The President's Commission on the Status of Women (PCSW) convened in 1961 to explore and report on women's status in a variety of fields, including civil and political rights. Pauli Murray's memorandum attempted to transcend divisions among advocates for women over the desirability of an Equal Rights Amendment by proposing a litigation strategy modeled on the successful court campaign of the African American civil rights movement. Rather than fighting over the ERA, Murray implicitly suggested, advocates for women could pursue equal rights in areas where pro- and anti-ERA women could agree, such as jury service and access to jobs. Also implicit in Murray's proposal was the suggestion that rather than allying with southern segregationist legislators to pass an ERA, feminists should join hands with African American civil rights advocates and emulate their successful organizational and litigation strategies. The PSCW eventually endorsed Murray's innovative Fourteenth Amendment strategy in American Women: Report of the President's Commission on the Status of Women, 1963.
FOR COMMISSION AND COMMITTEE USE ONLY
A PROPOSAL TO REEXAMINE THE APPLICABILITY OF THE FOURTEENTH AMENDMENT TO STATE LAWS AND PRACTICES WHICH DISCRIMINATE ON THE BASIS OF SEX PER SE
by Pauli Murray
Prepared at the request of the Committee on Civil and Political Rights, President's Commission on the Status of Women, for its information and consideration
NOTE: This document has been prepared for limited gratuitous and private distribution by the Commission, and may not be used for citation, quotation or other purposes without written permission.
Table of Contents
II. THE NEED FOR REEXAMINATION OF THE LAW
B. The Issues
III. APPRAISAL OF CHANCES FOR SUCCESSFUL OUTCOME
IV. QUESTIONS OF POLICY AND STRATEGY
III. A Parallel to the Negro Problem, reproduced from An American Dilemma, Appendix 5, by Gunnar Myrdal.
A PROPOSAL TO REEXAMINE THE APPLICABILITY OF THE FOURTEENTH AMENDMENT TO STATE DISCRIMINATORY POLICIES ON THE BASIS OF SEX PER SE.
This memorandum proposes that a reexamination be made of the applicability of the Fourteenth Amendment to state laws and practices which discriminate arbitrarily solely because of sex. It recognizes at the outset that judicial action is only one of several avenues of approach to the removal of legal inequities imposed upon women. It cannot substitute for the maximum use of women's political strength as an instrument of enlightened self-interest. Nor can it take the place of legislative action within the various states to liberalize or repeal all restrictive laws against married women and to enact positive laws to reach private discriminations based upon sex.
It can, however, seek to clarify the present constitutional position of women to the end that efforts to achieve equality of status under the law will command the widest possible support and unified action. The discussion which follows is exploratory and suggestive, not definitive.
What is needed to remove traces of sex inequality in the law is a bold imaginative approach which clarifies the objectives, illuminates the issues with new insights and develops new techniques with which to bring about a consensus for a reinterpretation of the Fourteenth Amendment as applied to the rights of women in keeping with the supreme value of individuality in democratic society.(1)
To stimulate fresh thinking on this question, let us address ourselves to the following inquiries: Why a reexamination of the law? What formulation of the principle of equal protection of the laws will best present the issues involved in the personal rights of women? What criteria shall be used to determine which statutes and practices violate this principle? What techniques and procedures can challenge most effectively discriminatory policies against women?
II. THE NEED FOR REEXAMINATION OF THE LAW
The current legal status of women in American society must he seen in historical perspective. Traditionally, sex distinctions in the law stem from the inferior position of women generally in the old English common law imported into the United States during the Colonial period, the consequent legal disabilities of married women, the restriction of women's political rights until 1920, and the persistent attitude that woman's role is limited to the home as wife and mother.(2)
At common law, the wife was considered her husband's chattel, "something better than her husband's dog, a little dearer than his horse."(3) Notions of her inherent physical and intellectual inferiority to man fused with rationalizations that she was a "favorite" of the law and that restrictions on her liberty were intended for her "protection and benefit."(4) This produced an ambiguous legal status in which woman was simultaneously regarded as an object of special concern and as an inferior person.
In cycles of varying intensity throughout the nineteenth and the early twentieth centuries, women fought to remove the legal restrictions against them. Some of the early women leaders saw an integral connection between the abolition of chattel slavery and their own emancipation and thus gave leadership both to the Abolition movement and the movement for reform in the status of women.
Most states changed the legal status of married women in the mid-nineteenth century by the passage of Married Women's Property Acts under which a married woman became a legal person in her own right. Political rights were won against much more stubborn resistance. Although women leaders worked assiduously to achieve political equality after the Civil War, they were unsuccessful in having the word "sex" added to the Fifteenth Amendment and the right to vote was not universally secured until the adoption of the Nineteenth Amendment in 1920.(5)
Between 1868 and 1920 several attempts were made by women to make use of the Fourteenth Amendment without success. In three decisions between 1872 and 1894 the Supreme Court held that the "privileges and immunities" clause of the Fourteenth Amendment did not confer upon women the right to vote,(6) or the right to practice law within a state.(7)
It was therefore assumed by many leaders for women's suffrage that political equality would remove all other barriers to legal equality. On the contrary, the juncture of the persistent common law view of women and the enunciation of the doctrine of "sex as a basis for legislative classification" permitted sex inequalities in the law to continue down to the present.(8)
The courts have evidenced the same confused contradictory attitudes toward the legal status of women as Dr. Caroline F. Ware has described in the community at large.(9) A striking example of this confusion is found in the cases involving the exclusion of women from state jury service. Following the adoption of the Nineteenth Amendment, some courts held that where the principal qualification of a juror is that he be an elector, the conferring of suffrage upon women automatically made them eligible for jury service.(10) Other courts ruled that although a jury statute might specify that jurors be selected from electors, the subsequent conferring upon women of the right to vote did not automatically make them eligible as jurors within the letter of the law for jurors; they were still under a common law disability which could be removed only by positive legislation.(11) The Supreme Court has twice refused to clarify this issue.(12)
These contradictory holdings have grown out of the diverse views of the courts toward the historical position of women. No better illustration of this diversity can be found than in the opinions of two judges with reference to the exclusion of women from jury service.
One is the perceptive comment of Justice Seawell of the North Carolina Supreme Court, dissenting in State v. Emery in 1944.(13) He observed:
"It has not escaped the attention of the courts that the importance of this common law jury feature is still further reduced because no reason can be assigned for its origin or retention other than the barbarous view of the inferiority of women which manifested itself in civil and political oppression so akin to slavery that we can find no adequate word to describe her present status with men except emancipation…"
The second is the view of Chief Justice Rugg of the Supreme Judicial Court of Massachusetts in Commonwealth v. Welosky, decided in 1931.(14) The defendant in that case argued that the exclusion of women from the jury list denied her equal protection of the laws in violation of her rights under the Fourteenth Amendment, relying upon comparable cases involving the exclusion of Negroes from juries. In rejecting her argument, the court found no analogy between the Reconstruction Amendments and the Nineteenth Amendment. Chief Justice Rugg declared:
"Women had not been enslaved. They had long been recognized as citizens and clothed with large property and civil rights. Woman has long been generally recognized in this country as the equal of man intellectually, morally and socially. Opportunities in business and for college and university training had been freely open to her. Education of the youth of the land had been largely intrusted to her. In many respects laws especially protective to women on account of their sex had been enacted. Most of those formerly imposing limitations, even upon married women with respect to property and business, had disappeared. These were not changed by the Nineteenth Amendment. Current discussion touching the adoption of the Nineteenth Amendment related exclusively to the franchise. The words of that amendment by express terms deal solely with the right to vote. The underlying principles of those four decisions on which the defendant relies and the reasoning on which they-rest seem to us inapplicable to the present case."(15)
The court did not explain why, if women were regarded the equals of men, they were excluded from jury service even though the Massachusetts jury statute enacted after the adoption of the Nineteenth Amendment provided "A person qualified to vote for representatives to the general court shall be liable to serve as a juror." It is this failure of courts to recognize sex discrimination for what it is and its common features with other types of arbitrary discrimination which is at the root of the present confusion in the law.
B. The Issues
The distinguished constitutional authority, Prof. Arthur E. Sutherland has made the observation that although we aspire to equality as an ideal, "in the meaning, the effectuation, the distribution of that ideal we have found a multitude of differences…Government must necessarily treat some persons differently from others — children differently from adults in those matters where tender years call for difference; women differently from men where appropriate."(16)
The Fourteenth Amendment guarantees to all persons the equal protection of the laws, but not identical treatment. A State may constitutionally make distinctions between classes of persons but the classification must be "based upon some reasonable ground — some difference which bears a just and proper relation to the attempted classification — and is not a mere arbitrary selection."(17) In applying this principle to women, the courts have generally adopted the reasoning expressed by the Supreme Court of Oregon in 1907:
"By nature citizens are divided into the two great classes of men and women, and the recognition of this classification by laws having for their object the promoting of the general welfare and good morals does not constitute an unjust discrimination."(18)
Thus, sex as a basis for legislative classification has been judicially approved in a variety of situations such as jury service,(19) wage and hour legislation,(20) employment in certain occupations,(21) property rights,(22) and education.(23) The central constitutional issue, therefore, is the reasonableness of each legislative classification based upon sex within the concept of equal protection of the laws.
In dealing with this issue, many questions arise. When is it "appropriate" to treat women differently from men? To what extent and in what degree does a physiological difference, or the biological function of child-bearing, or the social function of child-rearing justify differential treatment? And should such differential treatment apply to all women without regard to the performance of the function of motherhood? Is a policy which discriminates in favor of women in the same undesirable category as one which discriminates against them? When can it be justified on the ground of governmental intervention to protect a traditionally disadvantaged group? And how far is such protection to extend? When does it operate to restrict personal rights in violation of constitutional guarantees?
Dr. Ware has pointed up the polar concepts of "woman" as the "wife and mother in an old-fashioned home" and "woman as a human being and member of democratic society" in which the child-bearing function is incidental to the broader concept of woman's role.(24) How can these opposing concepts be reconciled? In short, what accommodation is to be made between society's interest in the health of the future race and in the personal rights of women "seen as individuals with varied capacities, interests and talents — as varied as those of men" and in harmony with "our basic democratic commitment to respect for human dignity, individual worth, equality of opportunity, and responsible choice…the right to full human development?"(25)
These questions have serious implications for the proponents of women's rights as well as for the judges who must interpret the law. As Dr. Ware has suggested, "no clear alternatives to the traditional conflicting concepts have emerged," and there has been "no synthesis which might draw essence from each or relate them to the cycle of women's lives, nor any fresh image which would transcend these traditional views and offer a modern conception in line with the realities of today."(26) Clarification of the law tends to follow, not lead, clarification in other intellectual disciplines in approaches to broad social problems.
Few will deny today that society has a legitimate interest in the effective performance of women's maternal functions and family responsibilities and that these functions he protected and supported by enlightened governmental policies. Nor does anyone seriously question that women in industry have been traditionally low-paid workers and the victims of exploitations hazardous to their health and well-being, and that they have needed the full protection of the law in asserting their right to decent and healthful working conditions, wages and hours.
What is needed to remove the present ambiguity of women's legal status is a shift of emphasis from their class attributes (sex per se) to their functional attributes and to redelineate the boundaries between social policies which are genuinely protective of the family and maternal functions and those which are unjustly discriminatory against women as
individuals. Where the line should be drawn in a particular circumstance is a complex question on which there may be a diversity of opinion, but the difficulties of the task should not discourage efforts at clarification.
Too little attention has been given to the development of guiding principles to aid in the task of clarification. The courts have usually been content to rest upon the doctrine that sex forms the basis of a reasonable classification and to ignore the fact that "women vary widely, and the vast majority function in many different ways at different stages of their lives."(27)
Before attempting to formulate any principle of equal protection of the laws which will take into account both the special needs of women and their individuality, let us examine certain assumptions which have tended to confuse the issues. The first is that the assertion of equal rights by women is tantamount to seeking identical treatment with men. This is an oversimplification. As individuals, women seek equality of opportunity for education, employment, cultural enrichment and civic participation without imposed barriers built upon the stereotype "woman." As women, they seek freedom of choice: to develop their maternal and family functions primarily, or to develop all other individual capacities as fully as the male, or to develop different capacities at different stages of life, or combinations of these choices. Only by having such freedom of choice can they fulfill society's expectations of them as mothers of the future race and their own aspirations as individuals in a free society.
The second assumption is that women are one of the two great classes of society, that the inherent differences between the sexes justify unequal treatment, and that since women are considered the equals of men differential treatment does not imply inequality or inferiority. The inherent differences between the sexes, according to this view, make necessary the application of different principles to women than those applied to minority groups.(28)
To the degree that women perform the function of motherhood, they differ from other special groups. But, as one writer has pointed out, maternity legislation is not sex legislation.(29) Its benefits are geared to the performance of a special service like veterans' legislation. When the law draws a sharp line of distinction between the "two great classes of men and women," gives men a preferred position by accepted social standards and regulates the conduct of women only in a restrictive manner which has no bearing on the maternal function, it disregards individuality and relegates an entire class to a position of inferior status.
In at least three respects women, though numerically more than one-half of the adult population, occupy a position comparable to that of a racial minority. (l) They are an easily identifiable group, to a large degree unrepresented in the formal decision-making processes, and thus easy targets of both public and private discrimination; (2) their legal history is one of slow progress against considerable resistance from the dominant (male) group toward an approximation of equality with the dominant group; (3) because of the first two factors and the cultural lag which results, legal distinctions based upon sex are particularly susceptible to an application which prolongs women's inferior status and may, in fact, reinforce it.
Some writers are beginning to recognize the parallels between race discrimination and sex discrimination, and at least two sociologists have given some thought to the minority group aspects of women's status.(30) Louis Wirth has defined a "minority group" as "any group of people who because of their physical or cultural characteristics, are singled out from the others in the society in which they live for differential and unequal treatment, and who therefore regard themselves as objects of collective discrimination."(31)
Helen Mayer Hacker notes that "women fail to present in full force the subjective attributes commonly associated with minority groups. That is, they lack a sense of group identification and do not harbor feelings of being treated unfairly because of their sex membership." She then adds, "If we assume that there are no differences attributable to sex membership as such that would justify casting men and women in different social roles, it can readily be shown that women do occupy a minority group status in our society," and lists a catalog of well-known "formal discriminations against women."(32)
As women have assumed various roles in the community as members of the labor force, family heads, community volunteers and leaders, public servants and policy makers, they have experienced both subtle and explicit forms of discrimination comparable to inequalities imposed upon other minorities.(33)
In this context, constitutional principles applied to enforce the rights of other minorities seem equally relevant to the rights of women. More than twenty-five years ago, Blanche Crozier, commenting on the leading decision, Strauder v. West Virginia,(34) pointed up this parallel. She wrote:
* * *"It is stated in the Strauder case that a law excluding [N]egroes is a discrimination implying inferiority. Race and sex are in every way comparable classes; and if exclusion in one case is a discrimination implying inferiority, it would seem that it must be in the other also. And if such discrimination implying inferiority is a violation of the equal protection of the laws in the case of one of these classes, it ought to he also in the case of the other, assuming that the guarantee of equal protection extends to both of the classes.
"Not only are race and sex entirely comparable classes, but there are no others like them. They are large, permanent, unchangeable, natural classes. No other kind of class is susceptible to implications of inferiority. Aliens, for instance, are essentially a temporary class, like an age class. Only permanent and natural classes are open to those deep, traditional implications which' become attached to classes regardless of the actual qualities of the members of the class. This is the only kind, of class prejudice which can be reached by laws aimed not toward guarding against the unjust effect of the prejudice in the particular case but toward a general upholding of the dignity and equality, the legal status., of the class."(35)
A third assumption has been that although women suffer discriminations imposed by law comparable to those suffered by minority groups, as the Constitution is presently interpreted these discriminations are not within the reach of the Fourteenth Amendment.(36) This assumption draws strength from the earlier decisions which narrowly construed the Fourteenth Amendment in determining the rights of women and from the language of some of the earlier precedents upholding social and labor legislation for woman.(37)
Whatever may have been the views of those earlier decisions, the broad protective cover of the Fourteenth Amendment reaches all arbitrary class discriminations. As Chief Justice Warren, speaking for the Supreme Court in Hernandez v. Texas, in 1954,(38) pointed out:
"Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or applied, single out that class for different treatment, the guarantees of the Constitution have been violated. The Fourteenth Amendment is not directed solely against discrimination due to a ‘two-class theory’ — that is, based upon differences between ‘white’ and Negro."
The difficulty in asserting women's rights, therefore, seems to lie not in the limited reach of the Fourteenth Amendment but in the failure of the courts to isolate and analyze the discriminatory aspect of differential treatment based upon sex.
A reexamination of the law may well begin with the landmark decision of Muller v. Oregon, decided in 1908,(39) and cited as the leading precedent for the view that sex is a basis for legislative classification. The Muller case approved the constitutionality of an Oregon maximum hour law for women in certain industries on two grounds: (l) the relation of woman's health needs to her maternal functions and the public interest in preserving "the strength and vigor of the race," and (2) the necessity
for some protective legislation for women "to secure an equality of right" in the unequal struggle for subsistence. The case is of particular significance because it was decided three years after the Supreme Court had struck down a similar New York statute setting maximum hours for employees (male) in bakeries.(40) A more detailed comment appears elsewhere, but it is important to note that nine years after the Muller decision, the Supreme Court decided the case of Bunting v. Oregon,(41) upholding a maximum hour law for both men and women workers as a valid health regulation. Since that time extensive social and labor legislation has been enacted for workers generally in many fields.
Because of the peculiar circumstances surrounding the Muller case and the conditions out of which it arose, both Mr. Louis D. Brandeis as counsel for the State of Oregon and Mr. Justice Brewer who wrote the Court's opinion dwelled at length upon the inherent physical and other differences between men and women "and in the different functions in life which they perform." The Court made it clear, however, that the purpose of the legislation was "to compensate for some of the burdens which rest upon" women and which prevent them from asserting their "full rights."(42) The thrust of the decision was to equalize the bargaining position of women in industry. It was rendered against a background of the common-law position of women before they had gained political equality and on the basis of medical knowledge available more than fifty years ago.
Later decisions, disregarding the plain intent and express limitation of the Muller case, seized upon the language of Mr. Justice Brewer and extended the doctrine of sex as a basis for legislative classification to
areas remotely or in no way related to the principles of that case. Muller has been cited in support of jury exclusion,(43) differential treatment in the licensing of certain occupations,(44) and exclusion of women from a state supported university.(45)
Clearly, the doctrine extracted from Muller is too sweeping. It has been applied by the state courts with contradictory results. The state courts have, in fact, become the final arbiters of the important constitutional issue of equal protection of the law with consequent confusion and uncertainty. Inequalities have been sanctioned as "protection" and "privilege". Suggestions of "chivalry" and concern for the "ladies" conceal continued paternalism. Deriving their respectability from a principle of equality, these applications remain as anachronisms in the law.(45a)
It may not be too far-fetched to suggest that this doctrine as presently applied has implications comparable to those of the now discredited doctrine of "separate but equal."(46) It makes the legal position of women not only ambiguous but untenable. Through unwarranted extension, it has penalized all women for the biological function of motherhood far in excess of the precautions justified by the findings of advanced medical science. Through semantic manipulation, it permits a policy originally directed toward the protection of a segment of a woman's life to dominate and inhibit her mature development as an individual. Finally, it reinforces an Inferior status by lending governmental prestige to sex distinctions which are then carried over into those private discriminations against women currently beyond the reach of the law.
In these circumstances, it is imperative that the Supreme Court reexamine the entire doctrine of "sex as a basis for legislative classification and promulgate the standards under which it is to be applied. To the degree that the underlying factual assertions of the Muller decision support the extensions of that doctrine, those assertions must be reexamined in the light of contemporary knowledge and conditions.(47)
Until a definitive review of the doctrine is undertaken by that Court and a more precise standard developed for its application, the constitutional position of women will remain in doubt. It will be wholly unclear as to whether women can enforce their rights under the Fourteenth Amendment, or whether there is a constitutional gap in the law which prohibits women from asserting their rights as full-fledged citizens and which can only be filled by the adoption of an amendment to the Federal Constitution.
Stripped of its verbiage, the Muller decision stands for the broad principle of governmental intervention to equalize the bargaining position or an underprivileged group and to protect the health needs of a class which performs a special service for society, and, seen in this perspective, it is in harmony with the general line of our constitutional growth. On the other hand, an equally important principle and one which women now seek to maximize is that of the Hernandez case, the right of the individual not to be singled out by the law for different treatment because of class membership. How are these two principles to be reconciled as far as women are concerned?
A tentative norm which takes into account the underlying purposes of both principles and which can act as a guide in reexamining laws which affect the status of women is suggested as follows:
Where a statute or practice applies differential treatment to women as a class, it is based upon a reasonable classification if, and only if,
1. It is designed to protect the maternal and family functions through compensatory measures and is limited in operation to that class of women who perform these functions; or
2. It is a valid health regulation designed to protect any special health needs which, on the basis of the most advanced findings of medical science, women are shown to have and men not to have; or
3. It is designed to protect an equality of right which women, because of their traditionally disadvantaged position in society, themselves have been unable to assert adequately both at the time of the law and at the time the law is applied; and
4. The differential treatment does not imply inferiority or enforce an inferior status by singling woman out as a class for restrictive treatment.
A governmental policy differentiating between men and women which does not meet these criteria is based upon a classification of sex per se and is arbitrary and unreasonable within the meaning of the Fourteenth Amendment.
To illustrate the difference between a reasonable and unreasonable classification under these criteria, let us take the example of a statute designed to protect mothers with family responsibilities. The legislature
might reasonably classify women having the custody of children under sixteen years of age. A statute designed, to protect future mothers might reasonably classify women of child-bearing age.
In 196l, the estimated, female population in the United States between the ages of 15 and. 44 (a rough approximation of the child-bearing, child-rearing period) was 35,199,000. Women 45 years and older totalled 28,176,000.(48) Query: Is it "reasonable" to include this latter group in a statute directed toward the protection of prospective and dependent mothers? Is it any longer reasonable to speak in sweeping terms of woman's dependence upon man, when 20% of the female population is single, when women constitute 30% of the labor force, 10% of the responsible heads of families, and outnumber the male population by nearly 4,000,000, in addition to having a life expectancy of five to seven years longer than the male? What of widowed women? Childless women? These groups are no longer exceptional cases, but constitute a significant segment of the population.(49)
Understandably, it may be argued that the suggested standard seeks to give women "the best of both worlds" - a protected and privileged position as well as equal rights.(50) The answer to this argument is that women do have responsibility for child-bearing, child-rearing and the general administration of the home. Outside of the home they have not yet achieved full equality of opportunity based upon individual merit. These factors alone justify the intervention of government to compensate them for their special services and to protect them in the assertion of their rights.
However, equality of opportunity assumes equality of responsibility which, of necessity, will require a reevaluation of many of the so-called "privileges" which women now enjoy. This factor cannot be passed over lightly, for it evokes the visceral reaction of many men when confronted with the issue of equal status for the sexes.
Thus, instead of a mechanistic application of the doctrine of sex as a basis of legislative classification on the one hand or a denial that in some instances such classification may have a valid functional basis, the development of standards in a case-by-case approach provides the flexibility which permits the evolution of a more realistic application of the Fourteenth Amendment to protect both the maternal and family functions and the right of women to full human development.
III. APPRAISAL OF CHANCES FOR SUCCESSFUL OUTCOME
In making this proposal, we recognize that many students of women's rights including some members of the legal profession agree with the law review writer who concluded after a review of the cases that "[t]he long history of male supremacy in the law, a generally accepted notion that women have a different role in society, and the presumption of constitutionality of legislative action combine to make it extremely unlikely that women's status is going to be materially changed by judicial action."(51) This attitude is understandable, since past attacks upon the constitutionality of state policies which make distinctions on the basis of sex have "been largely unsuccessful. Too, the Supreme Court's refusal to review several important cases in which women have asserted
rights under the Fourteenth Amendment has left considerable doubt as to whether these rights can be enforced within our present constitutional structure.(52)
It is also true that the Judicial opinions, taken as a whole, reveal how deeply embedded in the law is the traditional concept of male supremacy, the more difficult to uproot because it has been so long taken for granted that its manifestations are often unconscious and couched in expressions of sentiment or morality. Seldom are courts as candid as the Oregon judge who, commenting on a statute which restricted women, observed that the legislature obviously "intended that there should be at least one island in the sea of life reserved for man that would be impregnable to the assault of woman."(53)
Judges, of course, are not immune to the prejudices which affect the general community nor to the generally held "doubts and uncertainties expressed concerning women's character, ability, motives."(54) Male prejudices which lead to discriminatory judgments have not been subjected to the searching analysis which characterizes more recent studies of prejudice and discrimination in other phases of intergroup relations. Consequently, many judges confronted with asserted denials of the personal rights of women have been blind to the real meaning of discrimination against women and to its common features with other types of discrimination. This has often led to the application of a narrow rather than a broad view of constitutional principles when dealing with this issue.(55)
In recent years there has been no concerted effort to "bring to bear upon the courts the body of current knowledge about the capacities, achievements and perspectives of women as individuals nor of the social implications of legal discrimination against them. No equivalent of the school desegregation cases, Brown v. Board of Education,(56) has been presented to the Supreme Court which addresses itself to the psychological aspects of discrimination against women, nor, within this framework, to the concept of equality in contemporary society and of its intangible qualities which are "incapable of objective measurement" as discussed in the Sweatt case.(57) Nor has there been submitted in recent years in support of such a case a sociological brief in depth comparable to the Oregon Brief (also called the Brandeis brief because it was first used by Louis D. Brandeis in Muller v. Oregon)(58) indicating the dimensions of the issues and the frame of reference within which they should be considered.
Scattered references to women in sociological literature "as a minority group, comparable In certain respects to racial, ethnic and national minorities" are found but no systematic investigation has been undertaken to determine to what extent women are a "minority group."(59)
The general neglect of scientific appraisal of the effects of discrimination against women is paralleled by a similar absence of legal materials on the subject and a consequent lack of orientation on the part of lawyers and judges. Leading law school periodicals are "barren of discussion on the constitutional issues — only two definitive studies have appeared in an American law school journal in the past thirty-seven years. The later comment, unsigned, appeared twelve years ago.(60)
Little or no emphasis is given to women's rights in law school courses on constitutional law or civil and political rights. The rights of married women, of course, are discussed as part of Family Law. Under these conditions, it is not surprising that the anonymous author of the latest comment on the constitutionality of legislation based upon sex would remark "women who seek relief from what they deem oppressive discrimination in the law would be well advised to look to some source other than the judiciary."(61)
The more optimistic view rests upon the general trend toward democratization of society and equality of status, changing conditions and a more favorable climate of opinion in which to reexamine these constitutional issues. It must be recalled that the earlier decisions on women's rights reflected the prevailing attitudes of a parochial society in which human rights had neither gained recognition as a universal concept nor received the comprehensive analysis which they are being given today. Archaic notions expressed in some of those cases would hardly be countenanced by an enlightened court of the nineteen-sixties.
The more important precedents were established nearly fifty years ago before the worldwide technological, social and political revolution which has followed two World Wars had made its impact upon American society and institutions. Modern courts have not yet fully responded to the cumulative weight of current international concern with the rights of the individual as expressed in the Preamble and body of the United Nations Charter, the Universal Declaration of Human Rights, the various international
conventions on civil and political rights, social and economic rights, and on the rights of women, and the general work of the United Nations Commission on the Status of Women. Nor has the work of the President's Commission on the Status of Women, which doubtless will have far-reaching effects upon attitudes and practices toward women, been completed and become part of our common knowledge.
The revival of interest in the status of women, the growing recognition of women's achievements, the call for a revolution in attitudes toward women in the United States, the gradual elimination of restrictive laws, the liberalization of some of the more exclusionary institutional practices (notably, in the churches), the increasing national demand for trained efficient personnel, the beginnings of more realistic judicial approaches to alimony and marital support, and the availability of scientific data and techniques of communication with which to refute traditional myths about women's capacities, functions and perspectives — all these provide both a favorable climate of opinion and the resources with which to facilitate reconsideration of an area of individual rights which has long been ignored as a subject of constitutional study.(62)
The genius of the American Constitution is its capacity through Judicial interpretation for growth and adaptation to changing conditions and human values. Great fundamental principles have expanded throughout our history to meet "the various crises in human affairs,"(63) as illustrated by the use of the commerce clause to enact social and labor legislation of national scope,(63a) or the extension of the concept of "state action" to protect the rights of ethnic minorities,(64) or the use of
the Due Process and Equal Protection Clauses to guarantee the rights of accused persons,(65) or the current concern not only with the right to vote(66) but with the relative weight of one's vote raised in the reapportionment cases.(67)
The courts serve as a public forum for the clarification of vital public issues. As Dean Eugene V. Rostow recently observed:
"…The courts' opinions are the heart and soul of the common law method of legal growth. The law gropes its way forward, sometimes slowly; sometimes in great leaps, as the judges seek to accommodate the changeless ultimates to the changing circumstances of historical movement.
"Beyond that function, the opinion…represents the conception of the judges speaking directly to the people, as participants in an endless public conversation on the nature and purposes of the law in all its applications."(68)
Moreover, in less than a century, the Fourteenth Amendment has evolved from a narrow application of fundamental law (no less frustrating to racial minorities than, to women)(69) into a living principle of universal application capable of reaching injustices and protecting individual rights not wholly contemplated in the "original under standing."(70)
While it is true that the application of the Fourteenth Amendment in its expanded meaning to the personal rights of women has lagged behind changing conditions — as in other areas where constitutional growth is retarded by deep-rooted prejudices and rigid institutional practices — nevertheless, the impact of these changes is beginning to be felt by the courts. We note recent sharply divided decisions, vigorous dissents,(71) and a growing awareness on the part of some judges that discrimination solely because of sex cannot be Justified under any theory of law.(72)
A recent example of this awareness is the ruling of the Appellate Division of the New York Supreme Court, First Department, on November 27, 1962 that New York City's policewomen have the right to compete in civil service examinations for promotion to sergeant. Justice Harold A. Stevens, speaking for the court, declared:
"The capacity and ability of females to hold a superior office in a police department has been demonstrated by the experience of other cities. We conclude that the denial of eligibility is solely because of sex, is unwarranted in law and, in light of present day conditions, constitutes an abuse of discretion."(73)
The New York Court's ruling is in line with a growing reconsideration of policies toward women employees within local governmental institutions and within the Federal Government.
The Supreme Court has frequently reversed or quietly interred outmoded precedents which are no longer in harmony with current realities.(74) For the past few decades that Court has been developing a body of principles which reflect modern conceptions of personal rights and liberties. In at least one instance, concurring opinions have recognized "our policy in the international field" in which we have "pledged ourselves to cooperate with the United Nations to ‘promote…universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.’"(75)
The voting pattern of the Court on questions of special interest to women shows that the state of the law is unsettled. In its decisions of recent years on these questions, the Court has usually divided 5-to-4 or 6-to3.(76) It has not passed upon the following important issues:
(a) Whether a State can constitutionally exclude all women from Jury service. The recent case, Hoyt v. Florida,(77) decided in 196l, was disposed of on narrower grounds, with three Justices concurring specially.
(b) Whether the exclusion of women from a state-supported university is a denial of equal protection.(78) The Court denied certiorari in two appeals arising in Texas in 1958 and 1960 respectively. (Four Justices must consent before review will be granted.)
These two questions are left open. The Hoyt case showed a 6 to 3 division on the issue of total exclusion of women from Jury service. Two of the Justices who formed the majority are no longer on the Court. One could therefore speculate as to the outcome if this issue were presented to the Court as presently constituted.
On the other hand, the Court has upheld state jury statutes which exempt women as Jurors or require that they volunteer for jury service even though the effect of such legislation may be to discourage women from participating in this important process of government.(79)
In the field of licensing of certain occupations or the regulation of the employment of woman as bartenders, the court has divided.(80) Such legislation has been upheld on the ground that the State may devise preventive measures "for the moral and social problems" to which employment of women may give rise.(81)
Two recent cases in criminal law indicate a departure of the Court from the old common-law view that the legal personality of the wife merged into that of her husband. In a prosecution under the Mann Act, the common law rule permitting a party to exclude adverse testimony of
his or her spouse was held not to apply in a case where the defendant's wife was also the victim of the offense.(82) The witness-wife could also he compelled to testify against the defendant-husband over her own objection.
Similarly, in a prosecution of a man and his wife for conspiring illicitly to bring goods into the United States with intent to defraud the Government, the common law rule of legal merger of the personalities of wife and husband making them legally incapable of conspiracy was held not to apply.(83) In both cases, three justices dissented on the ground that these holdings threatened the stability of the marital relationship.(84)
Leaving aside the views of the Court on marital status, it would appear from recent rulings that the views of the present Court on the issue of distinctions based upon sex seem to be: conservative(4); liberal(3); unknown(2). Justices White and Goldberg, appointed in 1962, have not participated in a case raising these issues. Despite the recent reluctance of the Court to pass upon issues which raise the question of discrimination based upon sex per se, the cases as analyzed do not appear to present an insuperable barrier to a favorable ruling. There is no reason to suppose that if the issues are presented anew in an appropriate case with sufficient clarity and comprehensiveness, the Court will fail to adhere to its well-established principles in reviewing this aspect of individual rights.
IV. QUESTIONS OF POLICY AND STRATEGY
The objective of court action is to establish unequivocally in an appropriate case the principle that the Constitution prohibits all legally-enforced discriminations based upon sex per se as earlier defined. Implementation of this objective requires the performance of certain preliminary tasks including, but not limited to, the following:
1. Review of the various classes of laws affecting the status of women to determine which of these laws have no rational basis and should be challenged;
2. Determination as to which of the discriminatory laws should be subjected to judicial scrutiny and which should be approached through other methods;
3. Development of constitutional arguments, factual data and analysis which will assist the courts in a clarification of the law; and
4. Development of unified strategies which will maximize the possibilities of successful outcomes.
Obviously, not every law or regulation which affects the status of women is discriminatory. Protective and social labor legislation has been extended generally to male workers and represents enlightened social policy. Family support laws and social insurance provisions related to the family function are also socially desirable as compensation for the special services which women render to society. Restrictions on the employment of women in certain occupations may have valid health reasons
or may forecast a general humane social development. Differential treatment for female offenders has been upheld where it represented experimentation with more enlightened penal methods.(85) (The law which penalizes a female prostitute but imposes no penalty upon her male customer, however, cannot be justified on any ground.)
Policy considerations as well as those of strategy dictate the selection of laws for judicial scrutiny which are both clearly discriminatory and particularly appropriate for challenge in the courts. Some laws which involve differential treatment may be part of a larger social policy in which there are compensatory elements. The difficulty of sorting out discriminatory policies in complex statutory schemes may require that the inequities be corrected by amendment or revision of the law.
Discriminatory practices such as unequal pay, denial of access to promotion or to employment, total exclusion from jury service, or from state educational institutions under certain circumstances are easily identified. Discriminatory operation of laws enacted presumptively for the general welfare, the public morals, or the benefit and protection of the marital relationship may be less obvious and more difficult to prove.
Here, the social and behavioral sciences can render a most useful service by undertaking studies of women as a minority group, applying and adapting "principles already established in the field of intergroup relations," and by developing objective criteria with which to determine the discriminatory effects of laws and practices relating to women as a class.(86) This is an extremely important function in view of the need
for authoritative materials to assist the courts in gaining insights into the problems of sex discrimination from the point of view of its victims.
In addition to the jury and educational, exclusion cases, careful consideration should be given to the following areas of differential treatment: (a) domicile of married women; (b) restrictions on contractual rights of married women; (c) restrictions on right of married women to enter separate businesses under the "sole-trader" statutes; (d) restrictions on the right of married women to manage and control their own earnings; (3) guardianship of children, and similar problems arising out of marital and family relationships.
It may be assumed that issues involving family relationships will produce heated controversies and considerable judicial resistance.(87) This, however, is the risk involved in all litigation which challenges the social mores. It is hoped that such controversies will produce both "heat and light" upon these issues. The Fourteenth Amendment has been invoked successfully in those instances where the shocking injustice of a situation cut through the subjectivities of the judges and impelled a consideration of fairness in the circumstances. This approach is even more necessary where the rights of women are being asserted.
Some of the techniques and procedures used by other groups having comparable objectives are relevant to this discussion. Important shifts in constitutional interpretation seldom happen without considerable preparatory activity. Courts tend to reflect community shifts in values; a heightened public conscience and a mobilized public opinion are important factors in pressures for a reconsideration of constitutional issues.
The process is accelerated by public discussion on many levels and through the development of a body of legal and other authoritative literature in addition to litigation on a broad front in the lower state and federal courts. Major reassessments of the law have often come about through the presentation to the Supreme Court of a cluster of cases arising in different jurisdictions but having common or related issues.
Groups seeking to raise important constitutional questions have often found it necessary to pool their resources in order to have the advantage of accumulated experience and to develop strategies of far-reaching significance. We note that the Brandeis brief originated in the work of the leaders of the National Consumers League who persuaded Mr. Louis D. Brandeis to enter the Muller case as counsel for the State of Oregon.(88) The brief was prepared by Josephine Goldmark under Mr. Brandeis' direction. One factor in the success of that case was the dramatic presentation of the evils and injustice of long working hours. A brief along similar lines was used in the desegregation school cases.(89)
Since the Muller decision, there seems to have been no comparable effort by women or organizations interested in women's rights over a period of time. Recent cases involving the rights of women appear to have been sporadic and, except for the Hoyt case, without the participation of any specialized group. It is encouraging to note that the New York Civil Liberties Union assisted Miss Felicia Shpritzer in her challenge to the New York City Civil Service Commission mentioned earlier in this presentation. In the school exclusion cases against the Texas A. & M. college, however, apparently no amici curiae briefs showing wide public interest in the issue were filed when application was made to the Supreme Court for review.
There is need for a continuing body of experts to give depth and direction to the field of inquiry and the tasks necessary to increase the chances for a successful outcome. What form such a body should take - whether it can function appropriately within the sphere of government; whether it should be an advisory body to an agency of government; or whether it should be a wholly private agency — is a matter of policy which the Commission may want to consider.
The concept, however, is that of a committee of lawyers with broad experience in family law, civil rights and constitutional litigation to work jointly with a group of specialists in other disciplines - history, psychology, sociology, etc. — to provide the most comprehensive attack upon legal inequities. To avoid cross-purposes and to synchronize efforts, the personnel of such a body should include persons experienced in the subject-matter and familiar with the policies of the various committees of the President's. Commission on the Status of Women, but who will focus their attention on the problems of constitutional litigation.
The chief functions of a specialized body would be to consider and determine the type of case in which a strong constitutional argument can be made to farther the objective we have outlined, to develop sound strategies, to consider problems of social science evidence, to provide the sociological data relevant to the issues which are presented, to generate authoritative materials for publication as part of the educative process, and to prepare briefs for use in cases pending before the courts as amici curiae, if not as direct participants.
The strategic value of such a body is obvious. Cumulative experience gained through continuity has empirical value. Through selective treatment of issues cooperatively developed by experienced groups with well-defined social objectives, the risk of unfortunate results through inadequately prepared cases is reduced and the overall chances of persuading the courts to adopt broad social principles increased.
Cases brought by individual litigants seeking their own objectives without regard to social consequences will continue to arise in the courts, but even in such cases a valuable public service can be rendered by filing amicus curiae briefs which help to broaden the perspectives of the various courts. In this connection, too much effort should not be expended in bringing about Supreme Court review of cases exclusively. Equally important are the state courts in which many of the cases are disposed of without further appeal.
Interaction between government agencies and private organizations is a common feature of constitutional litigation of wide public interest. The use of the Brandeis brief has already been mentioned. In the various desegregation cases before the Supreme Court, briefs amici curiae were filed by the United States Solicitor General, the American Federation of Teachers, the Committee of Law School Teachers Against Segregation in Legal Education, the American Jewish Committee, the American Veterans Committee, the American Civil Liberties Union, the Congress of industrial Organizations, the Japanese American Citizens League, and others.
Aside from the value which authoritative materials have for use in litigation, they will doubtless generate wider interest among members of the legal profession in the rights of women and form the basis for law review articles and materials for inclusion in the relevant curricula of law schools. Particular effort should he directed toward law schools to the end that these issues are discussed within the general framework of human rights as part of legitimate course content.
Some of the recommendations made below are directed toward the proposal discussed here. Others have a more remote relationship but warrant consideration and are included so that they may he referred to the appropriate committee for its comments and recommendations.
1. Political action. That the Commission make representation to the President for the appointment of more women to judicial posts in the Federal courts and for the appointment of a woman to the United States Supreme Court.
Comment: One of the greatest obstacles to achieving insights into the issue of discrimination against women is that the courts which pass upon this issue are overwhelmingly male and have little understanding of the problem. Many judges appear to recoil from the concept that discrimination because of sex is the equivalent of discrimination because of race, yet women who suffer the effects have little difficulty in recognizing the parallel. The presence of women in positions from which they were formerly barred combined with their able performance in these positions does much to reduce male predispositions and creates opportunities
for candid interchanges and mutual education. This interaction is no less necessary on the courts than in other areas of the decision-making process. In 1960, of nearly 8,000 lawyers in judicial posts, 590 were women. Although the ratio of women judges to women lawyers is much higher than that of men, it would be interesting to know how many women hold positions on the various appellate courts which pass upon constitutional questions.(90)
2. Administrative action. The federal jury system is part of the uniform administration of the federal courts. Women are eligible to serve on all federal juries and there is already administrative recognition of the need to eliminate discrimination against women as jurors. The 1960 Report of the Judicial Conference Committee on the Operation of the Jury System, discussing the problem of discrimination against women as jurors, said:
"According to the questionnaires returned by the clerks in 1958, there were three districts where women were not called to serve on juries [presumably Alabama, Mississippi and South Carolina where women are excluded from state juries], but there were a few other districts which did not answer the question. A reason given for the failure to call women to serve in some places is that adequate toilet facilities for women had not been provided. Steps have been taken to provide such facilities. Since the 1957 amendment it is perfectly clear that there is no ground whatever for excluding women from jury service. It is recommended that any district courts sitting in states which do not permit women to serve on juries should re-examine their sources of names, to be sure that they are broad enough to secure a reasonable proportion of women."(91)
It is therefore recommended that the Commission consult with the Department of Justice, the Administrative Office of the United States Courts and the Judicial Conference for suggestions as to administrative action and recommendations for new legislation which may be appropriate
to ensure full participation of women as jurors in the United States District Courts. Accurate, up-to-date information should be obtained with reference to current practices in those districts in which, until 1960 at least, women were not called for jury service and in those districts which failed to answer the inquiry of the Judicial Conference Committee. Instances of failure to call women for jury service in the federal courts should be brought to the attention of the Commission.
3. Educational activity. That the Commission take steps to awaken the interest of the legal profession and particularly of professors of law in the issues arising out of the legal status of women. A list of topics raising these issues might be submitted to law professors who teach civil and political rights courses and family law with the request that they seek to elicit the interest of law students through the selection of such topics for term paper research or law review notes and comments.(92) Similar topics might be sent to the student editors of law school periodicals. Questionnaires might be sent to law school professors to determine to what extent these issues are included in their courses, and their comments and recommendations should be invited.
4. Litigational activity. That the Commission consult with the Department of Justice for advice and suggestions on the types of cases and issues relating to the rights of women in which it would be appropriate for the Government to participate. In this connection, it should be noted that. the Felicia Shpritzer case in New York may be appealed to the New York Court of Appeals by the New York City Civil Service Commission. The progress of this case should be watched closely, and if it is appealed to the Supreme Court, the Department of Justice should be requested to file an amicus curiae brief.
5. That the Commission seek the cooperation of legal defense agencies concerned generally with civil rights and civil liberties by: (1) inviting their views and comments on the constitutional aspects of the proposal made in this memorandum and (2) requesting that they keep the Commission informed on all cases involving the rights of women (or related issues) which either come to their attention or in which they participate in any manner.(93)
6. That the Commission determine whether more intensive study should be made of the possible use of the Fourteenth Amendment along the lines suggested here. If this question is decided in the affirmative, then the Commission should also determine:
(a) whether an advisory joint-committee of lawyers and other specialists addressing themselves to constitutional issues should be created;
(b) if so, what functions should such body perform under the mandate of the Commission's authority; and
(c) what provisions should be made, if any, for a continuation of these functions after the Commission's work has been completed.
In the alternative, the Commission should appoint a committee to review the entire proposal and make the appropriate recommendations.
Of necessity, this proposal suggests activity of limited nature. Quite apart from the possibility of judicial action, the questions raised here require clarification which is necessary to any effort to advance the status of women, whether the particular instrumentality be legislative or litigative. From a review of the available literature, it seems clear
that the uncertainty surrounding the constitutional position of women lies in the failure of the Supreme Court to speak decisively on the issue. A full discussion on the status of women has not been uttered by that Court since 1908. It is therefore hoped that this proposal will stimulate further discussion and will result in a case presenting clear issues to the Court in order that the present doubts as to the scope of the Fourteenth Amendment will be resolved.
December 12, 1962.
l For general orientation see "Women Today: Trends and Issues," A Background Memorandum prepared at the request of the President's Commission on the Status of Women, by Dr Caroline F. Ware (July 1962)
2 "The early common law recognized and upheld the doctrine that for most purposes husband and wife formed a single person, represented by the husband, and as a consequence of this legal merger it has been said ‘that is, the very being and legal existence of the woman is suspended during her marriage, or at least is incorporated and consolidated into that of the husband…Upon this principle, of a union of a person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage,’ and ‘The wife… hath no separate interest in anything during her coverture’ … Or, as pointedly and accurately stated…with reference to the early English authorities, the wife was considered the husband's chattel.
"Personal property in her possession upon marriage passed to him, and could be levied upon for his debts, or bequeathed by him to strangers, and he also took during coverture a sole estate in her lands which she could not alien unless he joined, or devise even with his assent, unless when exercising a power granted to her at the creating of the estate, nor derive any benefit or income therefrom by any contract which she could make separately…
"Without her consent damages for injury to her person or reputation also might be released by him, or if collected in her lifetime they became his separate property, and as a husband he had the right moderately to chastise his wife, although it was declared by the Colony (Massachusetts) in 1641 that she should be free from corporal correction by him…" Braley, J. in Nolin v. Pearson 191 Mass. 283, 284-285 (1906).
"It was almost universally believed that a woman's brain was smaller in capacity and therefore inferior in quality to that of a man." Kleanor Flexner, Century or Struggle (1959), p. 23. Compare this statement with the following: "The average Negro brain has a cortex 14% thinner than that of the average white brain." New York times, November 7, 1962, p. 29 (advertisement for Saturday Evening Post issue of November 10, 1962).
Mr. Justice Bradley, concurring in Bradwell v. State, 83 U.S. 130 (1872) (which held that the right to practice law in a state was not one of the "privileges and immunities" of federal citizenship under the 14th Amendment) expressed the classic nineteenth century attitude toward women. He declared: "It certainly cannot be affirmed, as an historical fact, that this (the practice of law) has ever been established as one of the fundamental privileges and immunities of the (female) sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or I should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution
of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. …who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him…(the Illinois Supreme Court had denied Mrs. Myra Bradwell's application to practice law in that State on the ground that a married woman had no capacity to make contracts with her clients as would be expected in the relationship between attorney and client.)
"It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign office of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases." (83U.S. 130, 141-142) (Emphasis added.)
"…In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex." (83 U.S. at 142) (emphasis supplied). It is interesting to note that Chief Justice Chase dissented without opinion and that only two justices joined with Justice Bradley in his views. It is also interesting to note that Mr. Justice Bradley wrote the majority opinion in the Civil Rights Cases, 109 U.S. 3 (1883).
Note the muted echo of the "woman in the home" theme in Mr. Justice Harlan's opinion in Hoyt v. Florida, 368 U.S. 57, 61-62 (1961), App. I, No. 4 infra. See the opinion of the court below (119 So. 2d 691) (Fla. 1960), upholding the Florida jury statute which required women to register with the clerk of the court before they were called for jury service. The court said:
"Whatever changes may have taken place in the political or economic status of women in our society, nothing has yet altered the fact of their primary responsibility, as a class, for the daily welfare of the family unit upon which our civilization depends. The statute, in effect, simply recognizes that the traditional exclusion was based not upon inherent disability or incapacity but upon the premise that such demands might place an unwarranted strain upon the social and domestic structure, or result in unwilling participation by those whose conflicting duties, while not amounting to actual hardship, might yet be expected, as a general rule, to affect the quality of their service as jurors. The law vests the individuals concerned, as those best qualified to judge, the right to decide without compulsion whether such service could be rendered without risk of impairment in their more vital role. There is an obvious distinction between such a legislative classification or rule of privilege and the case of a blanket administrative exclusion of an eligible class for supposed hardship." (119 So. 2d at 694)
But see Judge Hobson's dissent in the decision denying defendent's petition for rehearing of this case. He asserted that the jury statute was unconstitutional because it "placed an undue burden upon women who otherwise are qualified for jury service which is not demanded of others so situated… No valid reason exists for limiting jury service to women who volunteer. Trial judges have the same broad discretion to ex excuse women with pressing duties at home as to excuse men with pressing business commitments." Moreover, said the judge, the reason given for excluding women from jury service — that they "are primarily homemakers and should not be diverted from their duties as such" no longer exists "since the advent of woman suffrage and the entry, in this era of modernity, of untold women into all fields of business and professional life." (119 So. 2d 700-701). The Supreme Court, however, found that token representation of women on the jury list was sufficient to uphold the statute.
3 Quoted by Hofstadter, J. in Doyle v. Doyle, 158 N.Y.S. 2d 909 (Sup. Ct. Spec. Term, Pt. I, New York Co., 1957). Judge Hofstadter's view is more in keeping with the modern image of woman. In discussing the need for a more realistic approach to fixing alimony, he declared: "Alimony should not be a reward for virtue nor a punishment for guilt… In most cases neither party is at fault or both are in some degree… The factor of need, too, must be adjusted to women's new position in our society The married woman has come a long way since the days of Blackstone when she had no legal identity apart from her husband's; she is no longer the Victorian creature, ‘something better than her husband's dog, a little dearer than his horse.’ She is now the equal of man, socially, politically and economically. It is time that consonant with this new approach to woman's status we develop a modern basis for fixing alimony and support which will have its roots in reality." (pp. 911-912)
4 See Mr. Justice Frankfurter's comment in United States v. Dege, 364 U.S. 51 (1960): "How far removed we were nearly a century ago… from the legal and social climate of the eighteenth century common law regarding the status of woman is pithily illustrated by recalling the self-deluding romanticism of Blackstone, whereby he could conscientiously maintain that ‘even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the female sex in the laws of England.’ Blackstone, Commentaries on the Laws of England (1765), Bk. I, ch. 15, p. 433." (p.54).
5 For an excellent account of the movement for women's rights, see Flexner, A Century of Struggle (1959). See also "A Parallee to the Negro Problem" from Myrdal, An American Dilemma, Appendix 5(1944), reproduced in App. III infra.
6 Minor v. Happersett, 88 U. S. 162 (1874).
7 Bradwell v. State, 83 U.S. (16 Wall.) 130 (1872) (Chase, C. J., dissenting); In re Lockwood, 154 U.S. 116 (1894)
9 "Basic to all the specific issues which arise (from current trends in our society) is the profound confusion which exists as to what is expected of woman in today's world
"‘Woman’ is still seen by many men and women as wife and mother in an old-fashioned home in which most of her adult years were devoted to child-bearing and child care, and she provided a substantial part of the productive activity of society and of its educational and nursing services. In reality, the modern home, especially the urban home, is one where few of the material things which enter the family's standard of living are produced, where
occupies relatively few years, where children leave home while their mothers have the prospect of many years of active life, where wants must be satisfied out of earned income to which the wife is often called upon to contribute, where it is through the community that many of the family's most important needs must be met so that her full responsibility to her family can only be fulfilled if she can function effectively in the community.
* * *
"At the opposite extreme is the role of women envisaged by those who fought for women's right to education, employment, civic and political participation and legal equality. In this view, women are seen as individuals with varied capacities, interests and talents — as varied as those of men — and with as many possible activities as there are functions to be performed in the society. The activities of the traditional woman, such as cook, launderer, child nurse, are only social functions which some individuals may perform, not necessarily women and certainly not all women just because they are women. The biological function of child-bearing is seen as incidental to the broader concept of woman as a human being and a member of democratic society." Ware, op. cit., pp. 25-27.
10 See cases collected in annotation 157 A.L.R. 461. For annotation on exclusion of women as jurors as a violation of constitutional rights of defendant accused, see 9 A.L.R. 2d 661. For later cases, see A. L. R. 2d Supp. Service, 1960, p. 632.
11 Ibid. See particularly Commonwealth v. Welosky, 276 Mass. 398, 177 N. E. 656 (1931), cert. denied, 284 U. S. 684 (1932) App. I, No. 10 infra. See generally Crozier, Constitutionality of Discrimination Based on Sex, 15 B. U. L. Rev. 723-755 (1935); Anderson, Jury Service for Women? 11 Ga. B. J. 196 (1948); Dale, Ladies on the Jury, 37 Kappa Beta Pi Q 15 (1953); Jacobs, Women Jurors, 7 Austr. L. J. 262 (1934); Miller, The Woman Juror, 2 Ore. L. Rev. 30 (1922); Rudolph, Women on Juries - Voluntary or Compulsory? 44 J. Am. Jud. Soc'y. 206 (1961); Taylor, Jury Service for Women, 12 U. Fla. L. Rev. 224 (1959).
12 The Court denied certiorari in the Welosky case supra note 11, and decided Hoyt v. Florida, App. I,
infra on narrower grounds.
13 31 S. E. 2d 858 at 868, 157 A. L. R. 441 at 456. For Justice Seawell's dissent, see App. I, No. 6 infra.
14 177 N. E. 656, 663-664 (1931).
16 The American Tradition and Its Implications for Constitutional Law, 30 Fordham L. Rev. 415, 417-418 (1962). But Prof. Sutherland concludes, "I see no prospect of backward steps on the road toward equal opportunity, based on individual merit, for all our people." ibid. p. 424.
17 Gulf, Colorado and Santa Fe Railway v. Ellis, 165 U. S. 150, 165-166 (1896); Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 560-561 (1902) dissenting opinion).
18 State v., Baker, 50 Ore. 381, 385, 92 p. 1076, 1078 (1907). (Upholding statute which prohibited proprietors of saloons from allowing "any female under the age of twenty-one to remain in or about such saloon, or any place where intoxicating liquor is kept for sale at retail.") See also State v. Hunter, 208 Ore. 282, 300 p. 2d 455, 457 (1956), quoting with approval the court's statement. For more complete text of the Hunter case, see App. I., No. 41 infra. Contrast the view of the Oregon court with that of Mr. Justice Sutherland, speaking for the majority of the Supreme Court in the Adkins case, App. I, No. 14 infra, and with the dissenting views in Ballard v. U. S. App. I, No. 1 infra. In these cases it appears that the justices expressed the correct abstract principle but applied it incorrectly.
19 See e.g., Commonwealth v. Welosky, 276 Mass. 398, 177 N. E. 656 (1931), Hoyt v. Florida, 368 U. S. 57 (1961). For summaries of the jury cases, see App. I, Nos. 1-10 infra.
Since 1957, with the enactment of the federal Civil Rights Act, women are eligible to sit on all federal juries. Before that date, state qualifications for jury service were used to determine eligibility to sit on federal juries. (See 28 U. S. C. A. §1861 for qualifications for federal
Compare Ballard v. United States, 329 U. S. 187 (1946) with Glasser v. United States, 315 U. S. 60 (1942). See also United States v. Roemig, 52 F. Supp. 857 (1943). See also United States v. Wilson, 158 F. Supp. 442 (D.C. Ala., 1958), aff'd., 255 F. 2d. 686, cert. denied, 358 U. S. 865; United States v. Hoffa, 196 F. Supp. 25 (D.C.S.D. Fla., 1961), App. p, .3 infra.
20 Muller v. Oregon, 208 U. S. 412 (1908); Riley v. Massachusetts, 232 U. S. 671 (1914); Hawley v. Walker, 232 U. S. 718 (1914); Miller v. Wilson, 236 U.S. 373 (1915); Bosley v. McLaughlin, 236 U. S. 385 (1915); Radice v. New York, 264 U. S. 292 (1924); West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937) (overruling Adkins v. Children's Hospital, 261 U. S. 525 (1923)). See also Bunting v. Oregon, 243 U. S. 426 (1917) (validating maximum hour legislation for both men and women workers). For summaries of these cases, see Appendix I, Nos. 13-23 and Appendix II infra.
21 Goesaert v. Cleary, 335 U. S. 464 (1948); State v. Burke 79 Idaho 205, 312 P. 2d 806 (1957); Adams v. Cronin, 29 Colo. 488, 69 P. 590 (1902); People v. Jemnez, 49 Cal. App. 2d Super. 739, 121 P. 2d. 543 (1942); Fitzpatrick v. Liquor Control Commission, 316 Mich. 83, 25 N.W. 2d 118, 172 A.L.R. 608, annot. 620 (1946) (barring or restricting employment as bartenders). For summaries of these cases and decisions restricting presence of women in saloons, see App. I, Nos. 24-39 infra)) But see, Brown v. Foley 158 Fla. 734, 29 So. 2d 870 (1947) (holding ordinance which barred employment of woman as bartender as unreasonable and void), App. I, No. 39 infra. See State v. Hunter, 208 Ore. 282, 300 P. 2d 455 (1956), App. I, No. 41 infra (barring participation of women in wrestling matches).
22 See In re Mahaffay's Estate, 79 Mont. 10, 254 P. 875 (1927) (statute prohibiting married woman's testamentary disposition of specified portion of property without husband's written consent), App. I, No. 56 infra; Craig v. Lane, 60 Idaho 178, 89 P. 2d 1008 (1939) (restriction on married woman's right to enter surety contract), App. I, No. 57 infra.
23 Heaton v. Bristol, Tex. Civ. App., 317 S.W. 2d 86 (1958), appeal dismissed and cert. denied, 359 U. S. 230, reh. denied, 359 U. S. 999; Allred v. Heaton, Tex. Civ. App., 336 S.W. 2d 251 (1960), appeal dismissed and cert. denied, 364 U. S. 517, reh. denied, 364 U. S. 944, App., I, Nos. 11, 12 infra (exclusion of women from Texas A. & M. College).
For collection of statutes affecting status of women up to 1950, see Comment, Sex, Discrimination and the Constitution, 2 Stan. L. Rev. 691-730 (1950). No independent research has been done to determine the current status of laws affecting women.
24 Note 9 supra.
25 Ware, op. cit. p. 48.
26 Ibid., p. 29.
27 Ibid., p. 28
28 See the Hoyt, Welosky and Emery cases, App. I, Nos. 4, 10 and 6
29 "Maternity legislation is compatible with equality for it is similar to legislation for veteran soldiers' benefits. It is granted for a special service rendered to society. It is not sex legislation, as it does not apply to all women any more than veteran soldier legislation applies to all men. Both types of legislation are legitimate forms of ‘classification’ and neither violates the principle of the ‘equal protection of the law.’" Murrell, Full Citizenship for Women: An Equal Rights Amendment, 38 A.B.A.J. 47, 48 (1952).
30 Myrdal, An American Dilemma (1944), Appendix 5, "A Parallel to the Negro Problem," App. III infra; Hacker, "Women as a Minority Group," Social Forces, Vol. 30, p.60 (Oct. 1951); Crozier, Constitutionality of Discrimination Based on Sex, 15 B. U. L. Rev. 723, 727-728 (1935); Comment, Sex, Discrimination and the Constitution, 2 Stan. L. Rev. 691 at 724 (1950).Those statutes which limit jury service to males seemsmost vulnerable to attack as a denial of equal protection of the laws. Systematic exclusion of Negroes from juries has been repeatedly held to deny equal protection to a Negro defendant. A classification based on sex seems as arbitrary as one based on race. Neither factor has any conceivable connection with the jury function. But the attack has failed in those cases which have met the issue." ibid., 724-725.
31 "The Problem of Minority Groups," The Science of Man in the World Crisis, ed. by Ralph Linton (1945), p. 347, cited and quoted in Hacker, op. cit., p. 60.
32 "In general they (discriminations against women) take the form of being barred from certain activities or, if admitted, being treated unequally. Discriminations against women may be viewed as arising from the generally ascribed status ‘female’ and from the specially ascribed statuses of ‘wife,’ ‘mother,’ and ‘sister.’ (To meet the possible objection that ‘wife’ and ‘mother’ represent assumed, rather than ascribed statuses, may I point out that what is important here is that these statuses carry ascribed expectations which are only ancillary in the minds of those who assume them.)
"As female, in the economic sphere, women are largely confined to sedentary, monotonous work under the supervision of men, and are treated unequally with regard to pay, promotion, and responsibility. With the exceptions of teaching, nursing, social service, and library work, in which they do not hold a proportionate number of supervisory positions and are often occupationally segregated from men, they make a poor showing in the professions. Although they own 80 per cent of the nation's wealth, [?] they do not sit on the boards of directors of great corporations. Educational opportunities are likewise unequal. Professional schools, such as architecture and medicine, apply quotas. Women's colleges are frequently inferior to men's. In co-educational schools women's participation in campus activities is limited. As citizens,
women are often barred from jury service and public office. Even when they are admitted to the apparatus of political parties, they are subordinated to men. Socially, women have less freedom of movement, are permitted fewer deviations in the proprieties of dress, speech, manners. In social intercourse they are confined to a narrower range of personality expression.
"In the specially ascribed status of wife, a woman — in several States — has no exclusive right to her earnings, is discriminated against in employment, must take the domicile of her husband, and in general must meet the social expectation of subordination to her husband's interests. As a mother, she may not have the guardianship of her children, bears the chief stigma in the case of an illegitimate child, is rarely given leave of absence for pregnancy, As a sister, she frequently suffers unequal distribution of domestic duties between herself and her brother, must yield preference to him in obtaining an education, and in such other psychic and material gratifications as cars, trips, and living away from home." Hacker, op. cit., p. 62-63.
* * *
"The relation between women and Negroes is historical, as well as analogical. In the seventeenth century the legal status of Negro servants was borrowed from that of women and children, who were under the patria potestas, and until the Civil War there was considerable cooperation between the Abolitionist and woman suffrage movements. According to Myrdal, the problems of both groups are resultants of the transition from a pre-industrial, paternalistic scheme of life to individualistic, industrial capitalism. Obvious similarities in the status of women and Negroes are indicated in Chart I.
"Chart I. Castelike Status of Women and Negroes
Negroes Women 1. High Social Visibility a. Skin color, other "racial"
a. Secondary sex characteristics b. (Sometimes) distinctive dress
— bandana, flashy clothes
b. Distinctive dress,
2. Ascribed Attributes a. Inferior intelligence, smaller
brain, less convoluted, scarcity
a. ditto b. More free in instinctual gratifications.
More emotional, "primitive"
and childlike. Imagined
sexual prowess envied.
b. Irresponsible, inconsistent, emotionally unstable. Lack strong super-ego.
Women as "temptresses."
c. Common stereotype "inferior" c. "Weaker" 3. Rationalizations of Status a. Thought all right in his place. a. Woman's place is in the
b. Myth of contented Negro b. Myth of contented woman—
"feminine" woman is happy
in subordinate role.
4. Accommodation Attitudes a. Supplicatory whining intonation
a. Rising inflection, smiles,
laughs, downward glances.
b. Deferential manner b. Flattering manner. c. Concealment of real feelings. c. "Feminine wiles" d. Outwit "white folks" d. Outwit "men-folks" e. Careful study of points at which
dominant group is susceptible
e. ditto f. Fake appeals for directives; show
f. Appearance of helplessness 5. Discriminations a. Limitations on education—
should fit "place" in society.
a. ditto b. Confined to traditional jobs
—barred from supervisory positions.
Their competition feared.
No family precedents for new
b. ditto c. Deprived of political importance. c. ditto d. Social and professional segregation. d. ditto e. More vulnerable to criticism. e. e.g., conduct in bars. 6. Similar Problems a. Roles not clearly defined, but in flux as result of social change. Conflict between achieved status and ascribed status."
Hacker, op. cit., p. 65.
33 Ibid. See also App. III infra.
34 100 U. S. 303, 309-310 (1880). "It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a [N]egro is not, the latter is equally protected by the law with the former… And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection? (p. 309)
"We do not say that within the limits from which it is not excluded by the amendment a State may not prescribe the qualifications of its jurors, and in so doing make discriminations. It may confine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications. We do not believe the Fourteenth Amendment was ever intended to prohibit this. Looking at its history, it is clear it had no such purpose. Its aim was against discrimination because of race or color….We are not now called upon to affirm or deny that it had other purposes." (p. 310) (emphasis supplied.) The Court refused to reexamine this dictum in the Hoyt case, App. I, No. 4 infra.
35 Constitutionality of Discrimination Based on Sex, 15 B. U. L. Rev. 723, 727-728 (1935).
36 See Comment, Sex, Discrimination and the Constitution, 2 Stan. L. Rev. 691, 726-727 (1950).
37 Notes 20, 21 and 22 supra.
38 347 U. S. 475, 478 (1954).
39 208 U. S. 412, App. I, No. 18, App. II infra.
40 Lochner v. New York, 198 U. S. 45 (1905). See App. II infra.
41 243 U. S.
(1917). See App. II infra.
42 208 U. S. at 422 (1908).
43 Commonwealth v. Welosky, note 11 supra.
44 Quong Wing v. Kirkendall, 223 U. S. 59, 63 (1912); State v. Hunter, 208 Ore. 282, 300 P. 2d 455, 458 (1956); People v. Case, 153 Mich. 98, 116 N. W. 5;58, 560 (1908).
45 Note 23 supra.
45a See Fitzpatrick v. Liquor Control Commission, 172 A. L. R. at 619, App. I, No. 38 infra and Bailey v. State, 9 A. L. R. 2d at 659, App. I, No. 7 infra.
46 Plessy v. Ferguson, 163 U. S. 537 (1896)
47 For a more modern view of physical capacities of women, see Cutler, What About Women? (1961), ch. 5. Note the changed conditions of childbirth brought about through the development of obstetrics. "In 1915 in the United States sixty women died for every ten thousand live births; in 1954 only four died." ibid p. 125. See also the comments of Dr. Louis Lasagna, associate professor at Johns Hopkins Medical School in his article, "Why Not ‘Astronauttes’ Also?" New York Times Magazine, October 21, 1962, p.52. For a psychoanalyst's view calling for a revolution in attitudes toward women in America, see Bettelheim, "Growing up Female," Harper's Magazine, October 1962, p. 120.
48 Statistical Abstract of the United States, 1962. Table No. 20, p. 28.
49 In Hoyt v. Florida, 368 U. S. 57 (1961), the appellant argued: "There is no factual basis today for the assertion that jury service for women places an ‘unwarranted strain’ upon society. Women with young children, and others having pressing domestic duties, would, it is granted, find difficulty in serving. However, a state may provide that these be exempt from jury service. Such women are only a small proportion of the total female population. It is unreasonable to make the difficulties of a few a pretense for the exclusion from jury service of almost all of the women of the State." (Appellant's Brief, pp. 16-17). Query: Would the Supreme Court have accepted this argument if the statute in question had totally excluded women from jury service?
50 See Rostow (Edna G.), "The Best of Both Worlds: Feminism and
The Yale Review (1962).
51 See Comment, Sex, Discrimination, and the Constitution, 2 Stan. L. Rev. 691, 726-727 (1950). The author discusses the proposed Equal Rights Amendment, points out the difficulty of interpretation of the broad language of the amendment and argues that such an amendment "could be emasculated by a conservative court." (727-728) Though expressing the view that many existing laws which discriminate because of sex "have no justifiable basis and should be abolished" the author concludes by quoting a view that "only a single-minded fanaticism could fail to see and insist upon the fact that men and women are different in many respects; that as far as biological science can presently predict they will remain different, and the use of the Constitution as a means of conjuring away biological inequalities is both an insult to that document and a disregard of fact." (730)
The author leaves the reader with the pessimistic impression that there is little hope of achieving equality of status for women either by an amendment to the Constitution or under the Fourteenth Amendment. This latter view is arrived at as follows: "The Fourteenth Amendment does not require all persons to be treated exactly the same. It is not a ‘pedagogical requirement of the impracticable.’ It recognizes the power of the state to classify its citizens and requires only that the classification "be not arbitrary and that all persons within a class be treated equally. The presumption in favor of constitutionality requires the courts to assume the existence of any reasonably conceivable state of facts that would sustain it.
"In view of these general principles, it is not surprising that legislation which classifies on the basis of sex has usually withstood attacks under the Fourteenth Amendment. A review of the cases interpreting the Constitution in its present form indicates that, as a basis for the legislative classification, sex is here to stay." (719-720).
This conclusion appears to be based upon the assumption that any attack under the Fourteenth Amendment will concentrate upon a concept of "equality" rather than upon "reasonable classification." It would appear that the most effective approach will be that of an interpretation of the rights of women within the existing constitutional concern with the
reasonableness of statutory classification. This approach will be required even if an equal rights amendment is adopted, since ultimately each piece of broad legislation must undergo judicial interpretation.
For an example of a conservative interpretation of an equal rights provision in a State constitution, see People v. Jemnez, 49 Cal. App. 2d Super. 739, 121 P. 2d, 543 (1942), in which the court held that the State Constitution which provided "No person shall, on account of sex, be disqualified from entering upon or pursuing any lawful business, vocation, or profession," was not violated by a statute which barred the employment of women who were not the licensees or wives of licensees in mixing alcoholic beverages for consumption on the premises. The court said the sale of alcoholic beverages as a business involved a privilege and not a right and that the classification of women with respect to mixing drinks was reasonable, and thus there was no denial of equal protection of the laws to those whose employment was prohibited.
52 See notes 77 and 78 infra and accompanying text.
53 State v. Hunter, 208 Ore. 282, 300 O. 2d. 455, 458 (1956). For excerpts from the decision see App. I, No. 41 infra. Compare with Bailey v. State and Fitzpatrick case, App. I, Nos. 7 and 38 infra.
54 Hacker, op. cit., p. 67.
55 See e.g. Commonwealth v. Welosky, 276 Mass. 398, 177 N.E. 656 (1931), cert. den. 284 U.S. 684 (1932); State v. Emery, 224 N.C. 581, 31 S.E. 2d 858, 157 A.L.R. 441 (1944); Heaton v. Bristol, Tex. Civ. App., 317 S.W. 2d 86 (1958), appeal dismissed and cert. den., 359 U.S. 230, reh. den., 359 U.S. 999; Allred v. Heaton, Tex. Civ. App. 336 S.W. 2d 251 (1960), appeal dismissed and cert. den., 364 U.S. 944. See Burton, J. 's dissent in United States v. Ballard, 329 U.S. 187, (2046205 (1946), App. I, No. 1 infra.
56 347 U. S. 483 (1954).
57 Sweatt v. Painter, 339 U. S. 629 (1950) (ordering the admission of Negro plaintiff to the University of Texas Law School). The Court enumerated such intangible qualities in that institution as "reputation of faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige." (p. 634)
59 Hacker, op. cit., p. 60.
60 Crozier, op. cit., note 35 supra; Comment, note 51 supra.
For materials on the issue of women and jury service, see materials cited in note 11 supra. See generally, Drew, Women and the Law, 447 Women Law. J.____ (1961); Joachim, So Let Your Light Shine - The Role of the Educated Woman in the Modern World, 43 K.B,. P.Q. 138 (1959); Matthews, Women's Contribution to the Better Administration of Justice, 39 K.B.P.Q. 170 (1955);
Moncure, Women Are Not "Persons" and Have No Civil Rights Other Than the Right to Vote, 44 Women Law. J. 15 (1958); Puller, When Equal Rights are Unequal, 13 Va. L. Rev. 619 (1927); Taylor, Equal Rights for Women, 15 U. Fla. L. Rev. 134 (1962); The Equal Rights Amendment — Pro and Con, Panel Discussion, 42 K. B. P.Q. 25 (1958); Murrell, Full Citizenship for Women: An Equal Rights Amendment, 38 A.B.A. J. 47-49 (1952); Brophy, An Equal Rights Amendment: Would it Benefit Women?, 38 A.B.A.J. 393-395 (1952); Storey, U.S.S.R. People's Courts and Women Lawyers, 48 Women Law. J. 21 (1962); Talley, Women Lawyers of Yesterday, Today and Tomorrow, 46 Women Law. J. 21 (1960); Leopold, The Legal Status of Women, The Book of the States (1960-61), published by the Council of State Governments. See Comment, Legal Rights of Married Women in Texas, 13 S.W. L. J. 84 (1959). For materials on the rights of married women, see "Marriage and the Rights of Women: Property, Contractual, Personal, (1962) (mimeographed), bibliography of Representative Legal References, Committee on Political and Civil Rights, President's Commission on the Status of Women. For summaries of the laws on the status of women in the various states, see pamphlet collection The Legal Status of Women in the United States of America, U. S. Department of Labor, Women's Bureau Bulletins. See also "Bibliography: Political and Civil Status of Women," prepared by Dorothy S. Whitney, Legislative Reference Service Library of Congress (1962) for President's Commission on the Status of Women (mimeographed).
6l See note 51 supra.
62 See note 47 supra. For summary of changes in the laws affecting the status of women, see "Property and Political Rights of Women, January 1, 1938-January 1, 1958 (mimeographed), U. S. Department of Labor, Women's Bureau. See Judge Hofstadter's approach to alimony in Doyle v. Doyle, note 3 supra. Note further, the legislative abolition of actions for breach of promise, alienation of affections as further evidence of the changing attitude toward women.
63 McCulloch v. Maryland, 17 U. S. (4 Wheat.) 407, 415 (1819).
63a N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937).
64 See e.g. Burton v. Wilmington Parking Authority, 365 U. S. 715 (1957).
65 See e.g. Griffin V. Illinois, 351 U. S. 12 (1956) (indigent defendants convicted of armed robbery entitled under Illinois statute granting rights of appeal to have a copy of record including transcript furnished them without costs). U. S. ex rel. Goldsby v. Harpole 263 F. 2d 71 (5th Cir. 1959), cert. denied, 361 U.S.838 (1959).
, 362 U.S.17(1960)
67 Baker v. Carr, 82 S. Ct. 691 (1962) (a complaint which asserted a state statute effected an apportionment which deprived plaintiffs of equal protection of the laws in violation of the Fourteenth Amendment stated a justifiable constitutional question.)
68 The Sovereign Prerogative: The Supreme Court and the Quest for Law (1962), p. 88.
69 Compare the Supreme Court's interpretation of the "privileges and immunities" clause in the following decisions: Slaughter-House Cases, 83 U. S. (16 Wall.) 36 (1872) (5-to-4 vote); Bradwell v. State, 83 U. S. (16 Wall.) 130 (1872) (Chase, C. J., dissenting) (right to practice law not a privilege guaranteed by Federal Constitution); Civil Rights Cases, 109 U. S. 3 (1883) (Harlan, J., dissenting) (invalidated federal Civil Rights Act of 1875 which prohibited discrimination on basis of race or color in public accommodations); Minor v. Happersett, 88 U. S. 162 (1874) (right to vote not a "privilege" guaranteed by the Constitution). See also Plessy v. Ferguson, 163 U. S. 537 (1896). (Harlan, J., dissenting) ("separate but equal" facilities for Negroes and whites not unconstitutional). Note the inability of the majority of the Court in the Plessy case to understand the implications of racial distinctions in the law. "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is "not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." (163 U. S. 537, 551) Cf. Commonwealth v. Welosky, App. I, No. 10 infra.
70 See Bickel, The Original Understanding and the Segregation Decision, 69 Haryn L. Rev. 1-65 (1955).
71 Quong Wing v. Kirkendall, 223 U. S. 59 (1912) (Lamar, J., dissenting), App. I, No. 40, infra; Goesaert v. Cleary, 335 U. S. 463 (1948) (6-to-3, Rutlege, Douglas, and Murphy, J. J., dissenting), App. I, No. 24, infra; Fay v. New York, 332 U. S. 261 (1947) (5-to-4, Murphy, Black, Rutledge and Douglas, J. J., dissenting); Hoyt v. Florida, 368 U. S. 57 (1961) (Warren, C. J., Black and Douglas, J. J., concurring specially), App. I, No. 4 infra; State v. Burke, 79 Idaho 205, 312 p. 2d 806 (1957) (Keeton, C. J., dissenting), App. I, No. 25 infra; State v. Emery, 224 N. C. 581, 31 S. E. 2d 858, 157 A. L. R. 441 (1944) (2 judges dissenting), App. I, No. 6 infra.
72 Ibid. See e.g. Brown v. Foley, 158 Fla. 734, 29 S. 2d 870 (1947), App. I, No. 39 infra, holding that a Miami municipal ordinance providing that no female shall be employed for serving liquor by the drink over any bar or counter was void as applied to a woman who was employed as a bartender. The ordinance was held to be unreasonable and without sound basis. See also Opinion of the Justices, 303 Mass. 631, 22 N. E. 2d 49, 123 A.L.R. 199 (1939), advising legislature that both the exclusion of all married women, and the exclusion of those whose husbands are legally bound to support them, from employment in the public service would be an unreasonable classification in violation of the Massachusetts Constitution. The Court said, "though statutes may be passed for the protection of the health, safety and welfare of women and of special classes of them … and very likely of married women as a class of potential mothers of the race, we think that the absolute exclusion of married women of all ages from public, employment of every nature cannot be found to bear any reasonable relation to such protection."(123 A. L. R. at 217).
73 New York Times, November 28, 1962, p. 41, col. 8. "The plaintiff, Felicia Shpritzer, had been a member of the police force for 20 years. She serves in the department's Youth Division, holds a B. A. from Hunter College, an M. A. from the University of Michigan, and a Master of Public Administration degree from City College. There are 278 women in the police department, but only male sergeants." In a unanimous decision the five-man bench declared that the present policy of denying advancement to policewomen was "an archaic approach in the light of modern-day conditions," according to the New York Times.
74 See Erie Railroad v. Tompkins; 304 U. S. 64 (1937), overruling Swift v. Tyson, 16 Pet. 1 (1841); Brown v. Board of Education, 347 U. S. 483 (1954); Baker v. Carr, 82 S. Ct. 691 (1962). Compare Lochner v. New York, 198 U.S. 45 (1905) with Bunting v. Oregon, 243 U. S. 426 (1917).
75 Oyama v. California, 332 U. S. 633 649-650 (1948) (Black and Douglas, J. J., concurring).
76 See notes 71 supra, 82 and 83 infra.
77 368 U. S. 57 (1961), App. I, No. 4 infra.
78 Heaton v. Bristol, Tex. Civ. App., 317 S. W. 2d 86 (1958), appeal dismissed and cert. den., 359 U. S. 230, reh. den., 359 U. S. 999; Allred v. Heaton, Tex. Civ. App., 336 S.W. 2d 251"(1960), appeal dismissed and cert. den., 364 U.S. 517, reh. den., 364 U.S. 944. For discussion of these cases see Appendix I, Nos. 11 and 12, infra.
79 Fay v. New York, 332 U. S. 261 (1947); Hoyt v. Florida, 368 U. S. 57 (1961), App. I, Nos. 5 and 4 infra. For a criticism of this view of voluntary service, see Rudolph, Women on Juries — Voluntary or Compulsory? 44 J. Am. Jud. Soc'y. 206-210 (1961). He points out that volunteer service for women does not provide the "impartial jury drawn from a cross section of the community" laid down as a standard of the American tradition of trial by jury" as announced in Thiel v. Southern Pacific Railroad Company, 328 U.S. 217 (1946). Aside from making the jury more representative, Mr. Rudolph suggests that "compulsory service for women would double the number of available jurors and alleviate the personal burden of jury service on the remainder of the community. It would ease the problems of the jury commissioners and allow persons to be excused from jury service when such service would create a real hardship." (p. 208) And see Judge Hobson's dissenting view in the Hoyt case, 119 So. 2d 700-701, note 2 supra.
Although the jury statutes of Alabama, Mississippi and South Carolina which wholly exclude women as jurors present a clear illustration of arbitrary discrimination, they have certain limitations from the point of view of litigation. Jury service is generally associated with political rights, but the courts have held that it is a privilege or an obligation, not a right of citizenship. The right involved is the right to a fair trial by an impartial jury and is usually adjudicated in cases in which the party asserts a denial of due process or equal protection because of alleged exclusion of certain classes from the jury. The excluded class would seem to have no standing to enforce the right of inclusion in the jury list.
This creates certain procedural difficulties. Recently, however, it has been suggested that jury service is a right to participate in an important phase of the governmental process and that an association representing an excluded class should have standing to sue to enforce this right. See Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599, 636-638, 658-659 (1962).
As of 1961, in the 47 jurisdictions where women are eligible for jury service, 18 grant women an absolute exemption solely because of sex, 8 states excuse them if they have family responsibilities which would make jury service an undue hardship, and 21 states provide for eligibility, for the most part, on the same basis as men. For collection of statutes, see Hoyt v. Florida, 368 U. S. 57, 62-63, ns. 5-8 (1961). Slightly different figures are given by Leopold, The Legal Status of Women, op. cit., note 60 supra (27 states, the Canal Zone and Guam have jury laws which require women to serve under the same terms and conditions as men; 20 states, the District of Columbia, Puerto Rico and the Virgin Islands permit women to be excused on the basis of sex).
80 See Goesaert v. Cleary, note 71 supra.
81 Ibid. 335 U. S. at 446. See App. I, No. 24 infra.
82 Wyatt v. United States, 362 U. S. 525 (1960), App. I, No. 54 infra. Cf. Hawkins v. United States, 358 U. S. 74 (1958), App. I, No. 53 infra.
83 United States v. Dege, 364 U. S. 51 (1960), App. I, No. 55 infra.
84 See App. I, Nos. 54 and 55 infra.
85 See e.g. Ex Parte Dunkerton, 104 Kan. 481, 179 P. 347, 3 A.L.R. 1611, annot. 1614 (1919), App. I, No. 46 infra.
86 Hacker, op. cit., p. 60.
87 See dissents in Wyatt and Dege cases, App. I., Nos. 54 and 55 infra.
88 See App. II, infra. For problems in other countries see Muller-Freienfels, Equality of Husband and Wife in Family Law, 8 Int'l. & Comp. L. Q. 249 (1959); Graveson and Crane, eds., A Century of Family Law (1957). See also materials cited in Taylor, Equal Rights for Women, 15 U. Fla. L. Rev. 134 (1962).
89 For problems and criticisms of the use of social science evidence, see Garfinkel, Social Science Evidence and the School Segregation Cases, 21 Journal of Politics 37 (1959); Cahn, A Dangerous Myth in the School Segregation Cases, 30 N.Y.U. L. Rev. 150, 153-154, 157-168 (1955); Tanenhaus, "Social Science in Civil Rights Litigation," Aspects of Liberty, Konvitz & Rossiter, ed. (1958), p. 91. For limitations on the Brandeis brief method of proof, see Karst, "Legislative Facts in Constitutional Litigation," The Supreme Court Review (1960) 75, 99-110.
90 According to Neva B. Talley, former president of the National Association of Women Lawyers, in 1960, 590 of the 5,059 women lawyers in the United States were judges. The 1960 census figures indicate that of 252,385 lawyers reporting, 6488 are women. Assuming that women continued to maintain their ratio of ten to one in judicial posts, there would be today approximately 650 women judges among the 8,180 lawyers in the judicial service. It would be interesting to know how many women hold positions on the appellate courts. See 46 Woman Lawyers, J. 21 (1960); Statistical Abstract of the United States, 1962, Tables Nos. 205, 207, pp. 157-158.
The estimated adult population in 1961 (20 years and over) was: Male — 54,169,000; Female — 57,794,000. Women were represented in elective office as follows: Congress — 20 (Senate, 2; House 18); State Legislatures — 324 (State Houses — 290; State Senates — 34); Secretaries of State — 7.
91 26 F. R. D. 409, 431. (Sept. 1960).
92 This has been done with other issues of civil rights and civil liberties in the Political and Civil Rights Course at Yale Law School conducted by Prof. Thomas I. Emerson.
93 e.g. American Civil Liberties Union, NAACP, Workers Defense League, American Jewish Congress, National Association of Women Lawyers, and the Civil Rights Committees of various bar associations. Note that the ACLU filed an amicus brief in the Hoyt case and that the New York Civil Liberties Union assisted Miss Shpritzer in her challenge to the ruling of the New York City Civil Service Commission. The Legal Committee of the Workers Defense League has also expressed an interest in issues involving the rights of women.
SELECTED COURT DECISIONS DETERMINING VALIDITY OF LAWS
WHICH DISTINGUISH ON THE BASIS OF SEX
Section 1 of the Fourteenth Amendment to the Constitution of the United States provides:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any persons of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
JURY SERVICE - FEDERAL JURIES
(1) Ballard v. U. S. 329 U. S. 187(1946). Federal indictment and conviction of Edna W. Ballard and Donald Ballard for using and conspiring to use the mails to defraud. In a 5-to-4 decision(Vinson, C.J., Burton, Jackson and Frankfurter dissenting; Jackson also concurring in part), conviction reversed. Defendants argued that women were not included in the panel of grand and petit jurors of the Southern District of California where the indictment was returned and the trial had; and that they were systematically and intentionally excluded from the panel, although women have been members of both grand and petit juries in that district since February, 1944. The Government conceded this fact. In reversing, Mr. Justice Douglas, speaking for the Court, declared:
Congress has provided that jurors in a federal court shall have the same qualifications as those of the highest court of law in the State. (citing Judicial Code). This provision applies to grand as well as petit juries. Congress also has prohibited disqualification of citizens from jury service "on account of race, color, or previous condition of servitude." It has required that jurors shall be chosen "without reference to party affiliations." It has provided that jurors shall be returned from such parts of the district as the court may direct "so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly burden the citizens of any part of the district." None of the specific exemptions which it has created is along the lines of sex. (329 U.S. at 190-191).
These provisions reflect a design to make the jury "a cross-section of the community" and truly representative of it. (citing cases)
* * *
In Thiel v. Southern Pacific Co., 328 U. S. 217, 66 S. (cont.) Ct. 984(1946), we were presented with a similar problem… The gist of our ruling is contained in the following statement from the opinion in the Thiel case:
"The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. ***This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographic groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intential exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury. ***" (329 U. S. at 192-193).
We conclude that the purposeful and systematic exclusion of women from the panel in this case was a departure from the scheme of jury selection which Congress adopted and that, as in the Thiel case, we should exercise our power of supervision over the administration of justice in the federal courts***to correct an error which permeated this proceeding….
It is said, however, that an all male panel drawn from the various groups within a community will be as truly representative as if women were included. The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men — personality, background, economic status — and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. But if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. (329 U. S. at 193).
To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.
* * *
(1) ***[T]he exclusion of women from jury panels may at times be highly prejudicial to the defendants. But reversible error does not depend on a showing of prejudice in an individual case. The evil lies in the admitted exclusion of an eligible class or group in the community in disregard of the prescribed standards of jury selection. The systematic and intentional exclusion of women, like the exclusion of a racial group, Smith v. Texas, 311 U. S. 128 …, or an economic or social class, Thiel v. Southern Pacific Co., supra, deprives the jury system of the broad base it was designed by Congress to have in our democratic society. It is a departury scheme… "Such action is operative to destroy the basic democracy and classlessness of jury personnel." It "does not accord to the defendant the type of jury to which the law entitles him. It is an administrative denial of a right which the lawmakers have not seen fit to withhold from, but have actually guaranteed to him." (citations committed) The injury is not limited to the defendant — there is an injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts. (329 U. S. 195)
In this case the indictment was dismissed.
[NOTE: Only four justices voted to reverse on the ground that women were excluded from the jury panel. Mr. Justice Jackson concurred with the result on other grounds.
Justices Frankfurter, Jackson, Burton and Chief Justice Vinson dissented from the view that the absence of women from the grand jury panel vitiated the indictment. Said Mr. Justice Burton in a separate dissenting opinion:
"There is no constitutional, statutory or court rule or policy requiring women to be placed on all federal jury lists …The availability of appropriate accommodations has been treated as a material factor in determining whether women and men shall be called for jury duty… Subordination of the need for women on federal juries to the availability of physical accommodations for them is a tacit recognition that no fundamental infraction of the rights of litigants is involved in the continuance of exclusively male juries.
"In some employments, women are distinguished from men, as a matter of law, in connection with their hours and conditions of work…These distinctions are due to considerations not applicable to jury service. The general and increasing absence of sound reasons for distinctions between men and women in matters of suffrage, office holding, education, economic status, civil liberties, church membership, cultural activities, and even war service, emphasizes the lack of reason for making a point of the
presence or absence of either sex, as such, on either grand or petit juries…" (329 U. S. 204-205)
Here, as in the Welosky case, infra, No. 10, we find the lack of distinction between the sexes given as a valid reason for exclusion of women, while in other cases the "inherent differences" between the sexes is stressed to support exclusion.]
(2) United States v. Wilson, 158 F. Supp. 442(D.C. Alabama, 1958), aff'd., 255 F. 2d 686, cert. denied 358 U.S. 865. Held: Congress has the authority to set up the qualifications for Federal jurors without regard to any qualifications that may be set up by the legislative bodies of the various States wherein the District Courts sit. The right of women to sit on Federal juries in the State of Alabama was upheld. The court noted that the jury venire in the case contained the names of several female jurors, and commented "As a matter of fact, this term of court in this district was the first time any female has ever served as a juror in either the State or Federal courts sitting in Alabama" (p. 448)
(3) United States v. Hoffa, 196 F. Supp. 25(1961)(D.C. S.D.Fla.) Indictment in a criminal prosecution against James Hoffa was dismissed. The evidence showed that the jury commissioners "deliberately and exclusively limited their selection of names for the jury box to those persons who were then registered to vote and, in the case of women, to those who had also volunteered for jury service in the State Court… It is evident that a jury panel from which all were deliberately and systematically excluded who did not register to vote, in a community where many citizens qualified for Federal jury service do not so register, and to likewise exclude all women from jury service except the very few who registered for jury service in the State Courts, is not a fair representation of the community," said the Court citing the Ballard and Thiel cases, (p. 31)
But see United States v. Greenberg, 200 F. Supp. 382(1961) (S.D.N.Y. 1961).
JURY SERVICE - STATE JURIES
(4) Hoyt v. Florida, 368 U.S. 57(1961) Woman convicted by all male jury of murdering her husband. Florida statute providing that no female be taken for jury service unless she has registered with the clerk of the circuit court her desire to be placed on the jury list held not unconstitutional on its face or as applied in this case.
…"We of course recognize that the Fourteenth Amendment reaches not only arbitrary class exclusions from jury service based on race or color, but also all other exclusions which ‘single out’ any class of persons ‘for different treatment not based on some reasonable classification.’ [citation omitted] We need not, however, accept appellant's invitation to canvass in this case the
continuing validity of this Court's dictum in Strauder v. West Virginia, 100 U.S. 303, 310, to the effect that a State may constitutionally ‘confine’ jury duty ‘to males.’ This constitutional proposition has gone unquestioned for more than eighty years in the decisions of the Court…Even were it to be assumed that this question is still open to debate, the present case tenders narrower issues." (pp. 59-60)
* * *
"Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life. We cannot say that it is constitutionally impermissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities." (pp. 61-62)
* * *
"This case in no way resembles those involving race or color in which the circumstances shown were found by this Court to compel a conclusion of purposeful discriminatory exclusion from jury service. [citations omitted] There is present here neither the unfortunate atmosphere of ethnic or racial prejudices which underlay the situations depicted in those cases, nor the long course of discriminatory administrative practice which the statistical showing in each of them evinced." (p. 68)
* * *
"it is sufficiently evident from the record that the presence on the jury list of no more than ten or twelve women in the earlier years, and the failure to add in 1957 more women to those already on the list, are attributable not to any discriminatory motive, but to a purpose to put on the list only those women who might be called…Finally, the disproportion of women to men on the list independently carries no constitutional significance. In the administration of the jury laws proportional class representation is not a constitutionally required factor." (pp. 68-69)
Warren, C. J., Black and Douglas, J. J., concurring:
"We cannot say from this record that Florida is not making a good faith effort to have women perform jury duty without discrimination on the ground of sex. Hence we concur in the result, for the reasons set forth in Part II of the Court's opinion." (p. 69)
NOTE: This special concurrence is significant. Three of the justices, at least, did not wish to associate themselves with the language of Mr. Justice Harlan, speaking for the majority, which
suggested that the issue of total or discriminatory exclusion of women from state juries is not open to question.
(5) Fay v. New York, 332 U. S. 26l (1947) (cited in Hoyt v. Florida) (a 5-to-4 decision). Constitutionality of New York "blue ribbon" jury challenged on ground, inter alia, that New York statute allowed exemption from jury service to women. Held not violative of Fourteenth Amendment. (Murphy, Black, Rutledge and Douglas, J. J. dissenting.)
"It is said to have been found impractical to compel large numbers of women, who have an absolute exemption, to come to the clerk's office for examination since they so generally assert their exemption. Hence, only those who volunteer or are suggested as willing to serve by other women or by organizations, including the League of Women Voters, are subpoenaed for examination. Some effort is made by the officials also to induce women to volunteer. But the evidence does not show that women are excluded from the special jury. In this case three women talesmen were examined. One was pronounced "satisfactory" by both sides and served on the jury." (pp. 277-278)
The Court reviewed the history of jury service by women, and stated further, pages 289-290:
"It would, in the light of this history, take something more than a judicial interpretation to spell out of the Constitution a command to set aside verdicts rendered by juries unleavened by feminine influence. The contention that women should be on the jury is not based on the Constitution, it is based on a changing view of the rights and responsibilities of women in our public life, which has progressed in all phases of life, including jury duty, but has achieved constitutional compulsion on the states only in the grant of the franchise by the Nineteenth Amendment. We may insist on their inclusion on federal juries where by state law they are eligible but women jury service has not so become a part of the textual or customary law of the land that one convicted of crime must be set free by this Court if his state has lagged behind what we personally may regard as the most desirable practice in recognizing the rights and obligations of womanhood."
NOTE: In this case three women talesmen were examined and one served on the jury, so the case of exclusion was not made out. (332 U. S. 278)
(6) State v. Emery, 224 N. C. 581, 31 S.E. 2d. 858, 157 A.L.R. 441 annot.461 (1944). The North Carolina Supreme Court reversed a criminal conviction because a jury composed of 10 men and 2 women was held to be unconstitutional under the North Carolina Constitution which provided: "No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court."
The court based its holdings on the following propositions: that common law juries were limited to men, women being excluded because of
a defect of sex (propter defectum sexus - "because not of the male sex"); that the public policy of the United States had not undergone such a change in the adoption of the 14th Amendment as to the rights of women that it carried with it the elimination of the disqualification for jury service; that jury service is not a right or privilege guaranteed to anyone but an obligation imposed by law upon those who possess the prescribed qualifications. (157 A.L.R. 441, 447-449)
Commenting on the 14th Amendment, the court declared:
"The General Assembly is at liberty to impose the burden of jury service on some and relieve others of the obligation, provided the classification is not in derogation of the l4th Amendment to the Constitution of the United States or of our own Constitution…Of course, to single out the members of one race for jury duty and exclude those equally qualified of another would be an unwarranted discrimination of which members of the excluded race could rightfully complain when called upon to answer or go to trial on an indictment in the courts…But classification on the basis of sex, applicable alike to all races, is after the manner of the common law and has persisted throughout the history of the State …" (157 A.L.R. at 448-449). Cf. State v. Yazzie, 218 P. 2d 482 (Wyo. 1950), in which the argument that the right to trial by jury meant a jury of men only was rejected by the court.
[The North Carolina Constitution was amended by vote of the people at the general election of 1946 to provide "No person shall be excluded from jury service on account of sex." (See North Carolina Constitution, Art. I, §19.)
The Emery case was decided by a divided court, two judges dissenting. In arguing to uphold the conviction the Attorney General said:
"…The process of freezing the common law or contemporary custom into the Constitution is not favored unless it is required by express reference or by necessary implication, and the trend of opinion seems to be against that course. (citing cases)
"It would seem that in so far as our Constitution is concerned, this court has abundant justification in deciding the question as to the right of women to serve on juries in a manner deemed to be most consonant with our present development in government and in civil and political conditions as we find them today…"(157 A.L.R. at 446)]
Seawell, J., dissenting, said in part:
"I do not believe that any member of this Court would now care to assert that women are not fitted by intelligence and character to serve on juries. Also, it would be difficult,
without begging the question at issue, to point out any incident of citizenship in which women are not now the equals of men. Therefore, the holding to the contrary is based at best on a technicality of the law from which the validity of reason and propriety has long since departed.
"To reach that result we are under the necessity of going far back into the common law and following the narrowest rules of construction, to the exclusion of others commonly applied to the constitution as an expression of fundamental principles of government — rules which are intended to make of the constitution a living thing, prospective in its application, applicable to the needs of humanity and the changed conditions of society where it is possible for the provisions to be so construed. (157 A.L.R. at 454)
* * *
"… It has not escaped the attention of the courts that the importance of this common law jury feature is still further reduced because no reason can be assigned for its origin or its retention other than the barbarous view of the inferiority of women which manifested itself in civil and political opression so akin to slavery that we can find no adequate word to describe her present status with men except emancipation — a term which is in common use in the courts and in the legal profession, and with informed layment. (456)
* * *
"… [T]he courts which have dealt with this [jury] question have, with marked uniformity, refused to regard the custom of an exclusively male composition of juries as an essential of jury trial necessary to be preserved within the definition imposed on the Constitution by the common law. It has been classed with those features originally thought so important, but now decayed and abandoned as unfitted to the necessities of modern conditions, although the constitutions have remained the same… (457)
"The validity of precedent as a factor in judicial decision depends upon the soundness of its philosophy, the logic of its application to existing conditions. In the present situation we are certainly not forced to draw our precedents from concepts of law and society which were better forgotten. As I have said, in most jurisdictions of this country, since the adoption of the Nineteenth Amendment to the U. S. Constitution, women are eligible to serve on juries. … Since then women have filled offices in all the states of the Union and in the National Government, from Cabinet Member, U. S. Senator, Governor, Judge, Member of the Legislature, on down to local administrative officers. They also serve in the U. S. Army and Navy, and not a few of them have made the supreme sacrifice in the cause of their country. They pay taxes, but their right to sit upon the jury drawn from the taxpayers is denied. Their liberties and property rights are passed upon by male juries from which they are excluded. The argument for the perpetuation of this intolerable situation rests upon the
narrowest of bases. No proponent of that view has attempted to go further than to show that a jury of males was an incident of common law jury and a matter of immemorial custom. None has attempted to justify it as applied to the conditions which now confront us. No one has gainsaid the proposition, so, often reiterated in judicial discussions on this subject, that it is not now a fundamentally important incident to be observed, that it goes with other outmoded practices with which the legislature and the courts have freely dealt as unfitted to present governmental and social necessities. (460)
* * *
"The question before us should be settled upon a broader and more discriminating appreciation of the fundamental purposes of jury trial as a part of judicial investigation, in protecting the rights and liberties committed to that tribunal for determination, without paramounting circumstances and details which must necessarily lose their importance with the changing conditions of society and government. Only in this way may a provision of the constitution which, in the words its (sic) employs, speaks as of today be kept to its true intent as a living principle and an instrument of justice in the lives of people today. …" (460)
Devin, J., dissenting in the Emery case, wrote in similar vein. He declared that to hold women "incapable" of jury service "solely on account of sex" is "to turn the leaf backward instead of forward. The disqualification of sex is outmoded. Women are in the Army, Navy, and Marine Corps. They work in factories, shops, on farms equally with men. They drive buses, trucks and streetcars. They are members of the police force. They are teachers, writers, nurses, physicians. Their work is interwoven with that of men in all forms of business and professional life. They serve in the legislative and executive branches of the government. They practice law at the bar and sit on the bench. One of the highest judicial positions in America, that of Judge of the Circuit Court of Appeals of the United States, is ably filled by a woman. But in North Carolina she would be disqualified to decide an issue of fact in a case involving a petty misdemeanor, solely on the ground that she is a woman. There is an old maxim that when the reason of a law fails the law itself should fail." (157 A.L.R. at 454)
(7) Bailey v. State, 214 Ark. 472, 217 S.W. 2d 424, 9 A.L.R. 2d 653 (1949), annot. 661. In connection with a prosecution for rape, it appeared that no women had selected for jury service in the trial court since 1925. The Arkansas Constitution provided for equal suffrage but also provided "Women shall not be compelled to serve on juries." In holding that due process and equal protection were not denied the defendant because of the absence of women from the jury, the court said:
"The Constitutional proviso and the statute sections have been construed as a privilege women may claim — declarations of public policy pursuant to which it has not been thought that
jury commissioners abused their discretion when there was failure to include women on the lists of those summoned.
"Criminal court trials often involve testimony of the foulest kind, and they sometimes require consideration of indecent conduct, the use of filthy and loathsome words, references to intimate sex relationships, and other elements that would prove humiliating, embarrassing and degrading to a lady. (9 A.L.R. 2d at 659)
* * *
"We think the inference deducible from the Fay case is that where a State does not impose upon women as a class the inescapable duty of jury service, a defendant who complains that due process was denied, or that he was not afforded the equal protection contemplated by the Fourteenth Amendment, must show something more than continuing failure of jury commissioners to call women for services in a division of the Court where the innate refinement peculiar to women would be assailed with verbal expressions, gestures, conversations and demonstrations from which most would recoil." (9 A.L.R. 2d 660-661)
(8) Accord: Black v. State, 215 Ark. 697, 222 S.W. 2d 816 (1949) in which appellant was convicted of first degree murder committed in the perpetration of rape and sentenced to death. The evidence showed that the number of women qualified for jury service in the country in which the case was tried was almost as great as the number of eligible males, but "no woman had been selected for jury service in the criminal division of the circuit court for a long number of years and none had served as jurors in that division of the circuit court." (p. 817). Relying upon the quoted portion of Bailey v. State, supra, and upon Fay v. New York, supra, the appellate court found no reversible error.
(9) See State v. Ready, — Mo. — , 251 S.W. 2d 680 (1952) where female defendent's charge that no women were on the jury panel was dismissed for failure to make timely objection.
[For annotation of more recent cases on exclusion of women as jurors, see A. L. R. 2d Supp. Service, 1960, p. 632; A. L. R. 2d Supp. Service, 1962 (Midyear Pamphlet, pp. 44-45).]
(10) Commonwealth v. Welosky, 276 Mass. 398, 177 N. E. 656 (1931), cert. denied, 284 U. S. 684 (1932). In this case, the defendant, a woman charged with unlawful possession of intoxicating liquor, challenged the jury array from which women were excluded on two grounds: (1) That the Massachusetts statute enacted four months after the ratification of the 19th Amendment and which provided "A person qualified to vote for representatives to the general court shall be liable to serve as a juror," required that women otherwise qualified be placed on the jury lists, and (2) that the exclusion of
women from the jury lists denied the defendant her constitutional rights under the 14th Amendment. The court held that the jury statute, a re-enactment of previous jury statutes in substantially the same language, was not intended to include women among those liable for jury duty. It declared, "The word ‘person’ like many other words, has no fixed signification, but has different meaning dependent upon contemporary conditions, the connection in which it is used, and the result intended to be accomplished. It has been said to be an ‘ambiguous word’ and may refer to those of either or both sexes." The Court then said that in the long succession of statutes reenacted from time to time relating to jurors and jury lists showed that the intention of the legislature in using the word "person" was "to confine its meaning to men." (276 Mass. 398, 404, 406.) The court rejected the contention that since the statute was enacted subsequent to the ratification of the 19th Amendment, the words "person qualified to vote" in the jury statute were intended to include women. Said the court, "It is a general principle of statutory construction that the re-enactment of a statute in substantially the same words does not change its meaning or extend its scope. Its words are presumed to continue to have attached to them the same sense as in the preceding enactment." (276 Mass. 409)
The court met the argument that exclusion of women from the jury lists denied her the equal protection guaranteed by the l4th Amendment by giving a narrow construction to that Amendment and by holding that the main purpose of the 13th, 14th and 15th amendment was to protect the newly freed Negroes; that "[t]he intent and design of those amendments…were utterly different from the reasons leading to the adoption of the Nineteenth Amendment." (276 Mass. 413) The court refused to apply the 14th amendment to exclusion of women as it had been applied in the case of exclusion of Negroes from juries. It held that the 19th Amendment dealt solely with the right to vote, that the constitutional guarantee of the right to trial by jury has been held to be trial by jury at common law, and that a common law jury was a jury of "twelve free and lawful men." Thus, concluded the court, the adoption of the 19th Amendment did not operate to qualify women as jurors, but required legislation to do that. (276 Mass. 414-415)
The court also noted that the Supreme Court had upheld state policies denying women the right to vote or to practice law before the adoption of the Nineteenth Amendment, and also laws proscribing the number of hours a woman might work and observed, "These rights appear to us quite as assential to the privileges and immunities of citizens and equal protection of the laws as the duty to serve as jurors." (276 Mass. 414-415)
(11) Heaton v. Bristol, Tex. Civ. App., 317 S.W. 2d 86 (1958), appeal dismissed and cert. denied, 359 U. S. 230, reh. denied, 359 U. S. 999;
(12) Allred v. Heaton, Tex. Civ. App., 336 S.W. 2d 251 (1960), appeal dismissed and cert. denied, 364 U.S. 517, reh. denied, 364 U.S. 944. The exclusion of women from a state college (Texas A. & M.) does not violate any constitutional rights. Sex is a valid basis for classification. In the latter case, the Court stated as dictum, that if Miss Allred made application to the proper authorities for the purpose of studying for a degree in floriculture, which course of study was available in Texas only at A. & M. College, she should he admitted, in view of the decision in Gaines v. Canada, 305 U.S. 337 (1938), which held that a Negro was entitled to be admitted to the (white) University of Missouri Law School, inasmuch as the state university provided for Negroes (Lincoln U.) did not have a law school. However, this dictum was stricken from the opinion at the request of appellees on motion for rehearing as not necessary to the decision of the case.
[NOTE: The essence of the court's reasoning in both of these cases was that no discrimination was shown since the Texas University system includes eighteen institutions of which sixteen are coeducational — one is for women and Texas A. & M. traditionally has admitted male students only (with some exceptions) since 1876; hence, the women plaintiffs could attend any one of the other seventeen institutions to pursue their educational interests.
In Heaton v. Bristol which arose in 1958, the appellate court stressed the evidence that the plaintiffs sought admission to Texas A. & M. because it would be more convenient and less expensive than to go elsewhere, and that Texas A. & M. was primarily a military school. Apparently no attempt was made by plaintiff's counsel in this case to rely on the parallel between racial and sex discrimination.
In Allred v. Heaton, decided in 1960, plaintiff's counsel (who was the same in both cases) corrected some of the procedural weaknesses of the earlier litigation and relied heavily upon the Gaines case (1938 decision in which the Supreme Court held that states must admit Negroes to the existing white state universities if the educational opportunities they sought were unavailable at Negro institutions). One plaintiff alleged that she wished to enter Texas A. &M. College for the purpose of studying floriculture, a course not given at other state institutions.
In its opinion as finally written, the court rejected the argument that the Gaines doctrine applied. It made much of the fact that the plaintiffs had not actually applied for admission to the school (although it seems clear that their applications would have been rejected). What is significant, however, is the dictum which the court used in its original opinion and which was later struck out at the request of the defendants' counsel as not necessary to the decision of the case. It follows:
"Since Miss Allred has never made application to the proper authorities of A. & M. College for admission, in order to pursue a course of study leading to a degree in floriculture; and since the A. & M. authorities have not had an opportunity to pass on her application for this particular course (which the records show is obtainable only at A. & M. College in our system) we are compelled to take the action we have as it pertains to Miss Allred. But in view of the decision of our Supreme Court in Gaines v. Canada, supra, we feel it our duty to say that in the event Miss Allred makes application for admission to A. & M. College to pursue a course of study leading to a degree in horticulture, that she should be permitted to do so, and not be excluded solely on the ground that she is a member of the female sex. We further feel that in view of the Canada case … and the foregoing, the authorities of A. & M. College will grant her admission." (336 S.W. 2d 262)
The court apparently retreated from this position and in its final opinion stressed the fact that in June 1959, Miss Allred "made application for admission to a summer session of the Agricultural and Mechanical College of Texas and stated that the course of study she was pursuing or expected to pursue … was law." The court concluded that she had mixed motives and said "Miss Allred desires to attend the college partly because she is in the vicinity, partly because it is more convenient for her, and partly because it is cheaper, and partly because (she alleges in her pleadings) she desires to obtain a degree in floriculture. So, her purpose to enter the college is not unmixed with other conditions, and we have no way of knowing what her desires would be if she lived near other state supported schools." (336 S.W. 2d 260)
The court seemed far less sure of its position in the second case when faced with the Gaines precedent than in the earlier case. Had the factual situation been clearer, it is quite possible the court would have ordered the admission of the one plaintiff who sought a course at Texas A. & M. which was not given at other state supported universities.
The United States Supreme Court may have denied certiorari because of the factual difficulties in the case or for procedural or jurisdictional reasons.]
West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) Washington minimum wage law for women provided for establishment of standards of wages and conditions of labor for women and minors. Chambermaid employed by hotel brought suit to recover from her employer the difference in wages paid her and the minimum wage fixed pursuant to the state law. Hotel claimed the law violated the due process clause of the Fourteenth Amendment on the theory that it constituted a deprivation of freedom of contract. Held not violative of Fourteenth Amendment.
"The legislature of the State was clearly entitled to consider the situation of women in employment, the fact that they are in a class receiving the least pay, that their bargaining power is relatively weak, and that they are the ready victims of those who would take advantage of their necessitous circumstances." (p. 398.)
Four Justices dissented for reasons, among others, that women today stand upon a legal and political equality with men and that there is no longer any reason why they should he put in different classes in respect of their legal right to make contracts.
This case overruled Adkins v. Children's Hospital, 261 U. S. 525 (1923), which held that the D.C. minimum wage act for women interfered with the liberty of contract, included within the guarantees of the due process clause of the Fifth Amendment. … Cf., Morehead v. New York ex
Tipaldo, 298 U. S. 587 (1936).
(14) In the Adkins case supra, Mr. Justice Sutherland, speaking for the majority of the Court, sounded the first alarm about the extension of the doctrine of the Muller case. He said:
"In the Muller case the validity of an Oregon statute forbidding the employment of any female in certain industries more than ten hours during any one day was upheld. The decision proceeded upon the theory that the difference between the sexes may justify a different rule respecting hours of labor in the case of women than in the case of men. It is pointed out that these consist in differences of physical structure, especially in respect of the maternal functions, and also in the fact that historically woman has always been dependent upon man, who has established his control by superior physical strength…But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller case (p. 421) has continued ‘with diminishing intensity.’ In view of the great — not to say revolutionary — changes which have taken place since that utterance, in the contractual, political and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now came almost, if not quite, to the vanishing point. In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours of conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions on their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special
restraint in her contractual and social relationships …" (pp. 552-553)
Note, that, Adkins was decided 5-to-3 (Brandeis, J. not participating) and the Parrish case 5-to-4.
(15) Radice v. New York, 264 U.S. 292 (1924). New York statute prohibiting the employment of women in restaurants in first and second class cities from 10 P.M. to 6 A.M. held not violative of Fourteenth Amendment due process clause as depriving employers and employees of liberty of contract, nor did it violate the equal protection clause as an unreasonable and arbitrary classification.
"The state legislature here determined that night employment of the character specified, was sufficiently detrimental to the health and welfare of women engaging in it to justify its suppression; and, since we are unable to say that the finding is clearly unfounded, we are precluded from reviewing the legislative determination." (pp. 294-295.)
(16) Miller v. Wilson, 236 U.S. 373 (1915) Women's eight hour labor law of California held not violative of Fourteenth Amendment as arbitrary invasion of liberty of contract nor as unreasonably discriminatory in excepting certain classes of women employees. See also, Bosley v. McLaughlin, 236 U.S. 385 (1915), upholding the California law.
(17) Riley v. Massachusetts, 232 U.S. 671 (1914). Massachusetts statute limiting hours of labor of women in factories not unconstitutional as depriving employer or employee of property without due process of law by limiting right to buy and sell labor (liberty of contract).
(18) Muller v. Oregon, 208 U.S. 412 (1908). Oregon maximum hour law for women upheld.
[See infra Appendix II for a note on the background of the Muller case. See also Lochner v. New York, 198 U. S. 45 (1905) and Bunting v. Oregon, 243 U.S. 426 (1917).]
Because of the importance of Muller v. Oregon as a precedent and its later use as authority for legislative distinctions based upon sex, significant portions of the Court's opinion, delivered by Mr. Justice Brewer, follow:
"It is the law of Oregon that women, whether married or single, have equal contractual and personal rights with men. (p. 418)
* * *
"It thus appears that, putting to one side the elective franchise, in the matter of personal and contractual rights they stand on the same plane as the other sex. Their rights in these respects can no more be infringed than the equal rights of their brothers. (p. 418)
[The Court then observed that the argument that Lochner v. New York is "decisive of the question before us… assumes that the difference between the sexes does not justify a different rule respecting a restriction of the hours of labor." (p. 419)]
* * *
"That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-beings of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.
"Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the school room are opened and her opportunities for acquiring knowledge are great, yet even with that and the consequent increase of capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure an equality of right. Doubtless there are individual exceptions, and there are many respects where she has an advantage over him; but looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained. It is impossible to close one's eyes to the fact that she still looks to her brother and depends upon him. Even though all restrictions on political, personal and
contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions — having in view not merely her own health, but the well-being of the race — justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous her, health upon the future wellbeing of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her.
"We have not referred in this discussion to … a lack of political equality in all things with her brother, that is not of itself decisive. The reason runs deeper, and rests in the inherent difference between the two sexes, and in the different functions in life which they perform." (pp. 421-423)
(19) State v. Crowe, 130 Ark. 272, 197 S.W. 4 (1917) Minimum wage law for women upheld.
(20) People v. Elerding, 254 III. 579, 98 N.E. 982 (1912); Ritchie v. Wayman, 244 III. 509, 91 N.E. 695 (1910), Illinois maximum hour law for women upheld.
(21) Williams v. Evans, I39 Minn. 32, 165 N.W. 495 (1917), Minnesota minimum wage law for women upheld. The law may compensate women for their inequality with men.
(22) People v. Charles Schweinler Press, 214 N.Y. 395, 108 N.E. 639 (1915), write of error dismissed, 242 U.S. 6l8. New York law prohibiting night work in factories by women upheld as valid exercise of police power to protect health of women.
(23) State v. Buchanan, 29 Wash. 602, 70 Pac. 52 (1902) Washington maximum hour law upheld.
(24) Goesaert v. Cleary, 335 U.S. 464 (l948) A Michigan statute forbidding the licensing of any female to act as a bartender unless she is the wife or daughter of the male owner held not violative of the Equal Protection Clause of the Fourteenth Amendment.
"The fact that women may now have achieved the virtues that men have long claimed as their prerogative and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic …. The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards."
"While Michigan may deny to all women opportunities for bartending, Michigan cannot play favorites among women without rhyme or reason. The Constitution…. precludes irrational discrimination…. Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventive measures, the legislature need not go to the full length of prohibition if it belleres that as to a defined group of females other factors are operating which either eliminate or reduce the moral and social problems otherwise calling for prohibition. Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid's husband or father minimizes hazards that may confront a barmaid without such protecting oversight." (p. 466.)
Three justices dissented on the ground that the statute arbitrarily discriminates between male and female owners of liquor establishments and that the basis of the exceptions for wives and daughters of male owners was not justifiable.
(25)State v. Burke, 79 Idaho 205, 312 P. 2d 806 (1957) Idaho statute restricting bartender licenses to males held not violative of Fourteenth Amendment, on the basis of Goesaert v. Cleary. The chief Justice dissented and pointed out that that decision was by a divided Court. His view was that the statute deprived females of the right to follow a business or calling solely because of her sex and thereby deprived her of a property right guaranteed to all persons under the Fourteenth Amendment.
[NOTE: The Courts have divided on the issue of restriction of women's employment as bartenders or proprietors of liquor establishments. In the Goesaert case supra, Mr. Justice Rutledge, speaking for the minority, pointed out that the Michigan statute which barred women from being licensed to sell liquor unless "the wife or daughter of the male owner"
discriminated arbitrarily between male and female owners of liquor establishments. "A female owner may neither work as a barmaid herself nor employ her daughter in that position, even if a man is always present in the establishment to keep order," while a "male owner, although he himself is always absent from his bar, may employ his wife and daughter as barmaids… This inevitable result of the classification belies the assumption that the statute was motivated by a legislative solicitude for the moral and physical well-being of women… Since there could be no other conceivable justification for such discrimination against women owners of liquor establishments, the statute should be held invalid as a denial of equal protection." (335 U. S. at 468). Similarly, Chief Justice Keeton, dissenting in part in State v. Burke, supra, said "I think depriving a female person of the right to follow a business or calling solely because of sex deprives such person of a property right guaranteed to all persons under the l4th Amendment to the Constitution of the United States. .. The Legislature may not by discrimination enact a law prohibiting a class of persons because of sex from engaging in any lawful calling open to all others. The right to work is one of our precious liberties. A female person is by the interdiction imposed denied the right to make a living equally with a male person. She is denied the freedom of opportunity to engage in what is recognized as a lawful business on an equality with males. There is no sound basis for such a distinction…" (312 P. 2d. 806 at 808).]
(26)Cronin v. Adams, 192 U. S. 108 (1904). Plaintiff brought suit against the officers of the City of Denver to enjoin the enforcement of a local ordinance which, inter alia prohibited any saloon keeper from permitting "any female person to be or remain in such liquor saloon… or other place where intoxicating or malt liquors are sold or given away." Plaintiff attacked the constitutionality of the ordinance. The Supreme Court held that a license to sell liquor was a privilege, not a right and that the City of Denver could exercise its power to regulate the sale of liquor as it saw fit. The restrictions imposed by the local authorities were the conditions under which the plaintiff might exercise the "coveted privilege." (p. 114).
As to the specific condition about which the plaintiff complained - the prohibition of the sale of liquor to women or of allowing women to enter the saloon — the Court said the plaintiff had no standing to raise that issue. "He is not a female nor delegated to champion any grievance females may have under the ordinance, if they have any." (p. 114)
The Court concluded that since the sale of liquor could be prohibited altogether, "restrictions may be imposed as to the class of persons to whom they [liquors] may be sold." (p. 115) The issue was seen as one of "public expediency and public morality, not Federal law." (p. 115)
Affirmed Adams v. Cronin, 29 Colo. 488, 69 P. 590 (1902). Ordinances imposing various restrictions upon women as to employment in saloons, or entering saloons for the purpose of drinking, by prohibiting the licensee from selling liquor to women or allowing them to frequent a saloon were upheld in the following decisions:
(27) City of Hoboken v. Goodman, 68 N.J. L. 217, 51 A. 1092 (1912)
(28) Commonwealth v. Price, 123 Ky. 163, 94 S.W. 32 (1906) (applied to infants and females)
(29) Greiner v. Hoboken, 68 N.J. L. 592, 53 A. 693 (1902)
(30) State v. Baker, 50 Ore. 381, 92 P. 1076 (1907) (applied to females under 21 years)
(31) People v. Case, 153 Mich. 98, 116 N.W. 558 (1908) (included employment of females as well as permitting them to resort to saloon for purpose of drinking.
(32) Laughlin v. Tillamook City, 75 Ore. 506, 147 P. 547 (1915)
(33) [Note: In Great Atlantic & Pacific Tea Co. v. Danville, 367 111. 3l0, 11 N. E. 2d 388, 113 A.L.R. 1386 (1937), annot. 620, a city ordinance prohibiting the sale of alcoholic beverages in retail grocery and meat stores was upheld, the court pointing out that "the guarding of women and children from any close contact with the sale of alcoholic beverages may be for the good of the city." (113 A.L.R. 139l)]
(34) Randles v. Washington State Liquor Control Board, 33 Wash. 2d 688, 206 P. 2d 1209, 9 A.L.R. 2d 531, annot. 541 (1949) Washington law providing that class H liquor licensees were prohibited from selling liquor to women, except when seated at tables, though no such restriction was made with respect to the sale of liquor to men, held not violative of any constitutional right of the licensee or of women.
(35) But see, Gastenau v. Commonwealth, 108 Ky. 473, 56 S W. 705 (1900), In which a city ordinance declaring that "it shall be unlawful for any woman to go in and out of any building where a saloon is kept offering for sale any spiritous… liquors, or to frequent, loaf, or stand around.. within fifty feet" of such a building, and providing for the punishment of a saloon keeper who permitted a violation of the ordinance, was held void as an unreasonable, unnecessary Interference with individual liberty.
(36) Accord: State v. Nelson, 10 Idaho 522, 79 P. 79 (1905)
People v. Jemnez, 49 Cal. App. 2d Super. 739, 121 P. 2d 543 (1942) The California Constitution provided:
"No person shall, on account of sex, be disqualified from entering upon or pursuing any lawful business, vocation, or profession." Art. XX, sec. 18.
Court upheld a law prohibiting using services of females in mixing alcoholic beverages on premises used for sale of alcoholic beverages for consumption on the premises. The Court stated that there was no inherent right to sell intoxicating beverages and that the State may regulate in the interest of public morals, health and safety.
(38) Fitzpatrick v. Liquor Control Commission, 316 Mich. 83, 25 N.W. 2d 118, 172 A. L. R. 608 annot. 620 (1946). A Michigan statute regulating licenses for bartenders limited applicants to "a male person 21 years of age or over", except that "the wife or daughter of the male owner of any establishment licensed to sell alcoholic liquor for consumption on the premises may be licensed as a bartender." Plaintiffs, female bartenders sued to enjoin enforcement of the statute. Upheld as a police measure to prevent vice and immorality. The court also suggested that "[i]t could be that chivalry toward women might still exist in legislative minds indicating a concern for the protection of women." (172 A.L.E. 619)
(39) But see, Brown v. Foley, 158 Fla. 734, 29 So. 2d 870 (1947). A Miami municipal ordinance providing that no female shall be employed for serving liquor by the drink over any bar or counter held void as applied to a woman who was employed to work as a bartender.
"In our opinion this ordinance is unreasonable as applied to this appellant. It recognizes that women may frequent bars and engage in every practice as men save and except that they shall not serve liquor by the drink over the bar notwithstanding they may mix and serve it otherwise … We can see no sound reason in law to sustain the ordinance and we hold it void." (29 So. 2d 871)
(40) Quong Wing v. Kirkendall, 223 U.S. 59 (1912) Montana law imposing license tax upon all persons engaged in laundry business other than the steam laundry business, with a proviso that it should not apply to women so engaged where not more than two women were employed held not an unconstitutional discrimination depriving male hand laundry owner of equal protection of the laws. Mr. Justice Holmes speaking for the Court, declared:
* * *"A State does not deny equal protection of the laws merely by adjusting its revenue laws and taxing system in such a way as to favor certain industries or forms of industry… If the State sees fit to encourage steam laundries and discourage hand laundries that is its own affair. And if again it finds a ground of distinction in sex, that is not without precedent. It has been recognized with regard to hours of work. (Citing Muller case) It is recognized in the respective rights of husband and wife in land during life, in the inheritance after the death of the spouse. Often it is expressed in the time fixed for coming of age. If Montana deems it advisable to put a lighter burden upon women than upon men with regard to an employment that our people commonly regard as more appropriate for the former, the Fourteenth Amendment does not interfere by creating a fictitious equality where there is a real difference. The particular points at which that difference shall be emphasized by legislation are largely in the power of the State." (pp. 62-63)
Mr. Justice Holmes implied that this statute was in reality aimed at Chinese hand laundries and noted that if this were so, it "would be a discrimination which the Constitution does not allow." Since the point was not raised by counsel and was, in fact, denied by the appellant the judgment was affirmed without prejudice to raising the issue of racial discrimination in the future. (p. 64)
Mr. Justice Lamar dissented on the ground that the statute was "not a police but a revenue measure" and made "an arbitrary distinction… It exempts the business that is so large as to require the use of steam, and taxes that which is so small that it can be run by hand. Among those small operators there is a further discrimination, based on sex. It would be just as competent to tax the property of men and exempt that of women. The individual characteristics of the owner do not furnish a basis on which to make classification for purposes of taxation… A discrimination founded on the personal attributes of those engaged in the same occupation and not on the value or the amount of the business is arbitrary." (pp. 64-65)
(41) State v. Hunter, 208 Ore. 282, 300 P. 2d 455 (1956) Prosecution of woman for participating in wrestling competition in violation of Oregon statute limiting such activity to males. She claimed the statute violated the Fourteenth Amendment by denying her privileges and immunities. The Court took judicial notice of the physical differences between men and women and upheld the statute as a valid exercise of the State's police power. The Court also noted that the Fourteenth Amendment does not protect those liberties which civilized states regard as properly subject to regulation by penal law.
"We believe that we are justified in taking judicial notice of the fact that the membership of the legislative assembly which enacted this statute was predominantly masculine. That fact is important in determining what the legislature might have had in mind with respect to this particular statute, in addition to its concern for the public weal. It seems to us that its purpose, although somewhat selfish in nature, stands out in the statute like a sore thumb. Obviously it intended that there should be at least one island on the sea of life reserved for man that would be impregnable to the assault of woman. It had watched her emerge from long tresses and demure ways to bobbed hair and almost complete sophistication; from a creature needing and depending upon the protection and chivalry of man to one asserting complete independence. She had already invaded practically every activity formerly considered suitable and appropriate for men only. In the field of sports she had taken up, among other games, baseball, basketball, golf, bowling, hockey, long distance swimming, and racing, in all of which she had become more or less proficient, and in some had excelled. In the business and industrial fields as an employee or as an executive, in the professions, in politics, as well as in almost every other line of human endeavor, she had matched her wits and prowess with those of mere man, and, we are frank to concede, in many instances had outdone him. In these circumstances, is it any wonder that the legislative assembly took advantage of the police power of the state in its decision to halt this ever-increasing feminine encroachment upon what for ages had been considered strictly as manly arts and privileges? Was the Act an unjust and unconstitutional discrimination against women? Have her civil or political rights been unconstitutionally denied her? Under the circumstances, we think not." (300 B. 2d 458)
(42) Morgan v. State 179 Ind. 300, 101 N. E. 6 (1913) A statute which provided for the establishment of a hospital for insane criminals and defining the manner of holding inquests in cases of convicts alleged to be insane, also provided for a sanity inquest and commitment of male insane criminals but did not include women. Held void as a denial of the equal protection of the law and obnoxious to the Fourteenth Amendment. (citing Gulf, Colorado & Santa Fe Ry. Co. v. Ellis 165 U. S. 150, and Atchison, Topeka, etc., v. Matthews, 174 U.S. 96, 104, and Yick Wo v. Hopkins, 118 U. S. 356.)
"‘Equal protection of the laws are secured if the laws operate on all alike and do not subject the individual to an arbitrary exercise of the powers of government.’" (101 N.E. 8)
* * *
"'But it is said that it is not within the scope of the Fourteenth Amendment to withhold from states the power of classification, and that, if the law deals alike with all of a certain class, it is not obnoxious to the charge of a denial of equal protection. While, as a general proposition, this is undeniably true, * * * yet it is equally true that such classification cannot be made arbitrarily. The state may not say that all white men shall be subjected to the payment of attorney's fees of parties successfully suing them and all black men not. It may not say that all men beyond a certain age shall be alone subjected, or men possessed of a certain wealth. These are classifications which do not furnish any proper basis for the attempted classification. That must always rest upon some difference which bears a reasonable and just relation to the act in respect to which classification is proposed, and can never be made arbitrarily and without any such basis."
* * *
"'It is also a maxim of constitutional law that a Legislature is presumed to have acted within constitutional limits, upon full knowledge of the facts, and with the purpose of promoting the interest of the people as a whole; and the courts will not lightly hold that an act duly passed by the Legislature was one in the enactment of which it has transcended its power. On the other hand, it is also true that the equal protection guaranteed by the Constitution forbids the Legislature to select a person, natural or artificial, and impose upon him or it burdens and liabilities which are not cast upon others similarly situated."
(43) State v. LaFollett, 134 Ore. 218, 292 P. 98 (1930). Defendant convicted in a criminal action for nonsupport of his wife and minor children, attacked the constitutionality of the nonsupport statute as class legislation because it imposed upon the husband liability and penalties not imposed upon the wife. Held not invalid as class legislation.
"Upon a reasonable foundation the Legislature rightfully recognized a difference between failure of the husband and father to support his wife and minor children and that of the wife in the performance of her duties to the family." (292 P. 99)
(44) Territory v. Armstrong, 28 Hawaii 88 (1924) Law providing lighter punishment for women than for men for crime of adultery does not deprive males of equal protection of the law. The considerations which motivated the legislature to provide heavier punishment for male offenders were the large influx of sailors "lusty men, fresh from long sea voyages," who "were not backward in their attentions to the women." (p. 93) .. "There were many foreigners who took away the wives of the natives and because they were rich could prevent the husbands from obtaining their right… Women had not the same means of paying fines that men had…
Women were the weaker sex and needed the protection of the stronger." (93-95)
(45) People v.Huff, 294 I11. 164, 94 N.E. 6l (1911). An Illinois statute providing that male offenders between the ages of 10 and 21, under certain conditions, be committed to the state reformatory held constitutional even though it applied only to male offenders. The court, citing an Illinois decision upholding labor legislation for women, said "The difference between the sexes is a good basis upon which to rest a classification for the purpose of legislation." (94 N.E. 62)
(46) Ex Parte Dunkerton, 104 Kan. 48l, 179 P. 347, A. L. R. 1611, annot. 1614 (1919). Kansas statute establishing a state industrial farm for women held not to violate equal protection of the law because it allowed women to be punished less severely than men convicted of the same crime. In response to the woman defendant's challenge to the statute, the court pointed out that the law "seeks to improve, not to punish," and it is therefore not unconstitutional because, "in accomplishing these objects, it imposes restraint on women different from that imposed upon men." (3 A. L. R. 1613)
(47) Accord: Platt v. Commonwealth, 256 Mass. 539, 152 N.E. 9l4 (1926)
(48) Ex Parte Brady, 116 Ohio St. 512, 157 N.E. 69 (1927)
(49) State v. Heitman, 105 Kan. 139, l8l P. 630, 8 A.L.R. 848 (1949). Kansas law establishing state industrial farm for women for the detention and care of women convicted of criminal offenses, does not violate the Fourteenth Amendment because a woman convicted of misdemeanor is sentenced to the farm for an undetermined period, within a maximum limit, while a man convicted of the same misdemeanor is sentenced, uunder the general law, to the county jail for a definite period, within the same maximum limit.
(50) See also, Ex parte Gosselin, l4l Me. 4l2, 44A. 2d 882 (1945).
(51) But see, State v. Walker, 326 Mo. 1233, 34 S. W. 2d 124 (1930), in which a Missouri statute providing that all commitments of boys under the age of seventeen be made by the juvenile court was held unconstitutional because no mention was made of girls. Said the court:
"Why should they [girls] be denied ‘equal protection of the law,’ designed ‘for the reformation of the child?’ [citation omitted]
"It is true that discriminations in favor of women are not in violation of the ‘equal protection’ clause of the Fourteenth Amendment to the Federal Constitution. They could be forbidden to sell liquor when such privilege was accorded to men. They could be prohibited from entering wine rooms. Their hours of labor could be limited, specific sanitary regulations in their
employment, laws keeping them off the streets during certain hours, and the like do not offend against the Constitution. But all such measures are designed for their protection. To deny them equal access with men to the courts when charged with crimes does deny them ‘equal protection of the laws.’" (34 S.W. 2d. 132)
(52) Peterson v. Widule, 157 Wis. 641, 147 N. W. 966 (1914) A Wisconsin statute requiring all male applicants for a marriage license to file a physician's certificate, that they were free from venereal disease, but making no similar requirement of women, held not unconstitutional as making an arbitrary, unreasonable and discriminatory classification.
"An argument is made that the law is void… in that it singlesingles out men about to marry and makes a class of them;
there being, as it is argued, no substantial differences which suggest the propriety of different legislative treatment between men who are about to marry and women who are about to marry. Theoretically, the argument is strong. Women who marry and transmit a loathsome disease to their husbands do just as much harm as men who transmit, such a disease to their wives; if women were in fact doing this thing as frequently or anywhere nearly as frequently as men, the argument, could hardly be met. The medical evidence in the case, however, corroborates what we suppose to be common knowledge, namely, that the great majority of women who marry are pure, while a considerable percentage of men have had illicit sexual relations before marriage, and consequently that the number of cases where newly married men transmit a venereal disease to their wives is vastly greater than the number of cases where women transmit the disease to their husbands. Classification is not to be condemned because there may be occasional instances in which it does not fit the situation; it is proper if the great mass of situations to which the law applies justify the formation of a class and the application of some special or different legislative provisions to that class. The question is not whether in some individual instance there is any perceptible distinction, but ‘whether there are characteristics which in a greater degree persist through the one class or the other,’ and which justify the different treatment, [citation omitted] That there are such characteristics in the class of unmarried men is as certainly true as it is discreditable to the male sex.
"It follows that legislation directed against males alone for the purpose of preventing the transmission of venereal diseases is clearly within the police power and just as clearly is not discriminatory." (147 N.W. 968)
WITNESSES - TESTIMONY OF SPOUSE IN CRIMINAL PROSECUTION
Note: The following cases do not deal with distinctions on the basis of sex, but may be of special interest to women.
(53) Hawkins v. United States, 358 U. S. 74 (1958) In a prosecution under the Mann Act in which the defendant was charged with transporting a girl from Arkansas to Oklahoma for immoral purposes, the Supreme Court reversed the conviction because defendant's wife was permitted to testify against him over his objection although the wife herself did not object to testifying.
"The common-law rule, accepted at an early date as controlling in this country, was that husband and wife were incompetent as witnesses for or against each other. The rule rested mainly on a desire to foster peace in the family and on a general unwillingness to use testimony of witnesses tempted by strong self-interest to testify falsely. Since a defendant was barred as a witness in his own behalf because of interest, it was quite natural to bar his spouse in view of the prevailing legal fiction that husband and wife were one person. (p. 75)
* * *
"While the rule forbidding testimony of one spouse for the other was supported by reasons which time and changing legal practices had undermined, we are not prepared to say the same about the rule barring testimony of one spouse against the other. The basic reason the law has refused to pit wife against husband or husband against wife in a trial where life or liberty is at stake was a belief that such a policy was necessary, to foster family peace, not only for the benefit of husband, wife and children, but for the benefit of the public as well. Such a belief has never been unreasonable and is not now. Moreover, it is difficult to see how family harmony is less disturbed by a wife's voluntary testimony against her husband than by her compelled testimony. In truth, it seems probable that much more bitterness would be engendered by voluntary testimony than by that which is compelled… Adverse testimony given in criminal proceedings would, we think, be likely to destroy almost any marriage." (Black, J., pp. 77-78)
(54) Wyatt v. United States, 362 U. S. 525 (1960) In a prosecution under the Mann Act where the victim of the offense was also the defendant's wife, the prosecution constituted an exception to the common-law rule ordinarily permitting a party to exclude adverse testimony of his or her spouse. In this case the wife could be compelled to testify against the defendant.
"Where a man has prostituted his own wife, he has committed an offense against both her and the marital relation, and we have today affirmed the exception disabling him from excluding her testimony against him. (Harlan, J. p. 529)
Mr. Chief Justice Warren, Mr. Justice Black and Mr. Justice Douglas, dissenting:
"The only relevant difference between this case and the Hawkins case… is that here the wife herself was the parson allegedly transported by the husband for the purposes of prostitution. Morally speaking, this profanation of the marriage relationship adds an element of the utmost depravity to the ugly business of promoting prostitution. Legally speaking, however, this does not warrant radical departure from the Hawkins rule which the Court now sanctions. (p. 531)
(55) United States v. Dege, 364 U. S. 51 (1960) In a prosecution charging a husband and wife with conspiring to commit an offense against the United States in violation of a federal statute, in that they sought illicitly to bring goods into the United States with intent to defraud it, the common-law fiction that husband and wife are legally merged into one, thus making it impossible to commit a conspiracy within the act, does not apply.
Frankfurter, J. "For this Court now to act on Hawkins's formulation of the medieval view that husband and wife ‘are esteemed but as one Person in Law, and are presumed to have but one Will,’ would indeed be a ‘blind imitation of the past.’ It would require us to disregard the vast changes in the-status of woman — the extension of her rights and correlative duties — whereby a wife's legal submission to her husband has been wholly wiped out, not only in the English-speaking world generally but emphatically so in this country.
"How far removed we were even nearly a century ago when Congress passed the original statute against criminal conspiracy…from the legal and social climate of eighteenth century common law regarding the status of woman is pithily illustrated by recalling the self-deluding romanticism of Blackstone, whereby he could conscientiously maintain that ‘even the disabilities which the wife lies under, are for the moat part intended for her protection
and benefit. So great a favourite is the female sex of the laws of England.’ …It would be an idle parade of learning to document the statement that these common-law disabilities were extensively swept away in our different state of society, both by legislation and adjudication, long before the originating of the conspiracy Act of 1867 was passed. Suffice it to say that we cannot infuse into the conspiracy statute a fictitious attribution to Congress of regard for the medieval notion of woman's submissiveness to the benevolent coercive powers of a husband in order to relieve her of her obligation of obedience to an unqualifiedly expressed Act of Congress by regarding her as a person whose legal personality is merged in that of her husband making the two one." (PP. 54-55)
Mr. Chief Justice Warren, Mr. Justice Black and Mr. Justice Whittaker, dissented.
"One need not waiver in his belief in virile law enforcement to insist that there are other things in American life which are also of great importance, and to which even law enforcement must accommodate itself. One of these is the solidarity and the confidential relationship of marriage. The Court's opinion dogmatically asserts that the husband-wife conspiracy doctrine does not in fact protect this relationship, and that hence the doctrine ‘enthrone s an unreality into a rule of law.’ I am not easily persuaded that a rule accepted by so many people for so many centuries can be so lightly dismissed." (p. 58)
MARRIED WOMEN'S PROPERTY RIGHTS
(56) In re Mahaffay's Estate, 79 Mont. 10, 254 P. 875 (1927) A Montana statute provided:
"A married woman may make a will in the same manner and with the same effect as if she were sole, except that such will shall not, without the written consent of her husband, operate to deprive him of more than two-thirds of her real estate, or of more than two-thirds of her personal estate."
The statute was challenged as a violation of the Fourteenth Amendment in that it denies a married woman equal protection of the law, because it deprives her of the power to dispose of her personal property by will without her husband's consent whereas a married man may make such disposition without the consent of the wife.
The court upheld the statute pointing out that it knew of no judicial determination that it is not competent for a State "to designate the quantum of an estate which one party to the contract may he entitled to receive out of that of the other." (254 P. 878)
The court pointed out further that a married woman had power to convey all of her separate property without her husband's consent, but a married man could not convey title to realty without his wife's consent, "since she is by statute endowed with one-third part of all lands" to which her husband had title during the marriage and that this title could not be defeated by his will. "It has never, to our knowledge, been suggested that the provision which deprives a married man of the power to divest his wife of her dower right by will deprives him of the equal protection of the law." (254 P. 878-879)
The court also held that the right to make testamentary disposition of property was wholly within the power of the State legislature; that it could deny the right of testamentary disposition altogether or limit it by "imposing such conditions upon its exercise as it may deem conducive to public good." (254 P. 879)
(57) Craig v. Lane, 60 Idaho 178, 89 P. 2d 1008 (1939) A married woman executed an appeal bond as surety. The bond did not recite that it was given for her own use and benefit or for the use and benefit of or in connection with her separate property. The bond was held void. It was argued that such holding was unconstitutional, denying married women freedom of contract and equal protection of the law. The court held that the Idaho Constitution gave a married woman no rights in addition to those she had at the time of its adoption, and that at common law a married woman had no right to contract generally. Under the statutes, the wife now had the power to charge her separate property so long as the debt was incurred for her use or benefit or for the use of the separate property. The court also pointed out that "all our legislation with reference to contracts, powers, and liabilities of married women must be viewed and construed as grants, instead of restriction of power and authority to contract," and that such statutes had for their purpose the married woman's protection "that she may not involve or make her separate property liable unless the contract is for her sole usecand benefit or made in connection with or for the benefit of her separate property or incumbering the same." (89 P. 2d pp. 1009-1011)
EQUAL PROTECTION AS AFFECTED BY LACK OF SUFFRAGE
(58) Carrithers v. City of Shelbyville, 126 Ky. 769, 104 S.W. 744 (1907) A Kentucky statute provided that a city which desired to enlarge its corporate boundaries or to reduce its boundaries should by ordinance accurately define the boundaries to be annexed or stricken off and also provided for a protest by resident property owners to be affected, some of whom were voters. Appellants sued
to enjoin the proceedings of the city of Shelbyville to enlarge its boundaries, charging that as women owners of property to be affected, they were denied equal protection of the laws since the statute provided that voters only might make a defense to the proceedings if there were voters in the territory to be affected. The statute was upheld on the ground that the Legislature had plenary power in the matter of incorporating towns and enlarging or restricting their boundaries, and the exercise of its discretion in these matters does not depend for its validity upon the assent of the people whom it affects.
DECISIONS UNDER STATE CONSTITUTIONAL PROVISIONS
(59) Salt Lake City v. Wilson, 46 Utah 60, 148 Pac. 1104 (1915) The validity of a road poll tax (as a substitute for road labor) applicable to males only was challenged under the Utah Constitution equal rights provision:
"The rights of citizens of the state of Utah to vote and to hold office shall not be denied or abridged on account of sex. Both male and female citizens of this state shall enjoy equally all civil, political and religious rights and privileges." Art. I, sec. 24.
The Court upheld the statute, stating:
"We confess our inability to see anything in the foregoing quotation which prevents a reasonable classification of the citizens of the state with regard to the performance of certain duties which may be required by the state under its police power. Why should not women be exempt from the performance of some duties which are imposed on men? Surely one need not at this day and age point out the physical differences that exist between the sexes, nor dwell upon the reasons why females, in the nature of things, cannot respond to all the demands of the state. To perform labor on the public roads or street, or to pay the sume of $2.00 for the purpose of improving them, is neither a political, religious, or other civil right or privilege. Nor does it fall within the right or privilege of exercising the franchise or of holding an office. It is not likely that females will ever compete with the males for the office of county road commissioner or for any office relating to the public roads. But in practice the imposition and payment of a road poll tax by women would, in the long run, …merely add an additional burden on a large number of men…" p. 1107.
(60) Opinion of the Justices, 303 Mass. 631, 22 N.E. 2d 49 123 A. L. R. 199 (1939). Advised legislature that both the exclusion of all married women, and the exclusion of those whose husbands are legally bound and able to support them, from employment in the public service would be an unreasonable classification in violation of the Massachusetts Constitution.
See also State v. Emery (no. 6) and People v. Jemnez (No. 37) supra.
(61) Shpritz case, ______App. Div._____ (1962) (New York Sup. Court, Appellate Division, First Department, decided November 27, 1962, holding that New York City policewomen had the right to take promotional exams for the position of sergeant and the denial of this right solely because of sex had no warrant in law.
See also Opinion of the Justices, supra (No. 60)
Note on Muller v. Oregon and the "Oregon Brief" Popularly Known as the "Brandeis Brief."
The Muller decision in 1908 must be viewed against the background of a period of social reform of working conditions among factory workers and as a crucial step in a decade of struggle in the courts to validate welfare legislation. It pointed the way toward the future role of government in a conflict between nineteenth century individualism which emphasized rights of property and contract and the twentieth century view of the welfare state.
The woman's suffrage movement gathered momentum toward its climax during a period in which intensive efforts were also being made to reform working conditions for women and children in industry. The settlement houses produced gifted women leaders for the movement of social reform. While their efforts were concentrated upon legislation to protect women and children in employment, Eleanor Flexner has pointed out in A Century of Struggle, that "once such laws were on the statute books, comprehensive legislation covering male workers as well would follow more easily. Beyond the employer, the union, and the helpless unorganized individual worker, man, woman, or child, now stood the state, increasingly responsible for safeguarding the welfare of the citizen with respect to working conditions, hours, health, and fire hazards."1
Between 1867 and 1907 twenty states had enacted maximum hour laws for women in various types of employment. In 1905, Lochner v. New York was decided by the Supreme Court by a vote of 5-to-4. The Court struck down a New York maximum hour law for employees in bakeries (males) on the ground that it interfered with liberty of contract and was therefore repugnant to the Constitution. The majority was not persuaded that the Hew York statute was a health measure. Justices Harlan, White and Day dissented on the ground-that the police power of the State "extends at least to the protection of the lives, the health and the safety of the public against the injurious exercise by any citizen of his own rights." Mr. Justice Harlan, who wrote the dissenting opinion, believed that the State had the power to interfere with liberty of contract to protect the health of workers, whether male or female. Mr. Justice Holmes, in a separate dissenting opinion, thought that the majority had decided the case "upon an economic theory which a large part of the country does not entertain."2
The Lochner decision cast doubt upon the validity of protective labor legislation for women, and the women reform leaders were determined to have this legislation upheld by the highest court.
1 pp. 213-214
2 198 U.S. 45, 58, 65-74, 75
When Muller v. Oregon3 arose in 1907, presenting the issue of the constitutionality of an Oregon maximum hour law for women in certain industries, Mr. Louis D. Brandeis (later Justice of the Supreme Court) entered the case on behalf of the State of Oregon at the request of Florence Kelley of the National Consumers' League.
Faced with the adverse precedent of the Lochner case, Mr. Brandeis and the women leaders went to great lengths to persuade the court that similar legislation which applied to women only was not invalid. The brief, which has come to be known as the "Oregon Brief" or "Brandeis Brief" was prepared by Josephine Goldmark, Publication Secretary of the National Consumers' League, under Mr. Brandeis' direction. It comprised 113 printed pages of which two pages were devoted to the legal argument. The brief was novel in that the remainder of the presentation consisted of a comprehensive summary of sociological data including medical statements, government reports and surveys of similar legislation in the United States and foreign countries.
In order to distinguish the Muller case from the Lochner case, Mr. Brandeis stressed the psychological and functional differences between men and women. He argued that "physicians are agreed that women are fundamentally weaker than men in all that makes for endurance; in muscular strength, in nervous energy, in the powers of persistent attention and application."4
He cited numerous statements from factory inspectors, government commissions and other sources to emphasize the injurious effects of long hours of labor, particularly long hours of standing, which result in chronic fatigue and the general deterioration of health and urged that "overwork of future mothers thus directly attacks the welfare of the nation." He also pointed out that a ten-hour day would permit the married and unmarried woman "to obtain the decencies of life outside of working hours."
Four of the five justices who had voted two years earlier to invalidate the New York maximum hour law were still on the Court. Through the presentation of extensive health data and by arguing strenuously for the special health needs of women, Mr. Brandeis was able to obtain a unanimous decision from the Court.
The battle for the maximum hour law, however, was only partially won. Eight years later the Supreme Court heard arguments on Bunting v. Oregon5 which involved the constitutionality of Oregon's ten-hour day law for workers in specified industries without regard to sex. Now, only Mr. Justice McKenna of the majority in the Lochner case remained on the Court.
3 208 U. S. 412. See excerpts from opinion, App. I, No. 18 supra.
4 Women in Industry (Muller decision and Brief for the State of Oregon by Louis D. Brandeis, assisted by Josephine Goldmark, reprinted for The National Consumers' League), p. 118.
5 243 U. S. 426 (1917).
The experience gained in the Muller case was applied in the Bunting case. Again Josephine Goldmark prepared the brief under Mr. Brandeis' direction until he was appointed by President Wilson to the Supreme Court. The work then proceeded with Mr. Felix Frankfurter (later Associate Justice of the Supreme Court) as counsel for the State of Oregon. The Bunting brief contained nine pages of legal argument, 1021 pages of sociological and statistical material and 77 pages of additional data in a supplemental brief used upon reargument. The sociological data presented the case for health regulation in the interest of all workers. It stressed the relation of long hours to fatigue, nervous diseases, incidence of accidents and other factors. Reprinted by the National Consumers' League, the Bunting brief is entitled The Case for the Shorter Day.
The Oregon statute was upheld as a valid health regulation by a 5-to-3 decision. (Mr. Justice Brandeis, of course, took no part in the deliberations.) The Bunting case removed the roadblock and opened the way for the passage of extensive social legislation for workers generally. The Brandeis brief has come to be used in many types of litigation, one of the most recent being the school Desegregation Cases.
Reproduced from Gunnar Myrdal, An American Dilemma, New York: Harper & Bros., 1944, pp. 1073-1078.*
A PARALLEL TO THE NEGRO PROBLEM
In every society there are at least two groups of people, besides the Negroes, who are characterized by high social visibility expressed in physical appearance, dress, and patterns of behavior, and who have been "suppressed." We refer to women and children. Their present status, as well as their history and their problems in society, reveal striking similarities to those of the Negroes. In studying a special problem like the Negro problem, there is always a danger that one will develop a quite incorrect idea of its uniqueness. It will, therefore, give perspective to the Negro problem and prevent faulty interpretations to sketch some of the important similarities between the Negro problem and the women's problem.
In the historical development of these problem groups in America there have been much closer relations than is now ordinarily recorded. In the earlier common law, women and children were placed under the Jurisdiction of the paternal power. When a legal status had to be found for the imported Negro servants in the seventeenth century, the nearest and most natural analogy was the status of women and children. The ninth commandment—linking together women, servants, mules, and other property—could be invoked, as well as a great number of other passages of Holy Scripture. We do not intend to follow here the interesting developments of the institution of slavery in America through the centuries, but merely wish to point out the paternalistic idea which held the slave to be a sort of family member and in some way—in spite of all differences—placed him beside women and children under the power of the paterfamilias.
There was, of course, even in the beginning, a tremendous difference both in actual status of these different groups and in the tone of sentiment in the respective relations. In the decades before the Civil War, in the conservative and increasingly antiquarian ideology of the American South, woman was elevated as an ornament and looked upon with pride, while the Negro slave became increasingly a chattel and a ward. The paternalistic construction came, however, to good service when the South had to build up a moral defense for slavery, and it is found everywhere in the apologetic literature up to the beginning of the Civil War. For illustration, some passages from George Fitzhugh's Sociology for the South, published in 1854, may be quoted as typical:
* Footnotes are omitted.
The kind of slavery is adapted to the men enslaved. Wives and apprentices are slaves; not in theory only, but often in fact. Children are slaves to their parents, guardians and teachers. Imprisoned culprits are slaves. Lunatics and idiots are slaves also.
A beautiful example and illustration of this kind of communism, is found in the instance of the Patriarch Abraham. His wives and his children, his men servants and his maid servants, his camels and his cattle, were all equally his property. He could sacrifice Isaac or a ram, just as he pleased. He loved and protected all, and all shared, if not equally, at least fairly, in the products of their light labour. Who would not desire to have been a slave of that old Patriarch, stern and despotic as he was?…Pride, affection, self-interest, moved Abraham to protect, love and take care of his slaves. The same motives operate on all masters, and secure comfort, competency and protection to the slave. A man's wife and children are his slaves, and do they not enjoy, in common with himself, his property?
Other protagonists of slavery resort to the some argument:
In this country we believe that the general good requires us to deprive the whole female sex of the right of self-government. They have no voice in the formation of the laws which dispose of their persons and property…We treat all minors much in the same way…Our plea for all this is, that the good of the whole is thereby most effectually promoted….
Significant manifestations of the result of this disposition [on the part of the Abolitionists] to consider their own light a surer guide than the word of God, are visible in the anarchical opinions about human governments, civil and ecclesiastical, and on the rights of women, which have found appropriate advocates in the abolition publications….If our women are to be emancipated from subjection to the law which God has imposed upon them, if they are to quit the retirement of domestic life, where they preside in stillness over the character and destiny of society;…if, in studied insult to the authority of God, we are to renounce in the marriage contract all claim to obedience, we shall soon have a country over which the genius of Mary Wolstonecraft would delight to preside, but from which all order and all virtue would speedily be banished. There is no form of human excellence before which we bow with profounder deference than that which appears in a delicate woman,…and there is no deformity of human character from which we turn with deeper loathing than from a woman forgetful of her nature and clamourous for the vocation and rights of men.
….Hence her [Miss Martineau's] wild chapter about the "Rights of Women," her groans and invectives because of their exclusion from the offices of the state, the right of suffrage,
the exercise of political authority. In all this, the error of the declaimer consists in the very first movement of the mind. "The Rights of Women" may all be conceded to the sex, yet the rights of men withheld from them.
The parallel goes, however, considerably deeper than being only a structural part in the defense ideology built up around slavery. Women at that time lacked a number of rights otherwise belonging to all free white citizens of full age.
So chivalrous, indeed, was the ante-bellum South that its women were granted scarcely any rights at all. Everywhere they were subjected to political, legal, educational, and social and economic restrictions. They took no part in governmental affairs, were without legal rights over their property or the guardianship of their children, were denied adequate educational facilities, and were excluded from business and the professions.
The same was very much true of the rest of the country and of the rest of the world. But there was an especially close relation in the South between the subordination of women and that of Negroes. This is perhaps best expressed in a comment attributed to Dolly Madison, that the Southern wife was "the chief slave of the harem."
From the very beginning, the fight in America for the liberation of the Negro slaves was, therefore, closely coordinated with the fight for women's emancipation. It is interesting to note that the Southern states, in the early beginning of the political emancipation of women during the first decades of the nineteenth century, had led in the granting of legal rights to women. This was the time when the South was still the stronghold of liberal thinking in the period leading up to and following the Revolution. During the same period the South was also the region where Abolitionist societies flourished, while the North was uninterested in the Negro problem. Thereafter the two movements developed in close interrelation and were both gradually driven out of the South.
The women suffragists received their political education from the Abolitionist movement. Women like Angelina Grimke, Sarah Grimke, and Abby Kelly began their public careers by speaking for Negro emancipation and only gradually came to fight for women's rights. The three great suffragists of the nineteenth century—Lucretia Mott, Elizabeth Cady Stanton, and Susan B. Anthony—first attracted attention as ardent campaigners for the emancipation of the Negro and the prohibition of liquor. The women's movement got much of its public support by reason of its affiliation with the Abolitionist movement: the leading male advocates of woman suffrage before the Civil War were such Abolitionists as William Lloyd Garrison, Henry Ward Beecher, Wendell Phillips, Horace Greeley and Frederick Douglass. The women had nearly achieved their aims, when the Civil War induced them to suppress all tendencies distracting the federal government from the prosecution of the War. They were apparently fully convinced that victory would bring the suffrage to them as well as to the Negroes.
The Union's victory, however, brought disappointment to the women suffragists. The arguments "the Negro's hour" and "a political necessity" met and swept aside all their arguments for leaving the word "male" out of the 14th Amendment and putting "sex" alongside "race" and "color" in the 15th Amendment. Even their Abolitionist friends turned on them, and the Republican party shied away from them. A few Democrats, really not in favor of the extension of the suffrage to anyone, sought to make political capital out of the women's demands, and said with Senator Cowan of Pennsylvania, "If I have no reason to offer why a Negro man shall not vote, I have no reason why a white woman shall not vote." Charges of being Democrats and traitors were heaped on the women leaders. Even a few Negroes, invited to the women's convention of January, 1869, denounced the women for jeopardizing the black man's chances for the vote. The War and Reconstruction Amendments had thus sharply divided the women's problem from the Negro problem in actual politics. The deeper relation between the two will, however, be recognized up till this day. Du Bois' famous ideological manifesto The Souls of Black Folk is, to mention only one example, an ardent appeal on behalf of women's interests as well as those of the Negro.
This close relation is no accident. The ideological and economic forces behind the two movements—the emancipation of women and children and the emancipation of Negroes—have much in common and are closely interrelated. Paternalism was a pre-industrial scheme of life, and was gradually becoming broken in the nineteenth century. Negroes and women, both of whom had been under the yoke of the paternalistic system, were both strongly and fatefully influenced by the Industrial Revolution. For neither group is the readjustment process yet consummated. Both are still problem groups. The women's problem is the center of the whole complex of problems of how to reorganize the institution of the family to fit the new economic and ideological basis, a problem which is not solved in any part of the Western world unless it be in the Soviet Union or Palestine. The family problem in the Negro group, as we find when analyzing the Negro family, has its special complications, centering in the tension and conflict between the external patriarchal system in which the Negro was confined as a slave and his own family structure.
As in the Negro problem, most men have accepted as self-evident, until recently, the doctrine that women had inferior endowments in most of those respects which carry prestige, power, and advantages in society, but that they were, at the same time, superior in some other respects. The arguments, when arguments were used, have been about the same: smaller brains, scarcity of geniuses and so on. The study of women's intelligence and personality has had broadly the same history as the one we record for Negroes. As in the case of the Negro, women themselves have often been brought to believe in their inferiority of endowment. As the Negro was awarded his "place" in society, so there was a "woman's place." In both cases the rationalization was strongly believed that men in confining them to this place, did not act against the true interest of the subordinate groups. The myth of the "contented women," who did not
want to have suffrage or other civil rights and equal opportunities, had the same social function as the myth of the "contented Negro." In both cases there was probably—in a static sense—often some truth behind the myth.
As to the character of the deprivations, upheld by law or by social conventions and the pressure of public opinion, no elaboration will here be made. As important and illustrative in the comparison, we shall, however, stress the conventions governing woman's education. There was a time when the most common idea was that she was better off with little education. Later the doctrine developed that she should not be denied education, but that her education should be of a special type, fitting her for her "place" in society and usually directed more on training her hands than her brains.
Political franchise was not granted to women until recently. Even now there are, in all countries, great difficulties for a woman to attain public office. The most important disabilities still affecting her status are those barring her attempt to earn a living and to attain promotion in her work. As in the Negro's case, there are certain "women's jobs," traditionally monopolized by women. They are regularly in the low salary bracket and do not offer much of a career. All over the world men have used the trade unions to keep women out of competition. Woman's competition has, like the Negro's, been particularly obnoxious and dreaded by men because of the low wages women, with their few earning outlets, are prepared to work for. Men often dislike the very idea of having women on an equal plane as co-workers and competitors, and usually they find it even more "unnatural" to work under women. White people generally hold similar attitudes toward Negroes. On the other hand, it is said about women that they prefer men as bosses and do not want to work under another woman. Negroes often feel the same way about working under other Negroes.
In personal relations with both women and Negroes, white men generally prefer a less professional and more human relation, actually a more paternalistic and protective position—somewhat in the nature of patron to client in Roman times, and like the corresponding strongly paternalistic relation of later feudalism. As in Germany it is said that every gentile has his pet Jew, so it is said in the South that every white has his "pet nigger," or—in the upper strata—several of them. We sometimes marry the pet woman, carrying out the paternalistic scheme. But even if we do not, we tend to deal kindly with her as a client and a ward, not as a competitor and an equal.
In drawing a parallel between the position of, and feeling toward, women and Negroes we are uncovering a fundamental basis of our culture. Although it is changing, atavistic elements sometimes unexpectedly break through even in the most emancipated individuals. The similarities in the women's and the Negroes' problems are not accidental. They were, as we have pointed out, originally determined in a paternalistic order of society.
The problems remain, even though paternalism is gradually declining as an ideal and is losing its economic basis. In the final analysis, women are still hindered in their competition by the function of procreation; Negroes are laboring under the yoke of the doctrine of unassimilability which has remained although slavery is abolished. The second barrier is actually much stronger than the first in America today. But the first is more eternally inexorable.
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