EQUAL RIGHTS TUESDAY, SEPTEMBER 15, 1970 U.S. SENATE, COMMITTEE ON THE JUDICIARY, The committee met, pursuant to recess, at 10:10 a.m., in room 2228, New Senate Office Building, Senator Marlow W. Cook presiding. Present: Senators Cook, Hart, and Scott. Senator Cook. We will bring these hearings to order, please. And Congressmen, if you don't mind, let me get a couple of things into the record. I would like to remind everyone in attendance this morning, especially those who are in support of the House-passed equal rights amendment, that we held 3 days of hearings on this proposal before the Constitutional Amendments Subcommittee this past spring. These present hearings before the full Judiciary Committee were at the suggestion of the senior Senator from North Carolina. We have a rather lengthy list of witnesses today and we hope to hear them all. However, if everyone does not receive an opportunity to testify, we expect to insert in the hearing record the statements of those here who were to be heard. I would remind the proponents of the amendment that nothing is to be gained by prolonging these hearings. There are approximately 80 cosponsors of this amendment in the Senate and we would like to move ahead, closing these hearings today. Before we hear from Congresswoman Griffiths, I would like to insert several statements in the record. 1. Statement of Carol Forbes, president of the Fayetteville chapter of the National Organization for Women, pointing out that on September 4, 1970, the AFL-CIO of North Carolina passed a resolution endorsing the equal rights amendment as it passed the House. 2. The statement by Prof. Robert Braucher, of Harvard Law School, on behalf of himself and the Unitarian Universalist Association in support of the equal rights amendment. 3. Paper entitled "Sex Discrimination and 'Protective Labor Legislation," by Susan Deller Ross, Arthur Garfield Hays, civil liberties fellow, New York University Law School. 4. Letter from our distinguished friend, Dean Louis H. Pollak, of Yale Law School, to Senator Bayh, pointing out the potential difficulties with the section of the amendment which reads "Congress and the several States shall have power within their respective jurisdictions to enforce this article by appropriate legislation." Dean Pollak (207) recommends that this section be changed; and we fully intend to consider this change, as it will in no way weaken the effectiveness of the amendment. (The statements follow:) Hon. BIRCH BAYH, Senate Office Building, Washington, D.C. YALE UNIVERSITY LAW SCHOOL, DEAR SENATOR BAYH: In advance of the hearings scheduled by the full Senate Judiciary Committee on the proposed Equal Rights Amendment, I wish to bring to your attention that, as presently drafted, the proposed amendment contains what might turn out to be a very serious loophole. I have in mind the second sentence of Section 1 which provides: Congress and the several States shall have power, within their respective jurisdictions, to enforce this article by appropriate legislation. If the proposed amendment becomes a part of the Constitution, it would be the only amendment which would confer upon the states any implementing power. I suppose it is possible that proponents of the amendment may think that the amendment may be fortified by vesting a power of implementation in the states as well as in Congress. But I think this might in fact turn out to be a dangerous illusion. First of all, the federal courts might read this provision as requiring the same degree of judicial deference to state statutes purporting to implement the amendment as would normally be given to federal statutes implementing the amendment: this could mean that the parochial (and, as might often be the case, mutually inconsistent) statutes of state legislatures would assume an unprecedented degree of apparent dignity and consequent unreviewability merely because they were denominated implementations of this amendment. Second of all, the phrase "within their respective jurisdictions" might be read by the federal courts as requiring some other constitutional basis for implementing legislation (e.g., Congress might be held to be without power to enforce the amendment with respect to intrastate commerce, etc.). These would, of course, be anomalous results-results which would obstruct, not advance, the purposes of the amendment. Happily, however, it is an easy matter to clear up the wording of the proposed amendment in such a way that no court could possibly be led astray, and indeed no semantic basis would exist for delaying and diversionary litigation. The remedy is to excise the words "and the several States . . . within their respective jurisdictions." The second sentence of Section 1 would then read: "Congress shall have power to enforce this article by appropriate legislation." This minor verbal change would, in my judgment, help to insure that the proposed Equal Rights Amendment will, if it becomes a part of the Constitution, in fact promote the amendment's important purposes. Sincerely yours, LOUIS H. POLLAK. STATEMENT OF CAROL FORBES, PRESIDENT OF THE FAYETTEVILLE CHAPTER OF THE NATIONAL ORGANIZATION FOR WOMEN (NOW) I am attempting to gain permission to testify before the Senate Judiciary Committee on Tuesday, September 15, concerning Senator Sam Ervin's proposed amendment on women's equal rights. Mrs. Elsie Hales, Fayetteville Labor Council Board Member and Vice Chairman of Local 525, Amalgamated Meat Cutters and Butcher Workmen of North Carolina, AFL-CIO, would be appearing with me if I am permitted to testify. We as representatives of the working women of North Carolina will testify that North Carolina is an excellent example of the way "protective" legislation has caused women to suffer great economic inequities. A few of the many examples of such inequities which we shall cite at the hearing are: 1. Working women earn 42% less than the average working man in North Carolina. In 1964 74% of the employed women of North Carolina worked in textile or related industries. The salaries of women employed in these industries average $36.00 a week less than those of men so employed. 2. Under North Carolina law women may work seventy hours per week without being paid any overtime, while a man would be paid overtime for the same period. 3. As a result of the protective laws, women are generally not promoted to a supervisor's position because of being legally barred from working overtime. The wish of the working women of North Carolina has been made abundantly clear. On September 4, 1970, the AFL-CIO of North Carolina passed a resolution calling on the United States Congress to immediately pass the equal rights amendment in its original form-as the House has already passed it. We have come from North Carolina to tell the Senate Judiciary Committee and Senator Ervin that in his own state, protective legislation is not protecting women but causing grave inequities towards them. Therefore, his proposed equal rights amendment does not reflect the needs and wishes of the working women of North Carolina. LAW SCHOOL OF HARVARD UNIVERSITY, Hon. BIRCH E. BAYH, Washington, D.C. DEAR MR. SENATOR: Enclosed is my statement in support of the Equal Rights Amendment, for such use as you care to make of it. The statement was stimulated by my personal discussion of the subject with my colleague, Professor Freund of the Harvard Law School, who I understand will testify against the amendment next week. Although the statement is my own, I am also authorized to represent the Unitarian Universalist Association in its endeavor to secure passage and ratification of the Amendment. Ordinarily I have the highest respect for Professor Freund's judgment on constitutional problems, and I have been puzzled by his uncharacteristically standpat views on this subject. Perhaps it is relevant that he has been a life-long disciple of Mr. Justice Brandeis and that the justice made much of his reputation in the famous case of Muller v. Oregon, where he argued successfully that a state could constitutionally limit the working hours of women. Of course such limitations now serve primarily as a device to discriminate against women, and are a primary target of the proposed amendment. In any event, I urge you to stand firm in support of the amendment. Sincerely, ROBERT BRAUCHER, STATEMENT IN SUPPORT OF THE EQUAL RIGHTS AMENDMENT (By Prof. Robert Braucher) I am Robert Braucher, Professor of Law in Harvard University, Republican, chairman of the National Commission on Consumer Finance by appointment of President Nixon, and a Massachusetts Commissioner on Uniform State Laws by appointments of Governors Herter, Furcolo, Peabody and Sargent. I was chairman of the committee which prepared the Uniform Law Commissioners' Model Anti-Discrimination Act, in which prohibitions against discrimination on account of sex were included. I speak for myself and for the Unitarian Universalist Association in endeavoring to secure passage and ratification of the Equal Rights Amendment. It is argued against the proposed Amendment, first, that it is unnecessary in view of the equal protection clause of the Fourteenth Amendment and the Civil Rights Act of 1964, and, second, that to the extent that it goes beyond existing law it opens a "Pandora's box" of unknown problems. My argument in response is: first, that it is extremely unclear at the present time whether the law provides the same equality for women that it provides for Negroes; second, that the "Pandora's box" has already been opened; and third, that true equal protection of the laws for women can be achieved in a more orderly and legitimate way by cooperative effort of legislative, executive and judicial branches of Federal and State governments, responding to a Constitutional Amendment, than could ever result from the most enlightened and progressive decisions of the Supreme Court. The present law.-The latest pronouncement of the Supreme Court, in Hoyt v. Florida, 368 U.S. 57 (1961), upholds a provision as to women jurors that would have been obviously unconstitutional as to Negro jurors. A pending case, Phillips v. Martin Marietta Corp., 411 F. 2d 1, 416 F. 2d 1257 (5th Cir. 1969), cert. granted March 2, 1970, upholds a discrimination against women in employment on a theory which would be absurd and tragic if applied to Negroes. It is to be hoped that the Supreme Court will overrule the jury case and reverse the employment case, but the justices would undoubtedly feel more secure in taking such action if they could be confident that they were moving in harmony with rather than in opposition to the elected branches of the Government. The unknown problems.—Many of the problems have been identified. At the one extreme, few people would defend today a rule that women are forbidden to serve alcoholic beverages, though the Supreme Court upheld such a prohibition in Goesaert v. Cleary, 335 U.S. 464 (1948). At the other extreme, the advocates of the Equal Rights Amendment do not believe it would require maternity leave for men or the repeal of laws against rape. In between are the much-discussed problems of selective service, a host of restrictions on women often euphemistically labelled "protections," and a host of senseless differences between men and women as to capacity to contract, capacity to marry, the burden of being treated as adult criminals, the power to manage their own property, the right to various retirement benefits, and the distribution of property on the death of the owner. All should be eliminated. The need for cooperative effort.-Judicial reform of obsolete laws under the banner of "equal protection of the laws" is likely to savor of usurpation when the obsolete laws is hallowed by widespread acceptance over a long period of time. Moreover, when the question is whether men and women should both be entitled to social security benefits at 62 (the present rule for women) or at 65 (the present rule for men), judicial decision is likely to be far more disruptive and confusing than a clear-cut legislative decision, with a clear effective date and a provision for funding. A Constitutional Amendment gives the judges a mandate to which they can respond with confidence that they are in step with the democratic process. It also gives the legislatures, both Federal and State, a mandate to make the numerous choices needed, and I would hope that those who sponsor the Amendment would after ratification sponsor implementing legislation. Congress need not enter into all the areas traditionally left to the States. If a State legislature leaves a law on the books that a married woman has capacity to buy a house at 18 but her husband does not until he is 21, at least the judges will know that they are authorized to do modern justice. The equal protection clause of the Fourteenth Amendment has been on the books for more than 100 years. It was clearly designed to provide equal protection for Negroes, and we are at long last beginning to see actual equal protection for Negroes. This did not happen by judicial decision alone; it required action by Congress and the President as well, and it will not be fully effective until State and local governments fully cooperate. It is not at all clear that the Fourteenth Amendment was intended to establish equal protection for women, and it is very clear that it has not done the job. I hope that it will not take 100 years to establish equal protection for women. However long it takes, it is time to start. And the best start is a fundamental declaration of national policy, clearly legitimated by the full democratic process as the Supreme Law of the Land. SEX DISCRIMINATION AND "PROTECTIVE" LABOR LEGISLATION By Susan Deller Ross, Arthur Garfield Hays Civil Liberties PART I: INTRODUCTION In 1970, the Equal Rights Amendment to end sex discrimination against women has gained new political impetus. Yet many continue to oppose the proposed Amendment or equal legal treatment for women under the 14th Amendment to |