The Nixon administration's position on women's rights was notoriously ambivalent. Officially, the administration supported the ERA, but Rehnquist's testimony to Congress on the amendment was viewed by feminists as, at best, damning with faint praise. They were chagrined when President Nixon successfully nominated Rehnquist to the Supreme Court in 1971, and their distress was borne out in the 1970s as Justice Rehnquist took positions hostile to feminism in several women's rights cases. This internal Justice Department memorandum, in which Rehnquist is more candid about his views on the ERA than he was in his congressional testimony, was made public during hearings on President Reagan's ultimately successful nomination of Associate Justice Rehnquist for elevation to the position of chief justice of the United States in 1986.
Rehnquist: ERA Would Threaten Family Unit
Editor's Note: Last week, as the Senate began considering the appointment of Associate Justice William Rehnquist as Chief Justice of the U.S. Supreme Court, sources opposing the nomination began circulating copies of a 1970 memo Rehnquist wrote detailing objections to the Equal Rights Amendment. At the time, Rehnquist was assistant attorney general, office of legal counsel, in the Nixon administration. He wrote the memo for Leonard Garment, a partner as Washington. D.C.'s 104-lawyer Dickstein, Shapiro & Morin, who was then special consultant to President Richard Nixon. What follows is the entire text of that memo.
Brad Patterson [an aide in Leonard Garment] advises me that you have already reviewed the memorandum for the Citizens Advisory Council on the Status of Women, prepared by Miss Mary Eastwood of my office, dealing with the proposed equal rights amendment.* I consider this memorandum an excellent brief in support of the adoption of the amendment. He suggested that I summarize objections to the adoption of the amendment, in order that both sides might be available to you. This I now do.
Summary. Under existing constitutional restrictions contained in the Fourteenth Amendment, women are presently in a position to successfully challenge any distinction in treatment between themselves and men which has no rational basis. Recent decisions of lower federal courts have included exclusion of women from juries and exclusion of them from public institutions of higher learning as falling within this category. The proposed "equal rights amendment" is intended to virtually abolish all legal distinctions between men and women, leaving intact only laws punishing rape, laws providing maternity benefits, and separate rest rooms in public facilities.
I believe the basic policy objection that may be urged against the amendment is that its designed effect will not be to confer any benefits or privileges upon women, but instead to invalidate existing laws enacted on the theory that in some areas women were entitled to privileged and favorable treatment. It is highly dubious, in my mind, whether a great majority of American women, to say nothing of American men, if they knew that this were the main thrust of the "equal rights amendment", would support it. The consequences of a doctrinaire insistence upon rigid equality between men and women cannot be determined with certainty, but the results appear almost certain to have an adverse effect on the family unit as we have known it.
A second argument which may be urged against the amendment is that its language is so vague as to make it impossible to predict how the courts will apply it. Since its supporters rely for its content not upon the language itself, but upon a Senate report filed at one of the times it earlier passed the Senate, the question arises as to whether in might not be wiser to employ greater detail in drafting the amendment itself.
Existing State of Law. Women received the right to vote on the same terms as men do by virtue of the Nineteenth Amendment to the Constitution. The equal protection clause of the Fourteenth Amendment has also led some courts recently to invalidate, as violative of that provision of the Fourteenth Amendment, laws which either permitted or required women to be treated differently than men. For example, a three-judge federal court in Alabama held that that state's law excluding women from jury service violated the Fourteenth Amendment, White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966). A similar result, where a state trial court had excluded women jurors from the panel because testimony relating to cancer of male
genitalorgans would be involved, was reached by the Court of Appeals for the Sixth Circuit in Abbot v. Mines, 411 F. 2d 353. Whereas only ten years ago the Supreme Court declined to hear a case in which a Texas state court had upheld the exclusion of women from Texas A & M, Allred v. Heaton, 364 U.S. 517 (l960), more recently lower federal courts in Connecticut and Virginia have indicated that female applicants to state institutions of higher learning must be treated on the same basis as male applicants are treated. A like result has been reached by the Supreme Court of Pennsylvania in Commonwealth v. Daniel, 430 Pennsylvania 642 (243 Atlantic 2d 400 1968).
On the other hand, recent decisions of the federal courts indicate that favorable treatment for women as opposed to men, in areas such as social security regulations relating to benefits, ineligibility for the draft, and restrictions on the hours of work for women, do not violate any constitutional provision. Greenwald v. Gardner. 2d Cir., 591 (1968) (social security benefits); United States v. St. Clair, S.D. N. Y., 291 F. Supp. (1968) (draft eligibility); Mengelkach v. Industrial Welfare Commission, C.D. Calif., 284 F. Supp. 950 (1968) (special restrictions on hours at work).
In other areas where differences of treatment accorded to women than to men are traditional, it seems doubtful whether under existing interpretation of the Constitution that these differences would be invalid. In many states, women may marry without parental consent at an earlier age than men; men may commence working at an earlier age than women without violation of the child labor statute; the parental obligation of support may be cut off with respect to daughters at an earlier age than it is to sons; the maximum age for juvenile court jurisdiction, as opposed to adult court jurisdiction, is frequently higher in the case of girls than of boys. The basis for sustaining such legal differentiation under the equal protection clause, of course, is that there is
to be a rational basis in case for treating women or girls differently than men or boys are treated.
The Proposed Equal Rights Amendment. The amendment contains the following language:
Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex."
and would contain further language authorizing Congress and the states to enforce the amendment by appropriate legislation.
Substantive Effect of Proposed Amendment. The intended effect of the amendment, as gleaned from Miss Eastwood's memorandum, would be to prohibit virtually all distinctions between men and women presently embodied in the law. It is undoubtedly intended to have a broader sweep than the provisions of the Nineteenth Amendment and the Fourteenth Amendment as presently interpreted, and is apparently intended to wipe out virtually all distinctions which have previously been thought to accord women a preferred status under the law. The only two distinctions recognized in the Senate report, to which the women's rights advocates turn to explain the meaning of the generalized language of the amendment itself, would be laws which by their terms could only apply to one sex (maternity benefits, prohibition of rape), and regulations based on the right of privacy "In our present culture" (separate rest room facilities in public buildings).
Assuming that the intent or the amendment were clear, and that it accomplished pretty much what the Senate report said it would accomplish, there is in my mind a rather serious policy question as to whether most people, or indeed most women would desire to have these results accomplished. Do a majority of women wish to be deprived of special protection in hazardous occupations? Do a majority of women wish to see their preferential treatment under the Social Security Act taken away? Do a majority of women wish to be eligible for the military draft? Put in broader terms, do a majority of women really wish to have the only distinction between themselves and men be the preservation of separate rest rooms in public buildings?
Undoubtedly many of the supporters of the equal rights for women amendment have rationally and carefully considered these questions, and have answered them in the affirmative. But I cannot help thinking that there is also present somewhere within this movement a virtually fanatical desire to obscure not only legal differentiation between men and women, but insofar as possible, physical distinctions between the sexes. I think there are overtones of dislike and distaste for the traditional difference between men and women in the family unit, and in some cases very probably a complete rejection of the woman's traditionally different role in this regard.
One practical effect of the amendment deserves attention, as an example of the sort of unsettling effect that the rigid doctrine of equality might have in many fields. Traditionally, the domicile of a married woman has been that of her husband, and if the husband decides to move from Boston to Chicago in order to take a different job, the wife is legally obligated to accompany him (as well as being obligated by virtue of traditional marriage vows and most religious teaching). The law makes an exception in the case where at the time the husband moves, the wife has grounds for separation or divorce. The reason for the rule which the courts have traditionally given is that someone in the family must be vested with the power of decision as to where the family will locate, and that by custom and tradition the husband is invested with this authority. While it is quite true that any family reduced to putting things in terms of legal rights of its members may be in bad shape, a change in the law will undoubtedly have an effect on custom and practice. If there is to be change, a rule which would at least be workable would be one which placed the power of decision in the wife, rather than the husband. But the equal rights amendment apparently would leave both parties with the power to decide this question—with a result which could indeed, to paraphrase a famous English author, turn "holy wedlock" into "holy deadlock".
While each individual is (or she) [sic] certainly free to choose whichever view of this subject he prefers, there is to me a rather serious question as to whether the administration ought to support a constitutional change which appears to be aimed primarily not at granting to women any tangible improvement in their situation— indeed, its result might be quite the opposite —but instead to the granting to women of a rigid, doctrinaire equality in all respects with men.
Legal Effect of Proposed Amendment. Just what the amendment would accomplish is not at all clear. This is not necessarily a criticism of it, For the Constitution has previously been amended in language of broad generality, the precise meaning of which was probably known to few of those who drafted it or concurred in its adoption. Obvious examples are the various general clauses of the Fourteenth Amendment. However, conceding that a certain amount of vagueness may be required in enunciating broad constitutional principles, the language of the equal rights amendment, taken in the context in which it is presented, is cause for concern.
The language itself admits of any number of interpretations. A court would not be irrational, taking only the operative language, in saying that it was intended to do no more than restate the requirement of the equal protection clause of the Fourteenth Amendment in the special context of women's rights. This construction would mean that no distinction between men and women is lawful unless it has a rational basis in fact. While such language would result in invalidating some existing legal distinctions between men and women (primarily those referred to in the earlier part of this memorandum) as having already been struck down by lower federal courts, such a construction would have the serious drawback of accomplishing nothing that the existing Fourteenth Amendment did not already accomplish. In addition, the Senate report suggests that a much broader sweep is intended. These two arguments make it reasonably certain that the courts would reject such a construction as being too narrow.
At the other extreme, it is possible that a court could conclude as a result of the enactment of this amendment that no legal
*I have relied on Miss Eastwood's memorandum as a source of decided cases on the subject.
distinction between men and women was permissible, regardless of circumstances. Such a construction would, of course, run squarely into the rather obvious fact that women are physically different from men: that women bear children, and men do not; and also into the language of the proposed Senate report which itself concedes that at least separate rest rooms would remain constitutionally valid. For these reasons, I think the courts would reject so sweeping a construction of the proposed amendment as this.
The virtue of both of the foregoing constructions of the amendment—the one narrow, requiring only a rational basis in fact to sustain a classification, and the other broad, permitting no classification whatsoever, is that either of them would be relatively easy to apply. Rejection of both of them for the reason above stated leaves one in a kind of murky middle ground, perhaps more sensible in many respects but nonetheless bringing with it great difficulties in knowing with any certainty what the amendment means.
One possible guide through the murk is the Senate report, containing the interpretation apparently desired by the proponents of the amendment. Summarizing the Senate report, difference in treatment between men's and women's property fights (dower, separate property in community property states, and the like), non-mandatory jury service, military service for women, distinctions between the sexes as to domicile, alimony, child custody, and laws limiting employment of women in unusually strenuous or extra hazardous occupations would be unconstitutional. Absolute equality of access to educational facilities —presumably including West Point and Annapolis—would be required. Statutes punishing rape and prostitution would remain valid, and separate rest rooms in public facilities of course would be constitutionally permissible.
While it is not unusual to resort to legislative history in interpreting ambiguities of meaning in a statute, such resort is far less common in the case of constitutional amendments. The question that first arises is whether or not the courts would in fact do as the proponents seem to intend—treat the Senate report as a catalog of the changes which the amendment was designed to produce. The second question which arises is why, if this is the case, should not the amendment be revised to be made a good deal more specific, along the lines of the Senate report, in order to say what its supporters stated it is intended to say.
Federalism. Since the proposal is a constitutional amendment, there is no doubt that it may, consistent with the Constitution, accomplish the purpose for which it is designed, assuming that such purpose is clear from the language chosen. But I think that considerations of federalism to which the President and the Republican Party have been traditionally devoted may call for a somewhat less superficial inquiry than that. Since the states would play a part in the adoption of the proposed amendment, it would not be a case of the national government imposing its will on the state government. But the adoption of the amendment would nonetheless sharply restrict the power of the states, as well as of the national government, to engage in legislative adjustment and accommodation in what must surely be described as an area which does not lend itself to doctrinaire prescription. I believe one could feel that changes are desirable in the legal relationships between men and women and nonetheless feel that a rigid constitutional amendment such as this is not the way to seek those changes. If one were to feel that way, he would obviously also feel that the administration should not propose the amendment.
Conclusion. Justice Holmes once made the comment that it would take more than the Nineteenth Amendment to convince him that there was no difference between men and women. I have the impression that a large number of the country's women, as well as almost all of the country's men, would like to see some of the laws based on physical differences constitutionally permissible, even though they share the desire of many women to do away with laws which irrationally differentiate in their treatment of men and women. All of this can be accomplished under the existing language of the Fourteenth Amendment. The effort to go further and strike down all legal differentiation, rational or irrational, as a matter of constitutional law is one which should give serious pause. The overall implication of the equal rights amendment is nothing loss than the sharp reduction in importance of the family unit, with the eventual elimination of that unit by no means improbable. It may be that the country is heading in this direction anyway, and that there is very little that the administration can do to stop it. But this surely does not mean that the administration ought to support a change which will in fact hasten the dissolution of the family.
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