We stood on their shoulders. As balance shifts, we wonder if they are strong enough for us now
In the late 1970s I took Major League Baseball to federal court and won. The charge: gender discrimination. The remedy: equal access for women reporters to interview teams in the same place their male peers did.
As a baseball reporter with Sports Illustrated, I’d watched male reporters troop into locker rooms to talk with players, coaches and managers. At the 1977 World Series, Major League Baseball Commissioner Bowie Kuhn certified my unequal status by banning me from ever going into any team’s locker room. At first, we tried negotiating with Kuhn, but when he refused to budge, Time Inc. turned to legal action, filing Ludtke v. Kuhn with Manhattan’s U.S. Southern District Court in December 1977.
By its custom of randomly assigning judges, the court assigned Constance Baker Motley to my case. In her courtroom in April 1978, I did not appreciate how her groundbreaking efforts as an NAACP Legal Defense and Education Fund attorney built the legal scaffolding on which my case stood. She was the first Black woman to sit the federal bench (Lyndon Johnson appointed her), but I didn’t understand the breadth and significance of the court decisions in her racial discrimination cases. Nor, back then, did I know that Ruth Bader Ginsburg, after Motley’s time as a civil rights attorney, had directed the ACLU’s Women’s Rights Project and with surgical precision had chosen cases that led to the Supreme Court raising the level of judicial scrutiny for gender discrimination in 1976, one year before my case was filed.
On Sept. 25, 1978, Motley ruled in my case, saying that Kuhn’s action had violated my equal protection and due process rights guaranteed by the 14th Amendment. He had, she wrote, “substantially and directly” interfered with my “liberty” to pursue my profession as a sports reporter.
Because of Motley and Ginsburg, I came of age in hopeful times, when America showed signs of becoming a fairer and more just nation. By then, the civil rights movement had altered societal attitudes and secured legal protections, and those legal principles were on their way to becoming cornerstones in gender discrimination cases such as mine.
As the 26-year old plaintiff in Ludtke v. Kuhn, I did not know that in advancing equal rights Motley and Ginsburg faced down the doubters and overcame huge obstacles. When Motley argued cases in Southern courts, the press referred to her as “that woman,” not by name. She was forbidden to sleep in nearby hotels or use the bathroom in courthouses. As a Black woman with the legal acumen that threatened white supremacy, she faced mortal danger. Undeterred, she argued high-profile cases against segregation and, when she lost in Southern state courts, she appealed to the U.S. Supreme Court, winning nine of 10 cases she argued and setting enduring precedents.
In the early to mid-1970s, Ginsburg brought gender discrimination cases before judges who were nearly all white men. They scoffed at her proposition that gender warranted a strict level of judicial scrutiny similar to race. She persisted. With astute strategizing of cases, her arguments led U.S. Supreme Court Justice William Brennan in 1976 to raise the level of judicial scrutiny applied to gender. Her major victory reverberates today.
In securing equality under the law, Motley and Ginsburg changed us, as a people, and as a nation. “Protests are important,” Ginsburg once said, “but changing the culture means nothing if the law doesn’t change.” After Jim/Jane Crow laws fell, shifts in cultural norms and societal attitudes showed early promise. In intervening decades, however, we’ve had deep dips and gross oversights in our commitment to securing equal rights. Racial divides and gendered issues roil our nation, again, as clear remedies for injustices elude us. Stoked by the politics of insult and incivility, I feel the backsliding in public and personal interactions and question if those hard-won legal precedents of the mid-20th century are strong enough to carry us across our odious divides.
With national elections ahead, voting can be a critically restorative measure. But outside of the voting booth, on what vehicles can we rely? The U.S. Senate is resolute in putting on the Supreme Court a strong conservative justice, which doesn’t portend well for maintaining, not to mention advancing, racial and gender equality. If the courts are no longer protective places to go seeking justice, as they were in Motley and Ginsburg’s time, where do we go?
We see protests multiplying, but I see their impact dissipating, especially as Republicans use them as foils for their law-and-order campaigns. Mass gatherings regenerate moral courage and strengthen resolve, and as Robert Putnam and Malcolm Gladwell remind us (and our digital captivity confirms), such associations are a reliable and mighty lubricant for societal change.
Television shows such as “All in the Family” and “Mary Tyler Moore” once reframed societal thinking and shifted social mores. And music and film, art and theater touch hearts and change minds in ways that advance justice. But as digital media manipulate and prod us into our silos of agreement, they widen our divides. Mass media’s unifying power is long gone.
With trust in our institutions eroded, political fractures have stolen hope for bold legislative leadership. It’s left to “we the people” to mend our nation. Our nation’s founders set forth equality as a bedrock principle though it took two centuries for us to live up to that promise across race and gender, and still we fail too often. Yes, we’ve made progress, yet perfecting justice for all must be on-going work of each generation.
Cantabrigian Melissa Ludtke was the plaintiff in Ludtke v. Kuhn, the federal court case that opened locker rooms to women sports reporters in 1978. She’s writing a social history narrative about her case called “Locker Room Talk: A Woman’s Struggle to Get Inside.”