One of several alternative paths to constitutional change the National Organization for Women considered in 1967 was a human rights amendment, which prohibited discrimination based on race and included a provision guaranteeing reproductive freedom. Parts of NOW's human rights amendment may have been based on a proposed amendment to the New York state constitution that was circulating through the women's rights community at this time. Those who wanted to replace the version of the ERA the NWP had been promoting since the 1920s faced an uphill battle, however, because NWP stalwarts such as Alice Paul adamantly opposed even the slightest changes to the ERA's language.
Proposal for NOW
1. Support the ERA, present language
2. Make clear in legislative history that it prohibits any differentiation based on sex. Carefully define what "equality of rights" means in terms of the "sex equality" language. See Jane Crow and the Law.
3. Make clear that we believe the 14th amendment, properly interpreted should guarantee equal rights for women, that ERA in no way limits women's rights under the 14th.
4. Indicate that reason need new amendment is desire for more clear constitutional standard for women's rights,; necessary in order to break the grip of phony protectionism. Other groups Negroes, etc., have not had this problem and this justifies special amendment dealing only with sex discrimination. A new constitutional standard would relieve women litigants of the burden the long history of bad 14th amendment decisions.
5. Any efforts to attach riders to "protect" women should be vigourously smashed.
6. The human rights movement throughout the world today is not in the same position it was 20 or 50 years ago. No group is satisfied today to painstakingly, case by case, beg the courts for bits of equality. Negroes are not willing to move at that pace nor should they be. Women are not willing to go back to the beginning of the civil rights for Negroes movement and creep forward…. We are not satisfied to achieve equality at the slow pace of litigation which Negroes went through. We want equality now—or at least in our time. Without an equal right amendment, the pace, even assuming it would be consistently forward (not a valid assumption) would be too slow.
7. As a matter of tactics, even if the ERA fails to pass, vigorously pushing for it will show women are demanding equal rights and responsibilities under the law by the most drastic legal means possible—a constitutional amendment. The effect, provided we make clear we think 14th properly interpreted should give women same unqualified protection, would be to improve our chances of winning 14th amendment cases. Supporting the ERA is both a threat and a demonstration of women's concern for basic and complete equality of rights and responsibilities. This should have an impact on the courts.
8. Women's rights to equal employment opportunity under Title VII of the CRA of 1964 have been greatly endangered in the Mengelkoch case. The issues of constitutionality was initially raised by the State of California in moving to dismiss for lack of 3-judge court jurisdiction under 28 U.S.C. 2281 et seq. Mengelkoch's attorney ignored his only good argument. The effect of losing on the motion to dismiss, unless appealed, will be that there is no question that the California 8 hour law is constitutional, and leaving only the issues of whether Title VII supersedes. Under the Title VII question it is likely that the court would accept as a B.F.Q.Q. any state law which is constitutional (e.g. Dick Berg's article). As a result, state laws would continue to be free to limit women's employment opportunities.
Human Rights Amendment
Section 1. The right to equal treatment, without differentiation based on sex, shall not be denied by the United States or by any State.
Section 2. No public funds shall be granted or loaned and no special tax exemption or privilege shall be accorded by the United States or by any State to any person who discriminates on the basis of race, color, sex, national origin or ancestry.
Section 3. 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.
"special tax exemption or privilege" refers to exemptions for religious, educational or charitable purposes.
The term "women" in section 3 includes "girls."
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