Top General Mourns Passing of Ginsburg, Who Pressed for Military Gender Equality

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Chairman of the Joint Chiefs of Staff Gen. Mark Milley testifies.
Chairman of the Joint Chiefs of Staff Gen. Mark Milley testifies during a House Armed Services Committee hearing on Thursday, July 9, 2020, on Capitol Hill in Washington. (Michael Reynolds/Pool via AP)

Joint Chiefs Chairman Gen. Mark Milley joined in mourning the passing of Supreme Court Justice Ruth Bader Ginsburg, whose landmark rulings and lifetime of advocacy for gender equality had a major impact on the military.

Under the heading "Equal Justice Under the Law," the phrase engraved at the entrance to the Supreme Court, Milley said on Twitter that Ginsburg's death Friday at age 87 was a "great loss for the country" and for the "scores of people she taught and inspired."

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"She was an exceptional legal scholar, a selfless public servant and a role model," he said in a Twitter post put out by the Joint Staff shortly after Ginsburg's death.

In her most recent vote on the court with implications for the military, Ginsburg in June joined with the majority in a 6-3 ruling that a 1964 statute against workplace sex discrimination also applies to transgender rights.

The majority opinion -- written by Justice Neil Gorsuch, a nominee of President Donald Trump, and joined by Chief Justice John Roberts -- gave support to lawsuits seeking to overturn the military's current restrictions on transgender service, according to advocacy groups.

The ruling "has great significance for the ban" on transgender military service ordered by Trump, said Jennifer Levi, of GLBTQ Legal Advocates & Defenders (GLAD).

Ginsburg's first arguments for gender equality in the ranks came in 1971 as a lawyer representing the American Civil Liberties Union on behalf of Air Force Capt. Susan Struck in the case of Struck v Secretary of Defense.

At her Senate Judiciary Committee confirmation hearing in 1993 for nomination to the Supreme Court, Ginsburg testified that she "first thought long and hard" about abortion rights in advocating for Struck, who learned that she was pregnant while serving as a nurse in Vietnam.

Ginsburg told the committee that the Air Force's move to discharge Struck for being pregnant was unconstitutional.

She said the Air Force's position that "if you are pregnant, you are out unless you have an abortion, violated the equal protection principle, for no man was ordered out of service because he had been the partner in a conception, no man was ordered out of service because he was about to become a father."

Struck eventually had the child, and the Supreme Court put her case on its docket for 1972. However, the case became moot when the Air Force reversed course on the discharge and allowed her to continue to serve.

In what was, perhaps, Ginsburg's best known and most important ruling from the bench on the military and women's rights, she wrote the majority opinion in 1998 striking down the Virginia Military Institute's long-standing all-male tradition.

In her opinion, Ginsburg demonstrated the ability to cut through legal smokescreens with a simple statement that went to the heart of the case.

She wrote that VMI was state-funded and, while Virginia "serves the state's sons, it makes no provision whatever for her daughters. That is not equal protection [under the law]."

In 2017, Ginsburg gave an address at VMI, which by then included 194 women cadets in the student body of 1,700.

She noted that the ruling in the VMI case was 7-1, with the lone dissent coming from Justice Antonin Scalia, the strict constructionist who was close friends with Ginsburg despite their differences on the law.

There probably would have been two dissents in the VMI case, but Justice Clarence Thomas, who had a son at VMI at the time of the ruling, recused himself.

The somewhat "odd couple" relationship of Ginsburg and Scalia possibly had its roots in that they were both New Yorkers.

Ginsburg was from Brooklyn and a graduate of James Madison High School; Scalia was from Queens and a graduate of Xavier High School, a Jesuit-run military school. They bonded over their love of opera and often attended performances together.

In her remarks at VMI, Ginsburg couldn't resist telling how she put one over on her friend in the VMI case.

As she was drafting her majority opinion before the ruling, Ginsburg said Scalia dropped by her chambers to show her a draft of his dissent to give her time to respond.

"The ultimate opinion was much better than the first draft because he picked up on all of the soft spots and enabled me to make it even stronger than it would have been absent his attention-grabbing dissent," she said to laughter from the cadets.

On a Saturday campaign swing in North Carolina, Trump said that he would likely announce the nomination of a candidate to succeed Ginsburg this week, adding that his choice will be a woman.

His decision to move quickly on the nomination is certain to have a major impact on the November elections.

-- Richard Sisk can be reached at Richard.Sisk@Military.com.

Related: Supreme Court Justice Ruth Bader Ginsburg Dies at 87

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