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Letter from Dean Louis H. Pollack, Yale Law School, to Senator Birch
Bayh, August 31, 1970___

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Letter from Mrs. Cernoria D. Johnson, director, Washington bureau,
National Urban League, Inc., to Senator James O. Eastland, September
21, 1970...

Letter from Mrs. Sidney Doner, national legislation chairman, San Diego

County Federation of Republican Women's Clubs, to Senator James O.

Eastland, September 11, 1970- - - -

397

Statement by Virginia Woodruff, males are very fragile, September 14,
1970__.

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EQUAL RIGHTS

WEDNESDAY, SEPTEMBER 9, 1970

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The committee met, pursuant to recess, at 10 o'clock, in room 2228, New Senate Office Building, Senator Sam J. Ervin presiding. Present: Senators Ervin, Kennedy, Griffin, and Cook. Senator ERVIN. The committee will come to order.

At the last meeting of the Senate Judiciary Committee, every member expressed deep care over the impact which the House-passed Federal equal rights amendment would have upon our constitutional system and the various merited rights and exemptions upon women, if it should become a part of our Constitution. For this reason, the committee decided by a vote of 11 to 1 with one abstention to hold these hearings on the legal ramifications of the amendment.

There is no doubt that this measure has been subjected to very little analysis. In fact, the House of Representatives did not hold any hearings on the equal rights for women amendment, and the Senate hearings made no attempt to investigate the effects of such a constitutional amendment on the myraid State and Federal laws which make distinctions between men and women. It is a very real testament to the lack of consideration given to this matter that the definitive critical legal statement was written in 1945-25 years ago by Prof. Paul Freund of the Harvard Law School. Not only has Professor Freund not been asked to bring his statement up to date by the House or the Senate subcommittee considering the problem, but very few, if any, legal scholars have been asked to comment on the matter by anyone.

To my mind, it is very sad that a proposed amendment to the Constitution which the majority leader of the Senate feels is so urgently needed that he will not refer it to committee has received such a cavalier treatment by the Congress. It is no compliment to the concept of equal rights for women that the advocates of this amendment are demanding that it should pass without adequate consideration. As an editorial in the New York Times recently concluded:

The clear responsibility of the Senate is to give the amendment the thorough analysis it never got in the House. The Constitution and the rights of women are both too important for any further playing to the ladies' gallery.

I hope we can begin this thorough analysis today.

I would like to state I am holding these hearings at the request of the chairman of the Senate Judiciary Committee, the Honorable James O. Eastland, and at the request of the majority members of the committee itself.

(1)

On Friday, August 21, 1970, I made a speech in the Senate on the House-passed equal rights amendment, which I called a potential destructive and self-defeating blunderbuss. I borrowed that description from a Law Review article by Prof. Leo Kanowitz, professor of law at the University of New Mexico.

Let the record show that I offer in evidence at this point a copy of this speech I made on the floor of the Senate. (The statement referred to follows:)

[From the Congressional Record-Senate, Aug. 21, 1970]

THE HOUSE-PASSED EQUAL RIGHTS AMENDMENT: A POTENTIALLY DESTRUCTIVE AND SELF-DEFEATING BLUNDERBUSS

1

UNFAIR LEGAL DISCRIMINATIONS AGAINST WOMEN

Mr. ERVIN. Mr. President, the objective of those who advocate the adoption of the House-passed equal rights amendment is a worthy one. It is to abolish unfair discriminations which society makes against women in certain areas of life. No one believes more strongly than I that discriminations of this character ought to be abolished, and that they ought to be abolished by law in every case where they are created by law.

Any rational consideration of the advisability of adopting the House-passed equal rights amendment raises these questions:

First. What is the character of the unfair discriminations which society makes women?

Second. Does it require an amendment to the Constitution of the United States to invalidate them?

Third. If so, would the House-passed equal rights amendment constitute an effective means to that end?

It is the better part of wisdom to recognize that discriminations not created by law cannot be abolished by law. They must be abolished by changed attitudes in the society which imposes them.

From the many conversations I have had with advocates of the House-passed equal rights amendment since coming to the Senate, I am convinced that many of their just grievances are founded upon discriminations not created by law, and that for this reason the equal rights amendment will have no effect whatsoever in respect to them.

When I have sought to ascertain from them the specific laws of which they complain, the advocates of the equal rights amendment have cited certain State statutes, such as those which impose weight-lifting restrictions on women, or bar women from operating saloons, or acting as bartenders, or engaging in professional wrestling. Like them, I think these laws ought to be abolished. I respectfully submit, however, that resorting to an amendment to the Constitution to effect this purpose is about as wise as using an atomic bomb to exterminate a few mice.

From the information given me by many advocates of the equal rights amendment and from my study of the discriminations which society makes against women, I am convinced that most of the unfair discrimination against them arise out of the different treatment given men and women in the employment sphere. No one can gainsay the fact that women suffer many discriminations in this sphere, both in respect to the compensation they receive and the promotional opportunities available to them. Some of these discriminations arise out of law and others arise out of the practices of society.

Let me point out that Congress has done much in recent years to abolish discrimination of this character insofar as they can be abolished at the Federal level. It has amended the Fair Labor Standards Act to make it obligatory for employers to pay men and women engaged in interstate commerce or in the production of goods for interstate commerce equal pay for equal work, irrespective of the number of persons they employ.

1 The descriptive phrase "a potentially destructive and self-defeating blunderbuss" is borrowed from the article of Leo Kanowitz, Professor of Law, University of New Mexico, which is entitled "Constitutional Aspects of Sex-Based Discrimination in American Law," which appeared in the Nebraska Law Review, Vol. 48, No. 1 (1968). See page 182.

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