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When a man is killed in industrial employment, many States make it extremely easy for a widow to prove her dependence upon her husband so as to facilitate payment of workmen's compensation.
This special concern over the plight of widows which existed in the time of Hammurabi, and which appears repeatedly in expressions of solicitude by lawgivers throughout the Bible, did not arise from any silly or mawkish sentimentality. It arose out of a realistic understanding of certain facts. These facts are simple and stubborn. A widow is vastly less able to care for herself and her children than a man of the same age.
That was true 5,000 years ago. It is true today.
Unless the law can deal appropriately with these simple and stubborn facts by discriminating in favor of widows, then the law is most certainly in the hard language of Charles Dickens' Bumble, "an unmistakable ass."
SUPPORT FOR WIVES AND MINOR CHILDREN
Here again, it is necessary to deal honestly and frankly with the facts of lifethe facts of family life.
Can anyone in his senses argue seriously that there is no real difference in the duty of support owed to their families by men from that owed by women?
And is there any doubt that the law may properly impose different duties on the one than on the other?
Unless we are prepared to abandon completely the concept of the family as our basic sociological unit, it is inevitable that the law must create and enforce different obligations upon the husband and father than upon the wife and mother.
Men and women may and should stand equally as voters.
But it is nothing less than a retreat from all reason and common sense to pretend that there is equality of rights as between the breadwinner who deserts his family, and the pregnant wife who is deserted.
The law of almost every State imposes the duty of support of the family upon the husband; and the right of support in the wife. For example, in a typical industrial State (Ohio) the matter is stated thus:
"Section 7997, General Code: Duty of husband to support family. The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able."
There are similar provisions as to the husband's primary liability in the law of every State in the Union. And if this amendment is adopted, it would seem that every one of them must be expunged from the law.
The proponents of the amendment have suggested that in place of this old, old law that a husband should support his family and that the law may properly discriminate in favor of women in order to enforce this duty, we should have a new law under an equal rights amendment, to the effect that each spouse is under a duty to support the other. Which (for its obvious silly fatuity) brings to mind the famous statute which was once introduced in the Kansas legislature, and which related to the right of way of trains at an intersecting railroad crossing. The law provided in substance that when two trains approached the crossing at about the same time, each of them should stop; and neither of them should proceed until the other had gone.
So long as our modern society rests upon the family, there must be special obligations upon the husband and father to support the wife and the children; and any constitutional amendment which makes that duty ambiguous or which prevents the arming of that duty and that right with legal sanctions is ridiculous and intolerable.
PROTECTION OF WOMEN AGAINST SEX OFFENSES
Our laws everywhere punish those persons who entice or coerce women into houses of ill fame.
Our Federal statutes (the Mann Act) prohibit and punish the transportation of women across State lines for immoral purposes.
Rape, whether with or without consent, is everywhere punished as a crime against women.
In short, the law universally regards the sexual protection of women and particularly young girls as a matter of enormous social concern.
Should it be otherwise?
To use one State as an illustration (Ohio) of what can be substantially duplicated in all other States, we find the following statutes which discriminate in favor of women to provide for their protection. (All references to the Ohio General Code.)
Section 13026. Punishing seduction under promise of marriage.
Section 13027. Punishing the keeper of a house of ill fame who detains female inmates.
Section 13028. Punishing any person who gives intoxicants to young girls in order to secure sexual intercourse.
Section 13029. Punishing any person who entices a girl under 18 years of age into a house of ill fame.
Section 13031. Punishing the use of force or threats to coerce any woman into a house of ill fame.
Section 13032. Punishing the use of indecent language in the presence of women or girls.
Section 12413. Punishing the crimes of rape.
Section 12414. Punishing the crime of rape with consent, and fixing the age of consent for women.
Section 13382. Punishing the slander of chastity of any women.
Is there anyone who believes that all of these statutes should be expunged? Or that some laws can be substituted which make no distinction in the rights and duties between men and women?
THE QUESTIONS OF DIVORCE AND ALIMONY
In a good many States, the failure of a husband to support the wife and family is a valid ground for divorce.
That, of course, is a good illustration of a legal discrimination in favor of women.
Should it be rendered nugatory by the adoption of the equal-rights amendment? Generally speaking, the divorce and alimony laws are weighted heavily in favor of women and against men,
And that, in turn, is based upon a realization of the obvious fact that when a home is broken up by divorce or legal separation it is proper to throw the greater share of the burden of support upon the man than the woman.
Should the law be otherwise?
It is comparatively easy for a man to make his way and make his living and comparatively difficult for a woman. When there are little children involved. should the law be impotent to compel the father to continue to support them, no matter what factors have brought about the separation ?
The rights and welfare of little children should not be made to depend upon theoretical equal rights. They must get support from their father, because he is the one who in our modern society can best provide it.
This may not be equal rights but it is good common sense.
THE PROTECTION OF WOMEN WHO WORK IN INDUSTRY
(a) With reference to minimum wages.
Most of the proponents of this amendment admit freely enough that all of the protective legislation for women in industry will be wiped off the books if the amendment is adopted.
But they have a ready and cynical answer.
Let us substitute new legislation which will protect both men and women, and thus avoid all discrimination either for or against women.
To this suggestion there at least two complete answers.
In the first place, with the existing protective legislation scrapped, it is highly uncertain when or whether it can ever be replaced if it must be enlarged to include all men within the range of similar protection. It has taken a good many years to secure enactment of the laws that we have. Must we wait again for a long, long time to secure new legislation?
But secondly, and more important, it is difficult to write protective industrial laws which are suited for both men and women.
It is true, or is it not true, that a young girl is less able to endure long hours of work with safety than her brother?
It is true, or is not true, that her body is less equipped to lift and carry heavy weights than his?
Medical authorities are in substantial agreement on this basic fact, that on the average, women in industry cannot safely endure the physical strains, or fatigue, or long hours, or heavy work, or occupational hazards that men can undertake without harm.
Are we to write in our basic law an amendment which will prohibit valid distinctions and discriminations in the law, which are based upon these stubborn facts?
The laws which seek to provide, in more than half of our States, for a decent minimum wage for women were secured as the result of over 25 years of unremitting effort.
Must all of this go down the drain because of the equal-rights amendment?
The proponents of the amendinent reply that men and women should both have minimum wage guaranteed. Very trie. Four States have recently amended their laws to include men in coverage.
But no one can tell how long it will take to induce all the other States to amend their laws. Shall we leny to women workers in these States the help which the existing minimum wage laws provide for them unless and until the same protection is provided for men? More women, particularly young women, are employed in the service trades than men, as chambermaids and waitresses, as workers in laundries and stores-all traditionally low-paid jobs.
Are we to say that a State is powerless to pass laws to set a floor for wages of these workers, most of them unorganized, unless and until the State enacts a law for both men and women?
All but five States in the United States have on their statute books laws limiting hours for women's employment. A major proportion of women workers are young women employed during the years preceding marriage and childbearing. Over-long hours and extended night work is particularly dangerous for them.
There are many State laws which require seats for women who work in stores, other laws which provide for rest periods, or which limit the weight of objects which may be lifted and handled, or which prohibit employment under conditions regarded as dangerous to the health of women.
These laws represent a sensible, honest, realistic approach to the real facts of the situation.
As was said by Mr. Justice Holmes in his famous dissent (Adkins v. Hospital, 261 U. S. 525, 570, 19922) :
“It will need more than the nineteenth amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account.”
The proponents of the equal rights amendment insist that Mr. Justice Holmes was wrong, and that there are in fact no differences between men and women which legislation can deal with.
Our Constitution ought not be amended merely because the proponents of a change bave armed themselves with a good slogan. Yet that is the principal strength of the campaign for the equal rights amendment, and it is an astonishing tribute to the power of a good slogan that a proposition as inherently and obviously absurd as this proposed amendment can command any serious support.
"Equality” is itself a word to conjure with. And when that sacred word is hitched up to another to create a phrase "equal rights for women” we have a phrase that sweeps almost everything before it.
The plain truth is that in order to have a paper victory under a sham slogan there are many women who are quite willing in one moment to destroy the protectire devices that have built out of generations of hard work and patient endeaver.
No one can deny that equal rights for women has a persuasive and seductive sound. But it reminds one irresistibly of other empty and spurious rights and liberties. It was Anatole France who summed up a somewhat similar situation in his famous dictuin and with devastating irony:
"The law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to bet in the streets, and to sical bread.”
And when this amendment is adopted the law in its majestic equality will guarantee to all persons the equal right to work long hours, to perform bonecrushing work, to incur hazards of illness and bodily injury, and in times of sickness, old age, or bereavement to support themselves and their children in their own misery.
This is the spurious equality which is proposed by the equal rights amendment and from which we trust the good sense of the Members of this Congress will protect us.
Mr. HARRISON. It seems to me, and perhaps I ought to preface what I was about to say by facetiously referring to the statement I understand was made here Wednesday that everybody who is on our side of the fence is either a Lady Bountiful, which I can disclaim in a moment, or having been an original “aginner" against the equal-rights amendment so far as suffrage is concerned, or a Communist.
Now I can think even I can disclaim all of those with entire success. As a matter of fact, years ago I spent a good deal of my time stumping for the suffrage in Massachusetts when it was a State matter and later doing what little any private citizen could do to promote the amendment itself so that I am not approaching this as an “aginner” but one who all my life has believed in equal rights.
But it seems to me that it is extremely difficult to find any valid justification for this amendment and I start out with three very simple propositions. I do not think that any one of us will dispute any one of them.
First, the Constitution ought not to be amended for trivial reasons. It ought not in any case to be amended so that the verbiage or terminology used is capable of such serious misunderstanding that litigation is not only invited but guaranteed; and, finally, it ought not to be amended if the net results are going to be such that the evils that accompany it are worse than the gains.
Now, on each and all of those three very simple propositions, it seems to me that this proposed amendment represents almost everything that an amendment should not be. By equal logic, perhaps, at any rate I do not want to pass the opportunity to say that I am emphatically for the women's status bill. I come from Cleveland and I notice that one of your members asked this young lady who comes from the post office whether the complaints they made so eloquently here today had ever been made in Cleveland, and I do not want to pass the opportunity to answer that, but just by reading the newspapers that I know that those girls have raised hell in the city of Cleveland as far as I would know it is possible.
I had always thought of Cleveland as a liberal city and I am shocked to learn today that Boston and Philadelphia and other cities permit what in Cleveland we do not permit, and I do hope that something concrete can come of the suggestion that was made. If nothing more, it is a preposterous and barbarous situation when we have in Cleveland a rule just handed down apparently for such a long period of time that it cannot be changed, that women cannot work there. I do know they have done everything they can out there, going to your associate, our Congressman, and to the postmaster and to the newspaper editors and holding public meetings and the like.
Vow, to come back briefly to this amendment and why it seems to me there is literally nothing to be said for it, I said that the first criterion of any valid change in the amendment to the Constitution is, does it accomplish something or is it trivial? And I say to you, Mr. Chairman and members of the committee, that most of the things they are concerned about are trivial.
is that they
Now, of course, an amendment which has been supported with the incandescent enthusiasm that this has been supported must represent very real grievances, and there are real grievances, but the difficulty
are not grievances that will be reached by this amendment. Now, what are the things that caused all the bitterness that brings up the support that this amendment has? Well
, 2 years ago in the Senate hearings—I was looking over this on the train last night, I suppose this is before you, the hearings on the Senate Resolution No. 16, 212 years ago—the sponsors of this amendment who are the same sponsors that were here Wednesday, brought in a large chart which was referred to in their literature all over the country, and I have seen it repeatedly, as have you, the chart of the famous 1,101 discriminations, and I glanced down the Ohio ones because I professionally have to know a little about Ohio law, and then looked at the others.
There are 1,101 discriminations in bulk total, which sounds like a lot. Just to show you how trivial the list is and how utterly irrelevant to the problem of amendment to the Constitution, 259 of that 1,101– in other words, almost exactly one-fourth of them-relate to the fact that when there are illegitimate children, the mothers of those illegitimate children have special rights in them. Now think of it. That is one-fourth of the discriminations they are complaining about.
Mr. CHADWICK. And gives special duties with relation to them.
Mr. HARRISON. Precisely; and one of the discriminations they raise and of which they are complaining is the fact that in 48 States the mother of an illegitimate child inherits or can inherit from the child and the father cannot. Now if that isn't the limit, to say that we should have the 16-inch siege gun of constitutional amendment to prevent what every one of us here would think ought to be the law as a matter of course.
Now what are the real discriminations? I know what they are; so do you. A girl goes through medical school and is a thoroughly competently trained pathologist or surgeon or intern. Can she get a job in a hospital here in Washington or in Cleveland or in New York? It is very improbable.
Mr. CHADWICK. She can in Philadelphia.
Mr. HARRISON. No, if you will forgive me; I happen to know a young lady who has been looking for a job and she has been discriminated against desperately in Philadelphia, sir, and all over the country. It is true that there are occasionally ones who can break that taboo; but, generally speaking, all over the country the professional women who are competently trained physicians or teachers cannot do this. Can a girl who is a teacher get a job as principal or superintendent as her brother or cousin who is a male? Of course not.
She has to be 10 times as good to get as good treatment and so it is in all of the professions, and so it is in the business world. But if this amendment be adopted it would not affect those real discriminations by a particle. The hospitals will still hire men as interns and their residents on their staff and the women will still be knocking at the door trying to get in and they will still be discriminated against and those discriminations which are predicated upon convention and custom and habit and inertia will still be with us and this amendment will not affect them by so much as a hair.