What the RBG Biopic Is (and Isn’t) About

In July, when Focus Features began ramping up promotion for its forthcoming film On the Basis of Sex, many news sources reported that Felicity Jones would play a young Ruth Bader Ginsburg as she went to court in Weinberger v. Wiesenfeld. In that 1975 case, a father whose wife had died during childbirth fought for the Social Security survivor benefits that he needed to raise his son in her absence.

Weinberger v. Wiesenfeld challenged laws that were stuck in a pre-feminist past, one that made those benefits available to widows but not widowers, as if all marriages were between a man as breadwinner and a woman as homemaker — and only the latter would need to see an income replaced after a spouse’s death.

RBG understood early on that men, too, were hurt by gender discrimination.

It may be a fitting testament to Ginsburg’s role in many important gender discrimination cases that when those news sources looked for clues from a trailer and other promotional materials, they made a false match, concluding incorrectly that Weinberger v. Wiesenfeld would provide the plot for On the Basis of Sex. Vanity Fair, the Washington Post, and Teen Vogue were among the media companies that made the understandable mistake.

In an interview in February, Ginsburg herself had told Forward that the film would focus on another landmark case, Charles E. Moritz v. Commissioner of Internal Revenue. Focus Features confirmed as much when the need for corrections in other, later articles became apparent.

The Moritz and Weinberger cases have a lot of similarities. Both involved male plaintiffs who challenged laws that were based on antiquated ideas of gender roles, notions that were quickly becoming less relevant and less realistic as more women entered the workforce, often turning single-earner households into dual-earner households, and at other times becoming their household’s sole income-earner. Both cases deserve a look — even if it was only by accident that a Ginsburg biopic brought renewed attention to one of them.

Charles E. Moritz v. Commissioner of Internal Revenue

Tax law is usually too dry a subject for Hollywood to touch, but Moritz v. Commissioner of Internal Revenue was likely chosen for RBG’s biopic since it provides an origin story of sorts. The case marked the first time Ginsburg wrote a legal brief on gender discrimination. It would also be the first time a federal court declared part of the Internal Revenue Code unconstitutional.

Ruth Bader Ginsburg in 1977. Photo: Lynn Gilbert

After finishing Columbia Law School in 1959, Ginsburg joined the faculty at Rutgers Law School. By the late 1960s, she was also working with the ACLU on litigation. In the fall of 1970, she took a client named Charles Moritz, who was an editor and lifelong bachelor who was caring for his mother. Ginsburg’s husband Martin, along with the ACLU, would join her in representing Moritz in a case against the Internal Revenue Service.

Moritz’s problems started when he took a deduction on his federal tax return for elder care. That deduction was available to widows and other women — or to divorced men — for the care of children or other dependents such as aging parents. It was not, however, available to men like Moritz who had never been married.

The reasoning behind the eligibility requirements seemed to be a relic from the past. Had he been an unmarried woman caring for a dependent mother or father, he could have claimed the deduction. It reflected the enshrined idea that women are homemakers and caregivers rather than wage-earners.

Ginsburg argued that the distinction was irrational and discriminatory, that “it is presumptively impermissible to distinguish on the basis of congenital and unalterable biological traits,” such as sex, and that it “clashes with contemporary notions of fair and equal treatment.” The U.S. Court of Appeals for the 10th Circuit agreed, citing the Fifth Amendment and stating that “where treatment accorded is based on sex,” it should be “subject to scrutiny under equal protection principles.”

Weinberger v. Wiesenfeld

Moritz served as the springboard that would bring Ginsburg to found the ACLU’s Women’s Rights Project. The project, though, didn’t always fight for gender equality by representing women. Like Moritz, one of Ginsburg’s next cases would involve a male client — and once again it would involve a fight for a federal benefit that was exclusive to women.

Stephen Wiesenfeld and Paula Polatschek met in 1969, and they quickly became serious enough that Paula left New York to find a job closer to Stephen in New Jersey. She would teach math at a local high school, and her salary became their principal source of income when the two of them married in 1970 — especially as Stephen took considerable time away from his consulting business to build a house for the two of them.

Not long after they settled into life together, they learned that Paula was pregnant. Though she had a healthy pregnancy, she died in labor from an amniotic embolism, leaving Stephen the sole provider for their son Jason.

To replace Paula’s income, Stephen applied for Social Security benefits for himself and his son. He was subsequently informed that only his son could receive them. Eventually, after sharing his story with others, a Rutgers professor referred him to the ACLU. Ginsburg took the case with considerable interest in the implications. She saw two levels of discrimination in the relevant Social Security code: first against women like Paula, whose Social Security deductions didn’t reap the same payouts to their surviving family members; and second against men like Stephen, who would be eligible beneficiaries if not for their sex.

Ginsburg argued Stephen’s case before the Supreme Court on January 20, 1975. The court delivered a unanimous decision two months later. Justice William Brennan, commenting on the existing law, explained that it allowed women “to devote themselves to the care of children” instead of working outside the home, while men did not have the same flexibility. The court decided the law was unconstitutional, noting, in Justice Lewis Powell’s words, that “a surviving father may have the same need for benefits as a surviving mother.”

The Legal Legacy of RBG

Though Weinberger v. Wiesenfeld was not the chapter in Ginsburg’s life that was chosen for On the Basis of Sex, it just as easily shows the rigid ideas about gender that have been embedded in our laws — notions that Ginsburg made it a mission to dismantle.

When she represented Charles Moritz, Ginsburg was aware that the court might find it novel that she was bringing a male client in a sex discrimination case. Not wanting it to be dismissed as a gimmick, she addressed the issue directly in her legal brief. She wanted to demonstrate that discrimination against either sex could be a detriment to both — because “the constitutional sword necessarily has two edges.” Therefore, “fair and equal treatment for women means fair and equal treatment for members of both sexes.” (For those who might cringe today at a phrase like “both sexes,” Ginsburg’s views on protections for nonbinary or intersex people are largely up for speculation, but she did support a court order to allow a transgender student in Virginia to use the bathroom of his choice — suggesting she does see sex as more than just two immutable categories.)

Reproductive justice requires a legal system that understands the many dynamics of caregiving, income-earning, and responsibility that are possible within a family — and understands the possibility that many individuals, like Charles Moritz, might not start a family. Whether people choose to be parents or other caretakers, and whether they share those responsibilities with a partner, are liberties with a wide spectrum of possible outcomes — and those liberties are at odds with laws that take a one-size-fits-all approach.

Ginsburg has played a monumental role in reshaping our laws to respect the personal choices and aspirations of people, regardless of gender. Weinberger was just one of six gender discrimination cases that she took to the Supreme Court in the 1970s. Ginsburg’s influence would later take on new significance when she was appointed to the Court of Appeals for the District of Columbia in 1980, and then to the Supreme Court in 1993. On the Basis of Sex pays tribute to RBG in her 25th year on the Supreme Court.

Felicity Jones had some big shoes to fill when she took on the lead role in the film. Her portrayal opens in theaters on December 25.