Herma Hill Kay

August 18, 1934 – June 10, 2017 

“How to make trouble without being a troublemaker, that describes my style.”

Salute to Feminist Lawyers, Veteran Feminists of America, Harvard Club, NYC, June 9, 2008

HHK: I was proud to be in the audience on August 1093, when, as Justice Ginsburg remembered for the first time in American history, a female Attorney general, Ms. Janet Reno, presented the President’s Commission to the Supreme Court to seat a female justice. Justice Ginsburg, Ruth, a tireless advocate for equality between men and women, was my friend and co-author on the first published US. Casebook on sex-based discrimination, which had appeared in 1974. Ruth and I and our co-author Kenneth Davidson began our collaboration at a time when there was very little law on the subject of sex discrimination.

What there was, was mostly wrong. We had a few Supreme Court cases about women’s place being in the home and decidedly not in the courtroom statutes that unapologetically drew lines based on sex, covering everything from jury service to child custody and featuring protective laws that kept women firmly in their place. We set out to publish a casebook that would help change those backward-looking laws. Unlike other casebook editors, however, we couldn’t simply look for progressive material to put in our book. We had to create it ourselves.

As chief of the Women’s ACLU Rights Project, Ruth and her team scoured the country for cases with the potential to change those bad precedents. As has been mentioned of the Supreme Court cases decided in the 1970s that created the intermediate scrutiny standard in equal protection challenges based on sex discrimination. Ruth briefed nine, argued six and won five. We featured those cases in the Constitutional law chapter of our book. Meanwhile, I was working on the statutory reform front on Abortion and Divorce in California.

Our efforts persuaded the legislature to enact one of the nation’s first therapeutic abortion statutes in 1967 and to lead the country into the no-fault divorce revolution in 1970. As co-reporter of the Uniform Marriage and Divorce Act, I helped draft a statute which ultimately led to a nationwide acceptance of modern no fault divorce legislation. Except, of course, here in New York, where that battle is still being fought. Those statutes, alongside Ruth’s cases, appeared on the pages of our first edition. The years since 1975 have demonstrated that the steps towards equality we took then must be safeguarded and expanded.

We both continued to work towards those goals, Ruth on the court and I as Dean and now as professor of law at Berkeley. And our case book, with Martha West as co-author, is in its 6th edition. And I am working on the history of women law professors in the United States during the 20th century and specializing in the histories of the first 14 who were between 1900 -1959. I’m not going to 1960 because if I did, I’d be number 15.