Introduction
Kitchellt's article made her views public. The New York Herald Tribune introduced her as not wishing "to see sound industrial legislation for women abolished," and believing it would not "be swept away by the courts if the proposed [amendment] were adopted."
[p. 6]
Red Herring Tactics Held Used
Against the Equal Rights Bill
________________
Mrs. Florence L. C. Kitchelt Finds Opponents of
Amendment Asserting That Measure Would
Wipe Out Other Laws of Benefit to Women
________________
Mrs. Florence: L. C. Kitchelt, chairman of the Connecticut Committee for the Equal Rights Amendment, is one of a number of women, both within und without the National Woman's party, who are supporting the amendment because they believe it a necessary and long overdue addition to our Bill of Rights. Unlike the policy-makers of the National Woman's party, these proponents of the amendment do not wish to see sound industrial legislation for women abolished, and they do not believe it would be swept away by the courts if the proposed measure were adopted. Below Mrs. Kitchelt cites legal opinion to support this view.
_________
By Florence L. C. Kitchelt
NEW HAVEN, Conn., June 30.--A red herring has been drawn across the path of the equal rights amendment, a measure approved in the platforms of both national parties and now pending before the Congress. The herring has been fished up from one short line which is the essence of the amendment --"Equality of rights under the law shall not be denied or abridged on account of sex."
Opponents of the measure, ranging from the Congress of Industrial Organizations and the American Federation of Labor to the National League of Women Voters, have taken the position that if adopted by the states the amendment would wipe out industrial and other legislation of benefit to women. Yet they have cited no legal authority for their view.
More than a little of the blame for the present obfuscation must be charged up to some of the pamphlet writers of the National Women's party, who insist that laws for men and women be not equal but identical and that any and all laws passed for the sole benefit of women are outmoded today.
Mrs. Hepburn Takes Stand
One of the National Woman's party members who does not take this position is Mrs. Thomas N. Hepburn, of Hartford, mother of Katharine Hepburn. "To say that we want to throw ‘protective legislation’ overboard is very stupid," she recently wrote me. "That is a different question, and it alienates people who might be our friends."
As a long-standing member of the League of Women Voters, and as a convert to the amendment, I asked for the views of Dr. E. Wight Bakke, Sterling Professor of Economics at Yale University and chairman of Appeals of the War Labor Board.
"Can any one suppose," he replied, "that the granting to women of equal rights as persons will remove the interest of the community in the protection of women as present and future mothers?"
"Equal rights for male citizens." Dr. Bakke continued, "do not preclude special rights for particular groups of male citizens. . . We will not turn aside from the task of protecting the unique role of women in the life of the community because we are bound by narrow legalistic interpretations of a word. Certainly our democracy would be strengthened by a constitutional amendment giving women equality of rights."
Interviews Attorneys
"Will laws that protect women, if they obtain equal legal status, be wiped out?" I asked several patient attorneys who paused between court and client long enough to say "no."
Mr. Sanford Stoddard, one of the legal deans of Bridgeport, said, "I see nothing in the amendment which would take away from women any protection given them by state laws or which would prevent the passage of further protective legislation."
The Honorable Homer Cummings, former Attorney General of the United States, was of the same opinion, "The amendment," he wrote, "will remedy a longstanding injustice."
A busy counselor-at-law in New Haven, Alexander Winnick, dashed off the following message: "I trust you will not permit any of the opponents of your Equal Rights Amendment to raise the bugaboo that it could in any way affect protective legislation for women."
Next I wrote our Connection. Congressmen who were sponsoring and voting for the amendment in committee. Did they fear retaliation from labor? Senator Brien McMahon replied he was publicly backing it. Our Congressman-at-large, Joseph F. Ryter, wrote that in his personal opinion "the passage of the amendment would in no way detract from or invalidate any protective legislation" or prevent the future enactment of such laws.
Finally Representative Joseph E. Talbot, who has stood by the amendment through thick and thin, wrote: "I would assume that minimum pay, protective devices and minimum daily or weekly hours of employment would remain unchanged by the passage of the amendment. . . . I still feel that a court might say, under the police powers, that women or children could not do certain jobs that men can do, nor work at certain hours when men could work. . . . Probably the best authority on this constitutional subject is Professor Edwin Borchard, of Yale."
Dr. Borchard, who is Justus S. Hotchkiss professor of law, with the ease of a man who has read every decision ever handed down by the Supreme Court of the United States, declared that the amendment builds a floor under which laws "discriminating against" would be illegal. But, he added, there is no ceiling! Laws discriminating in favor of women may go as high as you please!
In New York, David Stock, outstanding attorney who served as associate counsel to the Senate Banking and Currency Committee, referred me to a passage from Corpus Juris Secundum, which says that the state legislatures have jurisdiction over all statutes enacted "in the interest" of the public health." "An act will be declared void." the text reads, "only where it has no relation to the public health or is unquestionably a plain violation of constitutional rights."
In his opinion; Mr. Stock said, the amendment would not and could not change "the reality of the physical differences between the sexes." For example, if a state had a law prohibiting the employment of women in any occupation that required the lifting of objects weighing more than fifty pounds, that would not be an abridgment of equal rights on account of sex, but rather a reasonable exercise of the police power in the protection of women.