The Oscars seem to produce a Sacheen Littlefeather moment every year, and this year Patricia Arquette, accepting the little gold guy for Best Supporting Actress in Boyhood, departed from the script of thanking the academy, family, colleagues, and pets.
Arquette called for wage equality between men and women, which has been the law on paper since the Equal Pay Act of 1963. Or would that be Title VII of the Civil Rights Act of 1964, into which Rep. Howard Smith (D-Virginia) inserted the word “sex?” Smith was a Dixiecrat who was opposed to all civil rights legislation, and the purpose was to make the bill so absurd it would fall of its own weight.
It is fair for a bewildered voter to ask how it was that the first legislation signed into law by President Barack Obama was the Lilly Ledbetter Fair Pay Act? First, let me confess that when I was in the private practice of law, I did make some money with Title VII. I mention this to illustrate a point. I worked for one of the leading civil rights law firms in Austin and Title VII was bread and butter.
When I worked for that group of lawyers I had come up admiring, we never lost a race case and we never won a sex case. Do you really believe we knew how to pick the former but our evaluation skills failed us whenever the plaintiff was female? Our reason for taking sex cases was what it had been a decade earlier for taking race cases: to fight the good fight, because we did not enter the practice of law primarily to enrich ourselves and we were sensitive to the criticism that we did well by doing good.
The Lilly Ledbetter law was born in a dissent penned by the liberal anchor of the SCOTUS, who recently acquired the nickname “Notorious R.B.G.” Ruth Bader Ginsburg would have been the first woman on the SCOTUS if a Democrat had made the appointment. As co-founder and chief tactician for the Women’s Rights Project at the American Civil Liberties Union, she was the architect of an equality push under the Fourteenth Amendment that came within one SCOTUS vote of rendering the Equal Rights Amendment superfluous.
As an aside, most of my students at a first rate public university were under the impression that the Equal Rights Amendment has been ratified and is part of the U.S. Constitution. I assume that right now I’m speaking to adults who understand that sex equality failed, and I do hope they share my opinion that was tragic.
There is a hoary principle of Anglo-American law that the statute of limitations does not begin to run on a claim until the owner of the claim knew or should have known it existed. The fairness of this principle should be obvious.
We have statutes of limitations so the courts don’t have to try cases so old nobody can remember how they started, but we don’t cut off a valid claim with limitation unless the plaintiff was just sitting on the claim, letting it get old on purpose.
Lilly Ledbetter went to work for Goodyear Tire and Rubber in 1979, and her union contract guaranteed that she started at the same wages as her male counterparts. But by retirement, she was earning $3,727 a month. Her male counterparts made between $4,286 and $5,236 for the same work.
The law required her to complain of unequal pay within 180 days. She complained as soon as she found out about it. The SCOTUS rejected Ledbetter’s argument that each paycheck was an act of discrimination. Plainly, the pay differential had arisen over years, and the SCOTUS said the discrimination had to have happened outside the limitations period and so most of her claim was dead.
The decision was 5-4, and the Notorious R.B.G. penned a sizzling dissent that called upon Congress to repair the hole in the law ripped open by her colleagues. She also took the unusual step of reading her dissenting opinion from the Bench. I will refrain from riffing at length on how the same usual suspects ripped similar holes in the Voting Rights Act and the Indian Child Welfare Act. Judges, like legislators and executives, tend to support equal rights under law either for everybody or for nobody. The only place I’ve seen significant picking and choosing is protection of LGBT peoples.
The Lilly Ledbetter Fair Pay Act was introduced right away, but defeated by Republicans in the Senate. It became an issue in the 2008 election, with Sen. John McCain opposed and Sen. Obama in favor. GOP opposition was based on the claim that passing the law would result in a wave of frivolous lawsuits that would smack down recovery from the Great Recession and destroy jobs.
This is how Lilly Ledbetter’s name came to be on the first bill signed into law by President Barack Obama. In this as in everything, the history of my Cherokee Nation influences my opinion. Cherokees learned sex discrimination from the colonists.
The colonists did not want any females signing treaties, regardless of their representative status. Early marry-ins were shocked to find family and property customs stacked against the idea from England that man and wife, upon marriage, became one—and he was the one. From the cultural norm that daughters could aspire to anything we wanted for sons, from a maternal clan identity, Cherokees “reformed” as a patriarchy. Wilma Mankiller’s service as Principal Chief was not an innovation but rather a return to traditions older than the United States.
I cannot speak to anybody else’s tribal traditions, but I can say that equal regard for mothers and sisters and wives and daughters before the law is in my DNA as well as in my professional commitments. In my lifetime, I’ve seen the Equal Rights Amendment defeated by frivolous arguments, equal pay for women attached to civil rights legislation to kill it, and continuing vitality for the argument that men need to get paid more than women because men are family breadwinners and women only work for pin money.
What does it take, I wonder, to elevate women to enough equal regard under the law that the next time Oscar has a Sacheen Littlefeather moment, it’s no longer necessary to demand equality for half the population?
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.