The ERA had been languishing for the year when Senator Birch Bayh, feminists' closest legislative ally, proposed a substitute modeled on the Fourteenth Amendment. In essence, the substitution provided that equal protection of the laws would not be denied on account of sex. Bayh hoped that this compromise amendment would appease ERA proponents and opponents and make clear that the equal protection clause of the Fourteenth Amendment was applicable to women. Co-sponsors included Senators Edward M. Kennedy (D-Massachusetts) and Marlow Cook (R-Kentucky).
Although feminists appreciated Bayh's good intentions, they rejected his proposed ERA substitute. In October and early November 1970, women's rights advocates met and strategized about how best to oppose the Bayh amendment. ERA supporters feared that because it used the language of "equal protection" rather than "equality of rights," the Bayh substitute would not have the same effects as an ERA. They also worried that passage of the substitute amendment would harm their Fourteenth Amendment litigation efforts by suggesting to the courts that the existing equal protection clause did not apply to women.
Feminist efforts to defeat the Bayh substitute were successful. Faced with a barrage of letters from women's rights advocates, including Pauli Murray, Yale Law professor and civil rights expert Thomas Emerson, pioneering educational equality advocate Bernice Sandler, representatives of the National Woman's Party, and many others, Bayh withdrew his substitute amendment and reintroduced the ERA in the next Congress.
WHY THE BAYH SUBSTITUTE TO THE EQUAL RIGHTS
AMENDMENT IS NOT SATISFACTORY TO WOMEN
The Senate on October 13, 1970, added two amendments to H.J. Res. 264, the House passed Equal Rights Amendment: One to allow exemption of women from military service on grounds of sex (Ervin amendment), designed to kill prospects of approval of the Equal Rights Amendment in the 91st Congress, and the other (Baker amendment) to add the controversial school prayer amendment to override Supreme Court first amendment rulings, and also designed to kill the Equal Rights Amendment. So, H.J. Res. 264 has been effectively ruined in the Senate, but not the Equal Rights Amendment.
The Senate joint resolution, S. J. Res. 61, is a clean Equal Rights Amendment, resting quietly in the Senate Judiciary Committee. It has 8
$ sponsors, including 14 of the 17 members of the Judiciary Committee. With this overwhelming endorsement, there is no reason why S.J. Res. 61 cannot be immediately reported favorably in the exact form the Equal Rights Amendment passed the House on August 10, 1970, and promptly passed by the Senate when it returns after the election. Many of the Amendment's sponsors were not present when the Equal Rights Amendment was emasculated in the Senate on October 13, because of the campaign, but will be here in November to help push S.J. Res. 61 through.
The Bayh et al substitute to the Equal Rights Amendment would provide:
Neither the United States nor any State shall, on account of sex, deny to any person within its Jurisdiction the equal protection of the laws.
The Equal Rights Amendment provides:
Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
The Bayh amendment simply repeats part of the 14th amendment which provides that no State may "deny to any person within its jurisdiction the equal protection of the laws."
All of this language sounds good. It is all unobjectionable on its face. But the 14th amendment has been read by the Supreme Court in 1961 as allowing States to place special obstacles to women serving on juries; in 1948 as allowing States to prohibit women from working in certain occupations (bartenders); by a Federal district court in 1968 as sanctioning a policy of special and unequal treatment for women under the Constitution; by a U.S. Court of Appeals in 1968 as allowing discrimination based on sex in computing amounts of social security benefits.
On the other hand, the 14th amendment has been very useful to women, and it does apply to us as a class. For example, Federal and State courts have held that longer prison terms for women than for men violate the rights of women to equal protection of the laws under the 14th amendment; the exclusion of women from serving on juries is now unconstitutional under the 14th amendment; and a Federal court la 1970 has even ruled that women must be admitted to a State university because of the equal protection of the laws guarantee of the 14th amendment.
The trouble with the 14th amendment is that judicial decisions have caused a lack of clarity insofar as women are concerned and that amendment offers insufficient control on the courts in deciding as to when women may and may not be discriminated against. The fate of our rights to equality under the law is at the nearly complete discretion of the male dominated judiciary. Women want equal rights and responsibilities as full citizens. We do not want special privileges and restrictions under the law. We want an amendment that is meaningful, not a watered down and incomplete version of an existing constitutional amendment.
The Equal Rights Amendment is designed to make clear that the right to equal treatment under the law without differentiation on the basis of sex is part of fundamental constitutional doctrine in our democracy. This sets a clear, uncompromising standard of equal rights and human dignity for women under the law.
The Bayh substitute, quoted above, seems nice enough in appearance, but like the 14th amendment, what it means for women is pretty vaguer1/ and one must look to the intended meaning of the new substitute as stated by its chief sponsor. He states that the new substitute is designed to recognize "the need for f
lexible standards in cases where different treatment under the law would be justified.*** The new amendment would meet the objections of those who argue the current language (of the ERA) is too restrictive in prohibiting every differentiation between males and females.*** The new
1/ There is no question about what the Equal Rights Amendment means. See Hearings before Subcommittee on Constitutional Amendments, Senate Judiciary Cttee, May 1970, and proponents testimony before the Senate Judiciary Cttee, September 1970.
amendment would clearly prevent the kind of restrictive interpretation and disruptive application which critics have feared." In other words, the Bayh substitute is admittedly intended not to guarantee equality under the law for women, but to implement and carry out what the opponents of of the Equal Rights Amendment want—different treatment for women, unequal rights, special "p
rotections," and the maintenance of a continued inferior status of women under the Constitution and laws of the United States and the States.
Not only is this substitute amendment bad by itself, but it could have the effect of stifling the hopes of women to achieve rights under the 5th and 14th amendments, by placing 1970 constitutional approval on a host of laws that treat women and men differently.
A number of specific legal objections to the Bayh substitute could be made. His explanation of the effect it would have on State labor laws restricting weight lifting for women and maximum hours laws for women, for example, is that these restrictions would all be extended to men. This is ludicrous and impracticable, and men do not want these restrictions extended to them. It would virtually guarantee that the amendment would never be ratified. Moreover, this State protective law issue has been settled the other way under Title VII of the Civil Rights Act of 1964. What would happen to all the women involved or affected by Title VII cases which they have already won in the courts or which are still pending, during the ratification period?
Some of the young women in the movement have given up on this system of government, and assert that only a revolution can bring about meaningful change. They say the system can't work. If the United States Senate, with 86 members supporting the Equal Rights Amendment, cannot get it approved this Session, the system has indeed failed. Surely the Senate is not so impotent that it cannot pass a resolution supported by far more than the frac23; necessary for approval.
October 15, 1970
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