stead of alimony, custody of children, definition of marital property, and provision for its division, without regard to marital misconduct in proportions determined by the court on the basis of specified factors set forth in the law. In essence, marital property excludes separate property inherited or gifted, and would divide that acquired during marriage by efforts of the spouses on a 50-50 basis.

In reference to the drafting of women-under the Equal Rights Amendment, the selective service law would include women, subject to the same exemptions and classifications as men.

Like drafted men, they would not be required to serve where not fitted. Like men, certain occupations and ages would be exempted. Military service benefits, especially for the young with limited education or training, accompany the responsibility. Since October 1966, some 246,000 young men who did not meet the normal mental or physical requirements, have been given opportunities for training and correcting physical problems, while such opportunities are not open to their sisters.

Presently, only girls who have completed high school can volunteer, a higher standard than for men, which would be eliminated by the Amendment.

If pending legislation to abolish the draft is passed by this Congress, the drafting of women will become a moot topic.

The Supreme Court made it clear in 1938 that no black citizen (male) could be denied opportunity to attend the public university of his choice. Yet, the Supreme Court refused certiorari in the case of a female student in 1960 who was denied admission to a State University to major in courses not available elsewhere in the state. Within the past year, the institution of court action was required in New York to secure admission of a girl to high school, and another to bring about admission of women students in the University of Virginia. Law Schools have only recently dropped all barriers to female students. When the writer came to Washington to work as a secretary and attend law school in the evenings, the top ranking school did not admit women. Upon graduation, and with scholastic standing, it was learned that the doors of Harvard Law School were closed to females, and thus graduate work was done elsewhere. Women were not then admitted to the District of Columbia Bar Association. And today, according to the report to the Chairman of the House Committee on Education, only 53% of female high school graduates get into college, compared with 70% of the male graduates. Equality of rights under the law would open up equality of opportunity for girls, black or white. The future mothers and homemakers should not be denied constitutional protection.

With regard to criminal penalties, H.J. Res. 264 would be the yardstick for the invalidation of any remaining state statutes which impose longer prison terms upon female criminals than upon males for the same offense. It was not until 1968 that the Supreme Court of Pennsylvania, and the U.S. District Court of Connecticut declared such state statutes invalid. Over 200 women were released from the state prison in Pennsylvania following the 1968 decision, having already served the time which a male offender would have had to serve. The Federal Court took umbrage with the 1908 landmark decision in Mueller v. Oregon and its principle that "sex is a reasonable classification".

In the realm of other discriminatory laws, H.J. Res. 264 would remove remaining restrictions upon jury service by women. While women are eligible in all states, there still remain statutory limitations in 24 states, in 11 of which a woman may be excused solely on the basis of her sex.

In many states, women are disqualified to serve as fiduciaries or the statutes specify preference to males before females can qualify. Appeal has recently been filed in the U.S. Supreme Court challenging such a law of Idaho. Reed v. Reed (Idaho Sup. Ct. 1970) 465 P. 2d 635.

Only five states permit a married woman to establish a separate domicile. The charge that the Amendment would require "identical treatment" of a male and female is specious. Equality under the law is a very different thing from identity of physiology. Nature, not man-made law, has limited motherhood to the female sex, and man's law has made maternity benefits applicable to that sex alone. The crime of rape applies only against one sex. No lawmaker would be so brash as to advocate the change of that law, and no court so foolish. The constitutional Amendment could have no effect in such matters, nor should the conjured and imaginary horror of vitiating such laws be dignified by Senatorial argument or law-professorial theorizing. This is a "red herring"

argument unworthy of prolongation. The same can be said for the imaginary horror of legal equality banishing separate men's and women's rest rooms. When public mores calls for this, if ever, it will be time to treat such contention seriously.

It is argued that the Amendment "would rob Congress and the legislatures" of the states of power to enact any further law making distinctions between men and women. The Amendment, by its words, clearly provides that both bodies retain the power to enact "appropriate legislation of implementation."

It is this day in the hands of the few men on this Committee to lift the pride and dignity of all women by recommending their full constitutional recognition as citizens of America. H.J. Res. 264 (identical with S.J. Res. 61) is an emancipation proclamation for American women of all races, women of all creeds, women of all walks of life, women who work for wages outside the home, and for the homemakers and mothers who work without wages inside the home. Millions of women who never studied under learned men of the law nor entered a court room are aware of their second-class legal status. The welfare of other unaware millions now descends upon you and the U.S. Senate to make it possible for the states to determine whether women should enjoy equality under the law now so notoriously absent in our system of statutory and decisional law.

STATEMENT OF PAULI MURRAY ON THE EQUAL RIGHTS AMENDMENT

My name is Pauli Murray, and I am a professor of American Studies at Brandeis University. I am an attorney holding a degree of Doctor of Juridical Science from Yale University School of Law and my field of concentration for almost thirty years has been constitutional law in the field of human rights.1 Since 1962 when I served on the Committee on Political and Civil Rights of President Kennedy's Commission on the Status of Women, I have devoted my studies to the constitutional rights of individuals not to be discriminated against because of sex and have written extensively in this field.' I have also joined with other attorneys in litigation before the Federal courts to test the constitutionality of laws and practices which make legal distinctions on the basis of

sex.

As a Negro and a woman I have labored under the double handicap of discrimination because of race and discrimination because of sex. Having spent nearly fifty years of my life trying to overcome the disabilities and sense of inferiority imposed upon me by reason of my race, I cannot afford another fifty years trying to overcome similar disabilities imposed upon me because of my sex. During the past ten years I have watched almost an entire generation of older women who were responsible for winning the long struggle for women's suffrage pass off the scene before they could win their lifelong struggle for constitutional equality. It is in memory of women like Mary McLeod Bethune, Eleanor Roosevelt, Elsie Hill, Betsy Graves Reyneau and others that I urge the United States Senate to approve the Equal Rights Amendment as adopted by the House of Representatives without change, so that it may be submitted to the States for ratification.

1 See e.g., The Right to Equal Opportunity in Employment, 33 Calif. L. Rev. 388-437 (Oct. 1945); The Historical Development of Racial Legislation in the United States, XXII Journal of Negro Education, 4-15 (1953); Protest Against the Legal Status of the Negro, The Annals, 357:55-64 (Jan. 1965); States' Laws on Race and Color, comp. and ed., Woman's Division of Christian Service, The Methodist Church (1951) 746 pp.; 1955 Supplement; The Law As It Affects Desegregation, Radcliffe Quarterly, August 1963; Jane Crow and the Law, 34 Geo Washington L. Rev. 232-256 (December 1965) (co-author with Mary O. Eastwood); "The Rights of Women," in Norman Dorsen, ed., Americans' Rights: What They Are; What They Should Be, to be published by Pantheon Books in 1971; "The Liberation of Black Women," in Voices of the New Feminism, ed. by Mary Lou Thompson, Beacon Press, October 1970; "The Law of Sex-Based Discrimination in Employment," Proceedings of American Bar National Institute, Equal Employment Opportunity: Its Involvements, Its Enigmas, Its Orthodoxy, March 29, 1969, Washington, D.C. Human Rights, U.S.A.: 1948-1966, Service Center, Board of Missions, The Methodist Church, 1967. See also unpublished works: "Roots of the Racial Crisis: Prologue to Policy," 1965 (Yale University Library: Doctoral (J.S.D.) thesis); "The Case for Sex Equality in Jury Service," March 1966, ACLU (co-author with Dorothy Kenyon).

2 See e.g., Kanowitz, Women and the Law (1969), pp. 154 ff; Mead and Kaplan, eds., American Women (1965), pp. 147–151. See also White v. Crook, 251 F. Supp. 401 (N.D. Ala. 1966); Motion for Leave to File Brief Amicus Curiae and Brief of the American Civil Liberties Union, Amicus Curiae in Phillips v. Martin Marietta Corp., U.S. Supreme Court, October Term, 1969, No. 1058.

My own life spans the second half century of the Emancipation of Negroes and the first half century of the political emancipation of women in the United States. My parents were born during Reconstruction; my grandmother was born in slavery, the progeny of rape by a white master of his octoroon slave. For nearly sixty years I have carried the burden of proof as to my competence and proficiency in a society which has both explicitly and implicity been dominated by the ideas that Blacks were inherently inferior to Whites and Women were inherently inferior to Men. My whole personal history has been a struggle to meet standards of excellence against barriers which were placed ever higher as fast as I overcame the last one.

When I graduated from Hunter College in 1933, I faced the barrier of unemployment and the stigma of WPA whom many referred to as "boondogglers." I was among the last to leave the WPA rolls because Negroes were unable to find jobs in private industry. When I sought graduate training at the University of North Carolina in 1938-in the state in which I grew up and in which my family were taxpayers-my application was rejected because of race. My experiences with segregation and other manifestations of racism led me to seek a career as a civil rights attorney and in 1944 I graduated from Howard University School of Law, cum laude, first in my class and winner of a Rosenwald Fellowship which specifically stated "for graduate study in law at Harvard University."

When I applied to Harvard University, however, after the submission of my picture and records, I received a letter from the late Professor T. R. Powell, then Chairman of the Committee on Graduate Studies at Harvard Law School, stating "Your picture and the salutation on your college transcript indicate that you are not of the sex entitled to be admitted to Harvard." Since Harvard Law School was one of the few major law schools in the country which offered a graduate program in law during World War II, I was compelled to travel across the country to the University of California, Berkeley, reduce my fellowship funds through unanticipated travel and out-of-state tuition fees, and instead of devoting my entire energies to graduate scholarship as the Fellowship grant had intended, I found it necessary to do part-time work as a waitress in order to recoup my financial deficit. Within these limitations I was not able to complete the work necessary to qualify for my doctorate, and it was not until twenty years later that I was able to achieve the J.S.D. degree at Yale University.

In short, although my motivation, energy and effort to meet the highest standards of performance have been operative throughout my life, I have experienced numerous delays in my career, not for the traditional reasons given for the failure of women to develop on par with men in our society (marriage, childrearing, etc.), but by a combination of individual and institutional racism and sexism-Jim Crow and Jane Crow.

Although today I am a university professor and member of the legal profession holding its highest academic degree, the road over which I have travelled is the experience of most Negro women in America. Born in genteel poverty, I have shared the experience of domestic workers, service workers, lower paid clerical workers, social investigators in the Department of Welfare in New York City and, as a former Consultant to the Equal Employment Opportunity Commission, have intimate knowledge of the problems of race and sex discrimination, particularly in employment opportunity. I have also read the testimony presented on the Equal Rights Amendment before the Subcommittee on Constitutional Amendments chaired by Senator Birch Bayh on May 5, 6 and 7, 1970 as well as the statements submitted to the full Committee on September 9, 10, 11 and 15. As a constitutional lawyer, a woman and a Negro I can say with conviction that Negro women as a group have the most to gain from the adoption of the Equal Rights Amendment.

All that has been said about the frustrations and deprivations of American women generally because of discrimination by reason of sex can be said with special force about the position of Black women. If human dignity is the objective of the law which guarantees individual rights, then Negro women as a group historically have suffered the most violent invasions of that personal dignity and privacy which the law seeks to protect. During the slavery era in the United States, it was held by some courts that the rape of a black slave woman was not a criminal act but a trespass on and injury to the property of another person for which the master might recover damages. There was no recourse if the forcible

rape was perpetrated by the owner of the slave woman. Thomas R. R. Cobb, a pro-slavery lawyer from Georgia, published a treatise on slavery in 1858 in which he offered the rationale for this rule:

1st. The law, by recognizing the existence of the slave . . . thereby confers no rights and privileges except such as are necessary to protect that existence. All other rights must be granted specially. Hence, the penalties for rape would not and should not, by such implication, be made to extend to carnal forcible knowledge of a slave, the offense not affecting the existence of the slave, and that existence being the extent of the right which the implication of the law grants. 2d. Implications of the law will always be rebutted by the general policy of the law, and it is clearly against the policy of the law to extend over this class of the community, that character of protection which many of the penal statutes are intended to provide for the citizen.3 The penalty for rape or attempted rape on any white female by a slave or a free Negro, however, was death. Under the law of Kansas Territory in 1855, a Negro male convicted of rape on a white woman was punished by castration. A white man guilty of the same offense was subject to imprisonment for five years.5 The relevance of this historical reference to the Equal Rights Amendment is that the Negro woman has suffered more than the mere addition of sex discrimination to race discrimination. She has suffered the conjunction of these twin immoralities which produced an aggravated condition of degraded status from which he has not yet recovered. For while slavery has been abolished and citizenship has been recognized by virtue of the Thirteenth and Fourteenth Amendments, the Negro woman remains on the lower rank of social and economic status in the United States. The black male, at least, can identify with and aspire to the dominance of this white counterpart. The black female has experienced neither the "protections" which the opponents of the Equal Rights Amendment are so zealous to preserve nor the idealizations of "womanhood" and "motherhood" which the society includes in its mythology. For example, in June 1969, 44 percent of working nonwhite women (93 percent of whom are Negroes) were private household workers or service workers outside of the home. In 1967, the median wage of female year-round full-time private household workers, about half (47%) of whom were nonwhite, was $1,298. These workers are wholly excluded from the state "protective" labor laws as well as from the Federal Labor Standard Act. So the controversy over the state protective labor legislation applicable to women only has little meaning for a large sector of the Negro female working population."

A more complete statement on the deprived position of the Black woman and the discrimination which persists against her in federally-funded programs as well as in private industry is attached hereto and made a part of this statement in the form of testimony which I presented before Congresswoman Edith Green's Special Subcommittee on Education in support of Section 805 of H.R. 16098, on June 19, 1970. This statement contains data from the U.S. Labor Department, Women's Bureau, as well as an appended article by Sonia Pressman, Senior Attorney in the Office of General Counsel, Equal Employment Opportunity Commission, and an expert on the legal implications of race and sex discrimination. I respectfully urge that the members of this Committee read this document.

The conjunction of race and sex discrimination directed toward a Negro woman has a special quality of virulence which becomes almost unbearable. My personal experience and observation leads me to believe that when the dominant white male is afflicted by racism and sexism, albeit unconscious, his hostility toward the Negro female who asserts her rights as a person is unbounded. It is as if his superior position is threatened on two fronts simultaneously and he finds it necessary to resist with greater intransigence than if he were required to yield only a single symbol of dominance. In her struggle for survival with dignity, therefore, the Negro woman stands almost alone and must appeal to the fundamental law of the land to give her a footing upon which to build some semblance of stability for herself and for her children.

Moreover, unless and until the Black woman is accorded the respect of her personhood which is the natural birthright of every individual, the position

3 Cobb, An Inquiry Into the Law of Negro Slavery (1858). pp. 86, 89.

4 See e.a., Alabama Code (1852), sec. 3307: North Carolina Code (1855), ch. 107, sec. 44,

p. 573; Kansas Territory Statutes (1855), ch. 48, secs. 26, 31, pp. 241-242.

5 Kansas Territory Statutes (1855), ch. 48, secs. 26-32, pp. 241-242.

Pressman, "Job Discrimination and the Black Woman," The Crisis, p. 103 (March

1970).

of all women in the United States is compromised and threatened. There is hardly a member of this Congress who, if he has eyes to see, has not seen upon the face of an aging Negro woman domestic or service worker a look of quiet desperation, or sometimes of grim endurance, and upon the faces of younger, more militant Black women a fury which is almost unbounded. In my view, the tragedy of Angela Davis, is that she saw the hypocricy of our male-dominated society and not its promise. She lacked the capacity to endure the thousands of crude as well as oblique indignities to which a Negro woman is subjected in the United States and which go unapprehended and unpunished.

In view of the exhaustive discussion on the legal and constitutional implications of the proposed Equal Rights Amendment, I will not impose further on the time of this Committee by repetition of arguments and data already presented. I wish to associate myself particularly with the statements presented by my colleagues, Marguerite Rewalt, Robert Braucher of Harvard Law School, Leo Kanowitz of the University of New Mexico Law School, Thomas I. Emerson of Yale Law School, and Norman Dorsen of New York University Law School.

I do, however, wish to state that for the past eight years I have been deeply involved in attempting to implement the constitutional rights of women through alternatives to the Equal Rights Amendment. In 1962, at the request of the President's Commission on the Status of Women and its Committee on Civil and Political Rights of which I was a member, I prepared an exhaustive memorandum entitled "A Proposal To Reexamine the Applicability of the Fourteenth Amendment to State Laws and Practices Which Discriminate on the Basis of Sex Per Se." My study advanced the thesis that the principle of equal rights as declared in the text of the proposed Equal Rights Amendment could be established through proper judicial interpretation of the Fourteenth Amendment, provided that there was a reexamination of the doctrine of "sex as a valid basis for legislative classification" and a shift of emphasis from distinctions based upon sex per se to a functional analysis. The Commission adopted this approach in its Final Report in October 1963 and called for early judicial clarification of the constitutional status of women by the Supreme Court so that the principle of equality without regard to sex might be firmly established in our fundamental law. I annex hereto and incorporate as part of this statement the Memorandum.

Advocates of the Equal Rights Amendment who served on the Commission were persuaded to accept this view as a possible route to equal rights, and subsequently those of us who had advocated a reexamination of the Fourteenth Amendment as an alternative labored long and hard to vindicate the Commission's position.

The sad fact is that we have failed. In the seven intervening years, attempts to raise the issue of equality for women before the Supreme Court have been frustrated either through procedural roadblocks or because victories won in the lower courts were not appealed by the States' Attorneys' General. Federal judges resorted to judicial abstention through reluctance to review the Muller precedent of 1908 which has not yet been reexamined and overruled by the Supreme Court. In the absence of a clarifying decision by that Court, the constitutional position of women remains ambiguous and it is entirely understandable and justifiable that women and their attorneys, frustrated by continued judicial delays, now seek an unequivocal constitutional declaration of equality. It should be significant to this Committee that constitutional attorneys who have wrestled with litigation involving attempts to use the Fourteenth Amendment to eliminate sex-based discrimination have gradually come to recognize the necessity of a new Constitutional declaration. Professor Paul Freund, although a recognized constitutional authority, has given no evidence through his published writings of detailed study of this aspect of civil rights. On the other hand, Professor Thomas I. Emerson of Yale University is the leading authority on Civil and Political Rights in the United States,' and out of the wealth of his research and experience in the courts has advanced a conceptual framework for objective consideration of the meaning of equal rights as a constitutional principle.

7 See e.g. Emerson, Haber and Dorsen, Political and Civil Rights in the United States, 3d. Ed., Little, Brown & Co., 1967 (2 vols.) (2274 pp.); Emerson, The System of Freedom of Expression, Random House, 1970, 754 pp. Note also that Professor Emerson was the successful counsel who prepared the brief and argued the precedent-making case before the Supreme Court in Griswold v. Connecticut, 381 U.S. 479, in which the important issue of the right to privacy was raised and was canvassed by the justices' opinions.