This past week, I saw my second Ruth Bader Ginsburg movie, the first being the documentary “RBG.” I wondered whether “On the Basis of Sex” would be redundant or overly Hollywood-ized. It wasn’t. Besides being awed again at her ability and stamina, I was struck by the case that was at the movie’s core, Moritz v Internal Revenue Service, her first case involving sex discrimination.
Charles Moritz was a bachelor who paid a caregiver to look after his elderly mother, a dependent, who lived with him, when he traveled on business, which was often. He was denied a tax deduction for that expense. Had he been a never-married woman in the same situation, it would have been allowed. In 1972, over a year after argument, the Tenth Circuit Court of Appeals ruled in favor of Moritz, noting that the “invidious discrimination based solely on sex” violated the Fifth Amendment’s guarantee of due process. Meanwhile, in 1971, Reed v. Reed, a case which built on Ginsburg’s arguments, marked the first time the Supreme Court struck down a law on the grounds of sex discrimination, finding that it violated the equal protection guarantee of the 14th Amendment.
What struck me in particular as I sat in the theater was that this was all going on while I was in college. I remember the Help Wanted ads that were explicitly divided into male and female jobs. I remember the career guidance test we took in high school which was similarly divided (the teachers at our all-girls school made certain we were scored for both “male” and “female” careers). Also in 1970, marital rape was legal, women could always be fired for becoming pregnant, women could not have their own credit cards, and some states did not allow women to serve on juries. This was all true as I entered adulthood. This is not ancient history to me.
Laws necessarily reflect the values of the society in which they are enacted. This is clearly illustrated in this week’s Torah portion, Mishpatim (statutes). (You knew I’d get to it eventually.) After three action-packed, popcorn-worthy weeks, the Israelites are given about 53 laws, roughly divided into three sections. First (21:2-22:16), there are civil and criminal laws pertaining, for example, to Hebrew slaves, homicide, assault, mistreatment of parents, assault, kidnapping, damage caused by livestock, and the like. Penalties include restitution, fines, and death. This section also includes (Ch. 21) “23 But if other damage ensues, the penalty shall be life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, bruise for bruise.” This is the first of three times we’ll see this general formula in the Torah. It actually prescribes “appropriate compensation,” not maiming.
The second section (22:17-23:19) addresses moral and compassionate behavior, such as returning lost items, judging fairly, and taking care of the needy. There are also brief mentions of dedicating the firstborn to the Lord and the three harvest festivals (for when they are in Canaan). The third section (23:20-33) reviews divine promises and sternly warnings against adopting Canaanite ways.
Two statements in “On the Basis of Sex” caught my attention. “We must not be guided by the weather of the day, but by the climate of the era.” This is an argument that recognizes that social concerns are inextricably entangled with the law. Sometimes, the law needs to change to correct an injustice. Sometimes, it must not change, so as to hold the line against injustice. And sometimes it is not until later that a legal injustice is recognized. Slavery, sex discrimination, the restrictions on Jews for centuries in Europe, the Inquisition, apartheid – all were legal practices.
The other intriguing statement was the engraving over the Tenth Circuit’s bench: “Reason is the soul of all law.” We would like to think so, but too many laws are formulated to cement or redistribute power. And “reason” needs to be combined with compassion, as we see in the plethora of laws in Mishpatim.
The people (naively?) tell Moses (24:7), “All that the LORD has spoken we will faithfully do!” they will obey the laws they’ve been given. God commands Moses (24:12) to go up the mountain “to get stone tablets with the teachings and commandments which I have inscribed to instruct them.” Moses leave Aaron and Hur in charge. But what could possibly go wrong in a mere 40 days?
When men are pure, laws are useless; when men are corrupt, laws are broken.
Benjamin Disraeli (1804-1881) British politician and author.
The law isn’t justice. It’s a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be.
Raymond Chandler (1888-1959) U.S. writer of detective fiction.
Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.
Martin Luther King Jr. (1929-1968) American black leader.
Laws and institutions, like clocks, must occasionally be cleaned, wound up, and set to true time.
Henry Ward Beecher (1813-1887) American politician.
The law was made for one thing alone, for the exploitation of those who don’t understand it, or are prevented by naked misery from obeying it.
Bertolt Brecht (1898-1956) German writer.
From 2014 from The Best Ever Book of Good Clean Jokes
By Bob Phillips
p. 56 I once saw a movie so bad six states use it in place of capital punishment.
p. 130 Mrs. Franklin had been called for jury duty. She declined to serve because, she said, she did not believe in capital punishment. The judge tried to persuade her to stay. “Madam,” he said, “this is not a murder case. It is merely a case in which a wife is suing her husband because she gave him $4000 to buy her a new fur coat and he lost it all at the race track instead.”
“I’ll serve,” agreed Mrs. Franklin. “I could be wrong about capital punishment.”
DON’T MESS WITH THE JUDGE
There were three men at a bar. One man got drunk and started a fight with the other two men. The police came and took the drunk guy to jail. The next day the man went before the judge. The judge asked the man, “Where do you work?”
The man said, “Here and there.”
The judge asked the man, “What do you do for a living?”
The man said, “This and that.”
The judge then said, “Take him away.”
The man said, “Wait, judge when will I get out?”
The judge said to the man, “Sooner or later.”
Lawyer and Court Jokes
This from the current Texas Bar Journal (from a trial transcript):
The Court: Next witness.
Ms. Olschner: Your honor, at this time, I would like to swat Mr. Buck in the head with his client’s deposition.
The Court: You mean read it?
Ms. Olschner: No sir, I mean swat him in the head with it. Pursuant to Rule 32, I may use this deposition for any purpose, and that is the purpose for which I want to use it.
The Court: Well, it does say that. (pause) There being no objection, you may proceed.
Ms. Olschner: Thank you, Judge Hanes. (whereupon Ms. Olschner swatted Mr. Buck in the head with the deposition.)
Mr. Buck: But, Judge.
The Court: Next witness.
Mr. Buck: We object.
The Court: Sustained. Next witness.
The following is a courtroom exchange between a defense attorney and a farmer with a bodily injury claim. It came from a Houston, Texas insurance agent.
Attorney: “At the scene of the accident, did you tell the constable you had never felt better in your life?”
Farmer: “That’s right.”
Attorney: “Well, then, how is it that you are now claiming you were seriously injured when my client’s auto hit your wagon?”
Farmer: “When the constable arrived, he went over to my horse, who had a broken leg, and shot him. Then he went over to Rover, my dog, who was all banged up, and shot him. When he asked me how I felt, I just thought under the circumstances, it was a wise choice of words to say I’ve never felt better in my life.”