What's in a Name?
Does it matter how the Equal Rights Amendment is worded?
by Jo Freeman

Posted to Abigails-L and Feminist in June 1996

Recent posts on the wording of the Equal Rights Amendment have assumed that the version introduced by the National Woman's Party is somehow written in stone. Nothing could be further from the truth. The power of the ERA has come more from the ideal it represents than the words of which it is composed. Supporters and detractors, courts and Congresspeople can and do interpret it as they please.
The original version of the ERA stated that "Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction." It was publicly proposed at a major conference held in Seneca Falls on July 21, 1923, on the 75th anniversary of the original feminist Declaration of Principles. Later that fall it was officially introduced into Congress by Rep. Daniel R. Anthony (R. Kan.), nephew of Susan B., and the Senate Republican Whip, Charles Curtis (R. Kan.), both of whom had been suffrage supporters. (Equal Rights, July 28, 1923, 189, Reel 156, NWP papers).
Prior to writing the ERA, the NWP had prepared and proposed to the states what were called Blanket Equality Bills, intended to eradicate almost all sex based laws. Many of the proposals had a "safeguarding" clause in them permitting protective labor legislation, which at that time was strongly supported by virtually all progressive women. In 1921 Wisconsin became the only state to pass one of these, with an exemption for "the special protection and privileges which [women] now enjoy for the general welfare". The enforcement of this bill was discouraging. Prior to its passage state law restricted legislative employees to members of the male sex. When this practice was contested after passage of the Equal Rights Act the Wisconsin attorney general upheld it on the grounds that the long hours legislative employees worked fell under the exemption. (Equal Rights, March 24, 1923, 34; "Unequal Opportunity in Wisconsin", Sept. 14, 1929, 251).
Alice Paul eventually became convinced that changing the laws state by state was intolerably slow; an amendment to the U.S. Constitution would be quicker. The NWP was not originally opposed to all sex-based legislation. It intended the ERA to serve as a means of eradicating laws which restricted women, not those, like hours limitations, that reformers had sought to protect them. Paul knew that "many of our women had helped put through these special labor laws for women" so various wordings of the proposed Equal Rights Amendment were submitted to Florence Kelley, head of the National Consumers' League (NCL) for review. But within the NWP a feminist core argued that protection was simply another form of sex discrimination. Gail Laughlin, a lawyer and first President of the National Federation of Business and Professional Women (BPW), finally persuaded Paul that permitting any sex-based legislation would permit all sex-based legislation that might "appeal to the caprice or prejudice of our legislatures." (Paul oral history, 1972, 406. Goldmark, 1953, 181. Laughlin quote in Cott, 1984, 56-9).
The NWP met with Kelley and leaders of several women's organizations in December 1921 ostensibly to discuss language for the amendment which would exempt protective legislation. Neither side would give in to the other. When Kelley couldn't persuade the NWP to drop the idea, the NCL Board voted to oppose the amendment. Kelley publicly circulated a pamphlet asking "Twenty Questions about the Federal Amendment of the Woman's Party" which was clearly intended to discourage support. The language of the ERA quoted by Kelley is quite different from that finally proposed by the NWP. It reads "No political, civil, or legal disabilities or inequalities on account of sex, or on account of marriage unless applying alike to both sexes, shall exist within the United States or any place subject to their jurisdiction." (Kelley pamphlet of Jan. 1922 in Box 72, Perkins papers, Columbia University).
Although debate continued within the NWP for several months, the overwhelming conclusion of legal authorities was that any version of the amendment would nullify or throw open to question all legislation aimed at women. Therefore, the NWP changed direction. It admitted protective laws would be eliminated, but claimed that such an outcome would be desirable because such laws only limited women's opportunities. Protection should come through trade union organizing, not sex-based legislation.
Although almost all women's organizations opposed the ERA after it was introduced into Congress in 1923, by the late thirties the tide was beginning to turn. Under the leadership of Burnita Shelton Matthews, the National Association of Woman Lawyers (NAWL) endorsed the ERA at its 1935 convention. It was joined in 1937 by the National Federation of Business and Professional Women's Clubs (BPW), whose president at the time was Charl Ormond Williams. BPW was the first large organization to endorse the ERA. In the 1940s the NWP instigated a major campaign for organizational endorsements. It added the sizable General Federation of Women's Clubs (GFWC) to the pro- column in April 1944, making it the first major organization to actually switch sides. Smaller organizations also endorsed the ERA, including service organizations such as the Soroptimists and Zonta, and occupational organizations of women educators, dentists, osteopaths, real estate agents, accountants and physicians. Many NWP activists were founders or members of these groups. (Paul oral history, 440-2. Rawalt, 1983, 52. For decades, the GFWC had worked for protective legislation and had opposed the ERA as a threat to these achievements. In 1934 "a review of the question was ordered through a study program." The study took ten years. Wells, 1953, 202. New York Times, April 27, 1944, 20. The AAUW finally voted against the ERA in 1939, after "studying" it since 1924; Becker, 1981, 224).
After 1936, Congressional subcommittees reported the ERA favorably virtually every year. In March of 1938, the Senate Committee on the Judiciary considered it for the first time, returning it for further investigation after a 9 to 9 tie vote. When the Fair Labor Standards Act was passed by Congress in 1938, and affirmed by the Supreme Court in 1941 (U.S. v. Darby, 312 U.S. 100, 1941), it undermined much of the logic behind special legislation for women. Inclusion of support for the ERA in the 1940 Republican Platform gave it legitimacy. In 1942 the full Judiciary Committees of both houses in Congress voted favorably for the ERA. The Senate Judiciary Committee made an official report in support, while the House Judiciary Committee issued no report, though it voted in favor by 9 to 7. (22 Congressional Digest, April 1943, 106).
The opposition, while weakened, was not without resources. In 1941 Senate opponents expressed concern that the wording of the ERA would be interpreted by the Supreme Court to require identical legislation by all the states, a possibility not likely to endear the ERA even to opponents of state's rights. Alice Paul was not wedded to the wording -- it had just been a tenative proposal in 1923 -- so she commissioned several (male) attorneys to suggest alternatives. Congressional sponsors and other women's organizations also proposed different wordings to achieve the goal of eliminating sex specific legislation and governmental practices. When it became clear that this plethora of possibilities was only destroying the consensus necessary for passage, Paul stepped in with a draft of her own paralleling the wording of the Suffrage Amendment. In 1928 she had added a doctorate in law to her Ph.D. and felt as qualified as any to interpret legal language, though she first had her words approved by the ERA's Senate co-sponsors. The new version read: "Equality of rights under the law shall not be denied or abridged by the United States, or by any State, on account of sex. Congress and the several states shall have power, within their respective jurisdiction, to enforce this article by appropriate legislation." (Pardo, 1979, 105, 116. Paul oral history, 1972-73, 266, 269).
The new wording was quickly approved in 1943 by the House and Senate subcommittees and the full Senate Committee of the new, wartime, Congress, but it ran into problems in the full Judiciary Committee of the House. Under pressure from several Catholic organizations, particularly the National Council of Catholic Women (NCCW) and the National Catholic Welfare Conference, key Congressmen who had large Catholic constituencies reversed their previous support. The ERA was defeated 11 to 15. (Pardo, 1979, 118-9, 123).
It was in the 79th Congress of 1945-46 that two decades of skirmishing over the ERA finally came to a head and the ERA was voted on on the floor of the Senate. Hearings in the House committee were dispensed with in favor of written statements, but were held in the Senate. Both Judiciary Committees reported the bill favorably, the House by 15 to 7 in July, 1945 and the Senate by 11 to 6 in March of 1946. When the Senate voted on the ERA on July 19, 1946, only 38 said yes. This was a majority of those voting but well below the two-thirds required for a Constitutional amendment. It was not necessary for the House to vote. (Vote is at 2 Cong. Rec. July 19, 1946, 9405. 1945 CQ Almanac, II, 568. 25:12 Congressional Digest, December 1946, 299. Pardo, 1972, 127-133).
In January of 1950 the ERA was debated on the floor of the Senate once again. At the end of the debate, Sen. Carl Hayden (D. Ariz.), at the suggestion of the Women's Bureau, proposed an amendment which read: "The provisions of this article shall not be construed to impair any rights, benefits, or exemptions now or hereafter conferred by law upon persons of the female sex." ERA proponents were caught by surprise, and many Senators, whose support for the ERA had been on the record but never very strong, took advantage of the opportunity to vote for both amendments. The Hayden rider passed 51 to 31 and the ERA, thus vitiated, passed 63 to 19. (96 Cong. Rec., Jan. 25, 1950, 872-3. 1950 CQ Almanac, 539. Harrison, 1988, 30-33. St. George oral history, 1979, 38).
History repeated itself in 1953. This time the Hayden rider passed by 58 to 25 and the ERA by 73 to 11. (99 Cong. Rec. July 16, 1953, 8954-5. 1953 CQ Almanac, 386. Harrison, 1988, 35).
When the ERA came before Congress again in 1970-1972 there were further attempts to change its language. A new version was submitted by Martha Griffiths in the House and by Birch Bayh (D. Ind.) and Marlow Cook (R. Ky.) as chief sponsors in the Senate which retained the substantive language but changed the "enabling clauses" that specified how the ERA was to be put into effect. To meet those objections of Sen. Ervin which the sponsors did not feel detracted from the intent of the ERA, they added a seven year limit on the time in which states could ratify, delayed its enforcement until two years after ratification, and altered and removed two phrases from the clause "Congress [and the several states] shall have the power, [within their respective jurisdictions], to enforce this article by appropriate legislation." (S.J. Res. 8 and 9. Rawalt oral history, 765). The seven year deadline for ratification had first been used for the Eighteenth Amendment; it became common in proposed Constitutional amendments after World War II.
On January 18, 1971 Rawalt wrote Bayh and Cook that this language had been approved by NOW, BPW, GFWC, WEAL, NFRW, NAWL, the Ad Hoc Committee, and the D.C. Women's Bar association. She didn't tell them that the NWP disapproved. The NWP wrote its own "Memorandum" which pointed out that the "new" enabling clause had been lifted the 1923 version of the ERA. It was changed in 1943 by the Senate Judiciary Committee to meet objections by the states that they were being asked to surrender all enforcement power to the federal government. The NWP was concerned that State's Rights proponents in the state legislatures would be troubled by the change.
In the two years between the ERA's emergence from hibernation and its passage in 1972 extensive hearings were held to establish a legislative history. This history is what courts look to when they must interpret Congressional language, whether statutes or Constitutional amendments. The final Report of the Senate Judiciary Committee was one of the strongest pro-ERA statements to come out of Congress, marshalling the arguments that had been developed for the past eighteen months to counteract the multitudinous objections. (1972 CQ Almanac, 200. U.S. Senate Report 92-689, March 14, 1972).
During the 1970s, when the ERA was debated in Congress and in the ratification struggle, fifteen states added some form of equal rights provision to their State Constitutions or included it in a general Constitutional revision. Eight use language similar to that of the proposed Federal amendment. Most of the others have clauses patterned after the Equal Protection clause of the Fourteenth Amendment with sex included as a category. Utah and Wyoming already had similar provisions in their original Constitutions when they became states in 1896 and 1890 respectively. Of those states that do not have ERAs, California and Oregon have declared sex to be a suspect class, subjecting it to the same strict scrutiny as racial classifications.
The judicial decisions are highly varied even when interpreting the same language. Washington and Pennsylvania courts have taken a stricter approach than the Supreme Court, striking down virtually all gender-based statutes including ones which excluded women from contact sports dominated by men. Several state Supreme Courts have avoided interpreting their ERA by deciding cases on other grounds or refusing to review them at all. Utah, Louisiana, and Virginia have followed a traditional "rational basis" standard and found virtually all sex-based laws to be reasonable. Several states applied the "strict scrutiny" standard which the ERA was meant to achieve, while others relied on lesser standards, usually derived from the latest Supreme Court language, or did not articulate a specific standard. Thus laws which have been held to violate some state ERAs have been upheld in others. Even in states where the highest court has held sex to be a suspect class, such as Illinois, lower state courts have applied the rule inconsistently with the result that statutes invalidated in one jurisdiction are upheld in another.
Some issues, such as maternal preference in custody cases, have provoked extremely varied responses. The Utah Supreme Court found it "wise" that children should be in the care of their mother. Maryland permits the use of maternal preference as a tiebreaker. But New York, where voters rejected a state ERA, a court held the maternal preference rule violated the Fourteenth Amendment.
While courts acting under a state ERA are not limited to standard equal protection analysis, few have chosen to break new paths. Those with ERAs are likely to apply a stricter standard than those without, but most tend to follow the lead of the Supreme Court. Judges also respond to legislative history, the political culture of their own geographic area, current public debate, and their perception of the customs and mores about proper sex roles. The decisions interpreting state ERAs demonstrate that the courts are not institutions removed from society responding only to legislative dictate and abstract legal analysis. The law is neither static nor apolitical. Instead it is a tool, only viable when it is actively used, and often reflecting the views of those who use it. The changes in judicial attitude of the last three decades have not occurred in a vacuum. They have been as much a response to the women's liberation movement as the many legislative changes have been. Without a strong movement, even the best of words will receive the worst of interpretations.

REFERENCES

Becker, Susan D., The Origins of the Equal Rights Amendment: American Feminism Between the Wars, Westport, Conn.: Greenwood Press, 1981.

Cott, Nancy F., "Feminist Politics in the 1920s: The National Woman's Party", 71 Journal of American History, June 1984, pp. 43-68.

Equal Rights, the official newsletter of the National Woman's Party, published from 1923 to 1954.

Goldmark, Josephine, Impatient Crusader: Florence Kelley's Life Story, Urbana, Ill.: University of Illinois Press, 1953.

Harrison, Cynthia, On Account of Sex: The Politics of Women's Issues 1945-1968, Berkeley, Calif.: U. Calif. Press, 1988.

National Woman's Party Papers: 1913-1974, microfilm, University Publications of America,

Pardo, Thomas C., The National Woman's Party Papers 1913-1974: A Guide to the Microfilm Edition, Sanford, North Carolina: Microfilm Corporation of America, 1979.

Paul, Alice, Conversations with Alice Paul: Woman Suffrage and the ERA, oral history interview by Amelia Fry, Suffragists Oral History Project, Regional Oral History Office, the Bancroft Library, University of California at Berkeley, November 1972, May 1973,

Rawalt, Marguerite, "The Equal Rights Amendment", in Irene Tinker, ed., Women in Washington, Beverly Hills: Sage, 1983, pp. 49-78.

St. George, Katherine, oral history interview by Fern S. Ingersoll, May 10, 1979, Library of Congress.

Wells, Mildred White, Unity in Diversity: The History of the General Federation of Women's Clubs, Wash, D.C.: GFWC, 1953.