by Christina Sandefur
January 22, 2019
On the Basis of Sex, the new biopic that explores the early career of Supreme Court Justice and civil rights crusader Ruth Bader Ginsburg, opened nationwide this month. While the film is a tad overdramatic and embellished at times, it provides an interesting and surprisingly accurate depiction of how public interest law organizations like the Goldwater Institute (or, in the film, the ACLU) do their work.
For starters, it’s one of the few films I’ve seen with a “moot court” scene – where lawyers practice their oral arguments in front of colleagues and allied attorneys who pretend to be judges. In On the Basis of Sex, Ginsburg (played by Felicity Jones) is preparing for her first oral argument, and the filmmakers are spot on in their depiction of the stress of making measured legal arguments that will persuade judges, rather than just saying what one thinks – even if it’s “the right thing to do.”
Another refreshing aspect of the film is that, rather than focusing exclusively on the lawyers, it also explores the role of plaintiffs—the real-life heroes who put their names, privacy, and sometimes their livelihoods on the line, to fight not just for their own freedom, but for the freedom of all who are similarly situated. It takes a great deal of courage to stand up to the government, and it is because of our clients’ bravery that we can take the government to court and protect our constitutional rights.
Consider, for example, Lauren Boice, a former hospice nurse’s assistant and cancer survivor who established Angels on Earth Home Beauty to connect elderly and terminally ill patients with independent, licensed cosmetologists who could perform haircuts, manicures, or massages for them right in their homes. Lauren herself did not practice cosmetology or treat clients; her business merely provided a means of communication between homebound customers and licensed cosmetologists. Yet the Arizona Board of Cosmetology threatened to shut down her business and subject her to fines and even jail time unless she complied with a host of cosmetology regulations—regulations that were designed for beauty salons, not for people who just booked home visits. Cosmetology bureaucrats even demanded that she open a physical salon location, even though her homebound clients would never set foot inside. When the Board refused to back down, we took Lauren’s case, during which she fought not only for her right to run her business, but to prevent the Board from threatening other entrepreneurs in the future.
As the film illustrated, these legal battles are not won overnight—they are fought over the course of years, sometimes decades, and it often takes many cases to accomplish a big change. Lauren spent years in court just to arrive at the commonsense conclusion that a cosmetology board doesn’t have the power to regulate a phone dispatch business. But she was victorious—and her lawsuit didn’t just save Angels on Earth—the Board also agreed to a binding settlement assuring it would never regulate Lauren or other businesses like hers. This victory inspired the Arizona legislature to pass a law that requires government to prove some real risk to the public before it can restrict an entrepreneur’s freedom. That means that people like Lauren can focus on building their businesses and serving their clients rather than navigating a labyrinth of bureaucratic red tape.
Though the lawsuit featured in On the Basis of Sex was about Charles Moritz, who was denied a $600 tax deduction for caregiver expenses because he was an unmarried man, Felicity Jones’s Ginsburg recognizes the case’s far-reaching potential: “You must see the opportunity this case represents, for men and women both,” she says—and indeed, Moritz’s case paved the way for scores of gender-discrimination lawsuits, many argued by Ginsburg herself, including some that made their way to the Supreme Court. As in Boice’s case, this momentum inspired what the real Justice Ginsburg called “a conversation between the Court and the Legislature” that led federal and state lawmakers to repeal or amend “hundreds of laws . . . that classified overtly on the basis of gender.”
Individual lawsuits are about so much more than the particular facts of the case. They represent an opportunity to stand up for the countless others affected by burdensome regulations and unjust laws. On the Basis of Sex is a superb introduction to the nuts-and-bolts of litigating for a cause—and a fine tribute to not only to one path-breaking lawyer, but to the brave men and women she represented.
Christina Sandefur is Executive Vice President at the Goldwater Institute.