It is to the credit of our Congress that a seven year limit for ratification was tacked onto these four amendments. This safeguard should undoubtedly be used when the people push for a constitutional amendment in areas where the appropriateness for an amendment is questionable.

However, the basic human rights of more than half of our people must certainly constitute an appropriate area for constitutional amendment.

Let us consider an unlikely possibility: If the Equal Rights Amendment were passed with the seven year limitation and not ratified within that seven year period, then we would be right back where we are today. The women of the country have tried for 47 years to get this amendment passed; if need be, we will fight for 47 more years until it is passed.

The Congress and the men of the nation must face up to this fact: U.S. women can no longer be denied what has been the birthright of every U.S. male. We demand the equal protection of the U.S. Constitution-NOW! The Equal Rights Amendment must pass in 1970! A seven year limit for the ratification of the Equal Rights Amendment only adds male-chauvinistic salt to our wounds after these many years of second-class citizenship.

It is immoral for our U.S. Congress to continue to deny basic Constitutional Equality to U.S. women, simply because women have the responsibility of bearing the nation's children.

Senator Cook. Thank you, Mrs. Heide.

Senator Scott, do you have any questions?

Senator Scort. Yes: I would like to congratulate Mrs. Heide on a spicy statement, forceful and filled with conviction and logic and appeal. It is a strong statement. It is justified. The delays have not been justified. Congress has waited too long. I haven't the slightest interest in arguments presented by those who propose amendments designed to preserve the sacred right of women to be denied overtime in the textile mills in the South, for example, or other issues that are presented on the level of moral grandeur but appear to be more economic at least in the foreseen consequences of denial of this right.

I also have no objection to Mrs. Heide's insertion of a statement by Jean Witter, but I would like to point out that recently in the Pittsburgh Post Gazette there appeared a letter from this lady which was about as inaccurate as any document I have ever read. It was inaccurate by line, by paragraph, and one single call to the Equal Rights Congress would have in all justice caused the lady to withhold that letter. The letter undertook to say that I opposed the equal rights amendment from the beginning, notwithstanding the fact that I was a cosponsor, and made no reference to the fact that the equal rights amendment would not now be coming to the Senate on September 19, were it not for the joint determination of Senator Mansfield and myself, and I might add bulwarked considerably by pressure from the women members of the Republican and Democratic National Committees, who were very much on the job. But Miss Witter owes me an apology and hopefully she is woman enough to give it.

Thank you.

Mrs. HEIDE. If I may, Senator Cook, I think it must be made abundantly clear that mere sponsorship of this amendment is not enough, particularly if the sponsorship has occurred at a time when there was no positive prognosis of passage in the House. I think what we have been trying to make clear is that we want advocates to bring about effective behavior. And I suggest that Senator Scott's discussion be with Miss Witter and not with this hearing.

Senator SCOTT. My discussion, Mrs. Heide, is with this hearing because the attempt to create in the mind of Pittsburgh readers that my

view was precisely opposite from the facts and from the known record is an obvious injustice to me and, therefore, ought to go in the record at the same time as any statement from Miss Witter. It is, of course, not directed to you because I have said that you have done a splendid job here and a job that needed to be done. But what advocates of a constitutional amendment need are friends.

Mrs. HEIDE. I agree.

Senator SCOTT. And votes.

Mrs. HEIDE. I agree.

Senator SCOTT. And proof that people believe what they say and act upon this belief. You have that proof in my action to prevent this committee from killing this bill. And believe me, it might well have been killed if it had not been for the action of the two leaders of the Senate.

Senator Cook. If I might suggest to Mrs. Heide, in all fairness, I am a new member, but I will have to say to her that had not the minority leader taken the position that he took when this resolution came over from the House so that this has to be back on the floor on a date certain, no action would have been taken on this proposed amendment in this session of Congress, no hearings would have been conducted by this committee. And I can only say that if the advocacy of this proposal is not enhanced by the actions of the distinguished Senator from Pennsylvania, then it is never going to be enhanced. because the fact is that the action that he took will see to it that this amendment will be back on the floor pursuant to an unanimous consent agreement of the Senate itself, and this measure would not have seen the light of day in the year of 1970 I will assure you.

And I also want to say to Mrs. Heide, and to the Senator from Pennsylvania, she well knows that as a brandnew Senator it was my first occasion to find a demonstration before a committee, and that is when I first met her, and that came as quite a shock to me. But I will agree with her that as a direct result of that confrontation on that occasion hearings were scheduled on this proposed amendment. Mrs. HEIDE. Thank you very much.

Senator SCOTT. I would like to conclude by saying that my advocacy of the amendment is not in the least affected by the inaccuracy of one of the advocates because she is only one, after all, of a great many. I am only urging that the wise way to advocate is to be sure of your facts, as Mrs. Heide is sure of her facts. And the way in which you presented them was immensely interesting to me. I appreciate it.

Mrs. HEIDE. One more thing I would insist on saying. I don't want by implication or in any other way for my, anything I say to deny the accuracy or to make any statement really on the accuracy or the inaccuracy of Jean Witter's letter in the Pittsburgh PostGazette. I am not sure how relevant it is to this thing. I do welcome though Senator Scott's advocacy of the equal rights amendment, and I think he knows that we are very interested in what he does in this regard. I welcome your being here this morning, sir, and the privilege of being introduced by you to this group.

Senator SCOTT. You may have no concern about my activity. If you get the amendment it will be because Senator Mansfield and I have committed ourselves thoroughly to it.

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.