How and Why Was Feminist Legal Strategy Transformed, 1960-1973?
President Johnson signing the Civil Rights Act of 1964, surrounded by male politicians and civil rights activists.
LBJ Library and Museum, Austin, Texas.
Documents selected and interpreted by
As the 1960s began, women seeking to transform their legal and constitutional status faced two primary obstacles: judicial resistance and internal dissension. Despite the U.S. Supreme Court's tremendous strides in cases involving civil rights and civil liberties, the Court's 1961 decision in Hoyt v. Florida upheld the state of Florida's jury selection practices, which virtually excluded women from jury service. In Hoyt, Justice John Marshall Harlan's opinion for the Court declared that exempting women from jury service made sense because "woman is still regarded as the center of home and family life" (see Document 2). The Hoyt case made clear that not only the state of Florida but also the U.S. Supreme Court saw women as less than full and equal participants in the public duties of citizenship.
Attorney Dorothy Kenyon of the American Civil Liberties Union (ACLU) wrote an amicus curiae brief to the Supreme Court in support of Gwendolyn Hoyt, who had been convicted by an all-male Florida jury of murdering her abusive husband. Kenyon argued that "the jury … was not a true cross-section of her peers and she was in consequence deprived of the equal protection of the laws guaranteed to her by the Fourteenth Amendment to the Constitution" (see Document 1). After a detailed description of how Florida's legal system made it difficult for willing women to be part of jury pools and a meticulous survey of the case law that supported her argument, Kenyon pointed out that the United States was out of step with the principles of women's equality articulated by the United Nations. She asked "Should we in the United States be more backward than the rest of the world in integrating our women?" Hoyt v. Florida and the Supreme Court's rejection of Kenyon's arguments provided a wake-up call to advocates for women's legal rights that it was necessary to enter a new phase in the struggle for women's equality in the United States.
At the beginning of the 1960s, advocates for women were divided on two key issues: civil rights for African Americans and the proposed Equal Rights Amendment for women. By the end of the decade, feminists had overcome these divisions and united around a dual strategy for constitutional change that simultaneously pursued reinterpretation by the judicial branch of the equal protection clause of the Fourteenth Amendment to the U.S. Constitution and the passage and ratification of a federal Equal Rights Amendment (ERA) by the federal and state legislatures. In doing so, they abandoned the old opportunistic alliances that some ERA advocates had formed with racial segregationists, moved beyond decades of disagreement about protective labor legislation, and developed a largely effective plan for changing women's constitutional status through litigation and advocacy. But there were also both substantive and strategic downsides to achieving this consensus. More expansive and inclusive conceptions of equality fell by the wayside, and pursuing the ERA and Fourteenth Amendment cases in the courts simultaneously involved strategic pitfalls.
When John F. Kennedy convened the President's Commission on the Status of Women in 1961, advocates for women hoped to move beyond the divisive ERA debate. That dispute had since 1921 pitted ERA proponents, led by Alice Paul's National Woman's Party (NWP), against opponents such as Esther Peterson, head of the Department of Labor's Women's Bureau and Assistant Secretary of Labor for Labor Standards in the Kennedy administration, who worried that an ERA would invalidate protective labor laws such as minimum wage and maximum hours requirements for women workers. As Cynthia Harrison has recounted in her classic study, the attempt by the commission's Civil and Political Rights Committee to circumvent the ERA dispute unexpectedly produced a new legal strategy conceived by Pauli Murray. Murray was an African American lawyer accustomed to being ahead of her time: her civil rights credentials included an unsuccessful attempt to gain admission to the University of North Carolina's graduate school in 1938, an arrest for refusing to give up her seat on a bus in 1940, a failed bid to gain admission to the exclusively male Harvard Law School in 1944, and important contributions to the litigation strategy in Brown v. Board of Education.
Murray saw herself as a pragmatist and a consensus builder. Instead of taking a position on the ERA, she recommended a renewed effort to litigate women's rights under the Fourteenth Amendment in a strategy modeled on the NAACP Legal Defense Fund's campaign in the courts (see Document 3). For Murray, the benefits of the Fourteenth Amendment approach were twofold. First, the strategy provided a flexible, case-by-case approach that held the promise of eliminating pernicious discriminations against women, such as exclusion from jury service, without disrupting protective labor legislation. In that way, Fourteenth Amendment litigation might circumvent the ERA debate altogether. Second, the Fourteenth Amendment strategy concretely linked the civil rights and women's rights causes at a time when the primary efforts toward constitutional change for women involved appeals to southern segregationist legislators, whom the NWP had historically petitioned for support in passing the ERA. Murray had battled sexism—what she called Jane Crow—within the civil rights community and now found herself in a position to affect Jane Crow's relationship to her brother Jim Crow (see Document 3; for more on Murray's fight against Jane Crow, see "How Did the March on Washington Movement's Critique of American Democracy in the 1940s Awaken African American Women to the Problem of Jane Crow?" on this website).
Reaction to Murray's Fourteenth Amendment approach was mixed. Some, such as Harvard Law School dean Erwin Griswold, were skeptical of the analogy Murray drew between race and sex discrimination. Other ERA opponents embraced the Fourteenth Amendment strategy wholeheartedly, both because it offered a chance of improving women's status and because it might erode support for the ERA. Dorothy Kenyon was particularly enthusiastic; she had promoted litigation under the Fourteenth Amendment as one means of expanding women's rights, particularly in the area of jury service. But the NWP was strongly opposed, calling the Fourteenth Amendment approach "wishful thinking"—hopeless, impractical, and counterproductive (see Document 5). Many NWP members were of an older generation that had been promoting the ERA since the strategy of amending the constitution had succeeded in capturing the vote for women in 1920. Even NWP members who had not been involved in the suffrage struggle absorbed the single-mindedness of these women in pursuit of the ERA. Privately, NWP member Miriam Holden went so far as to accuse Murray of spearheading an NAACP conspiracy to hijack the ERA. More realistically, she worried that connecting women's rights to civil rights would mean sacrificing the support of southern segregationist allies such as Strom Thurmond (see Document 4). Indeed, to Murray, the Fourteenth Amendment approach both embraced African American civil rights and worked to prevent the sacrifice of protective labor laws on the altar of formal equality.
Ironically, the passage of a sex discrimination amendment to Title VII of the 1964 Civil Rights Act is what began to extricate the ERA from its entanglement with racial segregationists. By adding the word "sex" to the bill's prohibitions against discrimination based on race, color, religion or national origin, the amendment fundamentally altered the bill to include white and black women as well as African American men among those it protected against job discrimination.
How did this paradigm shift occur? The House of Representatives debate over the amendment shows that it was introduced by Rep. Howard Smith (D-Virginia), a sworn enemy of civil rights, and that he read a letter supporting the amendment from a representative of the National Woman's Party, who expressed concern over discrimination "against the white, native-born American woman of Christian religion" (see Document 6). All the men who spoke in that debate in favor of the amendment were southerners who opposed the Civil Rights Act.
Yet despite its origins in the old politics that sometimes aligned equal rights feminism with racism, the sex amendment gained support from new political currents that brought labor feminists together with equal rights feminists. These two groups had been bitter opponents since equal rights feminists had launched the Equal Rights Amendment in 1921 and called for public policy that treated women and men equally, thereby threatening hard-won gains labor feminists had achieved to protect women workers. This old antagonism between elite and working-class feminisms began to break down in 1961 when the President's Commission on the Status of Women, which was chaired by Eleanor Roosevelt, included both labor and equal rights feminists. Women from both perspectives worked on American Women: Report of the President's Commission on the Status of Women, 1963, which highlighted the importance of working women in the nation's economy and focused on strategies for improving their opportunities in the paid labor force. Although the wording of the 1963 Equal Pay Act disappointed labor feminists by failing to endorse equal pay for comparable work and aided only women who did the same work as men, the act nevertheless lent momentum to those advocating the needs of wage-earning women. By prohibiting sex-based discrimination, Title VII opened a third path that neither attacked nor endorsed legislation that protected women workers. Rather, it added "sex" (or what later came to be called "gender") to the categories the law protected against discrimination. Although many who voted for the amendment on February 8, 1964, voted against the Civil Rights Act in March, others supported both the amendment and the act.
In a widely circulated memorandum urging the Senate to approve the sex provision in 1964, Pauli Murray had predicted that the passage of the Civil Rights Act would inextricably link the fate of women's rights to African American civil rights (see Document 8), and that is precisely what happened. When some congressmen called for the repeal of Title VII immediately after its passage, it became clear that race and sex discrimination laws would rise or fall together. In 1965, Pauli Murray made a speech to the National Council of Women, calling on her female compatriots to demand that the Equal Employment Opportunity Commission (EEOC) stop refusing to enforce the sex discrimination ban (see Document 9). Though Murray's reluctance to endorse the ERA frustrated some skeptics, her robust defense of Title VII transformed others, such the previously wary Miriam Holden, into enthusiastic allies. Overall, the NWP's actions and rhetoric began to reflect a growing conviction that its interests might best be served by building upon rather than disparaging the Black civil rights cause.
In the meantime, a federal district court in Alabama was considering a case that vividly linked women's rights with the struggle for racial justice. Proponents of the Fourteenth Amendment strategy hoped that White v. Crook would be the breakthrough they had been waiting for. In 1965, Gardenia White and several other African American women and men challenged their exclusion from a Lowndes County jury that had acquitted the white men accused of killing two civil rights workers, Jonathan Daniels and Viola Liuzzo. In Alabama, as in Mississippi and South Carolina, the law excluded women of all races from jury service, while Black men were kept off juries through extralegal means. In White v. Crook, the ACLU and the Justice Department joined forces to challenge both forms of jury exclusion. Dorothy Kenyon and Pauli Murray drafted the sex discrimination portions of the brief. Kenyon and Murray and their allies hoped that White v. Crook, with its stark and compelling link to civil rights, would reach the Supreme Court and convince the justices to see sex discrimination, like race discrimination, as a violation of the equal protection clause of the constitution. (See documents 12B, 12D, and 12H for Murray's correspondence with Alma Lutz describing the legal strategy in this case.)
In February 1966, a three-judge federal district court panel ruled in White v. Crook that Alabama's absolute exclusion of women from jury service violated the Fourteenth Amendment's equal protection clause (see Document 11). Feminists rejoiced—finally, the Court had acknowledged that the equal protection guarantee applied to women. Advocates of the Fourteenth Amendment approach felt vindicated and hoped that they could convince ERA proponents to endorse this strategy (see Document 12H).
The choice of constitutional vehicles—the Fourteenth Amendment versus the ERA—was both symbolic and pragmatic, as a 1966 exchange of letters between Pauli Murray and NWP member Alma Lutz revealed (see documents 12A-12I). The Fourteenth Amendment's symbolic association with racial justice was compelling to Murray, who hoped to unite the struggles for women's rights and civil rights. She made clear that she was not opposed in principle to the ERA; rather, she had more practical concerns. She wrote to Lutz, "I think there are enough women aroused about legal rights to bring cases through the courts; I do not believe enough of them are aroused to secure the passage of an Equal Rights Amendment. So," she concluded, "we differ not so much in our objectives as in our strategy" (see Document 12A). Murray expressed hope that the NWP and other ERA proponents could support the Fourteenth Amendment approach while continuing to push for a new amendment.
Yet because neither White v. Crook nor similar cases from Mississippi reached the Supreme Court, these jury exclusion cases failed to generate a Supreme Court ruling on sex discrimination (see Document 15 for a list of other jury exclusion cases). White's failure to reach the Supreme Court marked a turning point for legal feminism. It was a missed opportunity to compellingly connect the women's rights and civil rights causes under a universalist conception of the Fourteenth Amendment, and it brought skeptics about the ERA strategy one step closer to deciding that an amendment might in fact be necessary.
Another key moment that unified feminists around a dual constitutional strategy occurred at the 1967 convention of the National Organization for Women, where the ERA and abortion rights were at the top of the agenda. The most important decisions seem to have been made before the national meeting by a NOW committee formed to study feminists' constitutional options. The committee included several NWP members, a few ERA skeptics, and Mary Eastwood, a government lawyer who had worked with the President's Commission on the Status of Women and coauthored a path-breaking article on sex discrimination with Pauli Murray (see Document 10). In the months leading up to NOW's national convention, committee members considered whether to endorse or reject the ERA as drafted by Alice Paul in the 1920s and modified in the 1940s and examined other possibilities for constitutional change. For instance, they debated whether to push for a human rights amendment that called for equal treatment for both sexes and encompassed public and private discrimination based on race, color, and national origin as well as sex. Further, the proposed human rights amendment provided that "the right of a woman to terminate a pregnancy under medical supervision shall not be denied or abridged by the United States or by any State" (see Document 13). Thus, in 1967, the constitutional choices on the table included Fourteenth Amendment litigation and advocacy of the ERA as we know it as well as more expansive proposals that connected sex equality to racial equality and reproductive rights.
But NWP supporters were determined to block even the smallest changes in the ERA's wording. Letters between NWP and NOW members reflect that the NWP's steadfast insistence on retaining the ERA's original language stemmed not only from their years of assiduously lobbying Congress to pass the original text but also from a distrust of NOW's comparatively radical ideas about marriage, gender roles, and abortion rights. Some of the older NWP members—many of whom were in their 70s and 80s—feared that NOW's agenda went far beyond the formal legal equality they had championed for so long.
After meeting with Alice Paul and other NWP stalwarts, Mary Eastwood took up the pragmatist mantle. Eastwood had become convinced that the most prudent course of action was for NOW to endorse the existing ERA and work in concert with the NWP and other pro-ERA groups while at the same time continuing to litigate court cases under the Fourteenth Amendment (see Document 14 for a debate within NOW about methods of pursuing legal equality for women). But Murray remained concerned that NOW's endorsement of the ERA at this juncture would alienate women in labor unions and isolate the issue of women's rights from broader civil rights and human rights goals. Hoping to head off a confrontation, Murray took the floor at the November 1967 NOW convention and made a substitute motion in place of a resolution that would have committed NOW to full and immediate support of the ERA. Murray proposed that the pro-ERA resolution be sent to local NOW chapters, which could choose among three alternatives: endorse the ERA as written, endorse an alternative amendment with different wording, or incorporate the ERA into a general human rights amendment that would include other forms of inequality. Murray's substitute lost by a large margin and she left the NOW convention feeling, as she put it, "like a stranger in my own household" (see Document 14 for a record of the vote).
NOW's endorsement of the ERA in 1967 was a crucial juncture for legal feminism not only because skeptics who advocated protective labor legislation for women workers were defeated but also because more expansive visions of equality such as those illustrated in the proposed human rights amendment fell by the wayside in favor of the tried-and-true ERA. Reproductive rights and racial equality remained important feminist goals, but they remained formally separate from sex equality in the feminist program for constitutional change. And since the White v. Crook jury exclusion case had failed to reach the Supreme Court, there were no guarantees that the Fourteenth Amendment approach would meaningfully link women's rights to the cause of racial justice.
Notwithstanding her alienation from NOW, Pauli Murray resumed her pragmatic course of action. She and Eastwood began actively promoting a dual strategy that combined Fourteenth Amendment litigation and ERA advocacy. They argued that these approaches were not only compatible but mutually beneficial. The dual strategy was presented to NOW in a January 1967 proposal: "As a matter of tactics, even if the ERA fails to pass, vigorously pushing for it will show that women are demanding equal rights and responsibilities under the law by the most drastic legal means possible. The effect, provided we make clear we think the 14th amendment… should give women the same unqualified protection, would be to improve our chances of winning 14th amendment cases" (see Document 13). Eastwood believed that women's agitation for the ERA would help convince judges to reinterpret the Fourteenth Amendment, regardless of whether or not the ERA succeeded. Eastman expanded the proposal into a more formal memorandum to NOW later in 1967 (see Document 15).
The dual strategy remained controversial among both supporters and opponents of the ERA. Pragmatic legal feminists vigorously promoted the dual strategy in 1967 and 1968, and by the end of 1968, NOW, the National Federation of Business and Professional Women, and the NWP had all come around to the view that Fourteenth Amendment litigation and ERA advocacy were complementary rather than competing strategies. But the ACLU's leadership remained skeptical about the ERA. Several factors helped Pauli Murray and her allies convince Dorothy Kenyon, a longtime member of the ACLU's Board of Directors and a legal powerhouse there, to embrace the ERA. The election of Republican Richard Nixon as president in 1968 made court action seem less likely. Litigation under Title VII, which was led by intrepid attorney Marguerite Rawalt, challenged workplace restrictions on women's labor, and the EEOC's 1969 interpretation of Title VII effectively invalidated sex-specific labor legislation. Once the ERA no longer endangered such laws, the amendment was less threatening to women who had long labored for workplace protections. Together Murray and Kenyon persuaded the ACLU to endorse the amendment in 1970 (see Document 16). When leading protective labor legislation advocate Esther Peterson graciously conceded the following year that the ERA's time had come, the dual strategy's triumph within the legal feminist community was complete (see Peterson's congratulatory letter to Congresswoman Martha Griffiths in Document 19).
This legal feminist consensus had just been reached when feminists found themselves in the thick of congressional debate over the ERA and Supreme Court litigation under the Fourteenth Amendment. Now their challenge was to implement the dual strategy, and they faced two practical obstacles. First, feminists had to articulate to Congress why an ERA was necessary when sex equality principles were supposedly embodied in the Fourteenth Amendment. Second, they needed to convince the Court not to view their promotion of an ERA as evidence that the existing constitution did not already protect women's rights.
To justify the need for a new amendment, ERA supporters pointed to judges' reluctance to recognize women's equal rights, the expense of litigation, the symbolic significance of a new constitutional amendment, the greater democratic legitimacy of amending the Constitution rather than relying on judicial reinterpretation, and, as Pauli Murray's emphasized, the need to provide genuine protection from discrimination to African American women. Feminists refuted the arguments of ERA opponents such as Assistant Attorney General William H. Rehnquist, who contended, among other things, that the Fourteenth Amendment already protected women from invidious discrimination. Privately, Rehnquist's concern was that the ERA would threaten the integrity of nuclear families (see Document 18).
Feminists were equally firm about the effect of the ERA on judicial interpretation of the Fourteenth Amendment. In November 1970, in a well-meaning eleventh-hour effort to salvage an unsuccessful attempt to pass the ERA, Senator Birch Bayh, an important feminist ally, proposed a substitute amendment. Instead of creating a new amendment that established "equality of rights" based on sex, the Bayh substitute would have echoed the wording of the Fourteenth Amendment, providing that "neither the United States nor any State shall, on account of sex, deny to any person within its jurisdiction the equal protection of the laws." The reaction from feminists was swift and scathing. The Bayh substitute was unacceptable to feminists because it compromised both prongs of the dual strategy. If an amendment providing for "equal protection" on account of sex passed Congress, the Court might consider that a tacit admission that the Fourteenth Amendment's equal protection clause did not cover women. Nor would the Bayh substitute accomplish the objectives of the ERA, feminists believed: the words "equal protection" were too ambiguous and could be interpreted to mean something less than full equality. Indeed, the Supreme Court had never interpreted the Fourteenth Amendment's equal protection clause to require equality for women, and the notion of equal "protection" smacked of the old sex-specific protective labor laws. Feminists' unanimous rejection of Bayh's proposal was an unprecedented show of unity around the dual strategy (see Document 17).
Although it made unprecedented feminist unity possible, the difficulties with the dual strategy emerged when legal feminists, led by law professor and ACLU attorney Ruth Bader Ginsburg, brought sex equality litigation to the Supreme Court even as the battle to ratify the ERA dragged on through the 1970s. In the 1971 Supreme Court case Reed v. Reed, Sally Reed challenged an Idaho statute preferring men over women as estate administrators represented by Ruth Bader Ginsburg of the ACLU, who relied on, and credited, arguments pioneered by Murray and Kenyon (see documents 20 and 21). In Reed, the Supreme Court struck down a sex-based classification under the Fourteenth Amendment for the first time. On the one hand, feminists had reason to celebrate: Reed marked an advance in Fourteenth Amendment case law by stating that laws involving classification by sex merited special scrutiny. But the Supreme Court decision did not accomplish what Ginsburg, who prepared the case for the ACLU, and other feminist legal advocates had hoped it would. Their goal had been to establish that sex classification is what is known in the legal community as a suspect classification, one that is assumed to emanate from baseless group antagonism. Laws that employ such classifications receive the highest standard of judicial review—what is known as strict scrutiny. When the Court decides that strict scrutiny applies to a law, the law is generally assumed to be invalid or unconstitutional. This is the standard the NAACP had successfully argued should be applied to race. Now feminists in the legal community were trying to convince the Court to apply the same standard to sex. Although the Reed decision clearly stated that "by providing dissimilar treatment for men and women," the Idaho decision violated the equal protection clause of the Fourteenth Amendment, it did not state that sex was a suspect category that merited strict scrutiny. Feminists found themselves in a bit of a catch-22: emphasizing Reed's shortcomings could limit the reach of the Fourteenth Amendment in future cases, and depicting Reed as too much of a success could undermine the case for a new amendment (see documents 22A and 22B). The decision in Reed v. Reed was an entering wedge in the task of dismantling sex-based discrimination against women in the United States, but there was still a long way to go.
And as Jane Mansbridge observed in her study of the ERA's defeat, litigation successes may have hampered ratification of the ERA by diminishing the perceived and actual need for a new amendment. The effect of the pending ERA on cases involving the Fourteenth Amendment was more ambiguous. Some justices believed that passage of the ERA and other antidiscrimination legislation in Congress justified judicial reinterpretation of the Fourteenth Amendment in order to apply the same high standard of review—strict scrutiny—to classifications based on sex that was applied to those based on race. Indeed, Justice William J. Brennan Jr.'s papers reveal that he doubted that the ERA would succeed and wanted the Court to declare a robust sex equality principle before the amendment was defeated (see Document 23H).
But Justice Brennan—and legal feminists—came up one vote short in the 1973 Supreme Court decision Frontiero v. Richardson, which they had hoped would provide the same rigorous standard of strict scrutiny for sex-based legal classifications that the Court used for racial classifications. Although a majority of the Court voted to invalidate a military benefit scheme that favored the spouses of male servicemembers over the spouses of female servicemembers, only four justices embraced strict scrutiny for sex-based classifications in Frontiero (see Document 24). That was because concurring Justice Lewis Powell argued that for the Court to essentially enact the ERA by fiat while it was still pending in the states violated basic democratic principles. Justice Rehnquist apparently no longer felt that the Fourteenth Amendment protected women from discrimination—he dissented in Frontiero and in most of the 1970s sex equality cases. In any event, the result of the Brennan-Powell impasse over the effect of the ERA on interpretation of the Fourteenth Amendment was the emergence of an intermediate scrutiny standard for laws that differentiated between men and women, a standard somewhat less stringent than that imposed on laws making race-based distinctions.
Although the Court had come a long way in its interpretation of the Fourteenth Amendment's equal protection clause, feminists still believed an ERA was necessary to establish women's equality once and for all. The dual strategy ultimately proved to be a double-edged sword. On the one hand, feminists' ability to persuade a majority of the Court to invalidate a number of sex-based discriminations in the 1970s was no doubt enhanced by their success in passing the ERA and mobilizing support for ratification of the new amendment. But the pendency of the ERA also enabled cautious justices to withhold support for strict scrutiny of sex-based classifications. In addition, as the Court applied the equal protection clause to many of the laws and policies feminists had originally hoped the ERA would vanquish, it became increasingly difficult to argue that the ERA was still necessary.
The pragmatism of legal feminists thus was riddled with paradox. The dual constitutional strategy originated as a response to the two obstacles feminists faced at the beginning of the 1960s: internal divisions within the women's movement and resistance in the judicial system to women's demands for equality. The dual strategy succeeded in divorcing legal feminists from the racial segregationists they had previously allied with and overcoming divisions among women's advocates over the desirability of an ERA. These were no small achievements. Pauli Murray's position at the intersection of the civil rights and women's movements compelled her to inaugurate the Fourteenth Amendment strategy in the early 1960s, but, paradoxically, it turned out that unifying feminists around the dual strategy eventually caused many feminists to abandon the more expansive and inclusive visions of equality that underlay the White v. Crook litigation and NOW's proposed human rights amendment to the Constitution. And while the dual strategy was a pragmatic response to feminist forecasts that the Supreme Court would become increasingly conservative in the wake of Richard M. Nixon's election, the strategy brought mixed results precisely because Justice Powell, a Nixon appointee, viewed the pending ERA as an obstacle to wholesale reinterpretation of the Fourteenth Amendment. Throughout the remainder of the 1970s, as the ERA ratification battle wore on, legal feminists continued to juggle the often-contradictory imperatives of pushing for the ratification of the new Equal Rights Amendment and arguing in the judicial system that the equal protection clause of the Fourteenth Amendment already gave women full legal equality.
back to top