LABOR American Newspaper Guild-Affiliate of the AFL-CIO. International Brotherhood of Painters and Allied Trades. LAY AND PROFESSIONAL (NATIONAL) American Association of Women Ministers. American Federaltion of Soroptimist Clubs. American Federation of Teachers-Affiliate of the AFL-CIO. American Medical Women's Association. American Women's Society of Certified Public Accountants. American Society of Women Accountants. Americans for Democratic Action. Association of American Women Dentists. B'nai B'rith Women. Ecumenical Task Force on Women and Religion (Catholic Caucus). Iota Tad Tau Legal Sorority. Ladies Auxiliary of Veterans of Foreign Wars. Ladies of the Grand Army of the Republic. League for American Working Women. Liberation Movement of Women. Mary Ball Washington Association of America. National Association of Colored Women. National Association of Women Deans and Counselors. National Association of Women Lawyers. National Council of Women Chiropractors. National Education Association (NEA). National Federation of Business and Professional Women's Clubs, Inc. National Federation of Republican Women. National Grange. National Organization for Women (NOW). National Woman's Party. Order of Women Legislators. Secretarial-Alpha Iota Sorority. St. Joan's International Alliance-U.S. Section. The National Council of Women-Affiliated with International Council. Women Investors and Shareholders, Inc. Women Theologians and the Coalition of American Nuns. Women's Auxiliary to American Osteopathic Association. Women's Auxiliary to the National Chiropractic Association. Women's Christian Temperance Union. Women's Circle, Woodmen of the World. Women's Committee on Freedom in the Church-National Association of Lay men. Women's Equity Action League (WEAL). Women's International League for Peace and Freedom (Founded by Jane Adams). Women's Joint Legislative Committee for Equal Rights. Support of the proposed amendment comes from many sources. The women supporting the proposed Equal Rights Amendment, especially through Democratic and Republican women's groups, comprise a very large part of the women of America. Senator Cook. And I might say, Mr. Chairman, just as a matter of discussion that Mrs. Wolfgang testified before our committee back in May, and there was one remark she said there and I would like to put it into the record. She said: Representing service workers gives me a special concern over the threat that an equal rights amendment would present to minimum Labor Standards legislation. I am sure you are aware of the thrust of such legislation upon working conditions and I am sure you are aware that many such laws apply to women only. They are varied and they are in the field of minimum wages, hours of work, rest periods, weightlifting, childbirth legislation, et cetera. These State laws are outmoded and many of them are discriminatory. Mrs. WOLFGANG. That is correct. I said that in today's testimony also, so we will have the record three times. Senator ERVIN. Let the record show that the statement made by Senator Cook will be printed at this point in the record and let the record show the Senator from North Carolina will observe what the Senator from Kentucky said shows that the passage of a women's rights amendment is not necessary because all of those changes were due to the fact that the Congress enacted title VII of the Civil Rights Act of 1964. That title prohibited any job discriminaion against women; and, therefore, being a Federal law perfectly valid under the Interstate Commerce and Federal law takes supremacy over a State law, there is no necessity to pass a women's rights amendment. That is a perfectly constitutional act, based on the power of Congress to regulate interstate commerce. As the witness pointed out, if there is any deficiency in the field now in any industry effecting interstate commerce which employs 25 or more persons which covers practically every industry in the United States, it is due to a lack of proper guidelines on the part of the Commission, or lack of enforcement of the law. So if we have one constitutional provision in the Interstate Commerce clause, which does all of this, and the congressional legislation passed pursuant to it is not being enforced, we are not going to add very much by getting another provision in the Constitution. Senator Cook. I might say that being the case, these hearings are totally and completely moot. We ought to pass this amendment because we are simply encouraging what they have done legislatively through the 14th and 15th amendment and there should be no objection on the part of the senior Senator from North Carolina. Senator ERVIN. I would say this would destroy all of the laws, which the States and Federal Government have passed which make any distinctions at all between men and women. Senator Cook. Thank you, Mrs. Wolfgang. Senator ERVIN. On behalf of the committee, I want to thank you for your appearance here and the assistance you have given the committee on issues that are very complex. Senator Cook. Is it the desire of the chairman to start with the next witness? Senator ERVIN. I will leave that with the next witness, or we will come back. STATEMENT OF PAUL A. FREUND, PROFESSOR OF LAW, HARVARD UNIVERSITY Mr. FREUND. I think I can be relatively brief, if the committee would be prepared to remain for a little while, otherwise I will be perfectly content to submit my statement for the record. Senator ERVIN. I will go ahead and proceed. Senator Cook. I hope you will excuse me. I have a previous obligation and I do not want to get up and walk out in the middle and give you the impression I would not want to stay. Senator ERVIN. I am delighted to welcome you to the Senate Judiciary Committee and to express appreciation, not only for the assistance you have given on this occasion but the assistance you have given on a number of problems in the past. Senator KENNEDY. With the indulgence of the committee, I would like to introduce our next witness. I would like to present and introduce to the committee a person who is no stranger to the Judiciary Committee and who is today perhaps the most eminent constitutional authority in our Nation. He is well known as a teacher and a scholar throughout our country and as the most thoughtful commentator on the Constitution of the United States. Professor Freund received his education at the Washington University in St. Louis, his law degree and doctorate from Harvard Law School, and then he served as law clerk for Justice Brandeis before serving in a number of different capacities in the Government, in the Treasury Department, the Justice Department, and the Reconstruction Finance Corporation, before returning to Harvard to teach. I would place in the record at this point a complete list of his honorary degrees and titles of the professorships he has held and his other honors and memberships. The list is too long to read here but I will mention his leading writings on the Supreme Court since they are the most relevant to his presentation today. He is the author of: "On Understanding the Supreme Court," 1949; "The Supreme Court of the United States," 1961; "On Law and Justice," 1968, and editor in chief of the multivolume "History of Supreme Court," which is still underway, and he is also the coeditor of a "Case Book on the Constitution," in two volumes, weighing what seems like 10 pounds, which has filled the briefcases of thousands of law students over the past decade. I want to welcome Professor Freund as a constituent and friend and outstanding American. I have his testimony and I have had the opportunity to read it, reflects many of the concerns I have had. I want to thank the Chair for permitting me this indulgence and thank the witness. Senator ERVIN. I would like to say that I concur in what Senator Kennedy had to say about you. I think you are one of the outstanding authorities on the Constitution of the United States. I understand one of your writing was, "Understanding the Supreme Court," which my son who went to the Harvard Law School said he read and enjoyed and since that time I have followed you with interest. I certainly share Senator Kennedy's statement that you are one of the greatest constitutional scholars in this country today. Mr. FREUND. Thank you, Mr. Chairman. I appreciate your invitation to appear and present my views on the equal rights amendment. I am a professor at the Harvard Law School, specializing in constitutional law, and I am here in a purely personal capacity, having prepared a statement some 20 years ago in opposition to the amendment when it was previously before the Senate. I am anxious that my position not be misunderstood. I am in wholehearted sympathy with the efforts to remove from the statute books those vestigial laws that work an injustice to women, that are exploitative or oppressive discriminations on account of sex. Too many of such laws continue to disfigure our legal codes. I submit, however, that not every legal differentiation between boys and girls, men and women, husbands and wives, is of this obnoxious character, and that to compress all these relationships into one tight little formula is to invite confusion, anomaly, and dismay. Let me illustrate. Consider two types of laws that differentiate on the basis of sex. One prescribes heavier criminal penalties for men than for women who commit identical offenses. This can only be explained on some moralistic basis that has no rational relation to the purposes of the criminal law. The other type prescribes, or officially approves, different premium rates for life insurance for men and women; based on actuarial statistics of life expectancy, the rates for women are lower. Here is a legal recognition of the facts of life, which happen indeed to favor the position of women. Is there any reason to visit the same condemnation on these two kinds of laws, as if they were equally repugnant to our sense of justice, and to do so by a change in our fundamental law that would leave no freedom of action to any State? Anyone who sees an important difference in these two cases cannot in good conscience, I submit, support the proposed amendment. It will not do to answer that the courts will make sensible distinctions and will not give a literal meaning to "equal rights under law." If only that were the purport of the amendment it would be redundant of the equal-protection guarantee of the 14th amendment. The Supreme Court has not held, as is sometimes loosely stated, that women are not "persons" within the meaning of that amendment. Rather the Court has found in the past that certain laws do not discriminate unfairly against women. Very probably the Court would be less tolerant today in applying the guarantee of equal protection to differences based on sex, as it is less tolerant of unequal treatment in other fields. But it is precisely to avoid the necessity of submitting such questions to the courts, to strip the courts of any latitude of application, that the proponents of the equal rights amendment urge the necessity of its adoption. Their model is not the generally flexible concept of equal protection, but the concept as it has now come to be applied to provisions of law based on race. The law, it is argued, must be sexblind no less than colorblind. Let us see whether the analogy to race is a satisfying one. It is now a constitutional principle that public schools and universities may not maintain a dual system for white and black students, respectively. Does it follow that men and women must be admitted without differentiation to West Point and Annapolis-not in separate but equal academies but in the same classes and in the same school activities? If this is indeed the will of Congress, it can be carried out by simple majority vote, on an experimental basis, without waiting for a binding mandate from three-fourths of the States. If it is not the will of Congress, I assume the proposed amendment will not be approved by this body. The strict model of racial equality, moreover, would require that there be no segregation of the sexes in prisons, reform schools, public restrooms, and other public facilities. Indeed, if the law must be as undiscriminating concerning sex as it is toward race, it would follow that laws outlawing wedlock between members of the same sex would be as invalid as laws forbidding miscegenation. Whether the proponents of the amendment shrink from these implications is not clear. It has been stated that equal treatment would not be required if it ran counter to prevailing standards in the present state of our culture. This is an escape valve not found in the amendment itself and one of very uncertain dimensions. Some may believe that to permit women to work as coal miners offends prevailing mores; but evidently such an exemption from the amendment's coverage would be strongly repudiated by the proponents. Subjection of women to compulsory military service, along with men, raises a similar question. Again, the proponents appear to insist that the drafting of women as well as men for suitable military service would in fact be required under the amendment. They assume, probably correctly, that equal "rights," would include obligations of service; and under the amendment men could claim that the "right" of exemption from the draft must be applicable without regard to sex. If this major innovation in the draft is truly the will of Congress, it can be achieved, like the opening up of West Point and Annapolis, by simple legislation, and at once, without waiting to be bound by the action of three-fourths of the States. Draft policy is, after all, the responsibility of the National Government. A change of policy of this magnitude in framing a draft law is customarily the subject of full and informed hearings before appropriate committees and is voted on after well-focused debate. It may or may not be a desirable change to make, but in other circumstances it would surely be thought irresponsible to impose such a reform almost without attention, as a halfhidden implication of a motto which, in addition, would be frozen unalterably in the Constitution. Senator ERVIN. If I may interrupt you. This amendment that the House passed states equality of rights shall not be denied or abridged by the United States or any State on account of sex. That statement, that phraseology, admits of no exception. Mr. FREUND. It does not on its face, and in that respect I think it is deliberately intended to differ from the equal protection of the laws of the 14th amendment as it is construed by the Supreme Court. Senator ERVIN. And it is not your conclusion on that point, reinforced by these statements which I read from a memorandum on the proposed equal rights amendment to the Constitution, which was inserted in the Congressional Record by the Congresswoman from Michigan, Mrs. Martha W. Griffiths, on March 25, 1970. I will read two statements of what this statement says is the purpose of this amendment. The first states— The proposed amendment would secure the right of all persons to equal treatment under the law without any distinction as to sex. And the second statement is this— The Equal Rights Amendment would simply require that men and women be treated the same under the law. In other words, does that interpretation not require the conclusion that this House-passed equal rights amendment admits of no exceptions or limitations whatsoever? 51-146-70-6 |