David Adler: Allen Derr was a lawyer's lawyer who championed 'true equality'

June 13, 2013 

American constitutional heroes usually are ordinary citizens who by dint of their vision, courage and sense of justice have achieved extraordinary goals through challenges to our legal system.

They come in different shapes, sizes and ages. Myra Bradwell of Illinois prevailed in her claim that women have a constitutional right to practice law. Clarence Earl Gideon persuaded the Supreme Court that the Sixth Amendment right to counsel extends to state cases. Estelle Griswold of Connecticut convinced the court that women, by virtue of the right to privacy, enjoy the right to use contraceptives.

The 14th Amendment was a full century old when Boise attorney Allen Derr, on behalf of his client Sally Reed, persuaded the Supreme Court that the Equal Protection Clause prohibits gender discrimination. When, in 1971, in the landmark case of Reed v. Reed, the court struck down an 1864 Idaho statute that preferred men over women in administering estates, it vindicated the efforts of two Idahoans who sought to topple the barriers of sex discrimination in America.

With the help of Ruth Bader Ginsburg, then an ACLU attorney and now a Supreme Court justice, the three constitutional heroes changed the face of American law in the area of discrimination against women. Given the state of judicial decisions at the time, it was a monumental achievement.

Supreme Court interpretations of the 14th Amendment on the issue of sex discrimination began to change, somewhat surprisingly, after Warren Burger replaced Earl Warren as chief justice. The likely impetus for the shift was the overwhelming passage in October 1971 of the proposed Equal Rights Amendment in the U.S. House of Representatives, by a vote of 350-15. Proponents of the ERA justly argued that a constitutional amendment was necessary because the Supreme Court had failed in its responsibility to protect the rights of women. Champions in the House entered a simple plea: Judge women as human beings.

One month later, on Nov. 22, 1971, the court delivered a ruling in Reed v. Reed that embraced Derr's arguments and held that the Idaho statute arbitrarily discriminated on the basis of sex and violated the Equal Protection Clause. The ruling in Reed unleashed a cascade of subsequent decisions in which the court gradually dismissed sexual stereotypes as relics of an earlier age. Discrimination, the court later observed, had placed women "in a cage."

Derr, who died on Monday, was a lawyer's lawyer, a constitutional hero who championed what he called "true equality" for women. A quiet, low-key man of considerable modesty, Derr deflected the attention showered on him by the National Press Club on the occasion of the 40th anniversary of the decision. "I was just doing my job," he explained.

Kind and thoughtful, and observant of the shifting tides of public affairs and commentary, Allen had sent me over the years compliments for something that I had said in a speech or written in an op-ed piece. Warm notes from a venerable attorney, whom I admired but did not know well, brought a much-needed shot in the arm for an academic who had dared to challenge governmental officials or conventional thought.

For those who are committed to a great cause such as liberty or justice, achievement of victories or even landmark victories might never be enough, because those who have climbed great mountains are aware of greater peaks that remain to be scaled. In an interview in 2011 with Boise State public radio, Derr expressed his wish that more had been done to achieve "true equality for women." He had done as much as any man could, and a great deal more than most, but still he glimpsed the gaps in practice and law that marked the points of discrimination between men and women.

America has made progress in the area of gender discrimination, but not nearly enough. As Derr said, "We're not there yet." No, we're not where we should be, not as long as women are not paid equally for equal work, and not as long as glass ceilings impede the further progress of women in the worlds of business, industry and finance. But with the vision and commitment of citizens like Allen Derr, we're much more likely to "get there."

Adler is the director of the Andrus Center for Public Policy at Boise State University, where he holds appointment as the Cecil D. Andrus professor of Public Affairs. An adjunct professor of law at the University of Idaho, Adler has lectured nationally and internationally on the Constitution, the presidency and the Bill of Rights.

Editor's note: Because of a production error, a photo of Allen Derr did not appear in the photo box with the editorial on Wednesday's Opinions page. We apologize.

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