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.

The proposed amendment states clearly and simply the fundamental objective: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." In this respect it follows the tradition of the great provisions of the Constitution guaranteeing freedom of religion, freedom of speech, due process of law, protection against cruel and inhuman punishment, and other rights.

The word "rights," as used in the amendment, it seems clear, includes not only rights in the narrow sense of that term but all forms of rights, privileges, immunities, duties and responsibilities. Thus service on juries, whether it be looked upon as a "right" or a "duty”, plainly falls within the scope of the amendment. The term "equality", as used in the amendment, interpreted in light of the basic philosophy of the Amendment, means that women must be treated by the law in the same way as other persons, that is, their rights must be determined on the basis of the same factors that apply to men. The factor of femaleness or maleness is irrelevant. This principle is subject to the proposition, already noted, that laws may deal with physical characteristics that exclusively pertain to one sex or the other without infringing upon equality of rights. As previously stated, such instances would only rarely occur.

The phrase "shall not be denied or abridged" constitutes a complete prohibition. It means that differentiation on account of sex is totally precluded, regardless of whether a legislature or administrative agency may consider such a classification to be "reasonable", to be beneficial rather than "invidious", or to be justified by "compelling reasons." Furthermore, for much the same reasons as in the racial area, the clause would not sanction "separate but equal" treatment. Power to deny equality of rights on account of sex is wholly foreclosed. The Equal Rights Amendment applies only to government conduct. Federal or State. It does not affect conduct in the private, nongovernmental sector of our society. The problems of "state action" raised here are similar to those the courts have dealt with under the Fourteenth and Fifteenth Amendments. The basic legal doctrines that govern are the same, but they may of course have somewhat different application in the area of sex discrimination.

Finally, it should be noted that the Equal Rights Amendment fits into the total framework of the Constitution and should be construed to mesh with the remainder of the constitutional structure. One particular aspect of this is worth brief attention. That concerns the constitutional right to privacy.

In Griswold v. Connecticut (381 U.S. 479 (1965)) the Supreme Court recognized an independent constitutional right of privacy, derived from a combination of various more specific constitutional guarantees. The scope and implications of the right to privacy have not yet been fully developed by the courts. But it is I think correct to say that the central idea behind the concept is that there is an inner core of personal life which is protected against invasion by the laws and rules of the society, no matter how valid such laws and rules may be outside the protected sphere. If this be true then the constitutional right of privacy would prevail over other portions of the Constitution embodying the laws of the society in its collective capacity. This principle would have an important impact, at some points, in the operation of the Equal Rights Amendment. Thus I think the constitutional right of privacy would justify police practices by which a search of a woman could be performed only by another woman and search of a man by another man. Similarly the right of privacy would permit, perhaps require, the separation of the sexes in public rest rooms, segregation by sex in sleeping quarters of prisons or similar public institutions, and a certain segregation of living condtions in the armed forces. The great concern over these issues expressed by opponents of the Equal Rights Amendment seems to me not only to

have been magnified beyond all proportion but to have failed to take into account the impact of the young, but fully recognized, constitutional right of privacy. I will not undertake at this time to consider in detail how the Equal Rights Amendment would affect various existing laws, regulations and practices. I understand that Professor Dorsen will discuss these problems with the Committee shortly. I will therefore merely state, without further elaboration, what seem to be to be the three essential points at issue here:

First, the courts are entirely capable of laying down the rules for a transitional period in a manner which will not create excessive uncertainty or undue disruption. Actually the courts face similar problems every time they hold that part of a statute is unconstitutional, and they have developed detailed rules for handling these issues under the concept of "separability," or "severability," as it's sometimes called. The essential question is whether the legislature would have intended the statute to stand in its modified form. In making this decision the courts have the aid of legislative history, which can be supplied in this case. There is no reason to suppose, therefore, that formulation of a coherent legal theory applicable to the Equal Rights Amendment is too complex or too difficult for the legal system to cope with.

Second, there has been a great deal of talk that passage of the Equal Rights Amendment will cause vast changes in many features of our national life. I am inclined to feel that the alarms and warnings are, as usual, overplayed. Whether that be the case or not, however, if such great changes do occur it will be only because they are necessary. Those opponents of the measure who stress this aspect of the Amendment are acknowledging that widespread discrimination against women persists throughout our society.

Third, it has been argued that adoption of a constitutional amendment will bring about, almost inadvertently, drastic alterations in important institutions of society before there has been time to work out the major policy changes required by the new provision. The example most frequently given is the Selective Service system. But one need not conclude that, in those few areas where major new policy must be formulated, there is not adequate time in which to do it. If Congress adopts the Equal Rights Amendment it surely will have full opportunity during the period of ratification by the States to take up amendments to the Selective Service Act. Other areas of our law, such as the marriage and divorce laws, may need similar attention from State legislatures. It is not a weakness but a strength of the Amendment that it will force prompt consideration of some changes that are long overdue.

My conclusion from this survey of the legal problems raised by the Equal Rights Amendment is that the method chosen is the proper one and the instrument proposed is constitutionally and legally sound. I urge the Senate to accept the pending Resolution and submit the Amendment to the States for ratification.

Senator Cook. Professor Emerson, I would like you to read Dean Pollak's letter, if you would, please, take a minute to read it.

Mr. EMERSON. I have already seen the letter, Senator, so I am familiar with it.

Senator Cook. Would you please make some comments on it, if you would, for the record?

Mr. EMERSON. Yes, I would. I would like to.

Professor Pollak is concerned with the position of the amendment which reads,

Congress and the several States shall have power within their respective jurisdictions to enforce this article by appropriate legislation.

His concern is primarily that the provision could be interpreted to mean that Congress has, the Federal Congress has power to implement the equal rights amendment only within spheres where it otherwise has power to act, and that it might not include additional affirmative power to implement the amendment by legislation such as in section 5 of the 14th amendment.

I disagree with that interpretation of what this provision is intended to accomplish. It seems to me that what the proponents of the

amendment have in mind is two things: First, to give Congress affirmative power by legislation to implement the substantive provisions of the amendment.

In this respect it is the same as section 5 of the 14th amendment, which has been interpreted in Morgan against Katzenbach and other cases as authorizing the Federal Government to have an additional power in addition to its other powers granted under the Constitution to implement equal protection.

In the same way, this would authorize the Federal Government to have additional powers to implement the provisions of this amendment. That authorization is technically not necessary for the States. They would have the power anyway as holders of the residual constitutional power. Therefore, it would have been unnecessary if that were the reason to include the provision about the States.

However, I think that goes to the second point.

The second point is that the provision is intended to give concurrent authority to the States to implement the equal rights amendment. In other words, it is intended to eliminate the possibility that by giving authority to the Federal Government it would preclude the States from acting at all. It is intended to eliminate the possible implication of a presumption of complete authority on the Federal Government and the exclusion of the States.

Now, State legislation would, of course, under the supremacy clause be subordinate to Federal legislation, but in the absence of Federal legislation that was contradictory to State legislation, State legislation would be valid.

The provision, by the way, is not entirely a novel one. A similar provision appeared in the 18th amendment and, I think, was intended to serve the same purpose.

Consequently, I think the provision is an appropriate one, and I do not think that it is subject to the interpretation that it limits the powers of Congress in this field. It certainly could not have been intended that way by those who now propose the amendment. Senator Cook. Thank you, Professor.

I was also interested in that part of your statement that gave reference to the extension of rights and not the curtailment of rights. I am not sure you heard a witness last Friday or read Professor Kanowitz' statement. He gave us a very novel problem that is presently before the Supreme Court of Illinois-that is, that two young people were in an automobile accident, male and female. They were both in their 18th year. The facts turned out that the young man gained information that he did not have to file his tort action until 12 months after he was 21 because the age of majority in the State of Illinois is 21. She relied on this and later found out that the age of majority for a woman in the State of Illinois was 18, and, therefore, the statute of limitations had run out on her. And she brought an action in the courts saying that her rights had been denied because the statute of limitations had tolled on her in 12 months and the statute of limitations would not toll on the young man until 12 months after he was 21.

Now, in most of the cases that we have read, for instance, the Louisiana case on the right to acquire recovery from a wrongful death

of a mother was denied to illegitimate children, the court extended that right to illegitimate children, and it would seem to me in this instance in the State of Illinois-and we face this situation that will probably come up here, that this right will be extended to cover the largest group, rather than to be limited. And I get a little bit frustrated hearing leading questions saying, don't you agree that if this is passed, 5,000 or 8,000 laws all over the United States will be ruled unconstitutional and they will all be thrown out the window, and every woman in the United States will suffer as a result thereof.

I think the history of the Court has shown that it extends this right, it does not limit this right. Do you agree with this?

Mr. EMERSON. Yes. Yes; I agree with that analysis. As to rights of that character, I think it is quite clear that the courts will interpret the legislation to remain, eliminate the discrimination and thereby extend the benefits of the statute to those who have previously been discriminated against.

As you have pointed out, that proposition has existed at least since Neal against Delaware in 1890 interpreting the voting rights under the 15th amendment not to eliminate everybody else who was voting, but to admit to the voting rights those who had previously been discriminated against. The same rules were applied in the Wright primary cases as to voting, and they were applied when the 19th amendment giving women the right to vote was adopted.

It was not necessary to change all the laws that dealt with the suffrage. It was simply expanded to include women. And as you just said, in Leavy against Louisiana, which incidentally was argued by Professor Dorsen in the Supreme Court, the Court applied the same rule. They included, within the basic framework of the statute, those who had previously been eliminated by discrimination.

The major proposition is simply, and the rule that the Court applies in these cases which, as I say, really involves questions of severability, would the legislature have intended that the statute operate if they had been informed at the time it was unconstitutional to eliminate a certain group.

Now, I would say that as to most discriminatory laws now they will be interpreted simply by eliminating discrimination; for instance, laws prohibiting women from being bartenders. Well, that is quite clear. The legislature never intended that there be no women bartenders, God forbid, so women will be included rather than everybody excluded.

I would say the same thing would be true of family support. The legislature certainly never intended that there be no family support by one spouse who was financially able to do it, and so they are all within. The weight-lifting laws, I think, would simply fall, would drop because it cannot have been intended that nobody be able to lift weight over 35 pounds. However, that may be an area in which the State legislatures will want to take another look and perhaps have some more specific legislation that does not discriminate.

Senator Cook. I might say the State of Georgia has a law that applies to the physical potential of everybody regardless of sex. And I might suggest that in the testimony of Mrs. Miller from California, her union as a matter of fact came out with a memorandum at the

end of their national convention saying that weight-lifting laws ought to be regulated, based on equality for all sexes. So, really and truly, she was calling for exactly what we are talking about.

Mr. EMERSON. That is right, Senator. That would be very popular. Let me just say one other thing. Insofar as there were some areas that did require attention by the States or by the Federal Government in order to introduce certain reforms that were consistent with the equal rights amendment, I think that would not be too difficult a job to work out.

You will remember that when the Social Security Act was passed in 1935 it compelled the State to adopt a very elaborate system of social security within the course of a few years. All States had to have social security laws by January 1, 1937, or taxes would simply move out of the State.

That task of formulating unemployment compensation laws, welfare laws, pension laws, and so forth, was accomplished, and accomplished quite well within that period. And it was accomplished with some assistance from the Federal Government, which could be given here.

I think, also, the law schools would be very willing to afford assistance to State legislatures in revising their laws where necessary to conform with the requirements of the amendment where that would become necessary.

Senator Cook. Thank you very much, Professor Emerson.

Our next witness is Prof. Norman Dorsen, professor of law, New York University.

I might say while you are leaving, Professor Emerson, I was delighted in your quoting Griswold v. Connecticut, because I think that in going through all of this and hearing that we are going to have the mixing of sexes in the jails and everything else, that somehow or other in wanting to see the realization of one constitutional amendment go down the drain they had forgotten about a few others. Thank you very much.

You may proceed, sir.

STATEMENT OF NORMAN DORSEN, PROFESSOR OF LAW, NEW YORK UNIVERSITY SCHOOL OF LAW

Mr. DORSEN. Thank you. I am Norman Dorsen, professor of law at the New York University School of Law.

I am honored to appear before the Senate Judiciary Committee to give testimony in support of the equal rights amendment, as passed by the House of Representatives. I am a professor of law at New York University School of Law, where I have specialized in constitutional law for more than 9 years. I am also general counsel of the American Civil Liberties Union, but I am appearing herein a purely personal capacity.

I would like to make a couple of preliminary comments.

First of all, I would like to compliment the chairman of these hearings, Senator Cook, in taking the lead in this measure.

I note from the earlier debate in the Senate that he is the father of four girls and that one of them was greviously discriminated against