Congress has also decreed by the equal employment provisions of the Civil Rights Act of 1964 that there can be no discrimination whatever against women in employment in industries employing 25 or more persons, whose business affects interstate commerce, except in those instances where sex is a bona fide occupational qualification reasonably necessary to the normal operation of the enterprise. Furthermore, it is to be noted that the President and virtually all of the departments and agencies of the Federal Government have issued orders prohibiting discrimination against women in Federal employment.

Moreover, State legislatures have adopted many enlightened statutes in recent years prohobiting discrimination against women in employment.

If women are not enjoying the full benefit of this Federal and State legislation and these Executive orders of the Federal Government, it is due to a defect in enforcement rather than a want of fair laws and regulations.

A good case can be made for the proposition that it is not necessary to resort to a constitutional amendment to abolish State laws which make unfair discriminations between men and women in employment or any other sphere of life. This argument rests upon the equal protection clause of the 14th amendment which prohibits States from treating differently persons similarly situated, and is now being interpreted by the courts to invalidate State laws, which single out women for different treatment not based on some reasonable classification.

To be sure, the equal protection clause may not satisfy the extreme demands of a few advocates of the equal rights amendment who would convert men and women into beings not only equal but alike, and grant them identical rights and impose upon them identical duties in all the relationships and undertakings of life.

It cannot be gainsaid, however, that the equal protection clause, properly interpreted, nullifies every State law lacking a rational basis, which seems to make rights and responsibilities turn upon sex.

My view is shared by legal scholars. Their views on this subject are succinctly expressed by Bernard Schwartz in his recent commentary on the Constitution of the United States which declares "that a law based upon sexual classification will normally be deemed inherently unreasonable unless it is intended for the protection of the female sex.'

As I pointed out later, the House-passed equal rights amendment is shrouded in obscurity, and no one has sufficient prophetic power to predict with accuracy what interpretation the Supreme Court will place upon it. One possible interpretation is that it will nullify every existing Federal and State law making any distinction whatever between men and women, no matter how reasonable the distinction may be, and rob Congress and the legislatures of the 50 States of the legislative power to enact any future laws making any distinction between men and women, no matter how reasonable the distinction may be.

If it should be adopted and this interpretation should be placed upon it by the Supreme Court, the House-passed equal rights amendment would produce constitutional and legal chaos, and would not accomplish the objective of any of its advocates. This is so because under this interpretation the equal rights amendment would merely abolish all laws making any distinctions between men and women. It would not bring into existence any new laws giving us a discrimination-free society, and those who desire such a society would have to implore Congress and the legislatures of the 50 States to enact new laws creating the kind of society they seek, insofar as such a society can be established by law. Consequently, those who seek a discrimination-free society should seek to persuade Congress and the legislatures of the various States initially to enact suitable legislation to accomplish their purpose insofar as such purpose can be accomplished by law without first invalidating all laws making distinctions between men and women and plunging society into constitutional and legal chaos.

For these reasons, the House-passed equal rights amendment represents a potentially destructive and self-defeating blunderbuss approach to the problem of abolishing unfair discriminations against women.

What has been said makes it manifest, I think, that society does make unfair discriminations against women, and that the House-passed equal rights amendment does not constitute a sensible approach to their abolition.

2 Bernard Schwartz: Rights of the Person, Vol. 2, Section 482, Page 534.

This brings us to the questions whether Congress should consider the submission to the States of a constitutional amendment to deal with the matter, and whether such amendment should permit Congress and the States acting within their respective jurisdictions to make reasonable distinctions between the rights and responsibilities of men and women in appropriate areas of life.

I honestly believe that the equal protection clause, properly interpreted, is sufficient to abolish all unfair legal discriminations made against women by State law.

Nevertheless, I am constrained to favor a constitutional amendment which will abolish all unfair legal discriminations against women without robbing them of necessary legal protections and without imprisoning the legislative powers of Congress and the States in a constitutional straitjacket.

My reasons for so doing are twofold. First, some advocates of the House-passed equal rights amendment do not share my opinion of the efficacy of the equal protection clause; and, second, the equal protection clause does not apply to Congress, and it is problematical whether the Supreme Court will hold in this instance, as it did in Bolling v. Sharp, 347 U.S. 497, that the due process clause of the fifth amendment imposes the same prohibitions on the Federal Government that the equal protection clause does on the States.

While I believe that any unfair discriminations which the law makes against women should be abolished by law, I have the abiding conviction that the law should make such distinctions between the sexes as are reasonably necessary for the protection of women and the existence and development of the race.

I share completely this recent observation of a legal scholar:

"Use of the law in an attempt to conjure away all the differences which do exist between the sexes is both an insult to the law itself and a complete disregard of fact."

Let us consider for a moment whether there be a rational basis for reasonable distinctions between men and women in any of the relationships or undertakings of life.

FUNCTIONAL DIFFERENCES BETWEEN MEN AND WOMEN

When He created them, God made physiological and functional differences between men and women. These differences confer upon men a greater capacity to perform arduous and hazardous physical tasks. Some wise people even profess the belief that there may be psychological differences between men and women. To justify their belief, they assert that women possess an intuitive power to distinguish between wisdom and folly, good and evil.

To say these things is not to imply that either sex is superior to the other. It is simply to state the all-important truth that men and women complement each other in the relationships and undertakings on which the existence and development of the race depend.

The physiological and functional differences between men and women empower men to beget and women to bear children, who enter life in a state of utter helplessness and ignorance, and who must receive nurture, care, and training at the hands of adults throughout their early years if they and the race are to survive, and if they are to grow mentally and spiritually. From time whereof the memory of mankind runneth not to the contrary, custom and law have imposed upon men the primary responsibility for providing a habitation and a livelihood for their wives and children to enable their wives to make the habitations homes, and to furnish nurture, care, and training to their children during their early years.

In this respect, custom and law reflect the wisdom embodied in the ancient Yiddish proverb that God could not be everywhere, so he made mothers.

The physiological and functional differences between men and women constitute earth's important reality. Without them human life could not exist. For this reason, any country which ignores these differences when it fashions its institutions and makes its law is woefully lacking in rationality.

Our country has not thus far committed this grevious error. As a consequence, it has established by law the institutions of marriage, the home, and the family, and has adopted some laws making rational distinctions between the respective rights and responsibilities of men and women to make these institutions contribute to the existence and advancement of the race.

8 Ibid., p. 538.

OBSCURITY OF THE HOUSE-PASSED EQUAL RIGHTS AMENDMENT

In the nature of things, lawmakers use words to express their purpose and courts must ascertain their purpose from their words.

In his famous opinion in Towne v. Eisner, 245 U.S. 418, 425, Justice Oliver Wendell Holmes made this trenchant observation:

"A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used."

During my many years as a lawyer, a judge, and a legislator, I have discovered that many words have many meanings, and that the purpose they are intended to express must be gathered from the context in which they are used. I have also learned that the most difficult task which ever confronts a court is determining the meaning of imprecise words used in a scrimpy context.

The word "sex" is imprecise in exact meaning, and no proposed constitutional amendment ever drafted exceeds the House-passed equal rights amendment in scrimpiness of context. The amendment contains no language to elucidate its meaning to legislators or to guide courts in interpreting it. When all is said, the House-passed equal rights amendment, if adopted, will place upon the Supreme Court the obligation to sail upon most tumultuous constitutional seas without chart or compass in quest of an undefined and unknown port.

The imprecision of the word "sex" as used in the proposed amendment is clearly revealed by these definitions set forth in the recently published "American Heritage Dictionary of the English Language":

"1.a. The property or quality by which organisms are classified according to their reproductive functions. b. Either of two divisions, designated male and female, of this classification. 2. Males or females collectively. 3. The condition or character of being male or female; the physiological, functional, and psychological differences that distinguish the male and the female. 4. The sexual urge or instinct as it manifests itself in behavior. 5. Sexual intercourse."

When one undertakes to ascertain the obscure meaning of the ambiguous House-passed equal rights amendment in an impartial, intellectual and unemotional manner, he is inevitably impelled to the conclusion that it is susceptible of several different and discordant interpretations.

It it should accept the fourth and fifth definitions of the term "sex" as set forth in the dictionary, the Supreme Court could reach the conclusion that the House-passed equal rights amendment merely annuls existing and future laws visiting upon the adulterous acts of women different legal consequences from those it visits upon such acts of men.

If it should accept the first, fourth, and fifth defiintions of "sex" as set forth in the dictionary, the Supreme Court could reach the conclusion that the amendment is only concerned with sex per se, and has no application whatever to legal distinctions made between men and women on the basis of their respective functions in the relationships and undertakings on which the existence and development of the race depend.

A learned student of the constitutional aspects of sex-based discrimination in American law, Prof. Leo Kanowitz, accepts this interpretation. He had this to say in a Law Review article on the subject:

"It is submitted that the adoption of the Equal Rights Amendment would not fundametnally change the picture. While the proposed amendment states that equality of rights shall not be abridged on account of sex, sex classification could continue if it can be demonstrated that though they are expressed in terms of sex, they are in reality based upon function."

If it should accept the third definition of "sex" as set out in the dictionary, the Supreme Court could reach the conclusion that the House-passed equal rights amendment annuls every existing Federal and State law making any distinction between men and women, however reasonable such distinction might be in particular cases, and forever robs Congress and the legislatures of the 50 States. of the constitutional power to enact any such laws at any time in the future. This is the interpretation which I fear the Supreme Court may feel itself obliged to place upon the House-passed equal rights amendment. I am not alone in entertaining this fear.

Leo Kanowitz: "Constitutional Aspects of Sex-Based Discrimination in American Law." Nebraska Law Review, Vol. 48, No. 1 (1968), p. 182.

When the so-called equal rights amendment was under consideration in 1953, Roscoe Pound of the Harvard Law School; Albert J. Harno, of the University of Illinois Law School; Charles Warren, noted constitutional lawyer and author of "The Supreme Court in United States History"; Leon Green of the University of Texas Law School; Dorothy Kenyon, distinguished lawyer and onetime Judge of Municipal Court of New York City; Monte M. Leman, noted constitutional lawyer; E. Blythe Stason of the University of Michigan Law School; Harry Shulman of the Yale University Law School; William H. Holly, U.S. District Judge; Everett Fraser of the University of Minnesota Law School; Walter Gellhorn of the Columbia University Law School; Glenn A. McCleary of the University of Missouri Law School; and Douglas B. Maggs of the Duke University Law School, joined one of America's greatest legal scholars, Paul A. Freund of the Harvard Law School, in a statement opposing the equal rights amendment upon the ground that they feared that this devastating interpretation might be placed upon it if it should be adopted. This statement made these indisputable observations:

"If anything about this proposed amendment is clear, it is that it would transform every provision of law concerning women into a constiutional issue to be ultimately resolved by the Supreme Court of the United States. Every statutory and common law provision dealing with the manifold relation of women in society would be forced to run the gauntlet of attack on constitutional grounds. The range of such potential litigation is too great to be readily foreseen, but it would certainly embrace such diverse legal provisions as those relating to a widow's allowance, the obligation of family support and grounds for divorce, the age of majority and the right of annulment of marriages, and the maximum hours of labor for women in protected industries.

"Not only is the range of the amendment of indefinite extent, but, even more important, the fate of all this varied legislation would be left highly uncertain in the face of judicity review. Presumably, the amendment would set up a constitutional yardstick of absolute equality between men and women in all legal relationships. A more flexible view, permitting reasonable differentation, can hardly be regarded as the object of the proposal, since the Fourteenth Amendment has long provided that no state shall deny to any person the equal protection of the laws, and that Amendment permits reasonable classifications while prohibiting arbritrary legal discrimination. If it were intended to give the courts the authority to pass upon the propriety of distinctions, benefits and duties as between men and women, no new guidance is given to the courts, and this entire subject, one of unusual complexity, would be left to be unpredictable judgments of courts in the form of constitution decisions.

"Such decisions could not be changed by act of the legislature. Such a responsibility upon the courts would be doubtless as unwelcome to them as it would be inappropriate. As has been stated, however, the proposal evidently contemplates no flexibility in construction but rather a rule of rigid equality. This branch of the dilemma is as repelling as the other."

After analyzing in some detail the laws whose validity might be jeopardized by the equal rights amendment, the statement concluded with these observations: "The basic fallacy in the proposed Amendment is that it attempts to deal with complicated and highly concrete problems arising out of a diversity of human relationships in terms of a single and simple abstraction. This abstraction is undoubtedly a worthy ideal for mobilizing legislative forces in order to remedy particular deficiencies in the law. But as a constitutional standard, it is hopelessly inept. That the proposed equal rights amendment would open up an era of regrettable consequences for the legal status of women in this country is highly probable. That it would open up a period of extreme confusion in constitutional law is a certainty."

THE DESTRUCTIVE POTENTIALITY OF THE HOUSE-PASSED EQUAL RIGHTS AMENDMENT

Time and space preclude me from an attempt to picture in detail the constitutional and legal chaos which would prevail in our country if the Supreme Court should feel itself compelled to place upon the House-passed equal rights amendment the devastating interpretation feared by these legal scholars.

For this reason, I must content myself with merely suggesting some of the terrifying consequences of such an interpretation.

Congress and the legislatures of the various States have enacted certain laws based upon the conviction that the physiological and functional differences between men and women make it advisable to exempt or exclude women from

certain arduous and hazardous activities in order to protect their health and safety.

Among Federal laws of this nature are the Selective Service Act, which confines compulsory military service to men; the acts of Congress governing the voluntary enlistments in the Armed Forces of the Nation which restrict the right to enlist for combat service to men; and the acts establishing and governing the various service academies which provide for the admission and training of men only.

Among the State laws of this kind are laws which limit hours during which women can work, and bar them from engaging in occupations particularly arduous and hazardous such as mining.

If the House-passed equal rights amendment should be interpreted by the Supreme Court to forbid any legal distinctions between men and women, all existing and future laws of this nature would be nullified.

The common law and statutory law of the various States recognize the reality that many women are homemakers and mothers, and by reason of the duties imposed upon them in these capacities, are largely precluded from pursuing gainful occupations or making any provision for their financial security during their declining years. To enable women to do these things and thereby make the existence and development of the race possible, these State laws impose upon husbands the primary responsibility to provide homes and livelihoods for their wives and children, and make them criminally responsible to society and civilly responsible to their wives if they fail to perform this primary responsibility. Moreover, these State laws secure to wives dower and other rights in the property left by their husbands in the event their husbands predecease them in order that they may have some means of support in their declining years.

If the House-passed equal rights amendment should be interpreted by the Supreme Court to forbid any legal distinctions between men and women, it would nullify all existing and all future laws of this kind.

There are laws in many States which undertake to better the economic position of women. I shall cite only one class of them; namely, the laws which secure to women minimum wages in many employments in many States which have no minimum wage laws for men, and no other laws relating to the earnings of women.

If the House-passed equal rights amendment should be interpreted by the Supreme Court to prohibit any legal distinction between men and women, it would nullify all existing and future laws of this kind.

In addition, there are Federal and State laws and regulations which are designed to protect the privacy of males and females. Among these laws are laws requiring separate restrooms for men and women in public buildings, laws requiring separate restrooms for boys and girls in public schools, and laws requiring the segregation of male and female prisoners in jails and penal institutions. Moreover, there are some State laws which provide that specific institutions of learning shall be operated for men and other institutions of learning shall be operated for women.

If the House-passed equal rights amendment should be interpreted by the Supreme Court to forbid legal distinctions between men and women, it would annul all existing laws of this nature, and rob Congress and the States of the constitutional power to enact any similar laws at any time in the future.

I do not believe that the advocates of the House-passed equal rights amendment wish to nullify laws which are adopted for the protection of women and for the promotion of the highest interest of society. Moreover, I am unwilling to attribute any such motive to the Representatives who voted for the Housepassed equal rights amendment, or to the Senators who have sponsored the Senate version of such amendment. I attribute to all of them the laudable desire of abolishing unfair discriminations against women without destroying laws reasonably designed to protect them, and without robbing Congress and the legislatures of the 50 States of the power to enact similar laws in the future.

MY AMENDMENT

For these reasons, I have drafted a substitute Federal equal rights amendment which will accomplish the undoubted purpose of the advocates of the House-passed equal rights amendment; that is, to invalidate any present or future laws making unfair discriminations against women without nullifying any existing laws reasonably designed to protect the best interest of women and the highest interest of society, and without incapacitating Congress and the