Introduction
The National Woman's Party had single-mindedly pursued an Equal Rights Amendment since Alice Paul proposed the amendment to Congress in 1923. Many advocates for working women opposed the ERA, fearing that it would invalidate sex-specific protective labor legislation such as maximum hours and minimum wage regulations for women. Miriam Holden's "Argument in Favor of the Equal Rights Amendment" on behalf of the NWP was one of several responses to Murray's memorandum, which was submitted to the Civil and Political Rights Committee of the PCSW at the committee's request. Holden argued forcefully against the Fourteenth Amendment approach as ineffectual and a distraction from the NWP's sole priority, ERA advocacy. More positive reactions came from organizations that opposed the ERA but were sympathetic to efforts on behalf of equal rights for women, such as the AFL-CIO and the ACLU.
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ARGUMENT
in favor of
EQUAL RIGHTS AMENDMENT
made at the request of
THE NATIONAL WOMAN'S PARTY
144 Constitution Avenue, N.E.
Washington, D. C.to the
PRESIDENT'S COMMISSION
ON THE
STATUS OF WOMEN
by
Miriam Y. Holden
57 East 78th Street
New York CityMarch 23, 1963
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ARGUMENT IN FAVOR OF EQUAL RIGHTS AMENDMENT
Since 1923 an Amendment to the Constitution, guaranteeing equal rights for women in all the fields that were not covered by the Woman's Suffrage Amendment, has been introduced in each succeeding Congress. Both political parties, Republicans since 1940, and Democrats since 1944, have included planks in their national platform advocating a Constitutional amendment for equal rights for women.
It is therefore no surprise that once again the proponents of the Equal Rights Amendment have closed ranks in support of a measure which offers the most effective way of insuring the rights of an important group of citizens. For centuries the legal status of American women has been punctuated and abbreviated by basic English common laws and the restrictive Roman Law of the Spanish and French colonies. To this was added the welter of conflicting federal, state and local legislation which grew out of the original discriminatory legal tradition.
Nothing more is sought in the proposed amendment than a clarification of provisions guaranteed in the first seven Amendments, to the Constitution, popularly known as the Bill of Rights. These Amendments, drafted in 1798, outline the basic guarantees of individual liberty which distinguish the Constitution and are the framework of the American way of life today.
Freedom of the press and pulpit, an independent judiciary, the quartering of troops and the right to bear arms, bulked large at that time. However, we must keep clearly before us the fact that all these aspects of civil rights, which we have so long taken for granted, had originally to be spelled out in specific amendments to the Constitution.
No one today questions the right of free expression for press and pulpit, because Amendment 9 guarantees these basic "rights of the people." While these rights were not included when the Constitution was adopted in 1787, the Founders had the wisdom to write them in 11 years later. It is certainly evidence of the beauty and strength of our Constitution that it can adapt itself to these changing needs today, by a further amendment specifically guaranteeing to women equality of rights under all laws, either of the states or of the federal government.
It is the Bill of Rights (Articles I through X) that guarantees the treatment of the individual under the Constitution. To any student of law or history, it is not surprising that the Bill of Rights did not spell out the rights of garage attendants or nurses or other specific groups. If the quartering of troops is given more attention than it would seem to demand today, it must be recognized that the drafters of the Constitution had in mind in their day the many serious impositions that had been imposed on individual liberty by the British crown and therefore offered specific protection against these inequities.
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The struggle that took place in the Convention and later in Congress over these guarantees of individual rights need not be repeated here. They were adopted, and they covered adequately many of the critical injustices of their day. During that period, however, the Founding Fathers consciously excluded women because of the influence of Blackstone's interpretation of English common law, which postulates that "the very being or legal existence of the woman is suspended during marriage."
Public opinion gradually matured in this issue. As far back as 1876 we find Chief Justice Waite saying: "The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power." (U.S. v. Cruik-shank. 92. U.S., 92 U. 542. 555. 1876.)
Now almost a century later, an amendment to correct the long standing inequity of special restrictions upon women has again been proposed. This amendment provides that: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. The simple wording of this Equal Rights Amendment speaks for itself.
It is our position that there is no adequate legal substitute for our amendment. Although there is presently a movement to seek redress through re-interpretation of the 14th Amendment, we believe that such a move is foredoomed to failure, and will serve only unnecessarily to prolong the struggle. We point to the long and unsuccessful history of attempts to right legal inequities through application of Constitutional Amendments not specifically worded to cover these inherited inequities. For example, while it might reasonably be expected that the "due process" and "equal protection" provisions of the 14th Amendment would protect the Negro man's right to vote, in fact it did not do so. The Negro man's right to vote finally had to be spelled out in the 15th Amendment, which specifically prohibits denial of the right to vote on account of race, color or previous condition of servitude. Again, while the 15th Amendment protected the Negro man's right to vote, it did not protect him from the inequities of the poll tax, and no legal relief could be granted by invoking any of the existing Constitutional Amendments. After years of struggle to correct this limitation, a Constitutional Amendment had to be approved by Congress on August 27, 1962, prohibiting the assessment of poll taxes in elections for Federal offices. Twenty-four state legislatures have already adopted this Amendment, and it can be expected that the 38th state approval will make it the 24th Amendment to the Constitution.
Furthermore, we know that while interpretation of the Thirteenth Amendment prohibiting slavery has never been the cause of serious legal concern, the Fourteenth Amendment is still most certainly a thorn in the side of any Federal court seeking to define anything but the general terms of citizenship.
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It is extraordinary, that a learned brief prepared by Pauli Murray, apparently in the capacity of counsel for the President's Commission on the Status of Women, should in the face of established experience argue that the safest guarantee of women's rights lies in the interpretation of the 14th Amendment. This is in the face of the fact that it took the 19th Amendment to assure to women even the right to vote.
The Murray brief cites the famous case of Muller vs. Oregon and then goes on to say, "Clearly, the doctrine extracted from Muller is too sweeping." This refers to part of the decision which "establishes sex as a basis for legislative classification."
The Murray brief then goes on to say (p. 16): "Until definitive review of the doctrine is undertaken by that Court and a more precise standard developed for its application, the constitutional position of women will remain in doubt. It will be wholly unclear as to whether women can enforce their rights under the Fourteenth Amendment, or whether there is a constitutional gap in the law which prohibits women from asserting their rights as full-fledged citizens and which can only be filled by the adoption of an amendment to the Federal Constitution."
Yet after this argument the Murray brief goes on to advocate dependence on legal constructions through court decisions under the 14th Amendment. The brief then points out (p. 22) that, over the years, the judiciary has been slow to interpret either the law or the Constitution to relieve women of the discriminatory restrictions of which they have complained. This is explained by the statement that both the law and the Constitution must follow not precede public opinion. Then comes the non sequitur. For the brief admits the progress in attitude, which is so essential to progress in statutory and constitutional law, has now been made. It states on page 23:
"The revival of interest in the status of women, the growing recognition of women's achievements, the call for a revolution in attitude toward women in the United States, the gradual elimination of restrictive laws, the liberalization of some of the more exclusionary institutional practices (notably, in the churches), the increasing national demand for trained efficient personnel, the beginnings of more judicial approaches to alimony and marital support, and the availability of scientific data and techniques of communication with which to refute traditional myths about women's capacities, functions and perspectives — all these provide both a favorable climate of opinion and the resources, with which to facilitate reconsideration of an area of individual rights which has long been ignored as a subject of constitutional study.
Could there be a more convincing argument of the timeliness of the Equal Rights Amendment than the above quotation from the Murray brief? The time has come to overcome the attractiveness of delay. Delay too, at this time has a world significance. Through the United Nations, the institutions of the oldest American republic are subject to study by the nations of the world, who are ready to
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follow our leadership. The high position which our women occupy has received universal recognition. Other less developed nations, however, have preceded us in writing into their organic law, guarantees for women which we have up to now hesitated to confirm. The time is ripe. The Equal Rights Amendment now before Congress, provides for a year after ratification before it becomes effective. With public opinion where it is, the ratification should accelerate the constitutional study that all admit to be advisable. The passage of the amendment by Congress and its reference to conventions in the states will require the attention that has too long been delayed for completing the constitutional guarantees to which women as persons and as citizens are entitled. The ratification of the amendment will guarantee to women the permanence of the equal consideration under the law which they deserve and for which public opinion is now prepared.
It is the position of the National Women's Party, that no amount of legalistic wishful thinking will make the 14th Amendment effectively operative in behalf of equal rights for women. Therefore let there be no further delay in submitting the Equal Rights Amendment to the people.
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