not pass.
Longoria: It fell three states short. To get a constitutional amendment passed, it 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.
(Light keyboard music plays.)
Longoria: 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 …
(The opening lines from “Notorious” by Duran Duran play, followed by a remix.)
President Barack Obama: There she is! There’s the notorious RBG!
Longoria: Ruth Bader Ginsburg.
Voice-over: RBG can do 20 pushups, and not the so-called girl kind.
Longoria: Now, before she was a Supreme Court Justice …
Voice-over: … a feminist icon …
Longoria: Or a workout sensation ...
Voice-over: Now, to show us all the moves … (Cheering.)
Longoria: Before all that ...
Williams: Ruth Ginsburg, she was at the ACLU.
(Music changes tone as the melodic line fades out.)
Longoria: This was in the ’70s.
Williams: And one of the characteristics of Ruth Ginsburg, which exists to this day …
Chief Justice Warren Burger: Very well.
Longoria: You can hear this. It’s the first time she argued in front of the Supreme Court in 1973.
Williams: When you’d ask her a question, there would be silence. Enough silence …
(Music fades out entirely.)
Chief Justice Burger: Mrs. Ginsburg? (A long pause.)
Williams: … to make a person nervous and start trying to help her answer the question. (Longoria laughs.)
Chief Justice Burger: (Almost nervously.) Ginsburg?
Williams: You had to wait.
Longoria: But we can imagine that it was in one of those long pauses …
(Dramatic, triumphant music à la Star Wars or Indiana Jones plays.)
Longoria: … that Ruth Bader Ginsburg rescued some of the key principles behind the ERA, repackaged them, and marched them in through a side door.
Ruth Bader Ginsburg: 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 … (Fades out.)
(The triumphant music settles and softens.)
Abumrad: Wait, so back it up a second. What exactly did RBG do?
Longoria: So let me walk you through it now because it’s—it’s beautiful. [Abumrad chuckles.] The ERA fight is under way, and RBG and her 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 Fourteenth Amendment.”
Narrator: (Over dramatic documentary-style music.) The Fourteenth Amendment’s immediate objective was to provide national protection for the newly freed slaves.
Longoria: You know, which—as we said—was designed from the beginning to be only about race.
Narrator: But its sweeping provisions suggest broader objectives. The states were prevented from depriving any person equal protection of the laws.
Longoria: Well, it says the word person. So that [A beat.] should include women. (Chuckles.)
Longoria: If they could just get the courts to see it that way, then—by default almost—we would have a sort of ERA.
Hirshman: And accordingly, the task was showing that the racially inflected Fourteenth Amendment applied to sex.
Longoria: So what about the law is she trying to change? What does she want the Court to say?
Hirshman: She wants the Court to say that sex will be treated just like race.
Longoria: And here’s why that’s so important. When the Court sees racial discrimination happening, under the Fourteenth 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.
Hirshman: The law discriminates. It has to.
Longoria: It discriminates between 18-year-olds and 17-year-olds, between criminals and noncriminals.
Hirshman: There would be chaos [Laughs lightly.] otherwise, right?
(Light, gently beating pulses play.)
Longoria: But the Court’s decided that race is gonna be a big red flag. They’re going ask the governments, the legislatures, presidents to have a compelling reason—
Hirshman: A compelling state interest!
Longoria: —to do race discrimination. Otherwise, it’s going to be unconstitutional. You with me so far?
Abumrad: Yes. Uh, to discriminate based on race, you need to pass a really super-hard test.
Longoria: By the way, the legal name for this test?
Abumrad: Oh God.
Longoria: “Strict Scrutiny.”
Abumrad: (With a little bit of legal disgust.) Oh.
Longoria: I know! [Chuckles.] They should have called it, like, “We Mean Business” or something like that. [Abumrad laughs.] But, anyway, the point was, like, 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.”
Farias: It doesn’t have to be the reason. It could just be a reason.
Abumrad: It doesn’t have to be very good.
Farias: It doesn’t have to be good. They could maybe even make it up on the fly. It just has to be a reason for upholding this law.
Longoria: Like, in the case of the bartenders law, bars are dangerous. Women need more protection.
Farias: And courts would be like, “Okay, sure.”
(A light musical flourish for a moment.)
Longoria: 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 have been doing it for years—how do you convince them that discrimination is a bad thing?
Bader Ginsburg: I think people who want to keep women down would like nothing better than women to go off in a corner and speak only to women. Nothing would happen.
Longoria: This is her giving a recent talk about her 1970s strategy.
Bader Ginsburg: You need to persuade men that this is right for society.
Longoria: Part one of her strategy? Choose your words carefully.
Bader Ginsburg: I had a secretary at Columbia, who said, “I’m typing these things for you, and jumping out all over the page is sex, sex.” [Audience laughter.] “Don’t you know that the audience you are addressing—the first association of those men with the word sex is not what you’re talking about.” [More audience laughter.] “So why don’t you use a grammar-book term? Use gender.”
(A moment more of lightly pulsing music.)
Longoria: 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.”
Hirshman: 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.”
Bader Ginsburg: And I think “Go slow” is—is the right approach.
Longoria: She said first, we need to go after that small and insidious idea that the Supreme Court had been keeping alive for years.
Schlafly: The laws of our country have given a very wonderful status to the married woman.
Longoria: That Phyllis Schlafly idea, that discrimination is actually good for women.
Bader Ginsburg: Gender classifications were always rationalized as favors to women.
Longoria: And so RBG decided not just to bring cases where women were the victims of discrimination.
Curtis Craig: Okay. Uh, my name is Curtis Craig.
Longoria: She brought cases where men were the victims.
Longoria: Who were you as an 18-year-old?
Craig: Oh, that’s a great question. [Longoria laughs.] I was like any 18-year-old young man. Invincible, you know. Thought I was quite the ladies’ man.
(The sounds of cheering and a marching band at a football game.)
Craig: You name it. (Longoria chuckles.)
Longoria: He made it into Lambda Chi Alpha at Oklahoma State, and he was living—
(Fraternity chants play loudly and abruptly.)
Longoria: —at the frat house.
Craig: Our fraternity was primarily made up of wrestlers. So it was, uh … When you went down the hall—
(The sounds of men screaming and tackling one another.)
Craig: —you were about to be taken down at any moment. You’d be thrown into the walls, and you’d leave a body print.
Longoria: What do you mean? Like, an indentation, literally, in the wall? Or, like, dirt from …?
Longoria: (Laughing, unbelieving.) Oh my God!
Craig: Yeah. It was—it was amazing.
(Excited frat screaming.)
Craig: There was a lot of partying going on.
(Men sing “Auld Lang Syne” but the words are just “More beer, more beer.”)
Longoria: Lot of beer.
Craig: The yard would be filled with beer cans.
Longoria: And here’s the key: If they wanted to get all that beer …
(The Andrews Sisters’ “More Beer” plays—a 1948 tune. When the lyrics end, the ’40s-style music continues.)
Longoria: They had to enlist the help of the ladies.
Craig: Yeah, I mean, uh …
Longoria: You know, the sorority sisters.
Craig: Yes. You would have a female buy you beer, and you’d go out and party.
Abumrad: They needed the women to buy the beer?
Longoria: Because in Oklahoma State at the time …
Bader Ginsburg: Oklahoma had a very silly law. Girls could buy beer at age 18, but the boys had to wait until 21.
Craig: There was something about the level of maturity, I guess, for women versus men at that time.
Longoria: The basic principle was that boys got into more car accidents, so they should be trusted with less beer.
Longoria: And did that make you angry?
Craig: Oh, absolutely. Well, it was extremely unfair. Yeah, I—I would say it made, I think, most men angry at the time.
(The music echoes out.)
Longoria: And a Supreme Court case was born.
Bader Ginsburg: So the thirsty boys [Audience laughter.] at a fraternity brought this case.
Abumrad: So RBG—RBG gets involved in this beer case?
Abumrad: 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.
Longoria: Well, this is where her strategy is kind of like a Trojan horse.
(Dramatic organ music plays. It becomes even more dramatic, layered with vocals, as it goes on.)
Longoria: If you look at this case, right, on the outside, it looks like a case about men being discriminated against.
Longoria: 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?
Longoria: If men are irresponsible—they can’t handle beer—then women …
Hirshman: (Drolly, mockingly.) Girls are more responsible and well-behaved.
Longoria: They’re more delicate. They could 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 or—
(A crescendo in the music—this is the scariest part! Then it vanishes.)
Longoria: —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. (Both laugh.)
Abumrad: Whoa. That’s clever.
Longoria: We’re just getting started.
(The poppy music from early in the episode plays up for a long moment.)
Abumrad: More Perfect continues in a minute.
Abumrad: This is More Perfect. I’m Jad Abumrad, here with Julia Longoria, who is telling the story of, uh, a case involving boys and beer that became a kind of Trojan horse—
(Dramatic ancient Greek movie–style music plays.)
Abumrad: —in the battle for women’s rights. 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.”
(The music comes to a climax.)
Abumrad: 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 [Longoria laughs.] to work, we need someone in the horse to come out. The warrior in the horse, the woman warrior.
(The music stops abruptly.)
Longoria: And, in our case, that woman warrior?
(Country-rock music plays on a car radio.)
Longoria: She didn’t even know she was going to go into battle.
Abumrad: Julia, you take it from here.
Longoria: So I got in the car and I drove a long time.
Longoria: Tiny little gravel road leading up to a narrow street of houses …
Longoria: To Sparta, North Carolina.
Abumrad: (Gasps.) It’s called Sparta?
Longoria: (Enthusiastically.) I know!
Longoria: Cows and horses and Trump signs. [The car door slams.] Tractor out front. Ooh. NO TRESPASSING sign.
Longoria: And so I walk up to this house. It’s this beautiful, cream-colored cottage perched on top of a mountain.
(Longoria knocks. Whitney Houston’s “Saving All My Love for You” can be heard faintly in the distance.)
Longoria: And I can hear Whitney Houston’s “Saving All My Love for You” blasting.
Carolyn Whitener: (As she opens the door.) Did you have any trouble?
Longoria: Hi. No, I didn’t. Are you Carolyn? Hi! Very nice to meet you.
Longoria: And I meet Carolyn Whitener.
Whitener: I’m 76, soon be 77.
Whitener: I have a beer. [Opens the fridge.] Do you want a beer?
Longoria: —immediately [Laughs.] offers me a Coors.
Whitener: I’ve got a Coors Light.
(Longoria and Abumrad laugh.)
(A can of beer snaps open.)
Longoria: Will you have a beer with me?
Whitener: No, I can’t. I’m a diabetic. [Both laugh.] I can drink a little, but not much.
Longoria: Thank you.
Whitener: And I’ve got some brownies over here.
Abumrad: What does she look like? Describe her.
Longoria: Reddish-blond hair, green eyes. She’s wearing golden hoops. She has, like, this—this air about her that she could have been a beauty queen, y’know? But she also could’ve been a car mechanic.
Whitener: Well, tell me about yourself.
Longoria: Well, I am …
Longoria: 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—
Whitener: I’m proud of the young women. I have a granddaughter that’s 23 or 24 …
Longoria: “I’m so proud of you. Your generation? They’re finishing the fight I started.” I was essentially like, “No! No, no, no.”
Longoria: This stuff—like, your story—has a huge impact on women like me. You know? Generations …
Whitener: I can’t imagine. [Laughs.] 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.
(Light, waltzing country music plays.)
Longoria: She told me she grew up bouncing around different oil fields.
Whitener: So I was an oil-field trash. That’s what we were called: “Oil-field trash.” [Both laugh loudly.]
Longoria: That meant Carolyn and her brother and sister split the school year between two or three schools a year.
Whitener: We moved a lot.
Longoria: She said school didn’t come easily to her.
Whitener: But my dad, he taught all three of us how to weld—he was a welder—how to work on a car.
Longoria: She was very independent. And when she was about 13, they moved to Chickasha, Oklahoma.
(The opening verse to Johnny Bond’s “Oklahoma Waltz” drifts into focus: “It happened in old Oklahoma …” Then it echoes out.)
Longoria: And that is where she met Dwayne.
Whitener: That was the first boy I went with.
Longoria: They met in high school. And they were roughly the same age, but he was three years ahead of her in school.
Longoria: And, uh, what attracted you to him?
Whitener: His mind. He had an excellent mind. And he was just a farm boy with no education. He—he never went to college, but he could’ve been about anything he would’ve wanted to have been.
Longoria: What do you think attracted, um, him to you? Like, what do you think he saw in you?
Whitener: I was somebody new in town.
Longoria: Talking to Carolyn, I got the sense she did not have any shortage of suitors.
Whitener: But I married him when [Her phone rings.] I turned 18. [The phone rings for a long while before she turns it off.] Oops. I don’t know who that is; I better turn that off. [She silences the phone.] 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. [Laughs.] He acted like he was raising me, and he probably was. (Chuckles.)
Longoria: She says she was really comfortable with him. He was a quiet man with this brilliant mind.
Whitener: He just—he was pure German, girl. Have you ever met a German man? [A beat. Longoria silently indicates that she doesn’t understand.] Okay. They are in total control.
Abumrad: And how does Carolyn connect to the case with the frat boys and RBG?
Longoria: Okay. So here’s what happens. It’s 1962. Carolyn and Dwayne are about 20 years old at this point. And they move to a town called Stillwater, Oklahoma, to open a business. And Stillwater …
(The more-beer “Auld Lang Syne” plays up again.)
Longoria: 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 wrestlers—huge homecoming drawing over 40,000 alumni.
Whitener: We didn’t know what homecoming was. Had no idea what homecoming was!
Longoria: But shortly after moving to Stillwater, they opened the doors to the Honk and Holler.
(Honky-tonk music plays.)
Whitener: And where we went in was just about three blocks, four blocks from the college. And we went into business there.
Longoria: A drive-through convenience store.
Whitener: It was like a real old gas station with an oil pit in the floor.
Longoria: Here’s how it would work. Customers pull up to the side of the convenience store and …
Whitener: They’d drive through.
(A car honk, and then a holler, in time with the music.)
Longoria: Honk their horn. Holler their order.
Whitener: And you’d have to go out and wait on them, come back in, and get what they wanted, and take it back out.
(The honking and hollering is a part of the music now. It continues, each holler different from the last.)
Longoria: So it’s a lot of in-and-out and in-and-out.
(One last pronounced holler.)
Longoria: All night long.
Whitener: You wear tennis shoes out real fast. [Laughs.] So it was all sheer energy and guts.
Longoria: Homecoming night …
Whitener: We were supposed to close at 11.
Longoria: The store is flooded with customers.
Whitener: ’Til I think 2 or 3 o’clock in the morning.
Longoria: 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.
Whitener: And it … Yeah, I never did get to see homecoming.
(With the sound of one last horn, the music cuts out.)
Whitener: All I saw was cars coming in and out.
Longoria: Fast forward a few years. It’s 1972, back at the University.
Craig: He was tall. Had long, blond hair.
Longoria: Curtis Craig’s buddy, named Mark Walker—
Craig: He was the president of the Lambda Chi house at the time.
Longoria: —is in a political science class. And the professor is talking about the whole fight for the ERA, which is happening right at that moment. [ERA chanting plays in the background.] And at this point Oklahoma hasn’t ratified the ERA. And somehow the conversation turns to this beer law. [Chanting stops.] Mark’s like, “Talk about discrimination! This beer law is discrimination against us!”
Craig: And the professor challenged him about doing something about the beer laws if he was going to complain about them.
Longoria: So one day …
Whitener: I was behind the counter. People coming in and out.
Longoria: Mark Walker walks into the Honk and Holler.
Whitener: A young man came in to talk to me.
Longoria: She doesn’t really have time to talk. She’s running in and out.
Whitener: But he stood there.
Longoria: Waiting patiently.
Whitener: I bet he was in there four hours. And was looking at the beer license.
Longoria: He looks at the license, and he notices that Carolyn’s name is the one on it, because actually …
Whitener: My husband lost his license.
Longoria: After he sold beer to a young man.
Whitener: So he put them in my name.
Longoria: Anyway, at a certain point, in between all the honks and hollers …
Whitener: He asked me what I thought about the beer laws. And I told him. I was very vocal about it. I always had been.
Longoria: She says, “It doesn’t make any sense. We send these young men off to war.”
Whitener: They were being drafted at 18.
Longoria: “But we don’t let them drink beer when they come back?”
Whitener: Was that just?
Longoria: 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?”
Whitener: You can’t prove who buys what.
Longoria: So, eventually, when Mark Walker asked for her help …
Whitener: He said he was going to do a term paper.
Longoria: She was like, “Sure, why not?”
Whitener: I was always willing to help him because they had helped us get started. And I still thought it was a term paper.
Longoria: So was he not being completely honest with you, then?
Whitener: Well, I didn’t hear half of what he said. I was busy every time he came in. So, you know, [Chuckles.] it wasn’t that important at the time. So I didn’t think anymore about it. He left. My husband was gone. He was, uh, out of state, workin’. And I didn’t even say anything to him about it. It wasn’t important. You know, I just thought it was a conversation. (Laughs.)
(Mystical music, almost like an electronic version of “The Hall of the Mountain King,” plays up.)
Longoria: But it wasn’t just a conversation. Because, before that meeting, Mark had gone out looking for a lawyer.
Craig: That’s correct.
Longoria: And Curtis and Mark and the other frat brothers had tried to raise some money.
Craig: That was flawed, um, in a campus town. [Chuckles.] Everybody uses their last dollar for that last beer.
(Remixed elements enter the music, giving it a bit more momentum.)
Longoria: But they managed to find a lawyer who would do it on the cheap.
Fred Gilbert: Alright, well, I’m just Fred Gilbert, attorney at law. No big deal.
Craig: I remember him always wearing, um, his military boots. Actually, I believe he wore them even to the Supreme Court.
Longoria: Fred had worked on another male-discrimination case in the past. And, to him, this case was pretty straightforward.
Gilbert: (With an undercurrent of a little indignation throughout.) 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!
Longoria: And do you remember corresponding with Ruth Bader Ginsburg?
Gilbert: Yes. I knew Ruth Bader Ginsburg before she was on the Court.
Longoria: 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.
Gilbert: You know we have a problem in a personal relationship. There was no question I was something of an unreconstructed male chauvinist, and she was not.
Longoria: Fred did not see this as a women’s-rights case.
Gilbert: It was just kind of an unnecessary insult to men for no reason at all.
Longoria: And Ruth, looking at this cause thought, No, Fred. It’s more than that.”Williams: 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.
Old-school sexist announcer: Here’s to the ladies—the fair and the weak. How do they do it? Where do they find all that energy, that seemingly inexhaustible store of pep and ginger?
(Ragtime music plays.)
Longoria: Again, Ruth was after the stereotype about women that was nestled inside the beer law—that women are more responsible and well behaved.
Longoria: 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.
Gilbert: Well, I supported her. I just never was—shall we say—a militant feminist.
Longoria: So Ruth had her work cut out for her.
Hirshman: At this point she was getting sort of used to dealing with these rubes from the sticks.
Longoria: So with other local lawyers that she had worked with in the past, Ruth had been more forceful, insisting that she make the argument. But that had backfired.
Hirshman: So she was like, “Okay, you argue it.”
Longoria: 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.
Whitener: But, uh, I think it was a couple of months later—because my husband was out of state every month.
Longoria: Meanwhile, back at the Honk and Holler, Carolyn has no idea what’s going on.
Whitener: No. Uh-uh.
Longoria: No idea.
Whitener: 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.
Longoria: She was like, “Case? What are you talking about?”
Whitener: 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.
Longoria: He was like, “What did you do? How—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.”
Longoria: Like, “This could hurt business!” Like, “How dare you?”
Whitener: You know, I didn’t know what had happened. I really didn’t know.
Longoria: And eventually, she figured out, “It must’ve been that kid who came in here. And now it’s, like, at the Supreme Court. What?!”
Whitener: 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.”
Longoria: A couple of nights later, she drove to the airport.
Whitener: Picked him up and he was still mad. [A beat of silence.] That was the longest car ride.
Longoria: As they drove back, she says he just lectured her the whole ride.
(A droning noise, like an airplane passing overhead, plays.)
Whitener: I just listened to him.
Longoria: What did he say?
Whitener: I don’t know what he said word to word.
Longoria: Yeah, but …
Whitener: I just know he was strong with what he said.
(A beat of silence.)
Whitener: With my husband, it was best to just be silent. I was never afraid of him, but I knew how far to push it.
By the 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.
(The drone builds and builds until the word “No.” And then it disappears.)
Longoria: And over the course of that hour and 20 minutes, she said something in her just kind of shifted. And at a certain point, she basically turned to him and was like, “No.” Like, “I know you want me to drop this case, but I’m gonna fight this.”
Whitener: 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. You know, I believed in it. But I had never stepped out like that. That’s the first time I really put my foot down and didn’t budge.
I gave so much to him. I mean, I didn’t get a salary for 25 years. I didn’t ask for it. I figured we were equal. I figured I—I worked the same hours he did. And I figured I stood beside him. Not behind him, and not in front of him.
Longoria: October 5, 1976, the day of oral arguments, the lawyer Fred Gilbert …
Whitener: I haven’t run across very many people that I didn’t care for. I didn’t care for Fred. He—he was so pushy.
Longoria: Insists that Carolyn needs to come to D.C.
Whitener: I didn’t have the money to go and I didn’t want to go. I’d never traveled anywhere by myself.
Craig: What I recall that day …
Longoria: Curtis Craig came too.
Craig: I was dressed up.
Longoria: Suit and tie.
Whitener: I had borrowed a dress—plastic, looked like leather.
Craig: Walking up those stairs.
Whitener: Wore high heels.
Craig: I remember that distinctly.
Whitener: It was so big.
Craig: Beautiful building.
Whitener: I felt like I was walking forever up those stairs. I was burning up; I was sweating.
Justice William Rehnquist: We’ll hear arguments next in 75-628, Craig against Boren. Mr. Gilbert, you may proceed whenever you’re ready.
Longoria: Fred Gilbert starts things off. He walks up to the podium in his combat boots.
Gilbert: The law is broad and [Stuttering.] all-enc—compassing in its sweep. It says that all females, even those that are the most drunk, uh, most alcoholic, most immature, and most irresponsible, may purchase 3.2 percent beer at age 18 in absolutely unlimited quantities.
Oyez: The law doesn’t say it in quite those words, does it?
(Laughter, including from Gilbert.)
Longoria: And by all accounts, he didn’t exactly kill it.
Gilbert: No, your honor. [Clears throat.] No, your honor. And the law doesn’t say quite the words that all males …
Gilbert: (In the present.) The justices just kept hammering.
Gilbert: Your honor, the—
Oyez: (Interrupting.) The only way he can get relief is to move his age back and drink.
Gilbert: (In the present.) Hammering.
Gilbert: In a technical sense—
Oyez: (Interrupting.) I don’t—technical what?
Gilbert: Yes, your honor. That is, technically, the way the complaint is drafted. And what is before the court—
Oyez: Well, but you say—you say, “What’s before the court.” What’s before the court is your complaint.
Whitener: (In the present.) 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 kept saying, “Shh. Shh. Just be quiet ’til it’s over. I’ll tell you!”
(More arguing and indistinct crosstalking from Gilbert and the justices.)
Whitener: (In the present.) I didn’t understand what they were doing.
Gilbert: The beer law we challenge today was originally enacted in 1890 by the …
Longoria: But she says what caught her ear was a moment when Justice Rehnquist …
Whitener: (In the present.) When he called me—
Justice William Rehnquist: When you say “we,” you’re referring to your client, who is the tavern keeper?
Whitener: (In the present.) —“a saloon keeper”—
Gilbert: Yes, your honor, and …
Whitener: (In the present.) —I’ll tell you, when—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.
Justice Rehnquist: Well, isn’t there … If he technically turned 21—
Longoria: As arguments went on, Fred did at least try to do the thing that Ruth wanted him to do.
Gilbert: Your honor, I would say anything could be … You could pass a law saying, “No negro will drive while intoxicated.”
Longoria: Compare sex discrimination to race discrimination.
Gilbert: 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.
Rehnquist: Well, has the court ever held that discrimination of this sort is of the same class as discrimination on the basis of race?
Gilbert: Your honor, this court has come very, very close.
Rehnquist: (Interrupting.) Well, I asked you a question, has it ever held?
Gilbert: No. It has never held that it is totally to be treated the same way as race, your honor.
Longoria: To make a long story short, by the end of oral argument, things weren’t looking great for Fred.
Rehnquist: I mean, I think that depends on the thrust of our—
Gilbert: All right. All right. Let me explain this. First of all …
Longoria: At one point he even interrupts a Supreme Court justice, which—you don’t do that.
Gilbert: Supporting the denial of beer to young men, 18 to 21. (His speech winds down as the audio fades out.)
Longoria: It just—uh, yeah—wasn’t happening.
Gilbert: Well, I don’t have time for a parting thought. I thank you for your time.
Chief Justice Burger: Thank you, gentlemen. The case is submitted.
Abumrad: Well, you win some, you lose some. Right … ladies?
Longoria: What? No! No, no, no.
(Exciting music—electronic strings full of intrigue—enters.)
Longoria: Here comes the craziest part of the story. (Laughs.)
Longoria: It’s like a double Trojan horse [Abumrad laughs lightly.]—horse within a horse!—because, after the Fred Gilbert debacle, there was another case at the Supreme Court that afternoon.
Chief Justice Burger: We’ll hear arguments next in …
Longoria: And it just so happened …
Burger: 75-699 Matthews against Goldfarb.
Longoria: That the case was being argued …
Burger: Mrs. Ginsburg?
Longoria: By none other than Ruth Bader Ginsburg.
Hirshman: Somehow she organized—I’ve now forgotten how—to get that argued the same day.
Longoria: That was on purpose?
Hirshman: Yeah. Oh yeah. I—
Longoria: Oh my God. That’s genius.
Hirshman: Yeah, no. She’s a genius.
Bader Ginsburg: Mr. Chief Justice, and may it please the Court.
Abumrad: Wait, you’re saying she somehow managed to get in the Court on another case on the same day?
Longoria: 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—
Hirshman: The completely incompetent lawyer.
Longoria: —was gonna be, you know, less than amazing.
Hirshman: The Court was—was asking him questions that 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 Craig v. Boren! (Laughs.)
Justice John Paul Stevens: We heard a case this morning, just to be concrete, involving a law that would not permit males to make certain purchases that females could make. And it was attacked as discrimination against males.
Bader Ginsburg: Yes.
Justice Stevens: My question is whether we should examine that law under the same or a different standard than if it were discrimination against the opposite sex.
Bader Ginsburg: My answer to that question is no, in part because such a law has an insidious impact against females. It stands …
Longoria: And then she told Justice Stevens, even in this case, where it seems like men are the ones that are being discriminated against, beneath that discrimination is a more insidious one.
Bader Ginsburg: Against females. It stamps them docile, compliant, safe to be trusted …
Stevens: (Interrupting.) But your answer always depends on their finding some discrimination against females. Is it your view that there is no discrimination against males?
Bader Ginsburg: I think there is discrimination against males. Yes?
Stevens: And if there is such discrimination against males, is it to be tested by the same or by a different standard from discrimination against females?
Bader Ginsburg: My response to that, Mr. Justice Stevens, is that almost every discrimination that operates against males operates against females as well.
Stevens: Is that a yes or a no answer? I just don’t understand you. Are you trying to avoid the question?
Bader Ginsburg: 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.
Longoria: 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.”
Stevens: So your case depends, then, on our analyzing this case as a discrimination against females?
Bader Ginsburg: No. My case depends on your recognition that using gender as a classification—resorting to that classification—is highly questionable, and should be closely reviewed.
Longoria: 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 hard-core standard that the Court uses for race.
Whitener: (In the present.) That was really something, seeing this little woman get up.
Bader Ginsburg: I don’t know of any purely anti-male discrimination.
Whitener: (In the present.) I’ll never forget that. Because she was small.
Bader Ginsburg: In the end, the women are the ones who end up hurting. Yes.
Whitener: (In the present.) She’s so small in person. But she had a lot of force.
Chief Justice Burger: Mrs. Ginsburg, the case is submitted.
Longoria: About two months later …
Justice William Brennan: The judgment and opinion of the Court …
Longoria: December 20, 1976.
Brennan: Craig against Boren.
Longoria: Justice William Brennan announces that the Court …
Brennan: We reverse.
Longoria: Is striking down the beer law.
(Hopeful, soft music plays, enveloping the narration that follows it.)
Brennan: We hold that Oklahoma’s gender-based differential does constitute an invidious violation of the Equal Protection Clause.
Longoria: 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.
(Music cuts out.)
Longoria: 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.
Bader Ginsburg: We wish that the Court had picked a less frothy case [Laughter.] to make that announcement, but, of course, we were very pleased that, after that …
Longoria: The day the decision was announced—
Whitener: I had just came in from work, I was at home by myself there in Stillwater.
Longoria: —she’s by herself in the kitchen.
Longoria: And the phone rings. Who calls?
Whitener: 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. [A breath.] I just said, “Okay.”
Longoria: She hung up.
Whitener: Stood there for a little bit, and then Craig called.
(“More beer” chants again.)
Whitener: And he wanted me to come down and celebrate with the guys there at his [Searching for the word.] fraternity. Fraternity? Yeah.
Longoria: She told him, “No, thanks.”
(The chants stop.)
Longoria: And then she hangs up the phone. And she gets one more phone call.
Whitener: And it was my husband. He was in North Carolina again, and 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.”
Longoria: And he says, “Is it over?”
Whitener: 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.
(A droning sound plays as background music. It’s suspenseful and deep, and it develops slowly. There is something hopeful about it.)
Longoria: 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.
Whitener: A couple of years after we won that case, I went into China right after it opened up.
Longoria: She saved up money and went with her sister-in-law, because Dwayne didn’t want to come with them.
Whitener: I did. I was—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 really did 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, uh, it was like a hunger.
(A moment without words, just music. Quietly, ever so softly, the low notes almost seem to shimmer.)
Whitener: And you grow from it. And I just wanted to see things. And that was just—that just opened the doors for me.
(A bass line enters, then drums, as the shimmers morph into a melody. The music crescendos.)
Abumrad: What happened to Carolyn in the end?
Longoria: She and Dwayne divorced in 2007.
Abumrad: And when you said she didn’t know the effect her case had for decades, like, when did she figure it out? Like, what—how?
Longoria: 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 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.
(The sound of papers shuffling.)
Whitener: One of the letters—I don’t know if that’s the one.
Longoria: And 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.
Longoria: Can you read it?
Whitener: No, I don’t have my glasses. You’ll have to read it.
Longoria: Okay. “Dear Carolyn, As I told you in 1996 when we celebrated the 20th anniversary of Craig v. Boren, you are the true heroine of that case. Although no financial gain was at stake for you, you realized 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.”
Whitener: (So quietly.) Yeah. (A beat.) I was going to get that framed, but I haven’t done it yet.
Longoria: “Signed, Ruth Bader Ginsburg.”
Whitener: Mhm. I need to get it laminated ’fore I have it framed.
(The poppy remix is back—it features lyrics from “Reach Out of the Darkness” by Friend & Lover. It is time for the credits.)
Abumrad: Producer Julia Longoria. I’m Jad Abumrad, thank you for listening. And here is More Perfect and Radiolab’s David Gebel to read the credits.
David Gebel: 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.
(A beat of music.)
Gebel: [Incredulous, a little disappointed.] That’s it? I wanted to read more!
More Perfect is produced by me, Jad Abumrad, Suzie Lechtenberg, Jenny Lawton, Julia Longoria, Kelly Prime, Sean Rameswaram—[Wistfully.] who’s no longer here!—Alex Overington, and Sarah Qari. [Disappointed.] I didn’t even get to say it!
(A break in the music.)
Gebel: (Sighs.) Ohh. Anytime! I love doing this! I used to do it. I did voice-overs when I lived in Japan, ’cause I was a native—I used to sing at Tokyo Disneyland, and my side gig, on my days off, was recording voice-overs at a little Japanese studio. I did a lot of language lessons for kids. [In the voice of a language-instruction voice-over.] Listen and repeat!
(One last stretch of the remixed music plays the episode out.)