Julia Longoria
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But it didn't get the votes in 1975. I hope 1976 will be the year. Or in 1976. A special report on the 1977 National Women's Conference. Or in 1977. And the movement is stalled.
Well, a lot. But much of the credit goes to this woman.
She was a lawyer and a self-described housewife who started a movement called Stop ERA.
Her position was that the Equal Rights Amendment would actually strip women of the special privilege that they have that comes from being a woman.
And she said if this amendment passes, there will be certain unintended consequences.
It fell three states short. To get a constitutional amendment passed, 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. Dude. 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?
Ruth Bader Ginsburg. RBG can do 20 push-ups and not the so-called girl kind. Now, before she was a Supreme Court justice.
It's the first time she argued in front of the Supreme Court in 1973.
But we can imagine that it was in one of those long pauses that Ruth Bader Ginsburg rescued some of the key principles behind the ERA, repackaged them, and marched them in through a side door.
So let me walk you through it now because it's beautiful. The ERA fight is underway, 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 14th Amendment.
You know, which, as we said, was designed from the beginning to be only about race.
Well, it says the word person, so that... should include women. If they could just get the courts to see it that way, then by default, almost, we would have a sort of ERA.
What does she want the court to say? She wants the court to say that sex would be treated just like race. And here's why that's so important. When the court sees racial discrimination happening, under the 14th 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. The law discriminates. It has to. It discriminates between 18-year-olds and 17-year-olds, between criminals and non-criminals. There would be chaos otherwise, right? But the courts decided that race is going to be a big red flag. They're going to ask governments, legislatures, presidents to have a compelling reason. A compelling state interest.
To do race discrimination. Otherwise, it's going to be unconstitutional. You with me so far?
By the way, the legal name for this test? Oh, God. Strict scrutiny. Ugh. I know they should have called it like, we mean business or something like that. But anyway, the point was that 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.
Like in the case of the bartender's law, bars are dangerous. Women need more protection. And courts would be like, OK, sure. 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've been doing it for years?
How do you convince them that discrimination is a bad thing?
This is her giving a recent talk about her 1970s strategy.
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.
is the right approach. She said, first, we need to go after that small and insidious idea that the Supreme Court had been keeping alive for years.
That Phyllis Schlafly idea that discrimination is actually good for women.
And so, RPG decided not just to bring cases where women were the victims of discrimination.
She brought cases where men were the victims. Who were you as an 18-year-old?
He made it into Lambda Chi Alpha at Oklahoma State, and he was living at the frat house.
What do you mean? Like an indentation literally in the wall or like the dirt?
If they wanted to get all that beer, They had to enlist the help of the ladies. You know, the sorority sisters.
The basic principle was that boys got into more car accidents, so they should be trusted with less beer? Huh. Did that make you angry?
Well, this is where her strategy is kind of like a Trojan horse. If you look at this case, right, on the outside, it looks like a case about men being discriminated against. 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?
If men are irresponsible, they can't handle beer, then women... Girls are more responsible and well-behaved. 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 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.
And in our case, that woman warrior, she didn't even know she was going to go into battle.
So I got in the car and I drove a long time. Tiny little gravel road leading up to narrow street of houses to Sparta, North Carolina. It's called Sparta? I know. Cows and horses and Trump signs. Tractor up front. No trespassing sign. And so I walk up to this house. It's this beautiful cream-colored cottage perched on top of a mountain. Wow.
And I can hear Whitney Houston's Saving All My Love For You blasting. You having trouble? Hi. No, I didn't. Are you Carolyn? Uh-huh. Hi. Very nice to meet you.
Reddish blonde hair, green eyes. She's wearing golden hoops. She has like this air about her that she could have been a beauty queen, you know? But she also could have been a car mechanic.
So we get to talking. I tell her a little bit about who I am, about the story.
I'm so proud of you. Your generation, they're finishing the fight I started. And I was essentially like, no, no, no, no. This stuff, like, your story has, like, a huge impact on, like, women like me, you know? I can't imagine.
She told me she grew up bouncing around different oil fields.
That meant Carolyn and her brother and sister split the school year between two or three schools a year. We moved a lot. She says school didn't come easily to her.
She was very independent. And when she was about 13, they moved to Chickasha, Oklahoma.
And that... is where she met Dwayne. That was the first boy I went with. They met in high school, and they were roughly the same age, but he was three years ahead of her in school.
What do you think attracted him to you? Like, what do you think he saw in you?
Talking to Carolyn, I got the sense she did not have any shortage of suitors.
She says she was really comfortable with him. He was a quiet man with this brilliant mind.
OK, 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... is a college town. It's that college town, okay? You got Oklahoma State University right there, tons of fraternities, including Lambda with the wrestlers, huge homecoming drawing over 40,000 alumni.
Here's how it would work. Customers pull up to the side of the convenience store and they drive through, hunk their horn, holler their order.
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.
Fast forward a few years, it's 1972, back at the university.
...is in a political science class. And the professor starts talking about the whole fight for the ERA, which is happening right at that moment. And at this point, Oklahoma hasn't ratified the ERA. And somehow the conversation turns to this beer law. Mark's like, talk about discrimination. This beer law is discrimination against us.
Because actually, my husband lost his license after he sold beer to a young man. So he put him in my name.
But we don't let them drink beer when they come back? Was that just? 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? You can't prove who buys what.
But it wasn't just a conversation, because before that meeting, Mark had gone out looking for a lawyer.
And Curtis and Mark and the other frat brothers had tried to raise some money.
But they managed to find this lawyer who would do it on the cheap.
Fred had worked on another male discrimination case in the past, and to him, this case was pretty straightforward.
And do you remember corresponding with Ruth Bader Ginsburg?
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.
Fred did not see this as a women's rights case.
And Ruth, looking at this case, thought, no, Fred, it's more than that.
Again, Ruth was after the stereotype about women that was nestled inside the beer law, that women are more responsible and well-behaved. 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.
So, like, Ruth had her work cut out for her.
So, with other local lawyers that she'd worked with in the past, Ruth had been more forceful, insisting that she make the argument. But that had backfired. So she was like, OK, you argue it, right? 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.
Meanwhile, back at the Honkin' Holler, Carolyn has no idea what's going on.
How are you? 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 like this could hurt business. Like, how dare you? You know, I didn't know what had happened. I really didn't know. And eventually she figured out it must have been that kid who came in here. And now it's like at the Supreme Court.
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.
October 5th, 1976, the day of oral arguments. The lawyer, Fred Gilbert...
And by all accounts, you didn't exactly kill it.
But she says what caught her ear was a moment when Justice Rehnquist, when he called me.
As arguments went on, Fred did at least try to do the thing that Ruth wanted him to do.
Compare sex discrimination to race discrimination.
To make a long story short, by the end of oral argument, things weren't looking great for Fred.
First of all... At one point, he even interrupts a Supreme Court justice, which you don't do that.
What? No, no, no, no. Here comes the craziest part of the story.
It's like a double Trojan horse. A horse within a horse. Because after the Fred Gilbert debacle, there was another case at the Supreme Court that afternoon.
By none other than Ruth Bader Ginsburg.
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, the completely incompetent lawyer... was going to be, you know, less than amazing.
And then she told Justice Stevens, even in this case, where it seems like men are the ones who are being discriminated against, beneath that discrimination is a more insidious one.
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.
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 hardcore standard that the court uses for race.
About two months later, December 20th, 1976, Justice William Brennan announces that the court is striking down the beer law.
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. 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.
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.
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 from 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. One of the letters.
I don't know if that's a one. 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.
Dear Carolyn, as I told you in 1996 when we celebrated the 20th anniversary of Craig v. Bourne, 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.
So I've been working on an episode about sex discrimination for like months now.
And we're supposed to release it. Sexual harassment scandals have engulfed Harvey Weinstein, Senator Al Franken, comedian Louis C.K., this week. The story we're going to tell is not about sexual harassment, but I can't think straight with all the stuff that's happening. Thousands posted the claims online using the simple phrase, me too. And I can't help but think that we've seen this before.
Like we're in our respective corners and... We need men to help us. Letting out a big scream. How do people not know? But when things quiet down... Will there be a change?
Okay. So let me outline the basic dilemma that's at the heart of the story here. All right. And I'm going to put it to you as a question.
If you were to do a control F in the Constitution, like how many times do you think the word sex comes up?
It's one. One time in the 19th Amendment, which grants people the right to vote based on sex.
That's the only time, which is crazy because we already have.
No. Really? Okay, constitutionally, women have a problem, which is that basically we're not in the Constitution, except like in this one little spot. So when it comes to discriminating against women, some people have argued that you... There's nothing in the Constitution that says you can't do it.
That's the late Justice Antonin Scalia.
As legal editor Linda Hirschman says, the 14th Amendment was passed in the aftermath of the Civil War, along with the 13th and the 15th. 13th Amendment abolishing slavery. 15th Amendment essentially giving black people, really black men, the right to vote.
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.
What are some of my greatest hits of the ridiculous distinctions?
Both those laws, you know, women are not supposed to be at the bar. At either bar.
And that was the assumption for a long, long time.
They get some traction saying, OK, it's time to put us in the Constitution.
And what you see is this push for something called the Equal Rights Amendment.
Let's give this super intelligent AI a simple goal. Produce paperclips. Via paperclip? Another woman cast AI as an octopus. We posit this octopus to be mischievous as well. And yet another story sounded like it was out of the Bible.
Imagining AI as a savior. Like a god. And all of these fantastical tales from the greatest minds in AI made me wonder, maybe even these people don't know what to think. I'm Julia Longoria, Good Robot, a series about AI, coming March 12th on Unexplainable, wherever you get podcasts.
I've been asking some very smart people a question that's been on a lot of our minds. Should we be worried about artificial intelligence? But the answers I got from the greatest minds in AI surprised me. One guy told a parable of an AI that could cause an apocalypse.
Be a paperclip? No. Another woman cast AI as an octopus. We posit this octopus to be mischievous as well. And yet another story sounded like it was out of the Bible.
Imagining AI as a savior.
And all of these fantastical tales from the greatest minds in AI made me wonder, maybe even these people don't know what to think. I'm Julia Longoria. Good Robot, a series about AI coming March 12th on Unexplainable, wherever you get podcasts.