Marguerite Rawalt was a powerful member of the feminist legal community. She was the president of the National Association of Women Lawyers and the Federal Bar Association in the 1940s. Under her leadership the National Association of Women Lawyers became affiliated with the American Bar Association, and she was the first woman to serve on the ABA's House of Delegates. She chaired NOW's legal committee for four years in the 1960s and was also an attorney for the Women's Equity Action League.
Rawalt, a staunch supporter of the Equal Rights Amendment, outlined in this document the reasons for feminist dissatisfaction with the Reed decision. Rawalt's own career was a monument to the dual strategy: she litigated most of the early employment discrimination cases in the late 1960s while remaining committed to the ERA. Before many other ERA supporters of her generation (she was in her 70s when she authored this document), Rawalt recognized that litigation and constitutional amendment advocacy were not mutually exclusive strategies. However, in this statement, Rawalt made it clear that she had little faith in the Supreme Court as a route to women's legal equality.
Statement regarding the U.S. Supreme Court decision in Reed v Reed - Nov. 22, 1971.
by Marguerite Rawalt, Attorney at law, former President, National Association of Women Lawyers.
The recent decision of the Supreme Court in the Reed case is a profound disappointment. It should deceive no one into supposing it to be a broad declaration of constitutional recognition of women or of elimination of sex bias in the law. Indeed, it makes crystal clear the absolute necessity of an Equal Rights Amendment to write into the constitution the principle that "Equality of rights under the law shall not be denied or abridged on account of sex".
The myriads of state statutes which discriminate against women are unaffected by the Reed decision. This is one of the most carefully limited decisions seen in a long time. As the court could properly do, it went no farther than to rule that the Idaho statute limiting the right to serve as administrator of an estate was a violation of equal protection because it arbitrarily and absolutely required that "males must be preferred to females." within a given class. The decision has precedent value only in states with a like statute, of which there are not more than two remaining. Idaho has already repealed its law which the court invalidated.
This is a pyrrhic victory which demonstrates that it would take a hundred years or more for women to eliminate the thousands of existing discriminatory laws, one by one, state by state, court lawsuit by costly lawsuit. This piecemeal method is the alternative advocated by opponents of the Equal Rights Amendment, knowing it is a veto method.
The Court wholly ignored the arguments made in briefs that sex and race discrimination are greatly similar and should be similarly held to be in violation of the 14th amendment. It upheld old precedents of 1908 and later based on the concept of inferiority of women and the alleged purpose to "protect" them.
The Supreme Court in 1908 not only refused, to apply the 14th Amendment
to uphold the legal rights of women, it, to the contrary converted it into a under the guise of "protection" and launched the legal axiom that "sex is a valid basis for classification". In the 1908 landmark case of Muller v Oregon, union labor advocates won a decision imposing maximum hours limitations upon women, the Supreme Court declaring that
"she is properly placed in a class by herself and legislation designed for her protection may be sustained, even when like legislation for men could not be sustained."
The Reed opinion updates and reaffirms this principle by stating that "the 14th Amendment does not deny to States the power to treat different classes of persons in different ways."
On this principle that lumping women into a class justifies refusing to apply the equal protection clause, laws are upheld which today deny women the right to work in certain occupations and under certain hours or weight limitations, deny them admission to publicly supported colleges, reject separate domicile of married women, restrict property rights of married, women, and even support the imposition of longer prison terms on women than upon men for the same crime.
Again and yet, it is clear that the 14th amendment, as interpreted by the Supreme Court does not do the job of eliminating sex discrimination. The piecemeal litigation route alone would take decades. The Equal Rights Amendment must be written into the constitution as the controlling rule for both legislatures and courts before women can become persons recognized under the laws with the same legal rights and responsibilities as the men of this nation.
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