The text of the following broadside was published by the National League of Women Voters in 1943 and outlined, in detail, the reasons for the League's opposition to the proposed Equal Rights Amendment (ERA). The League's criticism of the ERA concerned the definition of "equal rights," the standards for implementing the amendment, protective legislation, working women's rights, and state legislation.
How Not to Get Them
Issued by the
Committee on the Legal Status of Women
NATIONAL LEAGUE OF WOMEN VOTERS
532 Seventeenth Street, N.W.
How Not to Get Them
The National League of Women Voters is a non-partisan organization, seeking to aid in the education of the women of this nation for citizenship, and to aid in the passage of legislation, to the end of establishing full political equality between men and women, equal opportunity in business and the professions, and equality before the law in their personal and family relationships and in their property rights. This organization is at all times ready to support an effort on the part of any organization to accomplish these ends by means which promise progress there to.
There has been introduced in Congress an amendment to our National Constitution, doubtless sincerely meant to assure to all women such equality. The purpose expressed by the supporters of this amendment is to establish equality between men and women in all their relations in life by one piece of legislation, which shall immediately free all women from the effect of national or state laws discriminating against them. The advocates of this method of securing equality have stated that they will continue to seek the passage of such an amendment in each session of Congress until it shall pass or until all discriminations and inequalities are removed from our laws. We may, therefore, expect such an amendment to be introduced in the next session of our National Legislature.
The National League of Women Voters is practical. It recognizes the fact that no system of law can be built up in this nation except by process of growth. And any new law must take into account laws and customs as they now exist, the effect of the new law upon them, and their effect upon such new law. Tested by its effect upon present laws and customs, and their reaction upon such an amendment, from a practical standpoint this organization believes that legal chaos must result,–a condition far worse than the one it is designed to cure.
For the following reasons the League is opposed to such a national equal rights amendment
I. No Definition of Equal RightsThe lack of an established interpretation by law of the term "equal rights" makes it impossible to gauge the field covered by such an amendment as is proposed in the interest of equality between men and women. In some courts it has been held to include privileges and immunities, by others to exclude them, and there have been all shades of interpretations between these extremes. There can, therefore, be no adequate consideration by Congress before its passage, and no basis upon which the state legislators could justify a vote in its favor.
II. No Standard
In order to express equality of men and women there must be a standard fixed. In the amendments as heretofore presented, there has been nothing to indicate what shall be taken as a standard, and the amendments were, therefore, meaningless, and passage would have meant endless litigation.
In Delaware men have the common law right of courtesy; women have a dower right. This means that a husband has a greater right in his wife's property than his wife has in his.
Assume the passage of the last amendment presented to Congress, which reads:–
"Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.
"Congress shall have power to enforce this article by appropriate legislation."
Does this mean that a wife shall have a right of courtesy in her husband's real estate, or is the husband reduced to the present straits of his wife?
Or perchance this amendment entirely wipes this law entirely out of existence, leaving neither husband nor wife with any right in each other's property.
Oh, marvelous equality, the wives can then continue to care for their homes and babies while the husband accumulates his family property in his own name, and if he feels like it, leave his wife and family nothing when he dies!
But, you say, Congress can change all this by "appropriate legislation."
The supporters of this amendment have pointed out that there are discriminations in almost every branch of our law in the several state jurisdictions. Does such an amendment mean that Congress shall take over the power to legislate on all these matters which through the whole history of our national organization have been matters wholly within the local jurisdiction?
Section 8 of Art. I of our Federal Constitution provides the powers granted to Congress. It has been only after careful and long debates that the effect of this section has been changed by amendment to the Constitution in any single particular, and yet such an equal rights amendment presents a possibility (yes, a probability) of construction, which would extend the jurisdiction of Congress to almost every field of legislation, (possibly not by direct legislation, but by interference) along lines wholly undreamed of, and which could not be considered by Congress or the state legislatures in passing such an amendment.
There is but one body which could finally determine these questions. That is the Supreme Court of the United States.
And having settled the questions suggested above, the Court would have taken its first baby step towards straightening out the legal tangle created by the amendment.
But, suppose it does mean that women's rights shall conform to the rights of men as they now exist, as is assumed by many advocates of the amendment, or that the amendment is changed to read that women shall have rights equal to those of men, we cannot escape from the fact that this amendment takes effect throughout the United States. If men and women must have equal rights throughout the United States, which state shall set the standard? No two states have the same laws governing these relationships. If the laws of Delaware concerning dower and courtesy are wiped out, leaving no rights in husband or wife in the property of the other, does the fact that Illinois law provides an equal interest for husband and wife in each other's property, create a discrimination as between the husbands of Illinois and the wives of Delaware, and vice versa, so that the amendment acts upon them? Does the amendment then also wipe out Illinois law? And in how many other states would the property rights of husband and wife be wiped out?
The Supreme Court of the United States alone could answer these questions.
And having answered them, perhaps another infant step towards adult equality would have been taken.
Congress, then, having no power to pass legislation, providing the property rights in the states, and no power to coerce such action in the state, how could such a uniform law as would comply with the requirements of this amendment be secured in the forty-eight states?
Only a few of the many possible questions upon which the Supreme Court would have to pass during the course of the years are here suggested:–
Could wives legally claim support from their husbands?
Could state laws establish different rules concerning penal institutions for men and women?
How will appropriation bills for the promotion of the welfare and hygiene of maternity and infancy be affected, if at all?
Would women be subject to conscription on the same basis as men?
How would the age of majority be affected?
Would fathers be jointly liable with mothers for the support of illegitimate children?
What effect would the amendment have upon laws restricting hours of labor for women?
Would laws providing for special accommodations for women workers be affected?
Would the amendment establish a joint headship of the family in husband and wife?
Would the marriageable age have to be identical for men and women?
How would the amendment affect the laws governing penalties for sex offenses?
And yet the advocates of this amendment support it upon the basis that it creates a speedy method of effecting equality.
III. Effect Upon Protective Legislation
For twenty-five years women of vision and real sympathy have been working to place laws upon our statute books protecting women in industry. Women do work at a disadvantage in most industrial institutions, and such protective measures are based upon a sound foundation of need, and an effort to protect men and women of the coming generation. It is very generally the consensus of opinion of the lawyers of this country that such an equal rights amendment would strike every bit of such protective legislation from our laws. The League is by no means opposed to protective legislation for men where it meets a real need, but it is not necessary to step backward twenty-five years by removing such protection as women now have, in order to see that such disadvantages as now exist in the case of men are set right.
IV. Discrimination Against Women in Their Right to Labor
We are told that the law in Ohio prohibits women working as railroad switchmen; that the laws of Illinois will not permit women to work in mines, and that nearly every other state has some such discrimination.
They All Differ.
Must Pennsylvania suffer chaos in its laws for a generation or more because Ohio women cannot act as railroad switchmen, and must California be subjected to the effects of endless litigation because the women of Illinois cannot work in mines or on the roads? Surely the women of no state need the protecting hand of the National Government where that government in the very course of its benevolence inflicts injustice upon those sister states who, in that particular matter, happen to be more advantageously situated.
V. The Amendment Would Retard State Legislation
A national amendment involves passage through Congress, and subsequent ratification by three-fourths of the states. This means a campaign in our National Legislature and a further campaign in each state. There can be but one excuse for seeking equality by this method; that is, the belief that the method is a time-saver in establishing equality as a national principle or that the method of securing such legislation by states has failed. This latter excuse cannot be offered, for during the period of three years, four hundred and twenty bills in forty-five states were passed directly contributing to an improvement in the status of women and children. Every indication is that ratification can only come after a severe struggle in each of the states. And what will our legislators say in the meantime? They could justify only one position.They must say:–
"We will not consider specific legislation to bring about equality while this blanket effort is before us, because in the event that it should pass our time would be misspent."
The League will not take the position of saying,– "All or nothing," especially when it is apparent that it would get nothing in any event.
VI. There is a Better and Surer Method
The states have it within their power to pass legislation which will establish an actual equality with a minimum interruption and interference with present laws and conditions. The women in each state are in better position to understand their own needs than is any group from the outside. It is their task, and it is gradually being accomplished. The League stands ready to help in every possible way such local effort, such a method of procedure is in entire conformity with the structure and organization of our government, and proof has already been given that equality can be established since in many matters in many states it has already been done, without any of the ill effects which must follow blanket legislation.
Among other organizations opposing the blanket amendment are:
American Federation of Labor
American Home Economics Association
American Federation of Teachers
General Federation of Women's Clubs
Girls' Friendly Society in America
Medical Women's National Association
National Council of Catholic Women
National Consumers' League
National Council of Jewish Women
National Council of Women
National Women's Trade Union League
National Board of the Young Women's Christian Associations