Pro Bono Matters in On the Basis of Sex

“Kiki”¹ and Marty D. Ginsburg were equal partners in life, love, and law. Well, not in all things; Marty was the “Chef Supreme”² in the family and Kiki (aka Ruth) was not. In a 1996 speech Marty reflected on their union of more than four decades: “‘I learned very early on in our marriage that Ruth was a fairly terrible cook and, for lack of interest, unlikely to improve.’ . . . Over the years, Marty Ginsburg became a genuinely famous amateur cook, with a repertoire that ranged from French cooking, to Indian, to Italian, to Asian.”³ Ruth became a Supreme Court associate justice.

Notoriously, of course, both Ginsburgs were phenomenal lawyers. They met at Cornell University as teenage undergraduates on a semi-blind date and married as soon as Ruth graduated in 1954. Marty attended Harvard Law School (HLS) until the Army drafted him for active duty. The Ginsburgs and their daughter Jane, born in the summer of 1955, lived at Fort Sill, Oklahoma. There, the Brooklyn born and bred Cornell graduate bore witness to race- and sex-based discrimination in the local schools and restaurants and at the Social Security Administration office where she worked.⁴

Once Marty was discharged, they moved back to Cambridge and both attended HLS. After beating testicular cancer, Marty graduated in 1958 and secured a tax associate position with Weil, Gotshal & Manges LLP in Manhattan. The family moved to New York City for Marty’s career, forcing Ruth to finish her last year of law school at Columbia University. Although Ruth never did become a “Harvard Man,”⁵ she distinguished herself by serving on two top-five law reviews and graduating first (tied) in her class at Columbia Law. She also holds an honorary degree from HLS.

The movie On the Basis of Sex⁶ begins on the testosterone-dominated stairs of HLS, to the booming blare of “Ten Thousand Men of Harvard,” the still-popular Harvard fight song. Framed by the equal partnership that is the Ginsburgs’ true-love story,⁷ the movie chronicles Ruth Bader Ginsburg’s methodical path to overturning laws that discriminated on the basis of sex. Central to the movie is a pro bono tax case.

The taxpayer, Charles E. Moritz, was a 63-year-old bachelor living in Denver with his mother, B.E. Moritz. Mrs. Moritz was 89 and in poor health, suffering from arthritis, loss of hearing, lapses of memory, and other senior ailments. Despite her failing stamina and health, Mrs. Moritz refused to go to a nursing home. Because she could not care for herself, she moved into her son’s home in 1958. Charles paid for the household expenses because Mrs. Moritz’s sole annual income was less than $900, including $432 of Social Security benefits and $447 of interest income.

As time progressed, Mrs. Moritz became less and less mobile. Eventually she had to rely on a wheelchair and was incapable of basic self-care. In 1961, Charles hired Cleeta L. Stewart to oversee his mother so that he could continue to work. Charles worked as editor for the western division of the Philadelphia publishing firm of Lea Febiger. He worked regularly in his home office evaluating and editing manuscripts as well as preparing correspondence to authors. He also traveled extensively, visiting faculty authors in the life sciences on college campuses throughout his 11-state territory. Stewart provided Mrs. Moritz with daily meals, routine hygiene, and grooming and also tended to Mrs. Moritz’s mobility needs as well as other necessary personal maintenance. Charles paid Stewart $1,250 for these services in 1968. Thus, his caregiver expenses were well above the maximum amount allowed for the dependent care deduction of $600 on his 1968 income tax return under section 214(a).

Since 1954, section 214 had provided an itemized deduction for expenses for the care of dependents, to enable taxpayers to work. Taxpayers for this purpose were defined as all women, married couples, widowers, divorcees, or men whose wives were incapacitated or institutionalized. Because Charles had never been married, the commissioner denied his $600 deduction, resulting in a deficiency of $329.⁸ Charles did not concede the denial of his deduction and represented himself in the Tax Court lawsuit. Charles argued that denying the deduction to him, a devoted son rather than a devoted daughter, was “arbitrary, capricious, and unreasonable.”⁹

In the October 1970 opinion, Judge Norman O. Tietjens responded that Charles’s constitutional objection was “not well taken.” Tietjens explained that a deduction is a matter of legislative grace and that if Congress decides to limit it to one class of persons, “there is no offense to the Constitution if all members of one class are treated alike.”¹⁰ Tietjens noted that the legislative history demonstrated that Congress did consider providing the deduction to all single people but decided against it as evidenced by the final statute. Tietjens closed by stating that Charles’s remedy should come from Congress and not the Tax Court. Tietjens retired from the Tax Court in 1971, but his words were prophetic because Congress amended the statute to include never-married men

Enter acclaimed tax attorney Marty Ginsburg (played by the rather tall and handsome Armie Hammer). After reading Tietjens’s holding on advance sheets, Marty shared the case with his increasingly frustrated law professor wife. Ruth had not been able to secure an associate position after law school despite excellent grades and clerkship experience, and had reluctantly joined a law faculty rather than actually practicing law. Ruth even more reluctantly read Marty’s “tax case.” Immediately recognizing an opportunity to argue that section 214 wrongfully discriminated on the basis of sex (albeit against males), Ruth responded, “Let’s take it!” Marty and Ruth partnered with the American Civil Liberties Union, as the representative pro bono organization, and Weil, Gotshal & Manges as of counsel on the brief. The Ginsburgs, with Marty focusing on the tax issues and leaving the constitutional issues to Ruth, jointly argued the case before the Tenth Circuit.

However, first they had to secure the taxpayer’s authorization for representation. To achieve this goal, they had to persuade Charles to appeal his adverse decision. In the movie, Ruth first contacts Charles via a telephone call, and then after a cross-country flight visits him (and his then 90-plus year-old mother) at his home in Denver. Chris Mulkey plays Charles and gives an excellent performance that should resonate with pro bono tax advocates. Charles is skeptical and reluctant to reopen his failed pursuit of tax justice.

For a significant part of his face-to-face conversation with an enthusiastic, youthful, and persistent Ruth, Charles seems weary, beaten down, and even humiliated by the daily challenges of caregiving, grimacing at the thought of revisiting the degradation of being told by the federal government that he, a hardworking taxpayer and dedicated son, was a tax cheat. Ruth appeals to his core ideals and well-constructed (albeit failed) initial argument that he was and is a deserving taxpayer for the caregiver deduction under a fair, just, and equal tax system. Not surprisingly, Ruth persists despite Charles’s warranted weariness and sense of defeat.

Once persuaded to appeal the adverse decision, like many pro bono clients, Charles’ case developed into more than a pressing financial issue or legal decision, and the case consumed his life as well as his sense of right and wrong; a reflection of his personal integrity, self-respect, and dignity. It exhausts his precious energy, time, peace, and comfort. But, of course, that is life; his daily work and caregiving demands continue.

Ruth and Marty filed their brief in April 1971, and argued the case¹¹ in the Tenth Circuit before judges William J. Holloway, William E. Doyle, and Fred Daugherty in October 1971. Ernest J. Brown, Ruth’s former law professor at Harvard; Johnnie Walters, the South Carolina Republican who served as the IRS commissioner and heroically withstood the Nixon White House attempts to demand audits of 200 Democrats; and Meyer Rothwacks are listed on the opinion as representing the government. In the court’s opinion, issued in November 1972, Holloway, with concise clarity, writes the unanimous decision overruling the Tax Court and holding for Charles E. Moritz.

The short opinion discusses three issues. First, Holloway determines that despite the government’s new allegation that Charles had failed to demonstrate that his expenses were incurred to enable him to work, the stipulated facts provide adequate evidence that they were. While Charles’s expenses qualified for the maximum caregiver deduction under section 214, it did not apply to him because, as a never-married man, he was not a qualifying taxpayer.

Second, the denial of the caregiver deduction to Charles under section 214 was a classification “premised primarily on sex” that must be scrutinized under equal protection principles.¹² After reviewing the reasoning for the sex discrimination, the court concluded that the discrimination was invidious and invalid under due process principles. The sex discrimination (excluding never-married men) did not have “a fair and substantial relation to the object of the legislation” — that is, economic relief for the cost of caregiving that enables taxpayers to work. Finally, the court determined that it could invalidate the discriminatory provision in section 214 so that “the benefit of the deduction generally provided by the statute” would “be extended to the taxpayer.”¹³

The Tenth Circuit held that Charles should qualify for the caregiver’s deduction and receive a federal subsidy for $600 of annual expenses in 1968. Bottom line, Charles Moritz received the recognition and respect that he felt he deserved for providing a home and necessary care for his infirm mother so he could work to provide for his “exceptional” family. Notably, in late 1971 (after the Ginsburgs argued the case, but before the Tenth Circuit issued its opinion) Congress agreed and amended section 214 to broaden the caregiver deduction to all taxpayers, but only for tax years after 1971. Section 214 was repealed for tax years after 1975 and replaced with the precursor to the current household expenses and dependent care credit under section 21.

As for the Ginsburgs, the government tried to appeal the Tenth Circuit’s Moritz decision, but the U.S. Supreme Court denied the writ of certiorari. In his appeal, former HLS dean and then U.S. Solicitor General Erwin Griswold¹⁴ attached as an appendix a list of hundreds of sex-based laws that he argued were at risk of being overturned after Moritz. This laundry list of laws that discriminated on the basis of sex became Ruth’s “litigation agenda” for the next decade. Indeed, upon receiving the 2006 Distinguished Service Award from the American Bar Association Section of Taxation, Marty Ginsburg noted that his “distinguished service” award must be for his delivery of the Moritz tax case to his beloved life partner.¹⁵

In his own words:

In bringing those Tax Court advance sheets to Ruth 36 years ago, I changed history. For the better. And, I shall claim, thereby rendered a uniquely distinguished service. I have decided to believe it is the service for which you have given me this great award. And even if you had something a little less cosmically significant in mind, I am immeasurably grateful to be so greatly honored by my peers.¹⁶

Marty Ginsburg died at age 78 in 2010 from metastatic cancer, just one week after the Ginsburgs celebrated 56 years of an equal, loving, and legal partnership. Martin David “Marty” Ginsburg is buried in Arlington Cemetery, and his headstone reads: “Caring Citizen, Advocate, Teacher, and Family Man.”

From Marty’s equal and prominent co-counsel, Ruth Bader Ginsburg¹⁷:

As lawyers, you [will] have a skill that enables you to contribute to your community. You can do things with your skill to make life a little better for less privileged people, better than it might be if you were not contributing your time and talent. . . . There is no greater satisfaction you can have than to give something to the community.

Pro bono tax matters.¹⁸