How and Why Was Feminist Legal Strategy Transformed, 1960-1973?
1. This document project is based on Serena Mayeri, "Constitutional Choices: Legal Feminism and the Historical Dynamics of Change," California Law Review 92 (2004): 755-839.
2. Dorothy Kenyon, who was in her 70s in 1961, had been a member of the ACLU's Board of Directors since its inception in 1930. She came of political age during the New Deal and was a strong supporter of women's rights and the labor movement. She was a stalwart member of the League of Women Voters and believed that protective labor legislation was necessary to protect women workers. Although Kenyon was a municipal justice in the city of New York for only a brief period (1939 to 1940), her feminist colleagues referred to her as "Judge Kenyon" for the rest of her life as a mark of respect. She had a distinguished career in international women's rights: she represented the United States on the Council of the League of Nations as a member of a committee that investigated the legal status of women around the world from 1938 to 1943 and was a member of the UN's Commission on the Status of Women from 1946 to 1950. Kenyon prepared briefs for the NAACP's Legal Defense Fund in the 1950s and worked for the civil rights movement in the 1960s. See "Celebrating Women's History Month: Five Notable Women at the ACLU" ; Meera Trehan, "Dorothy Kenyon" and the "Biographical Note" for the Dorothy Kenyon Papers at Smith College For an overview of Kenyon's groundbreaking legal work and the debt feminists in the 1960s owed her, see Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998), pp. 169-72, 197-202, 307.
3. Dorothy Kenyon and Phyllis J. Shampanier, "Gwendolyn Hoyt v. State of Florida: Brief of the Florida Civil Liberties Union and the American Civil Liberties Union, Amici Curiae" October 1961, pp. 2, 30.
4. This document project focuses on a particular group of feminists for whom constitutional change was a primary preoccupation. Other strands of the women's movement were equally important to the development of feminism. For a fascinating account of feminism within the labor movement, see Dorothy Sue Cobble, The Other Women's Movement: Workplace Justice and Social Rights in Modern America (Princeton, N.J.: Princeton University Press, 2004). On radical feminism, see Alice Echols, Daring to Be Bad: Radical Feminism in America, 1968-1975 (Minneapolis: University of Minnesota Press, 1989). On the origins of the women's liberation movement, see Sara Evans, Personal Politics: The Roots of Women's Liberation in the Civil Rights Movement and the New Left (New York: Random House, 1979).
5. For more on the NWP in the postwar era, see Leila Rupp and Verta Taylor, Survival in the Doldrums: The American Women's Rights Movement, 1945 to the 1960s (New York: Oxford University Press, 1989). Esther Peterson was a crucial figure in women's advocacy, both within and outside the federal government. From 1958 to 1961, she was the legislative representative for the AFL-CIO's Industrial Union Department, and in 1961 President John F. Kennedy appointed her head of the U.S. Department of Labor's Women's Bureau, Assistant Secretary of Labor for Labor Standards, and executive vice chairman of the first President's Commission on the Status of Women (1961-1963).
6. Cynthia Ellen Harrison, On Account of Sex: The Politics of Women's Issues, 1945-1968 (Berkeley: University of California Press, 1988).
7. Pauli Murray, Pauli Murray: The Autobiography of a Black Activist, Feminist, Lawyer, Priest, and Poet (Knoxville: University of Tennessee Press, 1987); J. Clay Smith, Rebels in Law: Voices in History of Black Women Lawyers (Ann Arbor: University of Michigan Press, 1998); Glenda Elizabeth Gilmore, "Admitting Pauli Murray," Journal of Women's History 14, no. 2 (Summer 2002): 62-67.
8. On the NAACP Legal Defense Fund's litigation campaign, see Mark Tushnet, The NAACP's Legal Strategy Against Segregated Education, 1925-1950 (Chapel Hill: University of North Carolina Press, 1987); Mark Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961 (New York: Oxford University Press, 1994).
9. Erwin N. Griswold to Pauli Murray, 31 January 1963, Pauli Murray Papers, Series II: 1935-1984, Box 49, Folder 878, Schlesinger Library, Radcliffe Institute for Advanced Study, Harvard University.
10. Memorandum from Dorothy Kenyon, 28 March 1963, President's Commission on the Status of Women Records, 1961-1963, Box 9, Folder 63, Schlesinger Library, Radcliffe Institute for Advanced Study, Harvard University. For more on women's fight for equality in jury service, see Kerber, No Constitutional Right to Be Ladies, pp. 124-220.
11. "Formal equality" is based on the idea that "women and men are similarly situated and … should have the same rights and opportunities." See Mary Becker, "The Sixties Shift to Formal Equality and the Courts: An Argument for Pragmatism and Politics," William & Mary Law Review 40 (October 1998): 210.
12. Although the bill included provisions for public accommodation and voting rights, Title VII on employment discrimination constituted its most important section because it called for the creation of the Equal Employment Opportunity Commission to enforce that portion of the Civil Rights Act. For Congress's sequel to the 1964 act, see Clayborne Carson, "1965: A Decisive Turning Point in the Long Struggle for Voting Rights," Crisis 112 (July-August 2005): 16-20.
13. Dorothy Sue Cobble, The Other Women's Movement: Workplace Justice and Social Rights in Modern America (Princeton, N.J.: Princeton University Press, 2004), pp. 163-68.
14. Jo Freeman, "How 'Sex' Got into Title VII: Persistent Opportunism as a Maker of Public Policy," Law and Inequality: A Journal of Theory and Practice 9, no. 2 (March 1991): 163-84. A revised version of this article is available online at http://www.jofreeman.com/lawandpolicy/titlevii.htm.
15. For more on the EEOC's failure to enforce the sex discrimination provision of Title VII, see Jo Freeman, The Politics of Women's Liberation: A Case Study of an Emerging Social Movement and Its Relation to the Policy Process (New York: David McKay, 1975), pp. 76-79; Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy, 1960-1972 (New York: Oxford University Press, 1989), pp. 205-32.
16. Miriam Holden to Alice Paul, 16 October 1965, National Woman's Party Papers, 1913-1974, microfilm (Sanford, N.C.: Microfilming Corporation of America, 1977-1979), Reel 109. Original collection in the Library of Congress.
17. See, for example, Mary Eastwood to Charles Morgan, Director, Southern Regional Office, ACLU, February 1966, Mary Eastwood Papers, 1915-1982, Carton 1, Folder 28, Schlesinger Library, Radcliffe Institute for Advanced Study, Harvard University.
18. See, for example, ACLU Press Release, "ACLU Wins Case on Exclusion of Negroes and Women from Juries in Alabama," 28 February 1966, National Woman's Party Papers, 1913-1974, microfilm (Sanford, N.C.: Microfilming Corporation of America, 1977-1979), Reel 110. Original collection in the Library of Congress.
19. See, for example, Miriam Holden to Miss Newell, 11 February 1967, National Woman's Party Papers, 1913-1974, microfilm (Sanford, N.C.: Microfilming Corporation of America, 1977-1979), Reel 110. Original collection in the Library of Congress.
20. Minutes, National Conference of NOW, November 1967, Betty Friedan Papers, 1938-1993, Carton 44, Folder 1550, Schlesinger Library, Radcliffe Institute for Advanced Study, Harvard University.
21. Pauli Murray to Kathryn Clarenbach, 21 November 1967, Pauli Murray Papers: Series II, 1935-1984, Manuscript Collection 412, Box 51, Folder 899, Schlesinger Library, Radcliffe Institute for Advanced Study, Harvard University.
22. See, for instance, Margaret Donnelly, Past President, Delaware Federation of BPW, to Hazel Palmer, Legislation Steering Committee, BPW, 17 July 1967; Margery Leonard to Mary Birchkead, 20 July 1967; and Nina Horton Avery to Alice Paul and Mary Birchkead, August 1967, all in National Woman's Party Papers, 1913-1974, microfilm (Sanford, N.C.: Microfilming Corporation of America, 1977-1979), Reel 110. Original collection in the Library of Congress.
23. Marguerite Rawalt was president of the National Federation of Business and Professional Women's Clubs from 1954 to 1956 and in 1961 became the only pro-ERA appointee on the President's Commission on the Status of Women. For an example of Rawalt's participation in the ERA debate, see Document 22B. On the EEOC's 1969 interpretation of Title VII, see Alice Kessler-Harris, In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship (New York: Oxford University Press, 2001), pp. 265-67.
24. Hartmann, The Other Feminists, pp. 71-81.
25. See Equal Rights 1970: Hearings on S.J. Res. 61 and S.J. Res. 231, Proposing an Amendment to the Constitution of the United States Relative to Equal Rights for Men and Women, before the Senate Committee on the Judiciary, 91st Cong., 2d sess. (1970), p. 372; Equal Rights for Men and Women 1971: Hearings on H.J. Res. 35, 208, and Related Bills, Proposing an Amendment to the Constitution of the United States Relative to Equal Rights for Men and Women, and H.R. 916 and Related Bills, Concerning the Recommendations of the Presidential Task Force on Women's Rights and Responsibilities, 92d Cong., 1st sess. (1971), p. 400; "Statement of Pauli Murray on the Equal Rights Amendment (S.J. Res. 61) Submitted to the Senate Judiciary Committee, Sept. 16, 1970," Pauli Murray Papers: Series II, 1935-1984, Box 55, Folder 956, Schlesinger Library, Radcliffe Institute for Advanced Study, Harvard University.
26. Equal Rights for Men and Women 1971, p. 312.
27. House of Representatives Joint Resolution 264, Why the Bayh/Kennedy Substitute to the Equal Rights Amendment Is Not Satisfactory to Women, 91st Congress, 2d sess., 15 October 1970, Mary Eastwood Papers, 1915-1982, Carton 3, Folder 12, Schlesinger Library, Radcliffe Institute for Advanced Study, Harvard University.
28. See Leslie Friedman Goldstein, The Constitutional Rights of Women: Cases in Law and Social Change, rev. ed. (Madison: University of Wisconsin Press, 1989), pp. 109-15; Kerber, No Constitutional Right to Be Ladies, p. 203.
29. Jane J. Mansbridge, Why We Lost the ERA (Chicago: University of Chicago Press, 1986).
30. Frontiero v. Richardson, 411 U.S. 692 (Powell, J., concurring in the judgment).
31. Frontiero v. Richardson, 411 U.S. 691 (Rehnquist, J., dissenting).
32. The intermediate scrutiny standard, which required that a sex-based classification be substantially related to an important governmental interest, was announced in Craig v. Boren, 429 U.S. 190 (1976). Intermediate scrutiny is not as clearly defined as strict scrutiny and seems to be more subjective in practice than other standards of scrutiny. For the implications of this standard for future efforts of the ACLU's Women's Rights Project regarding women and the draft, see Kerber, No Constitutional Right to Be Ladies, pp. 288-302, esp. 297. For a more positive interpretation of the combined effects of Reed and Craig, see Joan Hoff, Law, Gender, and Injustice: A Legal History of U.S. Women (New York: New York University Press, 1991), p. 249.
33. For more on these 1970s dilemmas, see Mayeri, "Constitutional Choices."
34. For a description of Murray's writing of this memorandum and responses to it, see Kerber, No Constitutional Right to Be Ladies, pp. 189-93.
35. Martha Griffiths's alliance with Republican women was all the more surprising because it came in the aftermath of a bitter struggle that deeply divided northern Democratic and Republican women in 1963, when in the social justice tradition of Eleanor Roosevelt, Democratic women supported legislation that would have granted women equal pay for work comparable to men and would have affected almost all working women, while Republican women supported what became the 1963 Equal Pay Act, which mandated that women be paid the same pay as men for the same work and affected only those women who held the same jobs as men. That confrontation built on forty years of hostility between social justice and equal rights feminists, which began when the latter launched the Equal Rights Amendment in the 1920s and used its rationale of the similarity between men and women to overturn hard-won state minimum wage laws for women.
36. Political scientist Jo Freeman has written the most authoritative account of these events and shows that the coalition that passed the sex amendment included southern Democrats opposed to the Civil Rights Act, Republicans with a tradition of supporting the Equal Rights Amendment, and Democratic Congresswomen. See Freeman, "How ‘Sex’ Got Into Title VII." While labor feminists such as Esther Peterson continued to oppose the Equal Rights Amendment at this date, they did not lobby against the sex amendment to Title VII, and their stance led President Lyndon Johnson to support the amendment.
37. For more on the participation of women in the March on Washington, see Cynthia Taylor, "How Did the 1940s March On Washington Movement's Critique of American Democracy Awaken African American Women to the Problem of Jane Crow?" on this website.
38. Kerber, No Constitutional Right to Be Ladies, pp. 199, 307.
39. For Rawalt's legal work and political alliances during this period, see Becker, "The Sixties Shift to Formal Equality and the Courts"; and "Biography" in "Rawalt, Marguerite, 1895-. Papers, 1870s-1989: A Finding Aid"
back to top