Senator Cook. Thank you very much, Senator, and thank you, Mrs. Heide.

Our next witness is Professor Tom Emerson, professor of law, Yale University.

Professor, while you are stepping up here, might we take the liberty of about a 2-minute recess.

(Short recess.)

Senator Cook. If we will come to order. Our witness is Professor Thomas Emerson, professor of law at Yale University.

Professor, if you will proceed, we will be delighted.

STATEMENT OF THOMAS I. EMERSON, PROFESSOR OF LAW, YALE LAW SCHOOL

Mr. EMERSON. I am Lines professor at Yale Law School. Most of my teaching and writing has been in the field of constitutional law, with particular emphasis on the political and civil rights of individuals. I believe that the Equal Rights amendment provides a sound legal basis for achieving equal rights for women and I support it wholeheartedly.

The basic premise of the Equal Rights amendment is that sex should not be a factor in determining the legal rights of women, or of men. Most of us, I think, agree with this fundamental proposition.

To take an example from my own field, virtually everybody would consider it unjust and irrational to provide by law that a person should not go to law school or be admitted to the practice of law because of his or her sex. The reason is that admission to the bar ought to depend upon legal training, competence of the law, moral character, and similar factors.

Some women meet these qualifications and some do not; some men meet the qualifications and some do not. But the issue should be decided on an individual, not a group, basis. And in such a decision, the fact of maleness or femaleness is irrelevant. This remains true whether or not there are more men than women who qualify. It likewise remains true even if there were no women who presently qualified, because women potentially qualify and might do so under different conditions of education or upbringing. The law, in short, owes an obligation to treat females as persons, not statistical abstracts.

What is true of admission to the bar is true of all forms of legal rights. If we examine the various areas of the law one by one we will, I believe, reach the same conclusion in every case. Sex is an inadmissible category by which to determine the right to a minimum wage, the custody of children, the obligation to refrain from taking the life of another, and so on. The law should be concerned with the right to a living wage for all, the welfare of the particular child, the protection of citizens from murder-that is, with the real issues-not with stereotypes about one or the other half of the human race.

The fundamental legal principle underlying the equal rights amendment, then, is that the law must deal with the individual attributes of the particular person, not with a vast overclassification based upon the irrelevant factor of sex. It should be noted at this point that there is one type of situation where the law may focus on a sexual characteristic but the basic principle just stated has no application.

This occurs where the legal system deals directly with a physical characteristic that is unique to one sex. In this situation it could be said that, in a certain sense, the individual obtains a benefit or is subject to a restriction, because he or she belongs to one or the other sex. Thus a law providing for payment of the medical costs of childbearing would cover only women, and a law relating to sperm banks would restrict only men. Such legislation cannot be said to deny equal rights to the other sex. There is no basis here for seeking or achieving equality.

Instances of this kind, involving legislation directly concerned with physical differences found either in all men or in all women, are relatively rare. They do not include case cases where the physical_characteristic is not unique to one sex, or cases of real or assumed psychological or social differences between the sexes. Unless the difference is one that is characteristic of all women and no men, or all men and no women, it is not the sex factor but the individual factor which should be determinative.

The theoretical basis for outlawing differential treatment in the law based upon sex is thus, I think, quite clear. The practical reasons for doing so are equally compelling. History and experience have taught us that a legal system which undertakes to confer benefits or impose obligations on the basis of sex inevitably is repressive. It is perhaps too much to expect that the sex which wields the greater influence in formulating the law will not use its power to entrench its position at the expense of the other sex. At least this has been the outcome of sex differentiation in the American legal system.

The facts are rather well known by now, and it suffices here simply to make brief reference to conditions in two areas; jury service and employment.

Senator, if it is all right, I will not read the next part of my statement, because I believe it contains material that has been presented to this committee.

Senator Cook. Very fine, but it will be included in the entire record. Mr. EMERSON. It is unnecessary to press these matters further. Abundant testimony before this committee and available elsewhere demonstrates that our present legal system grossly discriminates against women. The major portion of that indictment is indeed admitted by most observers. And the critical need for substantial and immediate revisions in our legal structure is likewise conceded. The only serious issue before the committee concerns the method which should be utilized to achieve reform.

There would appear to be three basic methods by which discrimination against women can be eliminated from our legal system. The first is by repeal or revision of each separate piece of existing legislation through action by the Federal, State and local legislature having jurisdiction, and change of each separate administrative rule or practice through similar action by every Federal, State and local executive agency concerned with administration. It goes without saying that such a procedure would involve interminable delay and lacks any guarantee of ultimate success. Only if no other course of action is possible, would a struggle or innumerable fronts over every separate issue be justified.

Senator Cook. Would the professor stop here just a minute, because I think it is very interesting.

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I would like to say that I not only agree wholeheartedly with what he said in this paragraph, but also we have had a great many people who have testified opposing this amendment that said the proper route is to bring each one of the individual cases into the framework of the court system under either the fifth or the 14th amendment, mostly the 14th amendment.

Now, will you agree basically in principle that this at least establishes a basic principle that one does not have to litigate within the framework of the 14th amendment whether this does or does not apply?

Mr. EMERSON. Yes, it does that. I discuss in just one minute the use of the 14th amendment and the method of achieving reform. But it is clear that the equal rights amendment establishes a basis for a law of its own which sets forth the basic general principle. And it would seem totally unnecessary to argue that particular question out in hundreds or thousands individual cases. The situation seems to me to call for a general statement in accordance with our constitutional tradition of the fundamental legal and constitutional premise that is being put forward.

Senator Cook. I appreciate those remarks. I did not really mean to interrupt, but I think it is important to get it in at this stage of your testimony.

For instance, I have had many women say to me that somehow or other they opposed this amendment. But then I present to them the fact that, let's say, two people sit side by side. They earn the same salary. One is a man and one is a women. Under the Social Security Act she is treated differently, and in practically 85 percent of all the cases she receives less renumeration under Social Security than does a male.

Two people work for the Federal Government and they sit side by side. One is a woman, one is a man. Under the Federal Employees' Retirement System, even though they both make the identical amount of money, she receives less under the system that he does.

This is when they begin to say to themselves, well, I am not for that, and if this will cure that, then obviously I want something to be done to correct it, because I do not want somebody to get more for their contribution than I am to get.

But I would remind those who quote the 14th amendment as being all-inclusive in this regard that in the case of Guneral v. Gardner. which was a 1968 case, the Supreme Court denied certiorari when the lower court made a distinction in regard to women and admitted that those classifications under the Social Security Act were fair and were constitutional under the 14th amendment, only they denied equality of remuneration in regard to contribution.

So, I only say this because it is most interesting what they say here, because I think under this amendment we would not run into these problems.

Mr. EMERSON. That is correct, Senator. The 14th amendment, although I think it is capable of solving the problem potentially, has not been interpreted until now to directly solve what we have in mind by the equal rights amendment.

Senator Cook. I might say as a matter of fact that in that case it did not say that this was the attitude of the Court. It even made it more pronounced than that. It said that

The trend of authority

Which means it is increasing

the trend of authority makes it clear that the variation in amounts of retirement benefit based on differences in the attributes of men and women is constitutionally valid.

Mr. EMERSON. That is right. There has been some tendency in the courts to apply interpreting, in applying the 14th amendment equal protection clause to the problem of equal rights for women, to interpret the equal protection clause as meaning any classification which is reasonable or which the Legislature considers to be reasonable is valid under the 14th amendment.

That, I think, is not what is necessary to deal with this problem. I will say something about that a little later.

Senator Cook. I have interrupted you enough. Proceed, Professor. Thank you very much.

Mr. EMERSON. A second method is through court action under the equal protection clause of the 14th amendment and the comparable provision of the fifth. This procedure has the advantage of affording a more broad-scale attack upon the problem, with a single agency of Government, the U.S. Supreme Court, playing the primary role.

Moreover, some progress has already been made. It is, of course, recognized that women are "persons" within the embrace of the 14th and fifth amendments, and are entitled to equal protection of the laws under those provisions. Some State and lower Federal courts have rendered important decisions upholding equality of rights for women under the existing Constitution provisions.

Those relate mainly to decisions dealing with service on jury and equality in criminal sentences.

I feel reasonably confident that in the long run the U.S. Supreme Court would reach a position very close to or identical with that of the proponents of the equal rights amendment. Nevertheless, there are serious drawbacks to this approach which must be considered.

In the first place, there are some Supreme Court decisions and some lower court cases which move in the wrong direction. The task of overcoming or distinguishing these decisions could be a long and arduous one. There is, in short, a certain amount of legal deadwood which must be cleared away before the courts will be prepared to make clearcut and rapid progress.

In the second place, the Supreme Court has been subjected over a period of time to powerful attack for moving too fast and too far into frontier areas of the law. The Court may consequently be somewhat reluctant to take the lead in bringing about another major social reform, regardless of how constitutionally justified that reform may appear to be. Hence, it would be important for the courts, in performing such a task, to have the moral support of the other institutions of Government and the people as a whole.

Thirdly, and most important, the problems involved in building a legislative framework assuring equality of rights for women are some

what different from those which the courts have faced in other areas of equal protection law. In ordinary cases, when a claim is made that equal protection of the laws has been denied, the Supreme Court will apply the rule that differential treatment is valid providing there is a reasonable basis for the classification; and the Court will accept the legislative judgment that the classification is reasonable unless that judgment is beyond the pale of rationality.

Yet such a legal doctrine is not appropriate where the differential treatment is based on sex. For reasons stated above, classification by sex, except where the law pertains to a unique physical characteristic of one sex, is always unreasonable. It would be inappropriate, time consuming, and ultimately futile for the courts to investigate in each case whether a legislature was justified in deciding that a particular piece of legislation or administrative practice favored women, disfavored women, benefited society as a whole, and so on. That decision— namely, that all discrimination is outlawed-must be made at the beginning and not relitigated in every decision.

In cases where differential treatment is based upon race the courts have developed a different rule under the equal protection clause. In racial cases the constitutional doctrine is that classification by race is a "suspect' classification, and the legislature has the burden of showing that it is not an "invidious" or harmful classification or that it is justified by the most compelling reasons. Such a rule is more applicable to the area of discrimination on account of sex.

Yet, taken as a whole, the problems in the two areas are somewhat different. For example, questions of benevolent quotas, compensatory treatment, culture bias in psychological testing, separatism, and other issues which are now being raised in the field of race classification are not the same as they are in the field of sex discrimination. The increasingly complex doctrines being developed in the field of race discrimination are therefore not necessarily applicable to the field of sex discrimination.

The same can be said of the other areas of equal protection law. Discriminatory treatment on account of poverty or illegitimacy, classifications in enacting economic regulations, denial of the right of franchise through malapportionment of legislative districts-all equal protection problems all these present issues peculiar to their own spheres. In short, the establishment of equal rights for women poses questions that are in important ways sui generis. An effective solution demands a separate constitutional guarantee. Starting with such a mandate the courts can fashion a body of constitutional doctrine that will be geared to the special requirements of this important field of law.

Furthermore, as stated above, unless Congress and the States, through adoption of a constitutional amendment, express the firm conviction that this reform must be promptly and vigorously undertaken, progress is bound to be slow and faltering.

We come then to the conclusion that the third method-a constitutional amendment-is by far the most appropriate form of legal remedy. The final question, then, is: Whether the equal rights amendment now before us furnishes a satisfactory constitutional framework upon which to achieve the goal of equal rights for women? I believe that it does.