Reed v. Reed, 404 U.S. 71 (1971), was the first Supreme Court decision to strike down a law for discriminating against women under the Equal Protection Clause of the Fourteenth Amendment. A unanimous Court, in an opinion by Chief Justice Warren Burger issued on November 22, 1971, held that an Idaho probate statute automatically preferring men over women as estate administrators was unconstitutional.1Justia. Reed v Reed, 404 US 71 (1971) More than a century after the Fourteenth Amendment was ratified in 1868, the Court had finally applied its promise of equal protection to sex discrimination.
How the Case Began
Sally and Cecil Reed were a separated couple in Ada County, Idaho. Their son Richard Lynn Reed, known as “Skip,” died on March 29, 1967, during a visit to Cecil’s home. He was found in the basement, having apparently shot himself with his father’s rifle, and his death was ruled a suicide. He left no will and only a small amount of personal property and a savings account together worth less than $1,000.1Justia. Reed v Reed, 404 US 71 (1971)
Both parents petitioned to be appointed administrator of Skip’s estate. Sally, suspicious of the circumstances of her son’s death, wanted to manage his affairs herself. The probate court chose Cecil. Not because he was more qualified. Because he was a man.
The Idaho Statute at Issue
Two provisions of the Idaho Code controlled the appointment. Section 15-312 listed who could serve as administrator when someone died without a will, ranking surviving spouses, children, parents, siblings, and so on down the line.2Supreme Court of the United States. Jurisdictional Statement – Reed v Reed – Section: Statutes Involved Sally and Cecil both fell within the parents’ category and were equally entitled under this section.
Section 15-314 broke the tie. When two people in the same category sought appointment, the statute required that “males must be preferred to females.” The Idaho Supreme Court described the preference as mandatory, meaning probate judges had no discretion to weigh which candidate would actually do the job better.1Justia. Reed v Reed, 404 US 71 (1971)
Sally challenged the statute, won at the Idaho district court level, then lost when Cecil appealed to the Idaho Supreme Court. She took the case to Washington.
What the Supreme Court Decided
The Court reversed the Idaho Supreme Court unanimously. Chief Justice Burger’s opinion held that a mandatory sex-based preference among otherwise equally qualified candidates violated the Equal Protection Clause.1Justia. Reed v Reed, 404 US 71 (1971)
Idaho had defended the preference on grounds of administrative convenience: automatically picking the man saved probate courts the time and expense of holding hearings to compare applicants. The Court accepted that reducing the workload of probate courts is a legitimate state objective in the abstract. But a classification, the opinion said, “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.”1Justia. Reed v Reed, 404 US 71 (1971)
Sex had no such relation to administering an estate. Choosing men by default was not a rough proxy for competence or any other relevant trait; it was a shortcut. The Court called it “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause.”1Justia. Reed v Reed, 404 US 71 (1971) A state’s interest in saving time does not justify stripping an entire class of people of equal consideration under the law.
What Standard of Review Did the Court Actually Use?
The opinion is short and does not label its approach. Some of its language sounds like rational basis review, the most lenient standard, under which almost any conceivable justification will do. But the “fair and substantial relation” formulation the Court quoted is more demanding than the traditional rational basis test. The Court did not adopt the strict scrutiny standard Sally Reed’s brief had urged, and it did not announce a new tier either.
That ambiguity mattered. It meant Reed left the exact level of judicial review for sex-based laws unsettled, a question the Court would return to over the next several years.
Ruth Bader Ginsburg’s Role
Sally Reed’s brief was co-authored by Ruth Bader Ginsburg, then a volunteer attorney for the American Civil Liberties Union. She would soon become director of the ACLU’s Women’s Rights Project and, decades later, a Supreme Court justice.
Ginsburg’s brief pressed the Court to treat sex-based classifications the way it treated racial ones, arguing for strict scrutiny and drawing parallels between sex and race as characteristics people cannot change. The brief also catalogued the long history of legal discrimination against women in voting, property ownership, and jury service. The Court did not adopt strict scrutiny in Reed, but the intellectual argument Ginsburg laid out would shape the doctrine that followed.
What Reed v. Reed Changed
Before Reed, every challenge to a sex-based law under the Equal Protection Clause had failed. Courts had upheld statutes barring women from professions, giving husbands automatic control over marital property, and excluding women from juries. Reed broke that pattern and opened the courthouse door to a series of successful challenges.
Frontiero v. Richardson (1973)
Two years later, the Court struck down a federal law that required women in the armed forces to prove their husbands were dependents to receive housing and medical benefits, while male service members’ wives were presumed dependent automatically. A plurality of four justices argued that sex-based classifications should receive strict scrutiny. A concurring group preferred to decide the case on Reed’s terms, treating the military’s policy as another arbitrary choice.1Justia. Reed v Reed, 404 US 71 (1971) The Court still lacked a majority on the proper standard.
Craig v. Boren (1976)
The Court found its majority five years after Reed. Oklahoma allowed women to buy low-alcohol beer at eighteen but made men wait until twenty-one. Striking that law down, and citing Reed as foundational, the Court announced that gender classifications “must serve important governmental objectives and must be substantially related to achievement of those objectives.”3Justia. Craig v Boren, 429 US 190 (1976) This is intermediate scrutiny, sitting between rational basis and the strict scrutiny used for racial classifications. It remains the test for sex discrimination today.
United States v. Virginia (1996)
Intermediate scrutiny reached its strongest expression when the Court held that the Virginia Military Institute could not exclude women. The majority required an “exceedingly persuasive justification” for government action based on sex and rejected justifications that rested on generalizations about the talents or preferences of men and women.4Justia. United States v Virginia, 518 US 515 (1996) Justice Ginsburg wrote the opinion. The argument she began pressing in Sally Reed’s brief had become binding doctrine.
Why the Case Still Matters
The estate at the center of Reed was worth less than a thousand dollars. The principle established was much larger. Two things changed in 1971 that had not been true before: sex-based laws became subject to meaningful constitutional review rather than automatic deference, and administrative convenience alone could no longer justify treating men and women differently. Every gender discrimination case decided since, from military benefits to public education to workplace protections, traces part of its foundation to a probate dispute over a teenager’s savings account in Ada County, Idaho.