At any rate, Congress passed this law. It has been sustained as a matter of fact, by the second circuit court of appeals in 1968 in a case called Gruenwald against Gardner.

I take it that under the equal rights amendment that differentiation would have to go.

Now, whether then men could retire at 62 like women, or women would have to wait until 65, or the difference would be split and both could retire at 63 or 64 would be up to Congress, or if Congress overlooked the matter then the Supreme Court would have to decide which way to go.

Personally, I am not moved by this differentiation to think that it calls for a constitutional amendment, and I wonder how a Congress which passed it only a few years ago could now feel so outraged that. it was calling on three-fourths of the States to tell it that it has to change that law. If it is outrageous, let Congress-let's change it tomorrow, but I would, myself, doubt that that kind of sentiment could be found if you faced this issue for what it is.

Senator ERVIN. And it could be changed by much simpler action by Congress because Congress would only require a majority of a vote to change any of these laws that makes a distinction deemed invidious by anybody between men and women, whereas the constitutional amendment would require two-thirds of both Houses of Congress plus, as pointed out in Mrs. Wolfgang's testimony, 75 or 76 legislative bodies in 38 States?

Mr. FREUND. Yes. I might just say for the record the citation to the second circuit court of appeals decision is 390 Fed. 2d, 591.

Senator ERVIN. During the course of my statement on the floor with reference to this amendment I stated that the amendment would require the Supreme Court to sail without any chart or compass to guide it to the final port of destination, and that is not too far wrong with that appraisal.

Mr. FREUND. Well, I think that is right. When you face a problem like this of differential treatment, (a) how can it be sustained; and, (b) since it cannot be sustained, which way shall the court move in order to achieve equality in a case where it seems to me there is no real urgency or even conscientious feeling that an injustice is being corrected.

Senator ERVIN. I want to thank you on behalf of the Judiciary Committee for your appearance and, for the very good comments you have made on this House-passed equal rights amendment for the country.

Mr. FREUND. Thank you, Senator.

(The biographical sketch of Mr. Freund follows:)

Charles Stebbins Fairchild prof. 1950-57; Royall professor law, Harvard University, 1957-58; Carl M. Loeb University prof. Harvard, 1958- ; Pitt prof. Am. History and Institutions Cambridge U., 1957-58, fellow. Trinity Coll., 195758. Mem. adv. com. Civil Liberties Union, Mass.; dir. Salzburg Sem. American Studies. Trustee Washington U. Fellow (American Academy of Arts and Sciences (past pres.), member Am. Judicature Soc., Mass. Historical Society, American Philosophical Society, American Bar Assn., American Law Inst. Acad. Polit. Scl. Am. Acad. Polit. and Social Sci., Signet Soc. Phi Beta Kappa, Pi Sigma Alpha.

(Whereupon, at 1:20 p.m. the hearing was recessed to reconvene on Thursday, September 10, 1970, at 10 a.m.)

EQUAL RIGHTS

THURSDAY, SEPTEMBER 10, 1970

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The committee met, pursuant to recess, at 10:15 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, presiding.

Present: Senators Ervin (presiding), and Cook.
Senator ERVIN. The committee will come to order.

The first witness is Prof. Philip Kurland of the School of Law of the University of Chicago who in the estimation of the Chair is one of the greatest constitutional lawyers in America today.

We are delighted to welcome you to the committee. We appreciate, very much, your willingness to come and give us the benefit of your views on this proposed constitutional amendment.

STATEMENT OF PHILIP B. KURLAND, PROFESSOR OF LAW, THE UNIVERSITY OF CHICAGO

Professor KURLAND. Thank you very much, Senator. I am honored by the committee's invitation to appear before it today. I am, however, dubious that I can materially contribute to a solution of the problems confronting you. I come with questions and not answers. My bias should be made clear. I am satisfied, though I cannot provide the committee with documentary evidence, that women in this country suffer from unreasoned discrimination against them in many phases of their lives, not least in the sphere of employment. I am anxious to help diminish such unjustified discrimination. But I am not sure that the proposed constitutional amendment offers a realistic means for bringing about such a result.

My doubts may be based in part on my personal notions about constitutional amendments. I think that they are clearly the best means of bringing about changes in governmental structure. I think they offer an appropriate means for reversal of constitutional construction by the Supreme Court. I think they may be the necessary means for protecting minorities from imposition by majorities and the unenfranchised from imposition by the enfranchised. But women are neither a minority nor unenfranchised. And this would suggest to me that the most appropriate means for securing the desired results on their behalf would be by way of appropriate legislation rather than constitutional amendment.

(87)

The answer which this committee is considering, however, is an amendment to the Constitution. House Joint Resolution 264 has already passed the House by an appropriate majority. Its provisions also seem to have been endorsed, if not finally, by the necessary majority of the Senate. Such an answer is in keeping with much of the temper of our times that demands instant and simplistic solutions. to complex problems, that assumes that the cure for such problems is the utterance of the magic word "equality," and that the proper governmental agency for effecting the cure is the judiciary. All three of these contemporary attitudes I think are represented in the House Joint Resolution 264.

I don't think the answer is that easy, much as I wish it were.

The arguments against the amendment, putting aside that of the enlightened who would endorse the notion that the only proper place for woman is as helpmates for men, are four.

First. It is contended that in light of the newly expanded meaning of the equal protection clause of the 14th amendment, there is no need for further constitutional provision to protect women against invidious discrimination. And it is clear that, to the extent the proposed amendment authorizes legislation by Congress and the States, no addition is needed. Section 5 of the 14th amendment plus the commerce clause gives the Congress an almost unlimited reach in commanding equality between the sexes. There are no inhibitions on State legislatures that would prevent them from doing the same except for the concept of preemption by either Federal legislation or the commerce clause. The question remains, however, whether the equality talked about by the Court in construing the 14th amendment is the same equality as is the subject of the proposed amendment. And only if the answer to that question is in the affirmative; does the proposed amendment become redundant? The ambiguity of meaning of the proposed amendment does not make clear its equation with current equal protection clause doctrines.

Second. It is argued that the proposed amendment will raise a myriad of legal problems involving such matters as family law and decedent's estates to the status of constitutional issues that will have to be decided by a Supreme Court already unduly burdened with an unbearable load of constitutional business. The answer offered to this argument is that any fundamental change in the social structure of our society to be brought about by constitutional amendment will necessarily place such a burden on the Federal judiciary. The Court itself has shown no reluctance to add similar social issues to its docket. Insofar as more important matters make claims on the Court's jurisdiction, it remain within the discretion of the Court to decide which cases it will decide. And again, the extent of the burden may well depend upon the clarity of purpose and meaning of the proposed amendment. The more ambiguous it is, the greater the problem of constitutional adjudication will be.

Third. It is said that the proposed amendment will invalidate a host of State laws enacted not for the purpose of discriminating against women but with the objective of favoring them. One can readily see the difficulty of determining whether a law favors or discriminates against women. For example, my classical economist friends would say that laws protecting women against overtime work and night work

do not in fact favor them because these laws place woman at a competitive disadvantage in the employment market. In any event, the question of the extent to which laws classifying on the basis of sex would be invalidated would again depend on the meaning and purpose of the proposed amendment.

Fourth. It is suggested that the proposed amendment seeks not equality of the two sexes before the law but identify of them. And surely the elimination of differences between men and women cannot be obliterated by constitutional fiat. And so far as I know, the current state of knowledge of the biological sciences is not yet adequate to bring this about as a fact. But once more we are thrown back to the question of the meaning.

It is evident that the language of the proposed amendment is itself too barren to provide sure answers to these objections. It simply provides that: "Equality of rights under law shall not be denied or abridged by the United States or by any State on account of sex." With all due respect to the Chairman's statement on the floor, I think the difficulty here is not in the construction of the word sex but rather from the use of the word equality.

It was almost a century ago that Sir James Fitzjames Stephen, in his book, "Liberty, Equality, and Fraternity," asserted that "equality' is a word so wide and vague as to be by itself almost unmeaning." I submit that nothing that has happened in the intervening years has done anything to make it more specific.

It seems to me, therefore, that it is incumbent on Congress unless it wishes to leave the matter wholly in the hands of the Federal judiciary to attempt to define, to the extent that it can, what it means by the word equality as it is used in the proposed amendment. It can do this in two ways. The first and better way would be to write its meaning into the language of the amendment itself. Certainly this is a difficult undertaking. And perhaps the political situation being what it is, Senators and Congressmen may well believe that it is the greater part of wisdom not to risk the costs of delay in the preparation of the amendment. I would remind them, however, that constitutions are not written for the moment. Henry Clay once said on the floor of the Senate, admittedly with some hyperbole, that constitutional provisions are "not merely for the generation that then existed, but for posterity-unlimited, undefined, endless, perpetual posterity." Perhaps, then, it is worth the cost of delay to present an amendment the meaning of which is as clear as it is in the power of Congress to make it.

The alternative to careful drafting of the amendment itself is the careful preparation of the legislative history, primarily by the way of the report of this committee to the Senate. This is no certain cure for the defects of ambiguity. The resort by Justices of the Supreme Court to the legislative history behind the Reconstruction amendments makes clear the dangers of this game. Legislative history will as frequently compound the confusion as resolve it. Nevertheless, if this is the only open road, it must be taken.

The essential question then to be answered by this committee's report then, if nowhere else, is what it understands to be the meaning of equality as used in the proposed amendment. Again I say this is no easy task. Hints may be found in some dicta of Mr. Justice Frank

furter in his construction of the Equal Protection Clause of the 14th amendment. In Whitney v. Tax Commission (309 U.S. 530, 542 (1940)) he said: "The Equal Protection Clause was not designed to compel uniformity in the face of difference." And during the same term, he announced in Tigner v. Texas (310 U.S. 141, 147 (1940)): "The Constitution does not require things which are different in fact or opinion to be treated by the laws as though they were the same." It was his belief, as stated in Dennis v. United States (339 U.S. 162, 185 (1950)) that "there is no greater inequality than the equal treatment of unequals." And it was Mr. Justice Holmes who told us that: "The Constitution is not to be satisfied with a fiction." (Hyde v. United States, 225 U.S. 347, 390 (1912).) I should think that these statements would provide a clue for the meaning of the word equality in the context that it is to be used. Governmental distinction between males and females must be justified in fact before it can pass muster under the proposed amendment. If the distinction is based on reason, then the legislation should be presumptively valid. The mere fact that there are two sexes is not reason in itself for distinguishing between them in legislation. On the other hand, that a distinction is drawn between them in legislation should not be sufficient to invalidate the law. It may be said that this is already the command of the Equal Protection Clause. And it may well be. But there are cases that suggest this is not true. Nor has such a clear doctrine emerged from the Supreme Court's Equal Protection cases as to make this construction certain.

There are other questions to which the committee should address itself, questions revealed by recent Supreme Court cases and others on their way to adjudication in that tribunal.

One question is whether the proposed amendment would tolerate in certain circumstances a doctrine of separate but equal facilities. Certainly there are still some, however old-fashioned, notions of privacy that might properly evoke the use of such a rule.

A second area of concern should be to what extent does the amendment by its terms condemn only governmental action and when does private action become government action for purposes of the amendment. Still further, to what extent is it contemplated that the authorization for legislation contained in the proposed amendment is to be restricted by a limitation to "state action?"

Finally, the committee might like to speak to the issue whether the proposed amendment contemplates legislation authorizing compensatory discrminiation or benign quotas. This necessarily involves the problem of what constitutes proof of discrimination and the problem of remedies. Should it be enough, for example, to show that the ratio of male employees to female employees at the executive level in the Department of Labor or the Department of Health, Education, and Welfare is not in the same proportion as men to women in the population at large? If proof of discrimination is made, what are appropriate remedies for its elimination?

When the time comes for the Supreme Court to look to the legislative history of the proposed amendment to aid it in providing answers to these questions, the answers should be there for them to find.

Let me turn to the proposed alternative in Senate Joint Resolution 231. It must be apparent that the Senate proposal answers more of