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(2) The proponents who envisage and desire absolute identity of legal status. They state that they are willing to sacrifice the advantages they have under the present legal system in return for what they conceived to be vastly greater advantages to be gained under the “identity" policy. They assert that existing protective legislation is in fact for the most part discriminatory.
(3) The proponents who feel that the term "equal rights" does not preclude valid classification under the sovereign's police power. Protective legislation, therefore, need not be disturbed.
The pith of the controversy between the first and third groups would seem to be primarily one of method, for their aims are identical. The position of the third group is not that all present differentiating laws would be sustained, for that, of course, would involve a meaningless and circuitous procedure, but that most of the old discriminations that find their origin in the common law would be erased while advantageous social legislation would survive under the aegis of the doctrine of police power. But assuming that classification would be permitted, it is. problematical whether the line of distinction between the common law and police power would be so ideally drawn.
In addition to those classified above, there are some champions of the amendment who try illogically to straddle the second and third groups or shift from group to group as exigencies may arise. The National Woman's Party, for example, has taken the position that the standard of legislation would be the same for men and women, though maternity laws would not be affected. The turmoil caused by the "shifters" was ably described by Mr. Marvin Harrison during a committee hearing in 1915 :
“I have never yet heard a person say frankly whether this would or would not definitely wipe out all laws which
discriminate against women I am willing to debate it
on either thesis, but if you meet them on one, then they duck on the other.”
It is impossible to estimate the number of proponents who would definitely fall into the third group, but the literature on the subject indicates that it is substantial. It would be useful to know how many of them woulibandon their espousal of the cause altogether if they were convinced that the predictions of the second group were more apt to be realized.
If it could be assumed that no classification is contemplated by the mandate of the amendment, then the judgment estimates would be relatively simple. This would be a matter of estimating the net benefit of complete identity of legal status, as diminished by the loss of existing advantageous laws and the protracted litigation and confusion necessarily involved in reaching a stable situation.
If it could be assumed that classification will be permitted, it would be exceedingly difficult to equate the competing considerations, for their values would be immeasurably obscured by the uncertainty of the extent to which classification would be permitted. It can be said at least that the factors of litigation and confusion would be geometrically multiplied and the factor of identity of status would be diminished. Even so, the issues would be less formless under either assumption than they actually are under present circumstances, since neither assumption can validly be made.
Fortunate, indeed, would it be if it were possible to have a preliminary judicial interpretation of the amendment before submitting it to a vote, for there has otherwise been little intimation of the legislative intendment either in the terms of the amendment, in the committee reports, or in the congressional records. Be it noted that in the nature of things the big gamble lies in the fact that the issues cannot be thus resolved until the adoption of the amendment is a fait accompli, when the discussion of the relative merits is necessarily academic. B. The desirability of special legislation for women
It is not the purpose of this discussion to weigh the merits of various special women's laws, but only to call attention to the fact that in each instance there is room for honest differences of opinion, and that these differences further complicate the controversy over the equal-rights amendment. The generic term "protective," which has been applied to this type of legislation, could easily embrace remedial social legislation of every type, including statutes declaratory
18 See (1943) Congressional Digest 103.
19 Mr. Paul Sifton commented during one of the hearings in 1945. “The courts usually refer to the reports of congressional committees and to hearings before such committees it they wish information as to the meaning and intent of legislation. But in this case, they would find no guidance whatever in these records, since the leading advocates disagree as to the purpose and effect of the amendment."
of common-law precepts favoring women, as, for example, dower rights. However, the term is used primarily in reference to labor legislation, for it is less apparent that this body of law in fact protects women. Social-security and workmen's compensation laws, discussed above, along with certain of the surviving common-law distinctions, are generally conceded to discriminate in favor of women, but the proponents of the strict, or absolute, interpretation of the amendment are willing to forego these advantages.
The most familiar brief for “protective” legislation is the obvious one that since women fulfill a function vital to the hardihood and mental and moral stamina of the human race they should be protected from the hazards and enervating effects of long hours, night work, low pay, and dangerous surroundings. It has also been pointed out that legislation is the most effective specific, since women do not yet have sufficient collective-bargaining power to enable them to achieve and maintain proper work standards.
On the other hand, it is argued that the existence of many “protective” labor laws can be explained on a historical basis. It was generally assumed that certain protections were desirable. There were a number of reasons why such legislation developed for women only. In the first place, men worked to improve their standards through union action. Early legislation regulating hours of work for men in particular trades met with an unfavorable reception in various courts on the ground that it was a violation of their inalienable right to freedom of contract, under the fourteenth amendment. Early protective legislation for women was upheld on the basis of women's special place in society and the importance of the maternal function to the welfare of the race. Protective legislation therefore obtained a foothold in this country as applying to women only. As a result, laws for women were an effective spearhead for reaching the ultimate objective of the application of such laws to both men and women. Later deci. sions, discussed above, have upheld the constitutionality of protective legislation as applied to both sexes. However, the technique suggested is bottomed on wisdom born of hindsight, and it would seem doubtful that it was solely responsible for the early protective legislation.
The most cogent argument against protective legislation lies in the competitive advantage it affords to men in seeking and holding jobs. Employers prefer to hire men in order to avoid the inconvenience and expense imposed by laws that specify working conditions for women, prescribe split shifts, require rest periods, special safety devices, and so on. It is also urged with some force that if such protections are beneficial for women they are equally so for men, though the argument overlooks the point that the protections may not be needed so urgently for men. C. Inherent weakness and possible loopholes
1. Classification and the police power.-It has already been demonstrated that speculation as to the permissible limits of the use by the legislatures and courts of the versatile devices of “reasonableness," "police power," and "public policy" has been largely soft-pedaled by the supporters of the amendment. In view of the real possibility that invocation of these concepts could virtually vitiate the policy of the measure, it seems incredible that this aspect of the debate has not been more fully emphasized by the opponents. This oversight may be ascribed to the feeling that no court could reasonably place an interpretation upon the amendment that would place the proponents in the position of doing a useless thing. As Paul Freund has said :
"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 differentiation, 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 classification while prohibiting arbitrary legal discrimination.”
20 See also, United States v. Darby (312 U. S. 100 (1941'), upholding the Federal Fair Labor Standards Act of 1938.
21 See Phillips, The Equal Rights Amendment to the Federal Constitution (1946), 20 Conn. B. J. 65.
22 Obiter will not be lacking to the conscience of the courts. E. g. : "That the fourteenth amendment was not intended to and does not strip the States of the power to exert their lawful police authority is settled.
a wide scope of legislative discretion may be exerted in classifying without conflicting with the constitutional prohibition." Louisvillo & N. Ry. v. Melton, 218 U. S. 36, 52 (1910). See also Rowland v. Moors, 152 Ga. 842 (1922); People v. LaFetra, 230 N. Y. 429 (1921)).
2. Discriminatory laws not based on sex.—The amendment interdicts the elenial of equal rights “on account of sex.” Let us consider, for example, the validity of laws prohibiting the employment of married women. Might tbey not be sustained on the basis of status rather than sex? The fact that single women would not be affected would lend some credence to the justification of the classification. With courts so reluctant to examine into the motives for classification by legislatures, might they not sustain such a denial of equality on, for example, the economic ground of financial dependence? Other judicial techniques readily occur to mind, suggested, perhaps, by the history of the fourteenth and fifteenth amendments. The pature is clearly depicted by Catherine J. Tilson, member of the Connecticut bar:
"In the light of the failure of the fourteenth amendment to accomplish for the Negro what its framers intended, it is not unreasonable to eye suspiciously another such experiment. There is likelihood of a repetition of disappointment.
It is the concurrent possibility of actual retrogression that tips the scales against the measure. The Negro had much to gain, and nothing to lose, by the adoption of the fourteenth amendment. The equal-rights amendment involves a "two-way stretch."
3. Content of “Rights”.—The task of determining the intended content of the term "rights" is not a new one to the courts, since it occurs frequently in the Constitution. That it has occasioned considerable litigation thus far and will continue to do so is not in itself a conclusive argument against the adoption of the equal-rights amendment, though it is persuasive. It is apposite here only as illustrative of an added means by which the lawmakers and the courts can effectively restrict the operation of the amendment. There can be, of course, an important difference between the actual intendment of the amendment and the final interpretation that a court may choose to read into it.
It should be borne in mind that this aspect of the subject is distinct from the consideration of whether the expression “equal rights” connotes “identical rights." The problem of defining a right will still remain.
Definitions of numerous "rights" will necessarily have been crystallized by earlier decisions involving the Bill of Rights and subsequent constitutional amendments and it may be presumed that those privileges and immunities which have already been defined under the fourteenth amendment will be included in the term. But since most of the offending inequalities have been peculiarly applied to women, they have not been tested in terms of “rights." The uncertain judicial process of shaping concepts in accordance with the legislative intent and the supposed needs of society—a process still continuing under the fourteenth amendment-may well result in meager returns for the extensive and costly litigation and the prodigious efforts expanded in behalf of the equal-rights amendment.
The late Justice Holmes once stated: “The word 'right' is one of the most deceptive of pitfalls." Definitions prove little when used out of context. A right may be, for example "that interest which a person actually has in any subject of property, or, as Webster more broadly defines it, “a power, privilege, or the like.” Hohfeld suggests a corresponding duty for every right," a clearly unsatisfactory approach to the problem on hand.
Consider, for example, the tortuous twisting of concepts that would be involved in determining whatever tangential effect the amendment was intended to have on the common-law presumption that a wife is acting under the husband's com
23 The fifteenth amendment has been successfully circumvented by the use of poll taxes, requirements of knowledge of State constitutions, property requirements, and the like. The Supreme Court was not constrained to rule that these effectual disfranchisements of the Negro were "on account of race, color, or previous condition of servitude.” See, e. 8., Breedlove v. Scuttles (302 U. S. 277 (1937)). "The subject is discussed in (1946) 20 Conn. B. J. 66. 71.
24 Ibid. The author glibly footnotes, "The observing reader will discover that this state. ment is not without foundation."
25 It is significant that the rights protected in the first eight amendments of the Bill of Rights are specifically enumerated therein. The "certain rights" referred to in the ninth amendment refer to these rights collectively. The fifteenth and nineteenth amendments expressly protect the right to vote. Courts have found comparatively little difficulty in interpreting these provisions. However, an endless succession of cases involving definitions followed in the wake of the fourteenth amendment, whose broad terminology so strikingly resembles that used in the equal-rights amendment. (See e. g., Davidson v. New Orleans, 96 U. S. 97 (1877).)
28 Haskins v. Ryan (71 N. J. Eq. 575 (1906)) (copyright case).
27 Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning (1913) (23 Yale L. J. 16, 30). The author states : "The strictly fundamental legal relations are, after all, sui generis, and thus it is that attempts at formal definition are altogether unsatisfactory, if not altogether useless."
pulsion if she commits a tort or felony in his presence. Would it be a man's "right" to have women subject to poll taxes? In eight jurisdictions they are presently levied on men only. In practically all jurisdictions, road taxes are assessed only on male citizens. How would the amendment affect the ruling in a recent Pennsylvania case which adhered to the common-law rule that only a woman is indictable as a common scold? 29 Other instances that can obscure the contours of the purview of the equal-rights amendment are legion.
The ambiguity threatens endless years of juggling with abstruse verbalisms in the courts with no assurance that the expectations of the proponents will not be substantially thwarted.
4. Status to be adopted-men's or women's?—The perplexing problem of whether men's or women's status is to be adopted will be presented by every law that has been adjudged to be discriminatory. In each instance, of course, there must be a preliminary determination that a "right" is involved. Then, if reasonable classification is permissible, it will be necessary to determine whether the discrimination is nonetheless to be left undisturbed. If the answer is in the negative, proponents may well suffer defeat at the third hurdle, for there is no assurance that the solution will not be reached by denying the supposed rights to both men and women, rather than by providing women the advantage theretofore enjoyed by men. Women, too, might lose advantages if the legislation under consideration favors them over men. It seems reasonable to suppose, for example, that the employer class would resist legislation that would impose requirements on them for the protection of both men and women.
A convenient illustration is presented by present divorce laws. In 19 States a wife may obtain a divorce when her husband has failed to support her for a specified length of time, whereas he may not obtain a divorce because of his wife's neglect to support him even if he be in need. Assuming that such a law cannot be justified on the basis of reasonable classification, the question posed is whether the grounds shall be made available to the husband or denied to both.30 The wife cannot benefit in either case.
In conclusion the equal-rights amendment has the commendable objective of removing inequitable features of the law which concededly deprive women of a status equal to that of men. As a broadly framed panacea for an exceedingly complex problem it falls far short as a guaranty of the objective and represents a certain threat of confused and limitless litigation which could result in a net loss for women after its policies have largely been determined. The loss will be augmented to the extent of whatever progress could have been made in the meantime under the policy of meeting "specific ills with specific bills.”
No amount of legal theorizing can overcome the fact that women and men have fundamental differences that must be recognized in prescribing rules of conduct but it can obscure the fact that "identity” is not coextensive with "equality.” Not only can there be equality without identity, but the latter excludes the former by ignoring essential differences in the subject matter of legislation. As Justice Felix Frankfurter so pitbily remarked, "the Women's Party cannot amend nature.”
Speculation as to the chances for adoption of the amendment is made difficult by the intricacies of political procedures. It is quite obvious, for example, that the support for the eighteenth amendment was given by many States without an adequate consideration of its consequences. It is conceivable that that equalrights amendment could likewise be foisted upon an unsuspecting electorate and that it, too, will be virtually nullified when exposed to the rigors of practical enforcement.
Mr. Reed. Thank you, Mr. Roach.
Mr. CHADWICK. Mr. Roach, will you indulge me just a moment? Only the last paragraph of your statement opens the subject which gives me more present concern than the relative desirability of the two acts or the very able professional arguments you have made with respect to the difficulties that might be foreseen as a result of this amendment.
28 See, e. g., Morgan v. Kennedy (62 Minn. 348 (1895)).
39 An amusing speculation is presented in the problem of determining whether a woman has a "right" not to be indictable as a common scold unless a man is subject to the same liability. See note 29 supra. It is unlikely, of course, that the distinction would be upheld as a reasonable classification in the light of common experience, though less tenuous theories have been successfully urged.
It seems to me that the problem as is presented to us at this stage is to determine not whether we individuals believe that this amendment for instance is happy or unhappy or likely to be practical or impractical, but whether or not the committee should submit it to the Congress with the view that the Congress in its wisdom by two-thirds majority would submit it to the States. It is to that aspect of it that my mind presently applies itself.
I share professionally a great many of your questions about the possble connotations of this amendment; but it seems to me that that is an argument I might make to the legislature of my own State but not necessarily to the committee of the Congress.
Will you give us the advantage of your thinking on that, or give me the advantage of it?
Mr. Roach. I think I understand what you mean. You are defining the function of this committee and trying to avoid any argumentative approach to it.
I am afraid the tendency at this level in testifying before a committee of this nature is to phrase the points in an argumentative fashion for what they are worth. I do not know that it is particularly valid to point out that an amendment of this sort might be accepted by the people unwittingly. Perhaps you are suggesting that I implied that the thing might be railroaded, so to speak, to the people to satisfy the desires of the legislature. I do not think that is the point. I think that the point I tried to make, and I may have failed to do so, is that the phraseology of the amendment itself is very innocuous. It looks very appealing and it is apt to be accepted by the people of this country without thinking of its real potential consequences, its undesirable consequences. That is why I think that the women's status bill is such an attractive proposition because it has something besides practical machinery in its contemplation; it should have great educational value both as to the legislatures in the State level and the people of the country itself. I do not know whether I have answered your question or not.
Mr. CHADWICK. No; as a matter of fact, you make it more difficult because, giving direction to my question, is it a proper consideration, in your opinion, for the Congress of the United States to either submit an amendment based on any suggestions by you, doubts of the ability of the States to deal with questions at their level?
Mr. Roach. Well, with whatever discretion I can use, I think that is a dangerous question to try to answer. It involves politics.
Mr. CHADWICK. It involves Government, sir.
Mr. Roach. It involves Government and I think we must concede that the operation of Government involves politics. I think that if you have a sincere belief in a point of view one way or the other, that within the grounds of propriety it is valid to put it on any basis you can which will help you reach that objective. It is the old question of the end justifying the means.
Mr. CHADWICK. That is all right from your side of the table; but how about our side.