Fighting in the Courts

Ruth Bader Ginsburg’s oral arguments before the Supreme Court in Weinberger v. Wiesenfeld.

Document Text


ORAL ARGUMENT OF MRS. RUTH BADER GINSBURG ON BEHALF OF APPELLEE Oral argument of Ruth Bader Ginsburg on behalf of Stephen Wiesenfeld.
MRS. GINSBURG: Mr. Chief Justice and may it please the Court: Stephen Wiesenfeld’s case concerns the entitlement of a female wage earner—a female wage earner’s family to social insurance of the same quality as that accorded a family of a male wage earner.  This case is about the rights of a female worker and her family to benefit from social security insurance.
Four prime facts of the Wiesenfeld family’s life situation bear special emphasis. There are four major facts in this case.
Paula Wiesenfeld, the deceased insured worker, was gainfully employed at all times during the seven years immediately preceding her death. Throughout this period the maximum contributions were deducted from her salary and paid to Social Security. Paula Wiesenfeld died. She worked for seven years before her death and paid for social security insurance.
During Paula’s marriage to Stephen Wiesenfeld, both were employed. Neither was attending school. And Paula was the family’s principal income earner.  Paula’s husband, Stephen, also worked. But Paula earned more money.
In 1972, Paula died giving birth to her son, Jason Paul, leaving the child’s father, Stephen Wiesenfeld, with sole responsibility for the care of Jason Paul.  Paula died in 1972 after giving birth to her son, Jason Paul. Stephen had to care for Jason Paul alone.
For the eight months immediately following his wife’s death and all but a seven-month period thereafter, Stephen Wiesenfeld did not engage in substantial gainful employment. Instead, he devoted himself to the care of the infant, Jason Paul.  Stephen did not work so that he could take care of Jason Paul.
At issue, is the constitutionality of the gender line drawn by 42 USC 402(G), the child in care provision of the Social Security Act.  This case calls into question the legality of a part of the Social Security Act. This part is number 402(G).
The specific purpose of 402(G) was to protect families of deceased insured workers…Where the deceased Insured worker is male, the family is afforded the full measure of protection . . .

Where the deceased worker is female, family protection is subject to a 50 percent discount . . .

This absolute exclusion, based on gender per se, operates to the disadvantage of female workers, their surviving spouses and their children. . . .

Part number 402(G) provides money to the family of a dead worker. When the dead worker is a man, the wife and children receive the full amount of money. When the dead worker is a woman, the husband and children receive half of the full amount.

This is not fair to female workers or their surviving families.

It denies the surviving spouse of a female worker the opportunity to care personally for his child, an opportunity afforded the surviving spouse of the male worker, and it denies the motherless child an opportunity for parental care afforded the fatherless child. The surviving spouse of a dead female worker should have the opportunity to care for his child. And the child of that dead female worker deserves care from the surviving parent.
It is Appellee’s position that this three-fold discrimination violates the constitutional rights of Paula, Stephen and Jason Paul Wiesenfeld to the Equal Protection of the laws guaranteed them with respect to federal legislation by the Fifth Amendment.

This policy violates the constitutional rights of Paula, Stephen, and Jason Paul.
Paula Wiesenfeld, in fact the principal wage earner, is treated as though her years of work were of only secondary value to her family. Stephen Wiesenfeld, in fact the nurturing parent, is treated as though he did not perform that function. And Jason Paul, a motherless infant with a father able and willing to provide care for him personally, is treated as an infant not entitled to the personal care of his sole surviving parent. This policy treats Paula like her work and income was not important. It also treats Stephen like he is not a caring father. It also treats Jason Paul like he does not deserve his father’s care.
In practical effect, laws of this quality help to keep women, not on a pedestal but in a cage. They reinforce, not remedy, women’s inferior position in the labor force. 

Laws like this keep women in a cage. They promote the assumption that women’s work is inferior to men’s work.
In fact, Congress had in view male breadwinners, male heads of household and the women and children dependent upon them. When this law was made, Congress assumed that men were always the main earners and women were always dependent on them.
Its attention to the families of insured male workers, their wives and children, is expressed in a scheme that heaps further disadvantage on the woman worker.  This unfair assumption disadvantages women workers.
Far from rectifying economic discrimination against women, this scheme conspicuously discriminates against women workers by discounting the value to their family of their gainful employment and it includes, on private decision-making in an area in which the law should maintain strict neutrality for when federal law provides a family benefit based on a husband’s gainful employment but absolutely bars that benefit based on a wife’s gainful employment, the impact is to encourage the traditional division of labor between man and woman.  Laws like this do not help women. They decrease the value of their work and encourage families to continue traditional gender roles.

Weinberger v. Wisenfeld, 420 U.S. 636 (1975), “Oral arguments”, U.S. Supreme Court.


In 1972, the American Civil Liberties Union (ACLU) launched the Women’s Rights Project. Law professor Ruth Bader Ginsburg served as its first leader. The project’s goal was to fight for legal gender equality through the courts. Thanks to decades of civil rights activism, courts were starting to recognize that racial discrimination violated the Constitution. The ACLU hoped to convince the courts that gender discrimination was equally unconstitutional. Under Ginsburg’s guidance, the ACLU chipped away at legal gender discrimination. The cases were not always the most glamorous, and the arguments not the most impassioned. But they were effective at making the law more equitable, one case at a time.

About the Resources

In 1972, Stephen Wiesenfeld’s wife, Paula, died while giving birth to their son Jason Paul. Paula was a New Jersey public school teacher and the primary breadwinner. Stephen could not afford childcare on his small salary. He quit his job and applied for benefits through the federal Social Security program. This way, he could afford to stay home and care for his newborn son. The federal government told him he was entitled to only a fraction of the benefits because he was a man. The Social Security death benefit was written in 1939 and only applied to widows—not widowers. Stephen believed that this gender-specific policy violated the entire family’s rights. As a teacher, Paula paid for Social Security insurance. Therefore, her son and husband deserved to benefit from her hard work and investment in the program.

Stephen sued the government. His case was eventually taken on by the Women’s Rights Project. In 1975, Ruth Bader Ginsburg represented Stephen before the Supreme Court. This document is an excerpt from her oral argument. The court unanimously agreed with her argument and struck down the discriminatory policy. Moving forward, Social Security provided a “parent benefit,” not a “mother benefit.”


  • American Civil Liberties Union (ACLU): An advocacy organization founded in 1920 to protect individuals’ rights in the United States.
  • benefit: Money paid to a person or their family as part of an insurance policy.
  • breadwinner: A person who earns money to support a family.
  • Social Security: An insurance program run by the federal government in which workers who pay into the system receive money when they retire or money for their family when they die.
  • Supreme Court: The highest court in the United States.
  • Women’s Rights Project: An initiative of the ACLU founded in 1972 to focus specifically on protecting women’s rights.

Discussion Questions

  • Why did Stephen Wiesenfeld sue the United States government? What was the outcome, and how does it relate to gender discrimination?
  • Why did the Social Security policy only benefit widows and not widowers? According to Ruth Bader Ginsburg, what assumptions did Congress make when crafting this policy?
  • Stephen Wiesenfeld was a man. Why do you think the Women’s Rights Project took on his case? How did the decision benefit the fight for women’s rights?
  • Why do you think it was important for feminists to fight for equal rights in the courts? What is the benefit of this type of activism?

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Source Notes