Remembering Reed v. Reed (10/14/2015)

One prescient Idaho judge laid the foundation for gender equality in America more than four decades ago, writes David Adler.

By David Adler

The dawn of the U.S. Supreme Court’s new term occasions reminiscences of judges who distinguished themselves with opinions that have shaped America’s legal landscape.

John Marshall and Earl Warren top the lists of great chief justices. Joseph Story and Louis Brandeis remain the greatest scholars in the history of the Court. Chief Justice John Roberts may be the best read of the current justices, if only because he quoted some of my writings on the president’s recognition power in his opinion in Zivotofsky v. Secretary of State last term.

Some outstanding judges in American law never served on the Supreme Court. Obscure federal court judges, David Pine and John Sirica rebuked, respectively, Presidents Harry Truman and Richard Nixon, for their abuse of power. Distinguished jurists possess what Justice Benjamin Cardozo called prescience, the ability to harness and project legal doctrines in the cause of the evolving principles of the Constitution.

Another prescient jurist was an Idahoan, Charles R. Donaldson, who, when serving as a Fourth District Judge in 1968, distinguished himself with an opinion in Reed v. Reed, that forged legal history when he anticipated the U.S. Supreme Court’s landmark ruling in that case in 1971, with the simple but eloquent opinion that the Equal Protection Clause of the 14th Amendment prohibits states from passing laws that discriminate against women.

Reed v. Reed featured an anachronistic state law governing the appointment of an administrator of an estate. The act provided that in the event of a contest to serve as administrator, men should be preferred over females because they have more business experience than women .

Judge Donaldson, elected to the Idaho Supreme Court in 1969, where he would sit until October 9, 1987, when a heart attack killed him while swimming laps, observed in his opinion that the bias against women had “no basis in fact in this modern age and society.” There was “no reasonable basis for the classification which gives preference of males over females.” Indeed, there “are occasions when women would be more qualified than a man and vice versa.”

Judge Donaldson’s opinion was overturned by the Idaho Supreme Court, which clung to the cobwebs that encircled the old statute. But Donaldson was vindicated on November 22, 1971, when the U.S. Supreme Court unanimously held, for the first time in the 103-year history of the 14th Amendment, that a law discriminating against women was unconstitutional.

Donaldson was justly “proud” of the fact that he had reached the “correct result” as a District Court judge in Reed v. Reed, according to Bill Vasconcellos, who served from 1971-1973 as Justice Donaldson’s law clerk on the Idaho Supreme Court. Vasconcellos, now a senior vice-president at UBS Financial Services, Inc., recalls that Donaldson “took great pride and some pleasure in reminding the other Idaho Supreme Court judges that he was right and they were wrong.”

Reed v. Reed was an Idaho story that became an American story. Sally Reed, disappointed by the Idaho statute that discriminated against women, was unsuccessful in efforts to persuade 17 Idaho attorneys to represent her, before finding her way to the law office of Allen Derr, who told her that even though the discriminatory statute was the law, it shouldn’t be the law, and agreed to take the case.

Derr and Reed were fortunate to find in Judge Donaldson, a prescient jurist who agreed that the law was antiquated and a violation of the 14th Amendment. With Donaldson’s ruling, and the embrace of it by the U.S. Supreme Court, constitutional protection for women against gender discrimination was on the march in America.