Mary Eastwood's memo is one of the clearest articulations of the dual constitutional strategy—the simultaneous pursuit of constitutional change through Fourteenth Amendment litigation and advocacy of the ERA. Eastwood, former technical secretary to the Civil and Political Rights Committee of the President's Commission on the Status of Women (1961-63), was a Justice Department attorney and an important behind-the-scenes figure in NOW and other women's organizations. Eastwood, Murray, and their allies had to convince skeptics in NOW, the NWP, the ACLU, and other prominent civil rights and women's rights organizations who were wedded to one approach or the other that a dual strategy was desirable. They argued that the two strategies were complementary. If the Fourteenth Amendment litigation approach was unsuccessful, as seemed likely in the late 1960s, then the ERA was necessary to secure equality. If the ERA ultimately failed, advocacy for the amendment would build the women's movement's public profile and political power, helping to persuade judges to interpret the Fourteenth Amendment to provide equal rights for women. By 1970, these pragmatic feminists had succeeded in winning endorsements from all of these organizations for the dual strategy.
CONSTITUTIONAL PROTECTION AGAINST SEX DISCRIMINATION
An informational memorandum prepared for the
National Organization for Women (NOW)
Equal Rights Amendment and similar proposals.
NOW's Statement of Purpose endorses the principle that women should exercise all the privileges and responsibilities of American society in equal partnership with men and states that
"the power of American law, and the protection guaranteed by the U.S.Constitution to the civil rights of all individuals, must be effectively applied and enforced to isolate and remove patterns of sex discrimination, to ensure equality of opportunity in employment and education, and equality of civil and political rights and responsibilities on behalf of women, as well as for Negroes and other deprived groups."
The Fourteenth Amendment to the United States Constitution provides that no State shall "deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Fourteenth Amendment restricts the States and the "due process" clause of the Fifth Amendment similarly restricts the Federal Government from interfering with these individual rights. These are the constitutional provisions under which much of the civil rights for Negroes litigation has been brought and it is now clear that any racial distinction in law or official practice is unconstitutional.
The President's Commission on the Status of Women recommendation.
The issue of constitutionality of sex distinctions in the law has been raised in a number of cases under the 5th and 14th Amendments. However, the Civil and Political Rights Committee of the President's Commission found in 1963 (Report, p.34):
"The courts have consistently upheld laws providing different treatment for women than for men, usually on the basis of the State's special interest in protecting the health and welfare of women. In no 14th Amendment case alleging discrimination on account of sex has the United States Supreme Court held that a law classifying persons on the basis of sex is unreasonable and therefore unconstitutional. Until such time as the Supreme Court reexamines the doctrine of ‘sex as a basis for legislative classification’ and promulgates the standards determining which types of laws and official practices treating men and women differently are reasonable and which are not, it will remain unclear whether women can enforce their rights under the 14th amendment or whether there is a constitutional gap which can only be filled by a Federal constitutional amendment."
The President's Commission on the Status of Women in its report to President Kennedy in October, 1963, declared:
"Equality of rights under the law for all persons, male or female, is so basic to democracy and its commitment to the ultimate value of the individual that it must be reflected in the fundamental law of the land."
The Commission went on to say that it believed that the principle of equal rights for men and women was embodied in the 5th and 14th amendments, and
accordingly, "a constitutional amendment need not now be sought in order to establish this principle." The Commission stated further:
"Early and definitive court pronouncement, particularly by the U. S. Supreme Court, is urgently needed with regard to the validity under the 5th and 14th amendments of laws and official practices discriminating against women, to the end that the principle of equality become firmly established in constitutional doctrine." (American Women, pages 44-45)
The Commission report optimistically does not include any recognition of the possibility that the Court might rule against women seeking to invoke the protection of the Constitution.
History of the Equal Rights Amendment
The constitutional amendment which the Commission stated it did not deem necessary to endorse in 1963 was the proposed Equal Rights Amendment. That amendment, which has been introduced in every Congress since 1923, in its present form would provide (see S.J.Res.54, 90th Cong.ist Sess.):
"Equality of Rights under the law shall not be denied or abridged by the United States or by any State on account of sex."
Congress has in the past held hearings on the Equal Rights Amendment, most recently in 1948 and in 1956, and the amendment has twice passed the Senate, but with a provision added that the amendment "shall not be construed to impair any rights, benefits, or exemptions now or hereafter conferred by law, upon persons of the female sex." The effect of the added provision, known as the "Hayden rider", has been to kill the Equal Rights Amendment, since proponents of the amendment obviously would not wish to support the addition. The Senate Judiciary Committee has frequently reported favorably on the amendment and the recent reports specifically oppose the "Hayden rider" pointing out that the qualification "is not acceptable to women who want equal rights under the law. It is under the guise of so-called ‘rights’ or ‘benefits’ that women have been treated unequally and denied opportunities which are available to men".
Effect of the Equal Rights Amendment
Constitutional amendments, like statutes, are interpreted by the courts in the light of intent of Congress. Committee reports on a proposal are regarded by the courts as the most persuasive evidence of the intended meaning of a provision. Therefore, the probable meaning and effect of the Equal Rights Amendment can be ascertained from the Senate Judiciary Committee reports (which have been the same in recent years):
1. The amendment would restrict only governmental action, and would not apply to purely private action. What constitutes "State action" would be the same as under the 14th amendment and as developed in 14th amendment litigation on other subjects.
2. Special restrictions on property rights of married women would be unconstitutional; married women could engage in business as freely as a member of the male sex; inheritance rights of widows would be the same as for widowers.
3. Women would be equally subject to jury service and to military service, but women would not be required to serve (in the Armed Forces) where they are not fitted any more than men are required to so serve.
4. Restrictive work laws for women only would be unconstitutional.
5. Alimony laws would not favor women solely because of their sex, but a divorce decree could award support to a mother if she was granted custody of the children. Hatters concerning custody and support of children would be determined in accordance with the welfare of the children and without favoring either parent because of sex.
6. Laws granting maternity benefits to mothers would not be affected by the amendment, nor would criminal laws governing sexual offenses become unconstitutional.
Support of and opposition to the Equal Rights Amendment
The national Woman's Party, which continued to carry on the feminist movement following the adoption of the Nineteenth Amendment, has led the fight for an Equal Rights Amendment. Other organizations which have supported the amendment include the National Federation of Business and Professional Women's Clubs, the General Federation of Women's Clubs, National Association of Women Lawyers, National Association of Colored Business and Professional Women, St. Joan's Alliance, American Federation of Soroptimist Clubs, and various women's professional and civic organizations. Strong opposition to the amendment has come from the labor unions. Other organizations opposing the amendment have included the Americans for Democratic Action, National Council of Jewish Women, National Council of Catholis Women, National Council of Negro Women.
The most recent Congressional hearings on the amendment were held in 1956. There does not appear to be any record which would indicate that any of the opponents of the amendment who objected to the amendment's effect of eliminating special labor laws for women, have re-examined their position since the enactment of Title VII of the Civil Rights Act of 1964. Some of the organizations opposed to the amendment have urged the Equal Employment Opportunity Commission not to enforce Title VII in a manner which would affect State laws restricting the employment of women. On the other hand, some labor unions, notably the U.A.W., Chemical Workers and Typographical Workers, have urged the EEOC to rule that the equal employment opportunity provisions of the Federal law supersede special hours and weight lifting restrictions on women workers.
Current sex discrimination cases
In a 1966 case, White v. Crook, a three judge federal court in Alabama held the Alabama law excluding women from serving on juries violated the 14th amendment. The court said that "the plain effect(of the equal protection clause of the 14th amendment) is to prohibit prejudicial disparities before the law. This means prejudicial disparities for all citizens — including women." The State did not appeal to the U.S.Supreme Court and the Alabama legislature amended its law to permit women to serve on juries on the same basis as men. A similar case challenging the constitutionality of a Mississippi jury law excluding women is currently pending before a three judge federal court in Mississippi. (Willis v. Carson) The Mississippi is also at issue in Bass v. Mississippi, pending before the Fifth Circuit U.S.Court of Appeals. The Mississippi Supreme Court, in the case of Hall v. Mississippi, declined to apply the doctrine of White v. Crook and held that the Mississippi law did not violate the 14th amendment. The U.S.Supreme Court, dismissed the appeal in that case on jurisdictional grounds and did not hear the case.
The exclusion of women from draft boards under selective service regulations (which have recently been amended to permit women to serve) is at issue in a conscientious objector case in Georgia.
In Mengelkoch v. Industrial Welfare Commission the constitutionality of the California hours restriction law for women workers is being challenged. This case is pending before a three judge federal court in Los Angeles. NOW attorneys Marguerite Rawalt and Evelyn Whitlow are representing the plaintiff women workers. A Federal court in Indiana recently ruled in Bowe v. Colgate-Palmolive Co. that Title VII does not prohibit an employer from excluding women from jobs which require the lifting of more than 35 pounds. Although Indiana does not have a weight lifting restriction law for women, the court reasoned that some States do and this justifies employers in other States in adopting the sane "protective" practices. A California weight lifting limitation on women workers is alleged as violating their right to equal employment opportunity under Title VII in Regguinti v. Rocketlyne and North American Aviation, pending in a Federal court in that State. However, plaintiff's attorney did not raise the issue of a violation of the 14th amendment. There may be other Title VII cases as well which could involve testing the validity under the 14th amendment of State restrictive laws, but in which the attorneys have failed to raise the issue.
A Pennsylvania State court held that a statute providing longer prison sentences for women than for men does not deny to women the equal protection of the laws under the 14th amendment. (Commonwealth v. Daniels). This case is currently being appealed to the Pennsylvania Supreme Court. A county court in Oregon held, in January, 1967, that a city ordinance providing for punishment of female prostitutes is unconstitutional because it does not apply equally to males.
This listing of pending litigation does not, of course, purport to be exhaustive.
Suggested new interpretations of the 5th and 14th amendment
In Jane Crow and the Law (34 G.W.Law Rev. 232 (1965)), authors Murray and Eastwood suggest that the doctrine that sex is a reasonable basis for classifying persons under the law, which, has been used to justify upholding the constitutionality of laws which treat women differently from men, should be discarded by the courts. They point out that it could be argued that any sex differentiation in law or official practice today is inherently unreasonable and discriminatory and therefore violates the Constitution. The prospective effect of such an interpretation of the Constitution by the courts is outlined on pages 240 and 241 of that article.
NOW's brief in the Mengelkoch case asserts that the doctrine that sex is a valid basis for classifying persons does not even apply where there is involved the right to pursue lawful employment, since this is an individual right and a liberty and property which the State cannot restrict.
If these suggested constitutional interpretations are adopted by the courts in all areas of sex discrimination, the principle of equality set forth in the Equal Rights Amendment might in effect be "read into" the 5th and 14th amendments.
Analysis of Arguments Against the Equal Rights Amendment
Reasons which have been given for opposing the Equal Rights Amendment are as follows:
1. The amendment would be difficult to interpret and would result in a great deal of litigation.
2. The amendment is not necessary because women can achieve constitutional equality through litigation under the 5th and 14th amendments.
3. Any constitutional requirement of equal treatment of the sexes is undesirable because it would require equal treatment of men and women in (a) state labor laws, (b) family law, (c) criminal laws, (d) social benefits laws, and (e) obligations to the State and to the Nation.
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(1) "The amendment would be difficult to interpret and would result in a great deal of litigation".
The meaning of "equality of rights under the law" would be a question for interpretation by the courts. The language of the Equal Rights Amendment is patterned after the 19th Amendment:
ERA: "Equality of rights under the law
shall not be denied
19th: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."
However, the 19th amendment is specific and applies only to the right to vote. Its meaning is therefore is more clear than the Equal Rights Amendment, which applies to all "rights". Excessive litigation (and possible undesirable decisions) under the Equal Rights Amendment might be avoided if "equality of rights" were more clearly defined in the legislative history of the amendment as meaning the right to equal treatment without differentiation based on sex.
As noted in the cases mentioned above, women are now seeking to invoke the protection of the 14th amendment in the courts. In part because of the enactment of Title Vii of the Civil Rights Act of 1964, it is likely that litigation under the 14th amendment will increase. It is possible that the adoption of the Equal Rights Amendment would actually have the effect of reducing the amount of litigation necessary to secure equal treatment of the sexes under the law. Of course, litigation is not necessarily bad. Indeed, under our legal system litigation is a proper means for correcting discriminatory treatment.
(2) "The amendment is not necessary because women can achieve constitutional equality through litigation under the 5th and 14th amendments."
Women have been seeking equal rights under these amendments since 1872. (for a summary of the cases see the Report of the Committee on Civil and Political Rights, Appendix B, President's Commission on the Status of Women.) Women can and should continue to do so until discrimination in laws and official practices is eliminated. In Jane Crow and the Law (op.cit.supra) Murray and Eastwood state (page 237):
"Although the Supreme Court has in no case found a law distinguishing on the basis of sex to be a violation of the fourteenth amendment, the amendment may nevertheless be applicable to sex discrimination. The genius of the American Constitution is its capacity, through judicial interpretation, for growth and adaptation to changing conditions and human values. Recent
Supreme Court decisions in cases involving school desegregation, reapportionment, the right to counsel, and the extension of the concept of state action illustrate the modern trend towards insuring equality of status and recognizing individual rights. Courts have not yet fully realized that women's rights are a part of human rights; but the climate appears favorable to renewed judicial attacks on sex discrimination…."
Supporters of the Equal Rights Amendment believe that the potential of the 14th amendment is too unclear and that women's constitutional rights to equality are too insecure to rely exclusively on the possibility of getting more enlightened court decisions under that amendment.
In a 1963 case, the Supreme Court stated:
"The Fifteenth Amendment prohibits a State from denying or abridging a Negro's right to vote. The Nineteenth Amendment does the same for women. ….Once a geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex… This is required by the Equal Protection Clause of the Fourteenth Amendment," Gray v.Sanders, 372 U.S. 368, 379.
This interpretation of the 14th amendment reinforced and made doubly secure the right to vote. There are numerous cases in which the Supreme Court has interpreted the 14th amendment to reinforce or to extend rights guaranteed by earlier or, as in the above case, later amendments to the Constitution. For example, the more general due process and equal protection concepts of the Fifth and fourteenth Amendments have been used to strengthen more specific rights of individuals to freedom of speech, assembly and religion guaranteed by the First Amendment; and the right to a speedy trial and the right to counsel guaranteed by the Sixth. If the Equal Rights Amendment is adopted, the courts might well subsequently interpret the Fourteenth Amendment as reinforcing constitutional equality for women.
A question might be asked as to why there should be a special equality guarantee for women and not for Negroes or for the aged. As a result of successful litigation under the Fifth and Fourteenth Amendments, Negroes today have the constitutional right to equal treatment and both the Federal Government and the States are absolutely prohibited from treating persons differently because of race. The same is true as to national origin and religion. With respect to age, absolute equality of rights and responsibilities is not desirable. If age were added to the equal rights amendment, child labor laws would be rendered void, as would social security and government retirement systems. Selective service laws could not place the responsibility to serve in military service on a certain age group, and State requirements that children attend school could not be based on age.
If the Fourteenth Amendment had been drafted so as to absolutely and unequivocally require equal treatment without differentiation based on race, Negroes would not have had to painstakingly, step by step, achieve equality of rights under the law through litigation and legislation. The general language of the 14th amendment guarantees of due process and equal protection of the law for all persons has enabled the courts to give recognition to important human rights concepts of freedom of speech and religion and protection of the rights of persons accused of crimes. These are unrelated to race and it is not suggested that the 14th amendment should have been limited to requiring racial equality. Nevertheless, one might ask those who oppose the Equal
Rights Amendment-on the ground that equality of rights for women might ultimately be achieved under the present constitutional framework whether, at this day in history, women should be asked to repeat the painful, costly and uncertain course of litigation which Negro Americans had to endure.
(3) "Any constitutional requirement of equal treatment of the sexes is undesirable because it would require equal treatment of men and women."
At the time of the lase Congressional hearings on the amendment (1956) it was assumed by both proponents' and opponents of the amendment that there is no existing constitutional requirement that women be accorded equal rights and responsibilities under the law. The debate centered on whether the constitution should require equal treatment of the sexes. Those who opposed the amendment simply opposed equal treatment of men and women.
It is assumed that all members of NOW favor equal rights and responsibilities for women. Nevertheless, before endorsing or rejecting the Equal Rights Amendment one would want to know the consequences and effects of the amendment.
The precise effect in a particular case alleging denial of equal rights under the amendment would be a quostion for the courts. As noted above, the courts, in making their determinations, would be guided by the intended meaning or the "legislative history" of the amendment. Organizations such as NOW could help in shaping the legislative history and in clarifying the effect the amendment is intended to have.
The President's Commission on the Status of women and the various State Commissions have outlined the areas of law and official practice which treat men and women differently. All of these studies have been made since the last hearings on the amendment.
The Equal Rights Amendment would require equal treatment without differentiation based on sex. Purely private discrimination, whether based on race, religion, sex or national origin, is not reached and is not prohibited by the U.S.Constitution. Laws and the actions of agents of the Government are clearly reached. The question in each instance would be whether the right to equal treatment is denied or abridged by the State or Federal Government.
The precise effect of the amendment in a given situation can not be predicted with absolute certainty since this would be determined by the courts. The following discussion indicates how the amendment might affect various laws and practices which treat men and women differently.
(a) State labor laws
(1) Minimum wage laws and other laws giving rights to women workers.
If the State guarantees to women workers a minimum wage, men workers would be entitled to equal treatment by virtue of the Equal Rights Amendment. The same reasoning applies as to any state protected guarantees of seating facilities, lunch periods, or similar benefits provided for women workers. These laws or regulations would be automatically extended to persons of both sexes in the same way that State voting laws which applied only to men were automatically extended to women by virtue of the 19th amendment.
(2) State laws limiting and restricting the hiring and employment of female workers — hours restrictions, night work restrictions and weight lifting Limitations. These laws are all limitations on the freedom of women workers because of their sex. They limit the right to pursue lawful employment and to
work when and how long they choose. They confer no rights on women. Both men and women are, of course, free to not work longer than' they so choose or at such times as they choose, by virtue of the 13th amendment's prohibition against slavery and forced labor. State restrictive laws would not be extended to men; they would be nullified by the Equal Rights Amendment because they place restrictions on women not placed on men.
(3) Laws totally prohibiting the employment of women in certain occupations, such as bar tending and mining, likewise would be void, because they clearly deprive women, because of their sex, of the right to employment in these occupations. State laws providing a higher minimum age for employment for girls would be affect by the amendment by reducing the age to that provided for boys.
(4) Maternity laws would not be affected by the amendment because such laws are not based on sex; they do not apply to women as a class. (See Jane Crow and the Law, pages 239-240.)
(b) Family law.
(1) Both mothers and fathers are now generally responsible for the support of children under state laws. This would not be changed by the Equal Rights Amendment. In case of divorce or separation, where the mother (or father, as the case may be) has custody and care of the children, courts could continue to require the other parent, be it mother or father, to contribute to the financial support of the children.
Present laws do hot give recognition to the financial worth of homemaking and child care. The Equal Rights Amendment would probably not require that such worth be recognized in determining the relative responsibilities of parents in case of divorce. However, recognizing the value of child care and homemaking would be consistent with the principle of equality of rights under the amendment.
(2) Alimony for wives solely because they are female would be prohibited by the Equal Rights Amendment. However, continued support by one spouse for the other after divorce or separation based on actual necessary economic dependency, relative ability to provide family support or past relationships and obligations of the particular parties would not be prohibited by the amendment because the alimony or support would not be based on sex but upon some other criteria. The states would continue to be free to establish these values and criteria; they would simply be prohibited from discriminating against either men or women because of sex.
(3) Minimum age for marriage. Some states provide a lower minimum age for marriage for women than for men. The amendment would prohibit treating men and women differently in regard to age for marriage. If under state law women have the right to marry at age 18 and men at age 21, the amendment would give men the right to marry at 13. The state could, of course, amend its law to provide that the age be 21 for both sexes.
(4) Age of right to parental support. Some states give girls a right to be supported to age 18 and boys to age 21. Since the girls would have the right to be treated equally under the amendment, their right in these states would be automatically extended to age 21. The states would be free, of course, to provide a different age, so long as it is the same for boys and girls.
(5) State laws placing special limitations and restrictions on married women but not on married men would be nullified by the amendment.
(c) Criminal law. States would be prohibited from providing greater penalties for female law violators than for males.
There are certain sex crimes, such as rape, which apply only to males. These would not be affected by the Equal Rights Amendment since the state in enacting these laws has not made any classification of persons by sex; if these laws
were drafted so as to refer to persons instead of males, their meaning would be the same. (See Jane Crow and the Law, page 240.)
(d) Social benefits laws. There are certain differences in benefits which men and women receive under the social security and government retirement laws. There may be similar state retirement systems which give greater or lesser benefits to women. Legislation is currently pending in Congress to correct some of the inequities in the Federal law (see, e.g., H.R.643, 90th Cong., to eliminate differences in government employees' fringe benefits.). It could reasonably be expected that by the time an Equal Rights Amendment became effective, differences between the sexes in these laws would have been corrected. However, insofar as differences remained, the State or Federal Government, as the case may be, would be obligated by the Equal Rights Amendment to give the same benefits to both sexes.
(e) Service to the State and to the Nation. (Government employment, jury service and military service.) The Equal Rights Amendment would prohibit discrimination against women in public employment at all levels of government.
The Administration's Civil Rights Bill would prohibit any sex discrimination in juror qualification or in selection of jurors. This would eliminate laws excluding or discouraging women from serving on juries. It is generally agreed that a state law relieving women from jury service responsibilities relegated them to second class citizenship and should be forbidden. The Equal Rights Amendment would make women eligible to serve on all juries on the same basis as men.
With regard to military service the same reasoning might apply. It could be argued that failure of a nation to give its women the same responsibilities as it requires of its men makes women second class citizens. The Military Selective Service Act of 1967 requires men but not women to register for military service. The Equal Rights Amendment would have the effect of extending this requirement to women and make women eligible for selection just as women would be eligible for jury selection on the same basis as men. The present selective service law will automatically expire on July 1, 1971.
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Some lawyers might disagree that the Equal Rights Amendment would have the effects outlined above. However, to the extent that supporters of the amendment can agree on the desired effects of the amendment on existing laws, such effects could be made more certain if they are carefully set forth and made a part of the amendment's legislative history.
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