In this response to Lutz's overture, Murray explained in detail her legal strategy to guarantee women's equality, including why she had decided to pursue a clear decision from the Supreme Court that would enforce principles already embodied in the Constitution instead of working for a new amendment.
245 E. 11 St., #5E
New York, N.Y. 10003
December 9, 1965
Miss Alma Lutz
22 River Street
Boston, Mass. 02108
Dear Miss Lutz:
Your kind letter of November 22 was forwarded to me at my new address, and I deeply appreciate your taking the time to write me about my speech on Title VII.
Because I have tremendous respect and admiration for the women who have fought for the Equal Rights for Women Amendment and have been aware of your views, I shall try to explain to you my position. As you know, I come out of the Negro struggle to implement the Fourteenth Amendment, and over the past twenty-five years have watched the interpretation of that amendment gradually expand to reach other minorities. I am also aware that women's organizations are hopelessly divided upon the Equal Rights Amendment. I therefore believe that the quickest way to obtain the results the Equal Hights Amendment is intended to produce is to urge the courts to make clear that discrimination against women by the state or federal governments violates the Fifth and Fourteenth Amendments.
You may have read of a case now pending in a three judge Federal Court in Montgomery, Alabama, in which the constitutionality of the statute excluding women from jury service has been attacked by Mr. Charles Morgan, attorney for the plaintiffs and for the American Civil Liberties Union. Judge Dorothy Kenyon and I have just written that part of the brief which attacks the statute as a violation of the Fourteenth Amendment. The other part of the complaint attacks the systematic exclusion of Negroes from the jury of Lowdnes County, Alabama. It seems inconceivable today that a court would make a distinction between the two kinds of exclusion — race and sex — as it did in the Strauder case and as the Massachusetts court did in the Welosky case. The Supreme Court has never decided the issue — merely ducked. This time we hope to get the Supreme Court to review the question if we lose in the lower court.
I think there are enough women aroused about legal rights to bring cases through the courts; I do not believe enough of them are aroused to secure the passage of an Equal Rights Amendment. And so we differ not so much in our objectives as in our strategy. It is just possible that through court interpretation the Equal Rights Amendment will be written into the Constitution. One clear-cut decision would open the way. The jury mandatory exclusion statute just may be the opening we have been looking for.
You will be interested to read a law review article by Mary Eastwood and myself entitled "Jane Crow and the Law: Title VII and Sex Discrimination," which will be published in the December issue (1965) of George Washington Law Review. Publication date will be around December 22nd. There we attach the validity of the doctrine of "classification by sex" and equate it with the "separate but equal" racial doctrine. We also quote from Blanche Crosier's article published in the Boston Law Review in 1935. Is she still alive? I admire greatly the incisive thinking which went into her article, and am sure that the effort was not wasted; only delayed.
With all good wishes to you, I am
Sincerely, Pauli Murray
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