JAD ABUMRAD: Hey, it's Jad. This is Radiolab. Tonight we lost a legend. Supreme Court Justice Ruth Bader Ginsburg died. She was 87. It's a lot to think about. A few years ago, Radiolab created a spin-off series, More Perfect, about the Supreme Court. And in one episode we told a story about RBG that has—that's stuck with me, and I think it's a story we should all listen to right now because it's—it's a sort of a snapshot of how one person can make change in the world. In memory of Ruth Bader Ginsburg, we wanted to rerelease it for you again tonight. It comes to you from producer Julia Longoria.

JAD: I'm gonna ask you an utterly false question, which is where would you like to start?

JULIA: [laughs]

JAD: As if we haven't been doing this for so damn long.

JULIA: Okay. So let me outline the basic dilemma that's at the heart of the story here.

JAD: All right.

JULIA: And I'm gonna put it to you as a question.

JAD: Bring it.

JULIA: If you were to do a CTRL+F in the Constitution, like, how many times do you think the word "sex" comes up?

JAD: Oh. That's interesting. Six? I don't know. I'm guessing. What—what's the answer?

JULIA: It's one. One time in the 19th Amendment, which grants people the right to vote based on sex.

JAD: Really?

JULIA: Yes.

JAD: That's the only time?

JULIA: That's the only time. Which is crazy because we already have ...

JAD: What is it, like a non—is there a sex word that's not "sex," like "gender" or something something?

JULIA: No. Nothing.

JAD: Is there, like, "ladies" in the Constitution?

JULIA: No. [laughs]

JAD: Women?

JULIA: No.

JAD: Really?

JULIA: 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.

[ARCHIVE CLIP, Antonin Scalia: Certainly the Constitution does not require sexual discrim—discrimination on the basis of sex. The Constitution doesn't require it. It simply doesn't forbid it.]

JULIA: That's the late justice, Antonin Scalia.

[ARCHIVE CLIP, Antonin Scalia: It doesn't. Nobody ever voted for that. So where do you get it from?]

JAD: There was nothing that said that? I mean, not those words explicitly, but there was nothing that says you can't discriminate?

CRISTIAN FARIAS: Not on the basis of sex.

JULIA: That's legal editor Cristian Farias.

CRISTIAN FARIAS: We had a 14th Amendment that told people that we're equal under the law, that everyone has equal protection of the laws.

JAD: But doesn't that say—I mean that's kinda—no?

[ARCHIVE CLIP, Martha Griffiths: They never applied the 14th Amendment to women. They didn't apply the 15th.]

JULIA: That's Martha Griffiths, Congresswoman.

CRISTIAN FARIAS: When you think about the history of the 14th Amendment ...

JULIA: As legal editor Linda Hirshman says ...

LINDA HIRSHMAN: The 14th Amendment was passed in the aftermath of the Civil War.

JULIA: Along with the 13th and the 15th.

LINDA HIRSHMAN: 13th Amendment abolishing slavery.

JULIA: The 15th Amendment essentially giving Black people—or Black men the right to vote.

CRISTIAN FARIAS: If you understand the 14th Amendment to be a part of that trio of amendments, you're like, "Oh, okay. It was meant to bring equality to Black people."

[ARCHIVE CLIP, Martha Griffiths: When the 15th Amendment had been written, which said that every citizen could vote, in the name of heavens, why couldn't women vote? Why did you have to have the 19th Amendment? Well of course, the answer was they didn't consider women people.]

JULIA: 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.

WENDY WILLIAMS: It was the case that the Supreme Court had never once met a distinction between men and women that it didn't like.

JULIA: Wendy Williams, law professor emeritus at Georgetown.

JULIA: What are some, like, greatest hits of the ridiculous distinctions?

WENDY WILLIAMS: Okay. Here—there was a case called Bradwell, and it was 1873 or '4. In that case, a woman wanted to become a lawyer.

JULIA: Illinois bar said no.

WENDY WILLIAMS: And the justices said that that was a perfectly good rule because the justice system could be seen as not appropriate for women. Now, let's jump clear into the next century here.

JULIA: 1948.

WENDY WILLIAMS: This case, it was called Goesaert v. Cleary, that went to the Supreme Court. And the issue was whether women could be bartenders. The Court thought that that was pretty humorous, that it made sense that women could not be bartenders unless their husbands or fathers were in charge of the bar.

JULIA: Both those laws, you know, women are not supposed to be at the bar.

WENDY WILLIAMS: At either bar!

JULIA: Yeah. [laughs] Right?

WENDY WILLIAMS: Those two cases represent attitudes almost 80 years apart, that women belonged in the private sphere. That was not only their place, it was built into their bodies.

JULIA: And that was the assumption for a long, long time.

WENDY WILLIAMS: But just about '67 ...

[ARCHIVE CLIP, Dick Cavett: There are a lot of women in this country who feel that they're being pushed around.]

WENDY WILLIAMS: ... things had started to come to a boil.

[ARCHIVE CLIP, Dick Cavett: And they've become very vocal. They call themselves the Women's Liberation Movement.]

[ARCHIVE CLIP, Gloria Steinem: Sex and race, because they are easy, visible differences, have been the primary ways of organizing human beings into superior and inferior groups.]

JULIA: So in the late '60s and early '70s, people like Gloria Steinem ...

[ARCHIVE CLIP, Gloria Steinem: We are talking about a society in which there will be no roles other than those chosen.]

[ARCHIVE CLIP, Audre Lorde: Free from the diseases of racism.]

JULIA: ... Audre Lorde ...

[ARCHIVE CLIP, Audre Lorde: Of sexism, of classism, and of homophobia.]

JULIA: They get some traction saying, "Okay, it's time to put us in the Constitution. Hurry up."

[NEWS CLIP: Some historians say it's a constitutional convention for women.]

[ARCHIVE CLIP: I move the adoption of the following resolution.]

JULIA: And what you see is this push for something called the Equal Rights Amendment

[ARCHIVE CLIP: The Equal Rights Amendment should be ratified.]

[ARCHIVE CLIP, interviewer: What are your hopes for it? Do you think it will be ratified?]

[ARCHIVE CLIP, Martha Griffiths: It will be ratified early next year. I am quite sure of that. In 1975 it will be ratified.]

JULIA: But it didn't get the votes in 1975.

[ARCHIVE CLIP, Betty Ford: I hope that 1976 will be the year.]

JULIA: Or in 1976.

[NEWS CLIP: A special report on the 1977 National Women's Conference.]

JULIA: Or in 1977.

[ARCHIVE CLIP: And the movement is stalled.]

JAD: Why? What stalled it?

JULIA: Well, a lot. But much of the credit goes to this woman.

[ARCHIVE CLIP: Phyllis Schlafly of Alton, Illinois.]

JULIA: A woman named Phyllis Schlafly.

[ARCHIVE CLIP, Phyllis Schlafly: I would like to thank my husband Fred for letting me come today. I love to say that because it irritates the women's libbers more than anything that I say.]

JULIA: She was a lawyer and a self-described housewife who started a movement called STOP ERA.

[ARCHIVE CLIP, Phyllis Schlafly: The whole thing is misrepresented as a women's rights amendment. In fact, the principal beneficiary will be men. It will give men a great opportunity to get out from under their obligations. Their obligations ...]

JULIA: Her position was that the Equal Rights Amendment would actually strip women of this special privilege that they have that comes from being a woman.

[ARCHIVE CLIP, Phyllis Schlafly: Certainly not. I think the laws of our country have given a very wonderful status to the married woman. And the wife has a great deal of many rights. For example, she has the legal right to be supported by her husband.]

JULIA: And she said if this amendment passes there will be certain unintended consequences.

[ARCHIVE CLIP, Phyllis Schlafly: The Equal Rights Amendment says you cannot discriminate on account of sex. And if you want to deny a marriage license to a man and a man or deny a homosexual the right to teach in the schools or to adopt children, it is on account of sex that you would deny it, and that would be unconstitutional under ERA.]

JULIA: And that argument caught on.

[ARCHIVE CLIP: I would caution the members of this platform committee that there are things that could happen from the passage of an ERA amendment that none of us would like to see happen.]

[ARCHIVE CLIP, woman: I think that families would, generation after generation, deteriorate. I think that there would be homosexuals that would expect preferential treatment.]

[ARCHIVE CLIP: [singing] He said brother we're all in danger. You gotta hear what I have to say. 'Cause you know what's gonna happen if they pass the ERA. There will be women in all of our bathrooms, women using all our stalls. They'll be wasting the paper towels. They'll be hogging the urinals. They'll be pushing the old soap squirters, pushing hot air dryers, too. If they pass the ERA Lord, I don't know what we're gonna do.]

LINDA HIRSHMAN: Had the Equal Rights Amendment passed ...

JULIA: Legal editor Linda Hirshman again.

LINDA HIRSHMAN: ... it would have looked a lot like the racial civil rights movement did. But the Equal Rights Amendment did not pass.

JULIA: It fell three states short. To get a constitutional amendment passed, it 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.

JAD: Dude!

JULIA: 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? Well, enter stage left ...

[ARCHIVE CLIP, Barack Obama: There she is. This is the Notorious RBG.]

JULIA: ... Ruth Bader Ginsburg.

[ARCHIVE CLIP: RBG can do 20 push ups, and not the so-called girl kind.]

JULIA: Now before she was a Supreme Court Justice ...

[ARCHIVE CLIP: Feminist icon.]

JULIA: ... or a work out sensation ...

[ARCHIVE CLIP: Show us all the moves.]

JULIA: ... before all that ...

WENDY WILLIAMS: Ruth Ginsburg, she was at the ACLU.

JULIA: This was in the '70s.

WENDY WILLIAMS: And one of the characteristics of Ruth Ginsburg, which exists to this day ...

[ARCHIVE CLIP, Warren Burger: Very well.]

JULIA: You can hear this. It's the first time she argued in front of the Supreme Court in 1973.

WENDY WILLIAMS: When you'd ask her a question, there would be silence. Enough silence ...

[ARCHIVE CLIP, Warren Burger: Mrs. Ginsburg?]

WENDY WILLIAMS: ... to make a person nervous and start trying to help her answer the question.

JULIA: [laughs]

[ARCHIVE CLIP, Warren Burger: Ginsburg?]

WENDY WILLIAMS: You had to wait.

JULIA: 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, re-packaged them and marched them in through a side door.

[ARCHIVE CLIP, Ruth Bader Ginsburg: Mr. Chief Justice, and may it please the Court, sex, like race, is a visible characteristic bearing no necessary relationship to ability. Sex, like race, has been made the basis for unjustified, or at least unproven ...]

JAD: Wait, so back it up a second. What exactly did RBG do?

JULIA: So let me walk you through it now because it's—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 gonna do if that's the case? How are we gonna get equal rights for women? So they decided okay, as an alternate approach, let's go back to the 14th Amendment.

[ARCHIVE CLIP: The 14th Amendment's immediate objective was to provide national protection for the newly-freed slaves.]

JULIA: You know, which as we said, was designed from the beginning to be only about race.

[ARCHIVE CLIP: But its sweeping provisions suggest broader objectives. The states were prevented from depriving any person equal protection of the laws.]

JULIA: Well, it says the word "person," so that should include women.

JAD: Yeah.

JULIA: If they could just get the courts to see it that way, then by default almost, we would have a sort of ERA.

LINDA HIRSHMAN: And accordingly, the task was showing that the racially-inflected 14th Amendment applied to sex.

JULIA: What about the law is she trying to change? What does she want the court to say?

LINDA HIRSHMAN: She wants the court to say that sex would be treated just like race.

JULIA: 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.

LINDA HIRSHMAN: The law discriminates. It has to.

JULIA: It discriminates between 18 year olds and 17 year olds. Between criminals and non-criminals.

LINDA HIRSHMAN: It would be chaos otherwise, right?

JULIA: But the court's decided that race is gonna be a big red flag. They're gonna ask the governments, the legislatures, presidents to have a compelling reason ...

LINDA HIRSHMAN: A compelling state interest!

JULIA: ... to do race discrimination. Otherwise, it's gonna be unconstitutional. You with me so far?

JAD: Yes. To discriminate based on race, you have to pass a really super hard test.

JULIA: By the way, the legal name for this test ...

JAD: Oh, God.

JULIA: Strict scrutiny.

JAD: Oh.

JULIA: 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."

CRISTIAN FARIAS: It doesn't have to be the reason. It could just be a reason.

JAD: It doesn't have to be very good.

CRISTIAN FARIAS: It doesn't have to be good. They could maybe even make it up on the fly. It just has to be a reason for upholding this law.

JULIA: Like in the case of the bartender law, bars are dangerous. Women need more protection.

CRISTIAN FARIAS: And courts would be like "Okay, sure."

JULIA: 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 have been doing it for years, how do you convince them that discrimination is a bad thing?

[ARCHIVE CLIP, Ruth Bader Ginsburg: I think people who want to keep women down would like nothing better than women to go off in a corner and speak only to women. Nothing would happen.]

JULIA: This is her giving a recent talk about her 1970s strategy.

[ARCHIVE CLIP, Ruth Bader Ginsburg: You need to persuade men that this is right for society.]

JULIA: Part one of her strategy: Choose your words carefully.

[ARCHIVE CLIP, Ruth Bader Ginsburg: I had a secretary at Columbia who said, "I'm typing these things for you, and jumping out all over the page is sex, sex! Don't you know that the audience you are addressing, the first association of those men with the word 'sex' is not what you're talking about."]

[laughter]

[ARCHIVE CLIP, Ruth Bader Ginsburg: So why don't you use a grammar book term? Use 'gender.']

JULIA: 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 gonna 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.

LINDA HIRSHMAN: So for example, early on in her tenure at the Women's Rights Project, the other lefty lawyers are suggesting that the women's movement needs to take up the cause of lesbian rights, and she says not yet.

[ARCHIVE CLIP, Ruth Bader Ginsburg: I think go slow is the right approach.]

JULIA: She said first we need to go after that small and insidious idea that the Supreme Court had been keeping alive for years.

[ARCHIVE CLIP, Phyllis Schlafly: The laws of our country have given a wonderful status to the married woman.]

JULIA: That Phyllis Schlafly idea that discrimination is actually good for women.

[ARCHIVE CLIP, Ruth Bader Ginsburg: Gender classifications were always rationalized as favors to women.]

JULIA: And so RBG decided not just to bring cases where women were the victims of discrimination.

CURTIS CRAIG: Okay. My name is Curtis Craig.

JULIA: She brought cases where men were the victims.

JULIA: Who were you as an 18 year old?

CURTIS CRAIG: Oh, that's a great question. I was like any 18-year-old young man. Invincible. You know, thought I was quite the ladies' man. You name it. I mean, I …

JULIA: He made it into Lambda Chi Alpha at Oklahoma State, and he was living at the frat house.

CURTIS CRAIG: Our fraternity was primarily made up of wrestlers, so it was when you went down the hall, you were about to be taken down at any moment. You'd be thrown into the walls and you'd leave a body print.

JULIA: What do you mean, like an indentation literally in the wall?

CURTIS CRAIG: Yeah.

JULIA: Oh my God! [laughs]

CURTIS CRAIG: Yeah. It was amazing. There was a lot of partying going on, of course.

JULIA: A lot of beer.

CURTIS CRAIG: The yard would be filled with beer cans.

JULIA: And here's the key. If they wanted to get all that beer ...

[ARCHIVE CLIP: [singing] More beer, and we bang our glasses down.]

JULIA: ... they had to enlist the help of the ladies.

CURTIS CRAIG: Yeah I mean ...

JULIA: You know, the sorority sisters.

CURTIS CRAIG: Yes, you would have a female buy you beer and you'd go out and party.

JAD: They need the women to buy the beer?

JULIA: Yep.

JAD: Why?

JULIA: Because in Oklahoma state at the time ...

[ARCHIVE CLIP, Ruth Bader Ginsburg: Oklahoma had a very silly law. Girls could buy beer at age 18, but the boys had to wait until 21.]

CURTIS CRAIG: There was something about the level of maturity, I guess, for women versus men at that time.

JULIA: The basic principle was that boys got into more car accidents, so they should be trusted with less beer?

JAD: Huh

JULIA: Did that make you angry?

CURTIS CRAIG: Oh absolutely. Well, it was extremely unfair. Yeah, I would say it made, I think, most men angry at the time.

JULIA: And a Supreme Court case was born.

[ARCHIVE CLIP, Ruth Bader Ginsburg: So the thirsty boys at a fraternity brought this case.]

JAD: So RBG gets involved in this beer case?

JULIA: Yes.

JAD: But this is a—this is a situation where women have rights men don't have. Why would she want to argue this case? I'd imagine she'd want the opposite.

JULIA: 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.

JAD: Yeah.

JULIA: 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?

JAD: Yeah.

JULIA: If men are irresponsible, they can't handle beer. Then women ...

LINDA HIRSHMAN: Girls are more responsible and well-behaved.

JULIA: 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. [laughs]

JAD: Whoa, that's clever!

JULIA: We're just getting started.

JAD: We'll continue this story in just a minute.

[LISTENER: This is Melissa Gutierrez in Evergreen, Colorado. Radiolab is supported in part by the Alfred P. Sloan Foundation, enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org.]

JAD: This is Radiolab. I'm Jad Abumrad. We are marking the passing of Supreme Court Justice Ruth Bader Ginsburg with a story from producer Julia Longoria about a case involving boys and beer and a legal move which reminds you of the wily Odysseus. Because the case that Julia's about to describe became something of a Trojan horse in the battle for women's rights. Now the story of the Trojan horse, maybe you know this, it's, you know, ancient Greece. You've got Sparta fighting Troy. The Spartans want to get into the city of Troy, but it's this giant, walled city. Too big. They can't get in. And so Odysseus comes up with this clever plan. We'll give the Trojans this giant wooden horse. They'll bring it into their city. They'll think it's a gift, that we're retreating. Which is what they thought. And then at night, our soldiers who are hidden inside the horse will come out and they will take the city. Now in our case, Odysseus is RBG, the city she's trying to get into is the all-male Supreme Court. But, in order for this very admittedly imperfect analogy to work, we need someone in the horse to come out. The warrior in the horse, the woman warrior.

JULIA: And in our case, that woman warrior, she didn't even know she was gonna go into battle.

JAD: Julia, you take it from here.

JULIA: So I got in the car and I drove a long time.

JULIA: Tiny little gravel road leading up to a narrow street of houses.

JULIA: To Sparta, North Carolina.

JAD: [gasps] It's called Sparta?

JULIA: [laughs] I know!

JULIA: Cows and horses and Trump signs.

[car door slams]

JULIA: Tractor out front. 'No Trespassing' sign.

JULIA: And so I walk up to this house. It's this beautiful, cream-colored cottage perched on top of a mountain.

JAD: Wow!

[knocking]

JULIA: And I can hear Whitney Houston's "Saving All My Love For You" blasting.

CAROLYN WHITENER: Did you have any trouble?

JULIA: Hi. No, I didn't. Are you Carolyn?

CAROLYN WHITENER: Uh-huh.

JULIA: Hi, very nice to meet you.

JULIA: And I meet Carolyn Whitener.

CAROLYN WHITENER: I'm 76, soon to be 77.

JULIA: She ...

CAROLYN WHITENER: I have a beer. Do you want a beer?

JULIA: ... immediately offers me a Coors.

CAROLYN WHITENER: I've got a Coors Light.

JULIA: Yeah?

JULIA: [laughs]

JAD: [laughs]

JULIA: Will you have a beer with me?

CAROLYN WHITENER: No, I can't. I'm a diabetic. [laughs] I can drink a little, but not much.

JULIA: Thank you.

CAROLYN WHITENER: And I've got some brownies over here.

JAD: What does she look like? Describe her.

JULIA: Reddish-blond hair, green eyes. She's wearing golden hoops. She has, like, this—this air about her that she could have been a beauty queen, you know? But she also could've been a car mechanic.

CAROLYN WHITENER: Well, tell me about yourself.

JULIA: Well, I am ...

JULIA: So we get to talking. I tell her a little bit about who I am, about the story. She actually told me, like, upfront. She's like ...

CAROLYN WHITENER: I'm proud of the young women. I have a granddaughter that's ...

JULIA: "I'm so proud of you. Your generation, they're finishing the fight I started. And I was essentially like, "No, no, no, no."

JULIA: This stuff like your story has, like, a huge impact on, like, women like me, you know?

CAROLYN WHITENER: I can imagine. [laughs] But see, my name was never tied in with it. It was always Craig's name. So, you know, it wasn't that big a deal.

JULIA: She told me she grew up bouncing around different oil fields.

CAROLYN WHITENER: I was an oil field trash. That's what we were called, oil field trash. [laughs]

JULIA: That meant Carolyn and her brother and sister split the school year between two or three schools a year.

CAROLYN WHITENER: We moved a lot.

JULIA: She said school didn't come easily to her.

CAROLYN WHITENER: But my dad, he taught all three of us how to weld. He was a welder. How to work on a car.

JULIA: She was very independent. And when she was about 13, they moved to Chickasha, Oklahoma. And that is where she met Dwayne.

CAROLYN WHITENER: That was the first boy I went with.

JULIA: They met in high school, and they were roughly the same age but he was three years ahead of her in school.

JULIA: And what attracted you to him?

CAROLYN WHITENER: His mind. He had an excellent mind. And he was just a farm boy with no education. He never went to college, but he could've been about anything he would've wanted to have been.

JULIA: What do you think attracted him to you? Like, what do you think he saw in you?

CAROLYN WHITENER: I was somebody new in town.

JULIA: Talking to Carolyn, I got the sense she did not have any shortage of suitors.

CAROLYN WHITENER: But I married him when I turned 18. [phone rings] Oops. I don't know who that is. I better turn that off. And when I married my husband, I was equal to him except the money, and he didn't think anybody could handle that but him. [laughs] He acted like he was raising me, and he probably was. [laughs]

JULIA: She says she was really comfortable with him. He was a quiet man with this brilliant mind.

CAROLYN WHITENER: But he just—he was pure German, girl. Have you ever met a German man? Okay, they are in total control.

JAD: And how does Carolyn connect to the case with the frat boys and RBG?

JULIA: Okay, 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.

CAROLYN WHITENER: We didn't know what homecoming was. Had no idea what homecoming was.

JULIA: But shortly after moving to Stillwater, they open the doors to the Honk and Holler.

CAROLYN WHITENER: And where we went in was just about three blocks, four blocks from the college. And we went into business there.

JULIA: A drive-thru convenience store

CAROLYN WHITENER: It was like a real old gas station with the oil pit in the floor.

JULIA: Here's how it would work: Customers pull up to the side of the convenience store and ...

CAROLYN WHITENER: They'd drive through.

JULIA: ... honk their horn, holler their order.

CAROLYN WHITENER: And you'd have to go out and wait on them. Come back in and get what they wanted, and take it back out.

JULIA: So it's a lot of in and out and in and out all night long.

CAROLYN WHITENER: You wear tennis shoes out real fast. [laughs] So it was all sheer energy and guts.

JULIA: Homecoming night ...

CAROLYN WHITENER: We were supposed to close at 11.

JULIA: The store is flooded with customers.

CAROLYN WHITENER: 'Til I think two or three o'clock in the morning.

JULIA: 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.

CAROLYN WHITENER: And it—yeah I never did get to see homecoming. All I saw was cars coming in and out.

JULIA: Fast forward a few years. It's 1972. Back at the university ...

CURTIS CRAIG: He was tall, had long blond hair.

JULIA: ... Curtis Craig's buddy named Mark Walker ...

CURTIS CRAIG: He was the president of the Lambda Chi house at the time.

JULIA: ... 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!"

CURTIS CRAIG: And the professor challenged him about doing something about the beer laws if he was going to complain about them.

JULIA: So one day ...

CAROLYN WHITENER: I was behind the counter, people coming in and out.

JULIA: Mark Walker walks into the Honk and Holler.

CAROLYN WHITENER: A young man came in to talk to me.

JULIA: She doesn't really have time to talk; she's running in and out.

CAROLYN WHITENER: But he stood there.

JULIA: Waiting patiently.

CAROLYN WHITENER: I bet he was in there four hours. And was looking at the beer license.

JULIA: He looks at the license, and he notices that Carolyn's name is the one on it, because actually ...

CAROLYN WHITENER: My husband lost his license.

JULIA: ... after he sold beer to a young man.

CAROLYN WHITENER: So he put them in my name.

JULIA: Anyway, at a certain point in between all the honks and hollers ...

CAROLYN WHITENER: He asked me what I thought about the beer laws. And I told him. I was very vocal about it. I always had been.

JULIA: She says, "It doesn't make any sense. We send these young men off to war."

CAROLYN WHITENER: They were being drafted at 18.

JULIA: "But we don't let them drink beer when they come back?"

CAROLYN WHITENER: Was that just?

JULIA: Not to mention the liability issues. You have these 18-year-old girls coming in and buying beer, slipping it to their boyfriends. How am I supposed to stop that?

CAROLYN WHITENER: You can't prove who buys what.

JULIA: So eventually, when Mark Walker asked for her help ...

CAROLYN WHITENER: He said he was going to do a term paper.

JULIA: She was like, "Sure, why not?"

CAROLYN WHITENER: I was always willing to help him because they had helped us get started. And I still thought it was a term paper.

JULIA: So was he not being completely honest with you then?

CAROLYN WHITENER: Well, I didn't hear half of what he said. I was busy every time he came in so, you know, it wasn't that important at the time. So I didn't think any more about it. He left. My husband was gone. He was out of state, working. And I didn't even say anything to him about it. It wasn't important. You know, I just thought it was a conversation. [laughs]

JULIA: But it wasn't just a conversation, because before that meeting, Mark had gone out looking for a lawyer.

CURTIS CRAIG: That's correct.

JULIA: And Curtis and Mark and the other frat brothers had tried to raise some money.

CURTIS CRAIG: That was flawed in a campus town. Everybody uses their last dollar for that last beer.

JULIA: But they managed to find this lawyer who'd do it on the cheap.

FRED GILBERT: All right. Well, I'm just Fred Gilbert, attorney at law. No big deal.

CURTIS CRAIG: I remember him always wearing his military boots. Actually, I believe he wore them even to the Supreme Court.

JULIA: Fred had worked on another male discrimination case in the past. And to him, this case was pretty straightforward

FRED GILBERT: Men couldn't buy beer until they were 21, but the most irresponsible and drunken woman in the state could buy it in unlimited quantities at 18. Well, that was discrimination. It was kind of more a male rights case. Well it was!

JULIA: And do you remember corresponding with Ruth Bader Ginsburg?

FRED GILBERT: Yes. I knew Ruth Bader Ginsburg before she was on the Court.

JULIA: 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 this idea that sex was like race. And she thought that this case was interesting. She gave Fred a call.

FRED GILBERT: You know, we have a problem in a personal relationship. There was no question I was something of an unreconstructed male chauvinist and she was not.

JULIA: Fred did not see this as a women's rights case.

FRED GILBERT: It was just kind of an unnecessary insult to men for no reason at all.

JULIA: And Ruth, looking at this case thought, "No, Fred. It's more than that."

WENDY WILLIAMS: It didn't matter to her if the plaintiff was a man or a woman, because in most of those cases, the discrimination against the man was derivative of a prior and worse discrimination against the woman.

[ARCHIVE CLIP, advertisement: Here's to the ladies, the fair and the weak. How do they do it? Where do they find all that energy? That seemingly inexhaustible store of pep and ginger?]

JULIA: 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.

FRED GILBERT: Well, I supported her. I just never was, shall we say, a militant feminist.

JULIA: So, like, Ruth had her work cut out for her.

LINDA HIRSHMAN: At this point she was getting sort of used to dealing with these rubes from the sticks.

JULIA: 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.

LINDA HIRSHMAN: So she—like, was like, "Okay, you argue it." Right?

JULIA: 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.

CAROLYN WHITENER: But I think it was a couple of months later, because my husband was out of state every month.

JULIA: Meanwhile, back at the Honk and Holler, Carolyn has no idea what's going on.

CAROLYN WHITENER: No.

JULIA: No idea.

CAROLYN WHITENER: And I got a phone call. My husband was on the phone. Well, I had salesmen in and I had people coming in and out. And he was irate, he was furious. I couldn't figure out what was going on.

JULIA: She was like, "Case? What are you talking about?"

CAROLYN WHITENER: Well, he had picked up a newspaper in North Carolina in a bank, and it was on the front page of the newspaper, with my name and about us suing. It looked like we sued everybody in the state of Oklahoma that was in office all the way down to the garbage man.

JULIA: He was like, "What did you do? How—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?"

CAROLYN WHITENER: You know, I didn't know what had happened. I really didn't know.

JULIA: And eventually she figured out it must've been that kid who came in here. And now it's, like, at the Supreme Court? What?

CAROLYN WHITENER: I was back and forth on that phone with him, trying to wait on customers. And I bet that took about three hours, and he would not let up. I mean, he kept calling back and calling back. He called a lawyer. He was mad. And then the last phone call he said, "I am flying back in," and he said, "You pick me up."

JULIA: A couple nights later she drove to the airport.

CAROLYN WHITENER: Picked him up, and he was still mad. That was the longest car ride.

JULIA: As they drove back, she says he just lectured her the whole ride

CAROLYN WHITENER: I just listened to him.

JULIA: What did he say?

CAROLYN WHITENER: I don't know what he said word to word, I just know he was strong with what he said. With my husband it was best to just be silent. I was never afraid of him, but I knew how far to push it. By the time we got from the airport to the other side, it was about an hour and twenty minutes. That's a long hour and twenty minutes in the car where you can't get out.

JULIA: And over the course of that hour and twenty minutes, she said something in her just kind of shifted. And at a certain point she basically turned to him and was like, "No. Like, I know you want me to drop this case, but I'm gonna fight this."

CAROLYN WHITENER: He threatened me every which way. I didn't budge. And probably the reason why I didn't budge, because he fought me so hard on it. You know, I believed in it. I had never stepped out like that. That's the first time I really put my foot down and didn't budge. I gave so much to him. I mean, I didn't get a salary for 25 years. I didn't ask for it. I figured we were equal. I figured I worked the same hours he did, and I figured I stood beside him, not behind him and not in front of him.

JULIA: October 5, 1976, the day of oral arguments. The lawyer Fred Gilbert ...

CAROLYN WHITENER: I haven't run across many people that I didn't care for. I didn't care for Fred. He—he was so pushy.

JULIA: ... insists that Carolyn needs to come to DC.

CAROLYN WHITENER: I didn't have the money to go, and I didn't want to go. I'd never traveled anywhere by myself.

CURTIS CRAIG: What I recall that day ...

JULIA: Curtis Craig came, too.

CURTIS CRAIG: ... I was dressed up.

JULIA: Suit and tie.

CAROLYN WHITENER: I had borrowed a dress—plastic, looked like leather.

CURTIS CRAIG: Walking up those stairs.

CAROLYN WHITENER: High heels.

CURTIS CRAIG: I remember that distinctly

CAROLYN WHITENER: It was so big.

CURTIS CRAIG: Beautiful building.

CAROLYN WHITENER: I felt like I was walking forever up those stairs. I was burning up, I was sweating.

[ARCHIVE CLIP, Supreme Court: We'll hear arguments next in 75-628, Craig against Boren. Mr. Gilbert you may proceed whenever you're ready.]

JULIA: Fred Gilbert starts things off. He walks up to the podium in with his combat boots.

[ARCHIVE CLIP, Fred Gilbert: The law is broad and all encompassing in its sweep. It says that all females, even those that are the most drunk, most alcoholic, most immature and most irresponsible may purchase 3.2 percent beer at age 18 in absolutely unlimited quantity.]

[ARCHIVE CLIP, judge: The law doesn't say it in quite those words, does it?]

[laughter]

JULIA: And by all accounts, he didn't exactly kill it.

[ARCHIVE CLIP, Fred Gilbert: No, your honor. And the law doesn't say it in quite the words that all males ...]

FRED GILBERT: The justices just kept hammering.

[ARCHIVE CLIP, Fred Gilbert: Your honor, the ...]

[ARCHIVE CLIP, judge: The only way he can get relief is to move his age back and drink.]

FRED GILBERT: Hammering.

[ARCHIVE CLIP, Fred Gilbert: In a technical sense.]

[ARCHIVE CLIP, judge: In a technical what?]

[ARCHIVE CLIP, Fred Gilbert: Yes, your honor. That is technically the way the complaint is drafted and what is before the court.]

[ARCHIVE CLIP, judge: Well, but you say "what's before the court." What's before the court is your complaint.]

CAROLYN WHITENER: Curtis was sitting beside me. And I kept punching him. "What does that mean? What are they talking about? What does that mean?" And he kept saying, "Shh! Shh! Just be quiet 'til it's over. I'll tell you! I didn't understand what they were doing.

[ARCHIVE CLIP, Fred Gilbert: The beer law we challenge today was originally enacted in 1890.]

JULIA: But she says what caught her ear was a moment when Justice Rehnquist ...

CAROLYN WHITENER: When he called me ...

[ARCHIVE CLIP, William Rehnquist: When you say "we," you're referring to your client who is the tavern keeper?]

CAROLYN WHITENER: ... a saloon keeper.

[ARCHIVE CLIP, Fred Gilbert: Yes, your honor. And ...]

CAROLYN WHITENER: I'll tell you, when he called me that in the Supreme Court, I came so near standing up and correcting him. And I've always wondered to this day why I didn't.

[ARCHIVE CLIP, William Rehnquist: Well, if he technically turned 21 ...]

JULIA: As arguments went on, Fred did at least try to do the thing that Ruth wanted him to do.

[ARCHIVE CLIP, Fred Gilbert: Your honor, I would say anything could be—you could pass a law saying no Negro will drive while intoxicated.]

JULIA: Compare sex discrimination to race discrimination

[ARCHIVE CLIP, Fred Gilbert: Now this relates to the public thing. But the thing is you can't discriminate even for something like public safety on the basis of certain criteria.]

[ARCHIVE CLIP, William Rehnquist: Well, has the court ever held that discrimination of this sort is of the same class as discrimination on the basis of race?]

[ARCHIVE CLIP, Fred Gilbert: Your honor, this court has come very, very close.]

[ARCHIVE CLIP, William Rehnquist: Well, I asked you a question. Has it ever held?]

[ARCHIVE CLIP, Fred Gilbert: No, it has never held it is totally to be treated the same way as race, your honor.]

JULIA: To make a long story short, by the end of oral argument, things weren't looking great for Fred.

[ARCHIVE CLIP, William Rehnquist: I mean, I think that depends on the thrust of our decision.]

[ARCHIVE CLIP, Fred Gilbert: All right. Let me explain this. First of all ...]

JULIA: At one point, he even interrupts a Supreme Court justice. Which you don't do that.

[ARCHIVE CLIP, Fred Gilbert: ... supporting the denial of beer to young men 18 to 21.]

JULIA: It just—yeah. Wasn't happening

[ARCHIVE CLIP, Fred Gilbert: Well, I don't have time for a parting thought. I thank you for your time.]

[ARCHIVE CLIP, Warren Burger: Thank you gentlemen. The case is submitted]

JAD: Well, you win some, you lose some. Right, ladies?

JULIA: What? No, no, no. Here comes the craziest part of the story.

JAD: Okay.

JULIA: It's like a double Trojan horse—horse within a horse. Because after the Fred Gilbert debacle, there was another case at the Supreme Court that afternoon.

[ARCHIVE CLIP, Warren Burger: We'll hear arguments next in ...]

JULIA: And it just so happened ...

[ARCHIVE CLIP, Warren Burger: 75-699. Matthews against Goldfarb.]

JULIA: ... that it was a case being argued ...

[ARCHIVE CLIP, Warren Burger: Mrs. Ginsburg?]

JULIA: ... by none other than Ruth Bader Ginsburg.

LINDA HIRSHMAN: Somehow she organized—I've now forgotten how—to get that argued the same day.

JULIA: That was on purpose?

LINDA HIRSHMAN: Yeah. Oh, yeah.

JULIA: Oh my God, that's genius.

LINDA HIRSHMAN: Yeah. No, she's a genius.

[ARCHIVE CLIP, Ruth Bader Ginsburg: Mr. Chief Justice, and may it please the court.]

JAD: Wait, you're saying she somehow managed to get herself in the court on another case on the same day?

JULIA: 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 ...

LINDA HIRSHMAN: The completely incompetent lawyer.

JULIA: ... was gonna be, you know, less than amazing.

LINDA HIRSHMAN: The court was asking him questions, and he was completely incapable of answering. So finally the court just went, "Oh, never mind." And then when Ruth stood up to argue her case, they asked her about Craig v. Boren. [laughs]

[ARCHIVE CLIP, John Stevens: We heard a case this morning, just to be concrete, involving a law that would not permit males to make certain purchases that females could make. And it was attacked as discrimination against males.]

[ARCHIVE CLIP, Ruth Bader Ginsburg: Yes.]

[ARCHIVE CLIP, John Stevens: My question is whether we should examine that law under the same or a different standard than if it were a discrimination against the opposite sex.]

[ARCHIVE CLIP, Ruth Bader Ginsburg: My answer to that question is no, in part because such a law has an insidious impact against females.]

JULIA: And then she told Justice Stephens, 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.

[ARCHIVE CLIP, Ruth Bader Ginsburg: Against females. It stamps them docile, compliant, safe to be trusted.]

[ARCHIVE CLIP, John Stevens: But your answer always depend on their finding some discrimination against females. Is it your view that there is no discrimination against males?]

[ARCHIVE CLIP, Ruth Bader Ginsburg: I think there is discrimination against males.]

[ARCHIVE CLIP, John Stevens: If there is such discrimination, is it to be tested by the same or by a different standard from discrimination against females?]

[ARCHIVE CLIP, Ruth Bader Ginsburg: My response to that, Mr. Justice Stevens, is that almost every discrimination that operates against males operates against females as well.]

[ARCHIVE CLIP, John Stevens: Is that a yes or a no answer? I just don't understand you. Are you trying to avoid the question?]

[ARCHIVE CLIP, Ruth Bader Ginsburg: No, I'm not trying to avoid the question. I'm trying to clarify the position that I don't know of any line that doesn't work as a two-edged sword.]

JULIA: 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."

[ARCHIVE CLIP, John Stevens: So your case depends then on our analyzing this case as a discrimination against females.]

[ARCHIVE CLIP, Ruth Bader Ginsburg: No, my case depends on your recognition that using gender as a classification, resorting to that classification, is highly questionable and should be closely reviewed.]

JULIA: 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.

CAROLYN WHITENER: That was really something, seeing this little woman get up.

[ARCHIVE CLIP, Ruth Bader Ginsburg: I don't know of any purely anti-male discrimination.]

CAROLYN WHITENER: I'll never forget that, because she was small.

[ARCHIVE CLIP, Ruth Bader Ginsburg: In the end, the women are the ones who end up hurting. Yes.]

CAROLYN WHITENER: She's so small in person, but she had a lot of force.

[ARCHIVE CLIP, Warren Burger: Mrs. Ginsburg, the case is submitted.]

JULIA: About two months later ...

[ARCHIVE CLIP, William Brennan: The judgment and opinion ...]

JULIA: ... December 20, 1976 ...

[ARCHIVE CLIP, William Brennan: Craig against Boren.]

JULIA: ... Justice William Brennan announces that the court ...

[ARCHIVE CLIP, William Brennan: We reverse.]

JULIA: ... is striking down the beer law.

[ARCHIVE CLIP, William Brennan: We hold that Oklahoma's gender-based differential does constitute an invidious violation of the equal protection clause.]

JULIA: 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.

[ARCHIVE CLIP, Ruth Bader Ginsburg: We wish that the court had picked a less frothy case to make that announcement, but of course we were very pleased that—after that.]

JULIA: The day the decision was announced ...

CAROLYN WHITENER: I had just came in from work. I was at home by myself there in Stillwater.

JULIA: She's by herself in the kitchen

JULIA: And the phone rings. And who calls?

CAROLYN WHITENER: Who called? National news called to tell me that we had won. I didn't ask what we had won. I didn't ask anything. I just said "Okay."

JULIA: She hung up

CAROLYN WHITENER: Stood there for a little bit, and then Craig called and he wanted me to come down and celebrate with the guys there at his fraternity. Yeah.

JULIA: She told him, "No thanks." And then she hangs up the phone, and she gets one more phone call.

CAROLYN WHITENER: And it was my husband. He was in North Carolina again, and he heard—he heard something about the case but he didn't hear it all. And he said, "What's going on now?" And I said, "We won."

JULIA: And he says, "Is it over?"

CAROLYN WHITENER: I said, "It's over. It's totally over with." He said, "Good." And he hung up. I fixed me a very good drink—vodka and coke. Sat down in the middle of the floor, and that's the way I celebrated. I drank that drink all by myself and it was over with. It was over with.

JULIA: 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.

CAROLYN WHITENER: A couple of years after we won that case, I went into China right after it opened up.

JULIA: She saved up money and went with her sister-in-law, because Dwayne didn't want to come with them.

CAROLYN WHITENER: I did. I was so curious. And we never went like the tourists went. We'd get on a train, and if we saw something we wanted to stop and see, we would stop. We never had a schedule. And I never really did go to shop. I was just curious about the people and how they lived. I saw so much and I talked to so many people while I was gone that it was like a hunger. And you grow from it. And I just wanted to see things, and that just opened the doors for me.

JAD: What happened to Carolyn in the end?

JULIA: She and Dwayne divorced in 2007.

JAD: Huh. And when you said she didn't know the effect her case had for decades, like, when did she figure it out? Like what—how?

JULIA: So in around 1996, this professor, a guy named Bob Darcy calls her up and invites her to speak at a class. And she's 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.

CAROLYN WHITENER: One of the letters—I don't know if that's the one.

JULIA: 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.

JULIA: Can you read it?

CAROLYN WHITENER: No, I don't have my glasses. You'll have to read it.

JULIA: Okay. "Dear Carolyn, as I told you in 1996 when we celebrated the 20th anniversary of Craig v. Boren, 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."

CAROLYN WHITENER: Yeah. I was gonna get that framed, but I haven't done it yet.

JULIA: Signed Ruth Bader Ginsburg.

CAROLYN WHITENER: Mm-hmm. I need to get it laminated before I have it framed.

JAD: So that was the story that we broadcast a couple years ago on More Perfect that we felt called to bring back right now in honor of Ruth Bader Ginsburg who just passed away at age 87. It's hard to imagine the world without her and without her influence. May she rest in peace. I'm Jad Abumrad. Thanks for listening.

 

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