Pauli Murray in her office at Brandeis University, 1970. Courtesy: Schlesinger Library
ACLU members, including longtime women's rights advocate Dorothy Kenyon, had long opposed the ERA on the ground that it would endanger protective labor legislation for women. After White v. Crook and other Fourteenth Amendment cases failed to reach the Supreme Court and after the Equal Employment Opportunity Commission interpreted Title VII of the Civil Rights Act of 1964 to invalidate sex-specific labor legislation, Murray convinced Kenyon that an ERA was necessary and desirable. But Kenyon and Murray still faced an uphill battle in convincing their mostly male colleagues in the ACLU to make women's rights a priority. They succeeded on both fronts: the ACLU endorsed the ERA in 1970 and the ACLU's Women's Rights Project, headed by Ruth Bader Ginsburg, soon became the most prominent litigation arm of the women's movement. Murray's memo to the ACLU Board depicted the ERA and the women's rights cause as analogous to the African American civil rights movement, of which the ACLU had long been a strong supporter.
March 30, 1970
To: Equality Committee
From: Pauli Murray
Re: ACLU Position on Sex Discrimination
Because of a teaching schedule on late Wednesday afternoon, it will not be possible for me to attend the important April 1 meeting, and I must regretfully use this alternative method of expressing my views. As draftsman of the original Proposed ACLU Policy Statement on Sex Discrimination which was adopted with some changes by the Committee on April 16, 1968 by a vote of 5 to 0, I am particularly anxious to have the National Board reexamine its action on December 15, 1968 and adopt the statement recommended in the excellent memorandum prepared by Susan Deller Ross in the form she suggests on page 17 of her memo. The following comments are intended to supplement the information in the Ross Memo of March 17, 1970, and to propose that the Equality Committee also reexamine the ACLU position on the Equal Rights Amendment.
State Protective Legislation
Further examples of the continuing trend toward invalidation or modification of these laws are:
1. On January 15, 1970, the Los Angeles County Superior Court held that the California statute prohibiting the employment of women as bartenders is in conflict with and superseded by Title VII of the Civil Rights Act of 1964.
Mating Game Inc. v. The State of California. (Super. Ct. Los Angeles County, Case No. C954160) Complaint for Injunction against the California Department of Alcoholic Beverage Control. Notice of Appeal to the Court of Appeals for the Second Appellate District filed by the State of California filed by the State of California on January 20, 1970.
2. In 1969, the Attorneys General of five states — Michigan, North Dakota, Oklahoma, Pennsylvania and South Dakota — issued Opinions expressing modification of state policy in view of Title VII and recent court decisions. In all of these states except North Dakota the finding was that the state protective laws were superseded by Title VII and/or the sex provisions of the state FEP law. The Attorney General of North Dakota expressed the view that the state hours law applicable to women only may now preclude prosecution of alleged violations of that act. The Director of the Department of Delations of Ohio announced on September 4, 1969 that the Department would suspend prosecutions for alleged violations of the Ohio protective labor laws until the legislature has conformed these laws to Title VII.
Equal Rights Amendment
Hearings on the proposed Equal Rights Amendment,S.J.Res.61 have been scheduled for sometime in May, 1970 before the Senate Subcommittee on Constitutional Amendments. The question has been raised as to testimony by ACLU in opposition to the amendment. Larry Speiser has expressed the, view that ACLU should testify to emphasize our opposition to the amendment in view of our Fourteenth Amendment approach.
I want to urge as strongly as I can that ACLU not testify in opposition to the amendment. It would be la grave tactical error and place ACLU in a compromised position in the view of the various women's civil rights groups today who are urging the adoption of the proposal. Moreover, in the light of changed conditions I think that ACLU ought to reexamine its entire position on the amendment and, pending such reexamination, should take no public position. I propose this position to the Equality Committee and urge that it be adopted and recommended to the Board in time for the Board meeting on April 11. My reasons are as follows:
1. It should be clear to even the most myopic observers today that we are witnessing a radicalization of the movement for women's rights, which may rival in intensity if not in visible turmoil the Black Revolution. Traditionally established women's organizations such as the YWCA, AAUW, etc. are reexamining their positions on both state protective legislation and the Equal Rights Amendment and my observations are that many of those organizations which have gone on record in opposition to the amendment in the past will not publicly oppose it in 1970. Some of these organizations are beginning to turn their attention toward replacing the state protective laws with a state labor standards act applicable to all workers, and are looking for guidance in drafting a model act.
2. The Citizens' Advisory Council on the Status of Women (all present members are Nixon appointees) on February 7, 1970 endorsed the equal rights amendment and urged that President Nixon immediately request its passage by Congress. I have requested that copies of the Council's memorandum on the Equal Rights Amendment be circulated among members of the Equality Committee. The memorandum was prepared for the Council by Mary Eastwood of the Office of Legal Conns
él, Department of Justice, with whose competence ACLU is thoroughly familiar. In view of the position of this semi-official body, ACLU should follow suit and reexamine its own position.
3. I do not believe today that the alternative of the use of the Fourteenth Amendment is a sufficient basis for strong opposition to the proposed Equal Rights Amendment. If, as I have contended for years, the state protective laws as presently drawn are repugnant to the Fourteenth Amendment and that the precedent upon which they rest, Muller v. Oregon(208 U.S. 412),
should be reexamined and overruled in light of changed contitions, then the basis on which ACLU has rested its traditional opposition to the Equal Rights Amendment falls. You will recall that the Report of the President's Commission on the Status of Women submitted in 1963 did not foreclose the possibility of an Equal Rights Amendment. It declared:
"Since the Commission is convinced that the U.S. Constitution now embodies equality of rights for men and women, we conclude that a constitutional amendment need not now be sought in order to establish this principle. But Judicial clarification is imperative in order that remaining ambiguities with respect to the constitutional protection of women's rights be eliminated." (p.45) (emphasis supplied)
This declaration was made in 1963. It is now 1970 and there has not yet been a clarification by the Supreme Court. It requires no great exercise of imagination to recognize that the present composition of the Supreme Court is not the same as the liberal Warren Court and that present liberals on the Court may soon be replaced by Nixon appointees. If Judge Carswell is an example of what may be expected, women are justly apprehensive about the "remaining ambiguities" in the hands of such a Court.
5. Since opposition to the Equal Rights Amendment by ACLU, labor organizations and women's organizations in the past has been based mainly on the threat which it presented to state protective legislation applicable only to women, in view of the present trend there seems to be no substantial reason for continued opposition to the amendment, and it would be undesirable and damaging to do so. The most that can be said about it in view of the ACLU reliance upon the Fourteenth Amendment approach is that the new amendment would be redundant. But this would hardly call for opposition since it would reaffirm existing constitutional rights.
6. The most potent reason for not opposing the Equal Rights Amendment in the civil rights climate of 1970 is that, by taking a negative position, ACLU will not be able to avoid the Impression that it is denying the proposition that civil rights are indivisible and that wherever discrimination is accepted against one disadvantaged group all others are in jeopardy. In fact, it will give the impression that it is preoccupied with the demands of Blacks, but opposes the demands of women. Perhaps the most essential instrument for combatting the divisive effect of a black-only movement is to insist on the unity of civil rights for women and Negroes as in Title VII and the 18 FEP state laws. The desire at this time to reassert the fundamental principle of human rights for all might be a reason for ACLU to consider supporting the Amendment, not merely refraining from opposition to it.
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