Writings and observations

idaho RANDY
STAPILUS
 
The Idaho
Column

To most non-lawyers, the Idaho-originated Supreme Court case of Reed v. Reed is a little obscure now, not one of those few like Roe v. Wade many people could grasp immediately.

But Reed was a pivot in modern society, and it’s especially worth recalling now with the death last week of Allen Derr, the soft-spoken Boise lawyer who improbably pushed it to the highest court in the land and was a central part of changing the law as it applies to men and women in America.

(Disclosure here: Last year I worked for a time with Derr on a book about the case; he apparently was still at work assembling materials for that project at the time of his death.)

Up to 1971, the law often treated the genders differently. Illinois had a law barring women from practicing law; the Supreme Court upheld it. It also upheld an Oregon law limiting work hours for women but not for men, and a Michigan law keeping women from tending bar. There were many such laws around the country, and for decades the Supreme Court had a perfect record of sustaining them.

The Idaho law that got Sally Reed’s, and Allen Derr’s, dander up, seemed just one more of the kind.

Reed encountered it when in March 1967 Reed’s son, Skip, died and left behind a few personal effects and $495 in a savings account. (That was the treasure over which a nation’s laws would change.) She and her ex-husband Cecil, the boy’s father, each applied in probate court to be administrator of Skip’s estate. Cecil got the appointment, but not, as the judge acknowledged, because Sally Reed was in any way disqualified. It was because the Idaho Code on probate said this: “Of several persons claiming and equally entitled to administer, males must be preferred to females, and relatives of the whole to those of the half blood.” In other words, Cecil had an automatic preference because he was male.

It was that automatic preference Sally Reed and her attorney Allen Derr wanted to challenge. From early on, Derr decided to attack the statute as unconstitutional, and he got mixed responses in the Idaho courts, winning in district court and losing at the state Supreme Court. Expenses were piling up, but the two headed to the U.S. Supreme Court, despite its long history of supporting state laws of this type. And despite the complication of the Idaho Legislature, in the meantime, changing the actual statute to eliminate the gender preference.

Once the case was accepted for hearing, Derr did get help from a number of quarters. One of the central workers on the case with Derr was a then little-known attorney, now a Supreme Court justice, Ruth Bader Ginsburg. But it was Derr who personally argued the case before the court.

Changing course, drastically, the court ruled that, “To give a mandatory preference to members of either Sex over members of the other, merely to accomplish the elimination of hearings on the merits is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.”

It was the first time women had been specifically included in equal protection provisions. Although the case strictly was an about probate administration, Reed has turned out to be a major precedent in many Supreme Court and lower cases ever since in the area of women’s right.

An Idaho case. An Idaho lawyer. Who died last week.

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