Reed v. Reed, 404 U.S. 71 (1971)

Case at a Glance

Who Was Sally Reed?

Sally Reed was an ordinary woman from Boise, Idaho, whose determination to honor her son and manage his modest estate produced one of the most consequential Supreme Court decisions in American history. She had worked as a caregiver for disabled people in her home, a job that reflected her practical nature and her orientation toward looking after others. She and her husband Cecil Reed had a troubled marriage and had been living separately for years when their teenage son Richard Lynn Reed, known to the family as Skip, died in 1967. Skip's death was itself a tragedy with complex circumstances; he had been living with his father Cecil and died while in that household, a fact that would add particular emotional weight to the subsequent legal battle over who had the right to administer his small estate.

Skip's estate was modest, containing little more than a small amount of personal property and a few dollars, but to Sally Reed it represented far more than its monetary value. She filed to be appointed administrator of her son's estate, a role that would give her the legal authority to manage and distribute his belongings. Cecil Reed filed a competing petition for the same role. Under the Idaho Probate Code, a section titled Preferences Among Persons Equally Entitled to Administer, the law provided that when two people were equally entitled to administer an estate, the law would automatically prefer a male over a female. The local probate judge applied the statute and appointed Cecil as administrator, ruling against Sally not on any assessment of her individual qualifications or fitness but solely because she was a woman.

The Legal Battle Through the Idaho Courts

Sally Reed was not willing to accept a decision made on the basis of her sex alone. She appealed to the District Court of Ada County in Idaho, which reversed the probate court's decision and ruled that the mandatory sex preference provision of the Idaho statute was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. However, Cecil Reed then appealed to the Idaho Supreme Court, which in turn reversed the district court and reinstated the original decision appointing Cecil as administrator. The Idaho Supreme Court upheld the statute on the ground that the Idaho legislature could rationally prefer men in this context to avoid intrafamily controversy when both spouses applied to administer an estate. Sally Reed then sought to take the case to the United States Supreme Court.

Her attorney, Allen Derr, a Boise lawyer who had been fighting the case through every level of the Idaho courts, was joined in preparing the Supreme Court brief by a network of legal scholars who were simultaneously building the intellectual architecture of women's constitutional rights. Ruth Bader Ginsburg, then a law professor at Rutgers University and a volunteer lawyer for the American Civil Liberties Union, became the principal author of the Supreme Court brief. She was assisted by Mel Wulf, the ACLU's Legal Director, and she incorporated the work of pioneering feminist legal scholars Pauli Murray and Dorothy Kenyon, who had spent years developing the arguments for treating sex-based classifications the same way the law treated race-based ones. Ginsburg described Reed v. Reed as her grandmother case, meaning the foundational case from which everything else she achieved on behalf of women's equality grew.

The Supreme Court Decision: November 22, 1971

The Supreme Court decided Reed v. Reed unanimously, with Chief Justice Warren E. Burger writing the opinion on behalf of all nine justices. The decision was announced on November 22, 1971. The Court held that Idaho's mandatory preference for male applicants over female applicants in the appointment of estate administrators was an arbitrary legislative choice that violated the Equal Protection Clause of the Fourteenth Amendment.

The Court applied the rational basis standard of review, under which a law is constitutional if it is rationally related to a legitimate government interest. Idaho argued that the preference for males had a legitimate purpose: eliminating the need for hearings in cases where two equally qualified family members both sought to administer an estate. By simply preferring males, the argument went, the courts could resolve such disputes quickly and efficiently without wasting time. The Supreme Court acknowledged that reducing the workload of probate courts was a legitimate government objective. However, it held that an automatic preference based solely on sex bore no rational relationship to this objective. A preference could just as easily be based on age, or alphabetical order, or the flip of a coin, all of which would similarly reduce the need for hearings without discriminating by sex. The Idaho law's preference for men over women, the Court concluded, was not rationally related to any legitimate purpose and amounted to the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause.

What Ginsburg Wanted and What the Court Gave

Ginsburg's brief had argued for far more than the Court ultimately delivered. She had urged the Supreme Court to declare sex a suspect classification under the Equal Protection Clause, meaning that laws that discriminate on the basis of sex should be subjected to the same strict scrutiny that the Court applied to racial classifications and should be presumed unconstitutional unless the government could demonstrate a compelling interest. This would have been a revolutionary legal development, analogous to what the Court had done for racial classifications.

The Court did not go that far. Chief Justice Burger's opinion applied only the traditional rational basis standard without explicitly declaring sex a suspect classification, and without adopting the heightened or intermediate scrutiny for sex-based classifications that Ginsburg had advocated. The opinion was deliberately written in narrow terms, leaving the larger question of what level of scrutiny applied to sex discrimination to be resolved another day. This judicial restraint actually proved strategically shrewd: by not foreclosing the question, the Court left open the door for subsequent decisions to gradually increase the level of scrutiny, which is precisely what happened over the following years through a series of cases that Ginsburg herself helped to bring. The formal adoption of intermediate scrutiny for sex-based classifications finally came in Craig v. Boren (1976) and was reaffirmed in United States v. Virginia (1996), where now-Justice Ginsburg herself authored the opinion.

Why Reed v. Reed Matters

Reed v. Reed is the essential foundation of American constitutional sex discrimination law. Before this decision, the Equal Protection Clause had never been applied by the Supreme Court to strike down a law discriminating against women. In the century following the ratification of the Fourteenth Amendment in 1868, the Court had repeatedly upheld sex-based laws on various grounds, most infamously in Bradwell v. Illinois (1873), which upheld a state bar's refusal to admit a woman to practice law, and Muller v. Oregon (1908), which upheld a law restricting women's working hours. Reed v. Reed announced that those days were over.

The case launched an extraordinary decade of constitutional litigation challenging sex discrimination in American law, much of it organized through the ACLU Women's Rights Project that Ginsburg established following Reed. Laws discriminating in Social Security benefits, military pay, jury duty, welfare entitlements, and many other areas were challenged and struck down in the years following Reed. Ruth Bader Ginsburg's ability to build her constitutional jurisprudence of gender equality on the foundation of this unanimous, modest, and strategically written opinion makes Reed v. Reed one of the most tactically important decisions in the history of American civil rights law.

Timeline Summary

Reed v. Reed, decided over a small Idaho estate worth virtually nothing in monetary terms, opened the constitutional door through which American women would spend the next half-century walking, each step bringing the law closer to the equal treatment of all persons regardless of sex that the Fourteenth Amendment had always promised.