This file was prepared for electronic distribution by the inforM staff. Questions and comments should be directed to inform-editor@umail.umd.edu. 4. Summary and Conclusions Three more States must act to ratify the proposed Federal Equal Rights Amendment by June 30, 1982, to secure this constitutional affirmation of equal rights for women and men. The U.S. Commission on Civil Rights issues this report and renews its call for ratification of the Equal Rights Amendment because of its conviction that the amendment is essential to assure equal justice for women and men under the law. The Commission is concerned that the lack of a clear understanding of the effects of the amendment has confused some State legislators and the public alike about the ERA. We believe that this confusion stands as a significant barrier to ratification. There is broad-based support for the Equal Rights Amendment, demonstrated both by public opinion polls and the fact that 35 states--representing 72 percent of the population--have ratified it. However, an even larger majority expresses support for the principle of equal rights. The conflicting responses of those who state support for the principle of equal rights but are uncertain about--or opposed to--the ERA are difficult to reconcile, since the goal of equal rights can most effectively be secured by adding the Equal Rights Amendment to our Constitution. The Com- mission is certain that with better understanding of the need for and the positive effects to be achieved by the ERA, those who are truly committed to equal rights for women and men will conclude that the amendment should have their support. The patchwork quilt of laws in the Nation is cluttered at all levels of government with provisions that sanction discrimination against individuals on the basis of their sex, such as the following: * State and Federal laws that limit employment opportunities for women and operate to deprive women of certain jobs. Although of dubious validity today, such laws remain in the Federal code and on the books in such States as Arkansas, Missouri, Mississippi, and Ohio and may be tacitly enforced. * Loopholes in antidiscrimination laws, such as those provisions in Arizona, Illinois, and South Carolina laws and in Federal employment laws that exempt elected officials from the prohibitions against discrimination. Such exemptions leave women who are public employees particularly vulnerable to job bias. * State laws that define different rights for husbands and wives during marriage with respect to each other, to their children, to their property, and to third parties. * Laws and practices that operate to deprive homemakers of economic security during marriage, upon divorce, or at widowhood by failing to recognize their valuable contribution to their families and society. * Social security provisions premised on sexbased assumptions that fail to recognize the value of work in the home, the discriminatory wage structure in the labor force, and the diversity of roles played by women today. * Pension provisions that perpetuate discrimination in retirement, disadvantaging older women who are retired employees. * Governmental action that denies male and female children and youth equal educational opportunities and pigeonholes them into sex-segregated roles. * Laws and practices that discriminate against women who serve the Nation in the military. In some States and at the Federal level, legislatures have begun action to remove sex bias from the law. Although all levels of government are now free to promote equal rights, this piecemeal process for reform is simply not adequate to the task; it is lengthy at best, producing inconsistent results. Some States have barely acted at all, and in others, the action has been uneven and could be reversed. And regardless of State laws, women and men in all States may be victims of Federal laws that continue to sanction discrimination. Equal rights for women has been on the back burner at all levels of government, and it is likely to remain there until the Constitution speaks clearly and directly to the issue. For the present, no matter where we live, women and men throughout America continue to be disadvantaged by laws and governmental action that classify individuals on the basis of sex and deny equal rights under the law. Ratification of the ERA will securely establish the principle of equal rights for women and men in all States. It will set a standard of equal dignity before the law that clearly tells government it may not intrude upon our lives by imposing rights and obligations upon one sex that are different from those imposed upon the other sex. In doing this, the ERA limits the power of government in only one important way: it will deny Federal, State, and local governments the power to discriminate against its citizens on the basis of whether they are female or male. The 2-year transition period following ratification of the ERA assures that each level of government can implement this standard as its legislature determines is best. By stimulating legislative reform--and moving it to the "front burner" during a nationwide implementation process--the ERA will help reduce the number of sex discrimination claims to be resolved in the courts. Moreover, where it becomes necessary to turn to the courts because a legislature has failed to act, judges called upon to decide sex discrimination claims will have guideposts under the ERA that are sorely lacking today. The courts will be guided by the extensive legislative history of the Equal Rights Amendment and the experience of States that have already added equal rights provisions to their State constitutions. Through legislative implementation and, where necessary, the judicial process, the amendment's guarantee of "equal rights under law" will bring beneficial changes in the following ways: * Laws and regulations that presently restrict opportunities available to women throughout the labor force would clearly be invalid. Ratification will place upon legislatures the obligation to repeal provisions that limit the jobs women can hold. * Loopholes would be closed in existing State and Federal antidiscrimination laws, thereby strengthening the right of public employees--including those who work for elected officials--to be free from sex-based employment discrimination. * Laws and policies that deny women equal rights to marital property would be invalid. The ERA will strengthen the equal rights of married women to ownership, possession, and management of marital property. * A constitutional basis would be established for recognizing the homemaker's contribution to a marriage. The recognition of marriage as an economic as well as social and emotional partnership is essential for homemakers to gain meaningful economic security during and after marriage. * The economic position of women facing retirement would be improved by invalidating sex-based discrimination in insurance, pensions, and retirement security programs that involve governmental action. * Government-supported schools at all levels would be required to eliminate policies and practices that discriminate against individuals on the basis of whether they are female or male. * The military would be required to eliminate discriminatory policies and practices that presently limit opportunities for women and the contribution they can make to the Nation. On the basis of its study of the Equal Rights Amendment, the Commission on Civil Rights firmly believes that ratification of the amendment is essential to achieve equal rights for women and men. The Commission hopes that this report, together with the Statement on the Equal Rights Amendment it issued in 1978, will help the Nation to understand and support this conclusion. The fundamental guarantee of equal rights under law embodied in the Equal Rights Amendment belongs in our Federal Constitution. The women and men of this country deserve no less than this secure, constitutional guarantee of equal dignity under the law. Statement of U.S. Commission on Civil Rights on the Equal Rights Amendment JUNE 73 During the legislative sessions of 1973 and 1974, the legislatures of many states will have before them one of the most important constitutional changes of our time the proposed 27th Amendment. The Amendment assures that "Equality of rights under the law shall not be denied or abridged by the United states or by any state on account of sex." For 16 years, the Commission on Civil Rights has been combatting the pernicious and pervasive racial discrimination which continues to divide our nation. In 1972, under Public Law 9296, the Commission's jurisdiction was extended to cover discrimination on the basis of sex. Sex discrimination has been an integral part of the laws, customs, and official practices of the United states throughout its history. The Commission believes that the Equal Rights Amendment will provide a needed constitutional guarantee of full citizenship for women, and will assure the rights of both women and men to equal treatment under the laws. Ratification of the ERA is an important and appropriate means of alleviating sex discrimination--just as the adoption of the 13th and 14th Amendments was vital to the cause of racial equality. The Equal Rights Amendment passed the 92nd Congress by an overwhelming margin. Within 48 hours after that historic occasion, six states had ratified the new Amendment. Within three months, the total had grown to 20 states. Thirty states have now approved the Amendment, and several states have also passed state equal rights amendments. The Amendment must be adopted by 38 of the 50 states, and this must occur within seven years. Even after the Amendment is ratified by the remaining required states, it will not go into effect for two years. Ratification of the 27th Amendment is an essential step toward meeting this nation's stated goal of equal opportunity for every citizen. The Commission hopes and trusts that the Equal Rights Amendment soon will have the approval of a sufficient number of state legislatures to become an operating part of our Constitution. The U.S. Commission on Civil Rights is a temporary, independent, bipartisan Agency established by Congress in 1957 and directed to: Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, or national origin; Study and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, or national origin; Appraise Federal laws and policies with respect to the equal protection of the laws because of race, color, religion, sex, or national origin; Serve as a national clearinghouse for information in respect to denials of equal protection of the laws because of race, color, religion, sex, or national origin; and Submit reports, findings, and recommendations to the President and the Congress. Members of the Commission Stephen Horn, Vice Chairman Frankie M. Freeman Maurice B. Mitchell Robert S. Rankin Manuel Ruiz, Jr. John A. Buggs, Staff Director NOTES 1. The full text of this endorsement is reproduced as Appendix A. 2. The ERA was approved by Congress and sent to the States for ratification on Mar. 22, 1972, 49 years after it was first introduced. This legislative history is reviewed in U.S., Congress, Senate Judiciary Subcommittee on the Constitution, Report Pursuant to S. Res. 170, 95th Cong., 1st sess., 1978, pp. 31-35. 3. H.R.J. Res. 208, 92d Cong., 1st sess., 86 Stat. 1523 (1971). 4. U.S., Congress, Extending the Ratification Period for the Proposed Equal Rights Amendment: Hearings On H. J. Res 638 Before the Subcomm. on Civil & Constitutional Rights of the House Comm. on the Judiciary, 95th Cong., 1st & 2d sess., 1977-78 (statement of Arthur S. Flemming and Frankie M. Freeman), p. 334. 5. U.S., Commission on Civil Rights, Statement on the Equal Rights Amendment, (1978) (hereafter cited as 1978 ERA Statement). 6. Ibid. Fourteen States have added equal rights provisions to their constitutions since 1970: Alaska, Alas. Const. Art. 1, Paragraph 3 (1972); Colorado, Colo. Const. Art. 2, Paragraph 29 (1972); Connecticut, Conn. Const. Art. 1, 20 (1974); Hawaii, Hawaii Const. Art. 1, Paragraph 21 (1972); Illinois, Ill. Const. Art. 1, Paragraph 18 (1971); Maryland, Md. Const. Art. 46 (1972); Massachusetts, Mass. Const. Part I, Art. 1 (1976); Montana, Mont. Const. Art. 2, Paragraph 4 (1973); New Hampshire, N.H. Const. Part I, Art. 2 (1974)- New Mexico, N.M. Const. Art. 2, Paragraph 18 (1973); Pennsylvania, Pa. Const. Art. 1, Paragraph 28 (1971); Texas, Tex. Const. Art. 1, Paragraph 3a (1972); Virginia, Va. Const. Art. 1, Paragraph 11 (1971); and Washington, Wash. Const. Art. 31, Paragraph 1 ( 1972). The language of the Colorado, Hawaii, Maryland, Massachusetts, New Hampshire, New Mexico, Pennsylvania, Texas, and Washington provisions closely resembles that of the proposed Federal Equal Rights Amendment. Utah and Wyoming adopted constitutional provisions regarding sex equality near the end of the 19th century. Utah Const. Art. 4, Paragraph 1(1896); Wyo. Const. Art. 1, Paragraph 2, 3, Art. 6, Paragraph 1 (1890). 7. 1978 ERA Statement, p. 4. 8. "Voters Opposed to ERA, But Support Its Concept," Salt Lake Tribune. May 11, 1980 p. A-1. 9. Ibid. 10. A Gallup poll taken in September 1980 showed 64 percent favoring the Equal Rights Amendment, similar to the 62 percent figure found in the Target Systems Inc. (TSI) National Survey conducted by Hamilton and Staff in June 1980 See, also, Yankelovich, Skelly & White, Survey for Time Magazine, Jan. 6-7, 1981 (63 percent of those surveyed expressed hope that the Reagan administration will work for passage into law of the ERA). 11. A survey conducted by Louis Harris and Associates in February 1979 reported 65 percent in favor of efforts to strengthen women's status in society today. Public Opinion, December-January 1980, p. 33. An NBC- Associated Press survey of likely voters in July 1980 reported that 71 percent of those polled favored a constitutional guarantee of equal rights under law for women and men; in the same poll, 53 percent of those who had heard about the ERA indicated support for its passage. 12. A St. Louis Globe-Democrat poll in Missouri, where the ERA has not been ratified, showed in 1976 that 60 percent of the voters favored ratification. See St. Louis Globe Democrat, Dec. 28, 1976, p. A-4. Similarly, a series of public opinion surveys between 1974 and 1978 in Illinois, another "unratified" State, showed that a majority of registered voters have - consistently favored passage of the ERA; in 1978, 64 percent of those polled favored ratification. Richard Day Research, Urbana, Illinois, 1978. 13. The legislatures in four of these States, Idaho, Nebraska, South Dakota, and Tennessee, have since attempted to rescind their ratification; in a fifth State, Kentucky, legislative rescision has been vetoed by the acting Governor. Rescision of Constitutional amendment ratification votes has never been recognized as valid in the past. Ruth Ginsburg, "Ratification of the Equal Rights Amendment: A Question of Time," Texas Law Review. (1979) vol. 57, p. 919. The validity of rescision is the subject of litigation pending in the U S. District Court for the District of Idaho. Idaho v. Freeman, Civil No. 79-1097 (D. Idaho, filed May 9,1979). 14. The original period for ratification ended Mar. 22,1979. The U.S. House of Representatives approved a 39-month extension of the original deadline on Aug. 15, 1978, and the Senate followed suit on Oct. 6, 1978. 124 Cong. Rec. H8665 (daily ed. Aug. 15, 1978); 124 Cong. Rec. S17318 (daily ed. Oct. 6, 1978). 15. Six of these States, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia, have never ratified the 19th amendment to the U.S. Constitution, which grants women the right to vote. Alan Pendleton Grimes, Democracy and the Amendments to the Constitution (Lexington, Mass.: Lexington Books, 1978), p. 96. 16. It has been suggested that failure to ratify the Equal Rights Amendments might be taken as a signal by "[a]ctors in the political arena" that advocates of equal rights lack political power" so that positions and programs they support can be ignored safely, or at least deferred." Ruth Ginsburg, "Sexual Equality Under the Fourteenth and Equal Rights Amendment," Washington University Law Quarterly (1979), pp. 161, 177. 17. 1978 ERA Statement, pp. 31-32. 18. U.S., Congress, Senate, Committee on the Judiciary, Equal Rights for Men and Women. 92d Cong., 2d sess., 1972, S. Rep. 92-689, p. 7 (hereafter cited as Senate ERA Report). 19. Ginsburg "Sexual Equality," p. 174. 20. See U.S. Department of Justice, Task Force on Sex Discrimination, Civil Rights Division, Interim Report to the President (Oct. 3, 1978) (hereafter cited as Interim Report); U.S., Commission on Civil Rights, Sex Bias in the U.S. Code ( 1977). 21. American Bar Association, About the ERA (April 1980), p. 2. 22. Ginsburg, "Sexual Equality," p. 161. (This is the "animating purpose" of the proposed Equal Rights Amendment.) 23. See U.S., Department of Labor, Bureau of Labor Statistics, Perspectives on Working Women: A Databook (Bulletin 2080, 1980) (hereafter cited as Perspectives on Working Women). 24. In 1978 full-time, all-year, wage-earning wives contributed approximately 38 percent of their families' income. Ibid., p. 57. 25. Twenty-one million persons, or 13 percent of all families, were living in female-headed households in 1975. U.S., Commission on Civil Rights, 3 Women Still in Poverty ( 1979), p. 18. Almost two-fifths of all families headed by women have incomes below the poverty level. A large proportion of these families are headed by black women whose families include half of all children living in poverty. U.S., Department of Labor, Women's Bureau, The Employment of Women: General Diagnosis of Developments and Issues (April 1980), p.7 (hereafter cited as The Employment of Women). 26. The two principal Federal statutes that prohibit sex discrimination in employment are the Equal Pay Act, 29 U.S.C. Paragraph 206(d) (1976) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Paragraph 2000e (1976). 27. E.g, Alaska Stat. Paragraph 18.80.220(a), 23.10.155 (1972 and Supp. 1979); Cal. Labor Code Paragraph 1197.5(a), 1413 (West 1971); Me. Rev. Stat. Ann. tit. 5, Paragraph 4572, tit. 26, Paragraph 628 (West 1964). Not all States, however, have such laws; for example, Alabama and Mississippi have not enacted State equal pay or fair employment practices laws. 28. Barbara A. Brown, Ann E. Freedman, Harriet N. Katz, and Alice M. Price, Women's Rights and The Law: The Impact of the ERA on State Laws (New York: Praeger Publishers, 1977), p. 209. 29. E.g., N.Y. Labor Law Paragraph 176 (McKinney 1965) (prohibited employment by women as messengers during certain hours), repealed by L. 1973, ch. 377, Paragraph 11; Wash. Rev Code. Ann Paragraph 49.12.200 (1962) (prohibited women serving in public office), as amended by L. 1963, ch. 229, Paragraph 1. 30. E.g, Ill. Rev. Stat. Ch. 48, Paragraph 5 (1969), repealed by P.A. 80-266, Paragraph 1, effective Oct. 1, 1977. See Brown and others, Women's Rights and the Law, pp. 210-11. 31. E.g., D.C. Code Ann. Paragraph 36-310 (1968), amended by Act Oct. 1, 1976, D C. Laws, No. 1-87, Paragraph 37(a). D.C. Reg. No. 6, p. 1134. See Women's Rights and the Law, p. 211. 32. Barbara Allen Babcock, Ann E. Freedman, Eleanor Holmes Norton, and Susan C. Ross, Sex Discrimination and the Law: Causes and Remedies. (Boston: Little, Brown 1975), pp. 247-87. 33. Brown and others, Women's Rights and The Law, pp. 209-10. 34. The Senate ERA Report states: Most States have enacted so-called "protective" labor legislation in one form or another. Many of these laws are not protective at all, but rather are restrictive, and have been shown to have a discriminatory impact when applied only to women. For example, a law which limits the working hours of women but not of men makes it more difficult for women to obtain work they desire and for which they are qualified, or to become supervisors. State laws which limit the amount of weight a woman can lift or carry arbitrarily keep all women from certain desirable or high-paying jobs, although many if not most women are fully capable of performing the tasks required. Senate Report. p. 9. 35. See U.S., Department of Labor, Employment Standards Administration, Women's Bureau, State Labor Laws in Transition: From Protection to Equal Status for Women, Pamphlet No. 15 (Washington, D.C.: Government Printing Office, 1976). 36. E.g., Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971) (invalidating weight-lifting and maximum hours statutes under Title VII) Manning v. General Motors Corp., 466 F.2d 812 (6th Cir. 1972), cert. denied 410 U.S. 946 (1973) (invalidating job prohibition, weight, and maximum hours laws under Title VII); Garneau v. Raytheon Co., 323 F. Supp. 391 (D. Mass. 1971) (invalidating restrictive hours law under Title VII). 37. Miss. Code Ann. Paragraph 71-1-33 (1972). 38. N.H. Rev. Stat. Ann. Paragraph 275.15-17 (1977). 39. Ark. Stat. Ann. Paragraph 52-612 (1971) (working in mines). 40. Mo. Ann. Stat. Paragraph 292.040 (Vernon 1972) (cleaning or working in certain places near machinery.) 41. Ohio Rev. Code Ann. Paragraph 4107.43 (Anderson 1973) (prohibits women from, among other occupations, being a gas or electric meter reader, bellhop, or bowling alley pin setter; operating nonautomatic freight elevators; or driving a taxi between 9 p.m. and 6 a.m.). 42. 41 U.S.C. Paragraph 35(d) (Supp. 1979) (certain government contracts must stipulate that females under 18 may not be employed in fulfilling the contract, while the minimum age for males is 16). 43. Brown and others, Women's Rights and the Law, p. 218. 44. Protective labor laws precluding women from employment opportunities have been invalidated under State ERAs E.g., Vick v. Pioneer Oil Co, 569 S.W. 2'd 631 (Tx. Ct. Civ. App 1978) See 1978 ERA Statement. pp. 27-28. 45. For example, in Massachusetts, a jurisdiction with a State ERA, the legislature has suspended the operation of statutes that restrict the jobs available to women. Mass. Ann. Laws ch. 149, Paragraph 53-54 (Supp. 1979), suspended by St. 1979, C. 146 (May 11, 1979). The legislature in Illinois, which also has a State ERA, repealed statutes that set a maximum number of hours women could work each day. Ill. Ann. Stat. ch. 48, Paragraph 5-8.1 (Supp. 1979), repealed by P.A. 80-266, Paragraph 1, eff. Oct. 1, 1977. 46. Senate ERA Report. p. 15. 47. 42 U.S.C. Paragraph 630-644 (1976 and Supp. 1978). WIN is the only Federal employment program specifically targeted at recipients of Aid to Families with Dependent Children (AFDC), 90 percent of whom are women. The Employment of Women, p. 21. 48. U.S., Commission on Civil Rights, Women Still in Poverty (1979), p. 14. 49. 42 U.S.C. Paragraph 633(a) (1976); see Women Still in Poverty, pp. 2, 14. 50. The Employment of Women, p. 216. 51. Ibid., p. 7. In fact, since the 1950s, the average annual earnings gap between female and male employees has increased. During the 1950s full-time female workers earned 64 percent of what similarly situated male employees earned. Today, that figure is 59 percent. Ibid. 52. The intimate connection between occupational sex segregation and women's lower earnings is recognized in The Employment of Women, pp. 6-7. 53. Ibid., pp. 6-7, 42. Women comprise 99 percent of all secretaries, 98 percent of all food service workers, 90 percent of all health service workers, and 71 percent of all kindergarten, elementary, and secondary school teachers; yet women constitute less than 12 percent of all sales representatives, 21 percent of all shipping clerks, 6 percent of all craft workers, and 12 percent of all lawyers, and judges. Perspectives on Working Women, table 11, pp. 10-11. 54. Ruth G. Blumrosen, "Wage Discrimination, Job Segregation and Title VII of the Civil Rights Act of 1964," University of Michigan Journal of Law Reform (Spring 1979) vol. 12, pp. 402-4. 55. Ibid., p. 405. 56. See Interim Report, p. vi. 57. Ellen Goodman, "Earning Less for Women's Work," Washington Post, Oct. 16, 1978, p. A-23. 58. See Blumrosen, "Wage Discrimination," pp. 402-57. 59. Ibid., pp. 421-26. See also, Center for Women in Government, "Sex-Segregated Career Ladders in New York State Government: A Structural Analysis of Inequality in Employment" (State University of New York, Albany, 1976); Winn Newman, "Policy Issues III," Signs: Journal of Women in Culture and Society (University of Chicago, 1976), p. 265. 60. The Federal courts, for example, are divided as to whether women can assert a wage discrimination claim under Title VII where the claim would not fit within the narrow requirements of the Equal Pay Act (which requires equal pay only between jobs of equal skill, responsibility, and effort). Compare Gunther v. County of Washington, 623 F.2d 1303 (9th Cir. 1979), cert. granted, --U.S.-- (1980) (No. 80-429), and I.U.E. v. Westinghouse, 631 F.2d 1094 (3rd Cir. 1980), petition for cert. pending, with Lemons v. City of Denver, 620 F.2d 228 (10th Cir. 1980), cert. denied, --U.S.--, 101 S. Ct. 244 (Oct. 6, 1980), and Christensen v. State of Iowa, 563 F.2d 353 (8th Cir. 1977). 61. See Perspectives on Working Women, p. 12. As of September 1980, Federal, State, and local governments employed 18 percent of all nonagricultural employees in the United States and 20 percent of all employed women. U.S., Department of Labor, Bureau of Labor Statistics, Employment and Earnings December. 1980, vol. 27, no. 12. The median earnings for women employed by the Federal Government are $240 per week; for men the weekly figure is $348. U.S., Department of Labor, Bureau of Labor Statistics, unpublished tabulations from the 1979 Current Population Surveys. 62. Congress specifically recognized that the ERA is necessary in order to protect women workers completely. The Senate ERA Report states that Title VII and the Equal Pay Act "fail to reach discrimination in many areas, allow for substantial exemptions in some cases, and have often been implemented too slowly." Senate ERA Report. p. 7. 63. 42 U.S.C. Paragraph 2000e-2000e-17 (1976 and Supp. III 1979). 64. The exemption for State and local elected officials is spelled out in 42 U.S.C. Paragraph 2000e(f) (1976), which excludes from the definition of "employee" for purposes of Title VII coverage any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office unless such person is covered by appropriate State or local civil service laws. The exemption for Members of Congress was created by limiting Title VII coverage of legislative employees to those in the competitive service. 42 U.S.C. Paragraph 2000e-16(a) (1976) provides as follows: All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of title 5, in executive agencies (other than the General Accounting Office) as defined in section 105 of title 5 (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin. The precise scope of this section is unclear; some employees within some congressional service agencies may be within the competitive service and therefore covered by Title VII. For a fuller discussion, see U.S., Commission on Civil Rights, Extending Equal Opportunity Laws lo Congress (June 1980) (hereafter cited as Extending Equal Opportunity Laws to Congress). 65. 29 U.S.C. Paragraph 203(e)(2) (1978). 66. Ariz. Rev. Stat. Paragraph 41-1461(1) (1974). 67. Ill. Ann. Stat., ch. 48, Paragraph 852(c) (Smith-Hurd Supp. 1980-81). 68. S.C. Code Paragraph 1-13-30(h) (Supp. 1979). 69. See Extending Equal Opportunity Laws to Congress pp. 9-12. The U.S. Supreme Court has recognized that a cause of action for employment discrimination can be pursued against a Member of Congress based on the fifth amendment to the Constitution. Davis v. Passman, 442 U.S. 228 (1979). 70. Florence Graves, "The Congressional Double Standard," in Common Cause (October 1980), p. 14; see, also, Extending Equal Opportunity Laws to Congress. 71. Dothard v. Rawlinson, 433 U.S. 321, 336 (1977); See 433 U.S. at 345-47 (Marshall, J., concurring in part and dissenting in part). 72. See generally 1978 ERA Statement, pp. 5-8; Leo Kanowitz, Women and the Law (Albuquerque: University of New Mexico Press, 1969), pp. 35-99. 73. See Ark. Stat. Ann. Paragraph 55-102 (Supp. 1979); La. Civ. Code Ann. art. 92 (1972); Miss. Code Ann. Paragraph 93-1-5(d) (1972). 74. See discussion of marital property, following. 75. See Ga. Code Paragraph 53-501(1974); Okla, Stat. Tit. 32, Paragraph 2 (1971). 76. See Thorne v. Odom. 349 So.2d 1126 (Ala. Sup. Ct. 1977) (fathers have priority over mothers as plaintiffs in actions for wrongful death or injury of a child). 77. Under the common law, for example, only the husband had the right to sue third parties for the loss of "consortium," i.e., the loss of his wife's services. A 1950 District of Columbia case, Hitaffer v. Argonne Co., Inc., 183 F.2'd 811 (D C. Cir. 1950), held that a married women had a cause of action for loss of consortium, and courts applying State ERAs have done the same. See discussion of third party issues in Laws Concerning Marital Property and Rights of Husbands and Wives, following. The laws in 38 States and the District of Columbia have been changed to extend such rights to both spouses. Of the remaining 12 States, 6 follow the common law rule limiting loss of consortium suits to husbands, and 6 have abolished such actions for spouses of both sexes. See Brown and others, Women's Rights and The Law, p. 118. 78. See discussion of divorce, following. See, also, Wisconsin, Governor's Commission on the Status of Women, Real Women, Real Lives--Marriage. Divorce, Widowhood (1978). 79. See Blanche Crozier, "Marital Support," Boston University Law Review (January 1935), vol. 15, p. 28. 80. See, e.g., Pierce v. Pierce, 267 So.2d 300, 302 (Miss. Sup. Ct. 1972); Tryon v. Casey, 416 S.W.2d 252 (Mo. Ct. App. 1967). 81. Gebhard v. Gebhard, 253 Md. 125, 127-130, 252 A.2d 171(1969). Later cases, however, recognized the value of nonmonetary contributions with respect to property rights in household goods and furnishings. Bender v. Bender, 386 A.2d 772 (MD. 1978). 82. See National Bank of Rochester v. Meadowbrook Heights, Inc., 80 Mich. App. 777, 265 N.W.2d 43, 46 (1978); Kanowitz, Women and the Law, pp. 40-41. 83. Ibid. See, e.g., Ark. Stat. Ann. Paragraph 55 404 (1971); Conn. Gen. Stat. Ann. Paragraph 46b-36 (Supp. 1980); Ky. Rev. Stat. Paragraphs 404.010, 404.020, 404.050 (Supp. 1978). 84. See generally Brown and others, Women's Rights and the Law, pp. 97- 202. 85. See, e.g, Upchurch v. Upchurch, 76 Ga. App. 215, 45 S.E. 2d 855 (1947). 86. Koob v. Koob, 283 N.C. 129, 195 S.E.2d 552 (1973); Rauchfuss v. Rauchfuss, 33 N.C. App. 108, 234 S.E.2d 423 (1977) (Rents and profits may be charged with the support of the wife.) 87. DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174, 178-79 (The court also relied on the "emancipation of married women over their property" and on changing social conditions to bolster their departure from earlier common law precepts.) 88. Va. Code Paragraph 55-47.1 (Supp. 1980). 89. Okla Stat. tit. 32, Paragraph 2 (1971). 90. Ga. Code Paragraph 53-501 (1974). 91. See Kirchberg v. Feenstra, 609 F.2d 727 (5th Cir. 1979) (declaring law unconstitutional and describing revisions effective Jan. 1, 1980), prob. juris. noted--U.S.--, 100 S. Ct. 1899, (1980). 92. Although at one time most States set different age minimums for males and for females, today all but three States impose the same age limitations on both sexes. Only Arkansas, Louisiana, and Mississippi maintain sex-based restrictions on the age of consent. Ark. Stat. Ann. Paragraph 55-102 (Supp. 1979); La. Civ. Code Ann. art. 92 (1972); Miss. Code Ann. Paragraph 93-1-5(d) (1972). Under the ERA, these sex-based age differentials would be invalid. The experience in Illinois, a jurisdiction with a State ERA, is illustrative. In Phelps v. Bing, 58 Ill.2d 32, 316 N.E.2d 775 (Ill. Sup. Ct. 1974), the court held that the differential age minimum for males and for females violated the Illinois State ERA. 93. Roseberry v. Starkoutch. 73 N.M. 211. 387 P.2d 321 (1963). See Brown and others. Women's Rights and the Law p. 118. 94. Thorne v. Odom. 349 So.2d 1126 (Ala. Sup. Ct. 1977) 95. Hopkins v. Blanco. 457 Pa 90.320 A.2d 139 (1974). 96. Schreiner v. Fruit, 519 P.2d 462 (Alaska Sup. Ct. 1974). 97. Miller v. Whittlesey, 562 S.W.2d 904 (Tex. Civ. App. 1978), aff'd. su. nom. Whittlesey v. Miller, 572 S.W.2d 665 (Tex. Sup. Ct. 1978). 98. Lundgren v. Whitney's, Inc., 614 P.2d 1272 (Wash. Sup. Ct. 1980). 99. Also related to this common law doctrine is the view that a husband has an absolute right to sexual relations with his wife. This is the basis for the virtually universal rule prohibiting married women from charging their spouses with rape. Brown and others. Women's Rights and the Law, p. 54 As of June 1980, 47 States barred a woman from charging her husband with rape if she were married and living with him. National Center on Women and Family Law, Marital Rape Exemption, mimeographed (New York undated). A few States have stricken or modified the marital rape exemption. New Jersey law, for example, provides that "No actor shall be presumed to be incapable of committing a crime under this chapter because of age or impotency or marriage to the victim." N.J. Stat. Ann. Paragraph 2C: 14-5(b) (West Supp. 1980). 100. See generally Kenneth Davidson, Ruth Ginsburg, and Herma Hill Kay, Sex-Based Discrimination (West Publishing Co. 1974), pp. 139-48. 101. See, e.g., Commonwealth v. George, 358 Pa. 118, 56 A.2d 228 (1948); McGuire v. McGuire, 157 Neb. 226, 59 N.W.2d 336 (Neb. Sup. Ct. 1953). The court in McGuire stated: As long as the home is maintained and the parties are living as husband and wife it may be said that the husband is legally supporting his wife and the purpose of the marriage relation is being carried out. 59 N.W.2d at 342. See also Paulson, "Support Rights and Duties," Vanderbilt Law Review (1956), vol. 9, pp. 709, 719. 102. Id. 103. This rule flows directly from the husband's supposed obligation to support his wife. The law presumed that the wife incurred liabilities for necessaries because the husband did not provide her with money to buy needed goods and services. Therefore, it became the husband's duty to reimburse the creditors who furnished these items to his wife. Jersey Shore Medical Center-Fitkin Hospital v. Estate of Baum, 417 A.2d 1003, 1005 (N.J Sup. Ct. 1980). 104. Judith Areen, Cases and Materials on Family Law (Mineola, N.Y.: The Foundation Press, 1978), p. 73. 105. See Orr v. Orr, 440 U.S. 268 (1979) (statute under which husbands, but not wives, could be ordered to pay alimony, violates the equal protection clause of the United States Constitution). See, also, Manatee Convalescent Center, Inc. v. McDonald, 7 Family Law Reptr. 2181 (Fla. Ct. App., Dec. 31, 1980); Jersey Shore, 417 A.2d 1003. 106. E.g., Cal. Civ. Code Paragraph 5132 (West Supp. 1974); Del. Code Ann tit. 13, Paragraph 502, 506 (Supp 1978); Mont. Rev. Code Ann. Paragraph 36-103 (Supp 1977); Va. Code Paragraph 20-61 (Supp 1979) 107. E.g, Colo. Rev. Stat. Paragraph 14-6-110 (1973); Ill. Ann. Stat., ch. 68, Paragraph 15 (1976); Utah Code Ann. Paragraph 30-2-9 (1976); Wyo. Stat. Paragraph 20-1-201(1977). 108. E.g, Jersey Shore, 417 A.2d 1003. Recognition of this reality forms the theoretical underpinnings of marital property laws in the eight community property States and is the major guiding principle behind model legislation developed in 1970, the Uniform Marriage and Divorce Act (UMDA). See, Krauskopf, "A Theory for 'Just' Division of Marital Property in Missouri," Missouri Law Review (1976), vol. 41, p. 165. The original UMDA was approved by the Commissioners of Uniform Laws in August 1970. It is a model act--proposed legislation for the States to enact as they deem appropriate--and only becomes the law when adopted by a State legislature. 109. Senate ERA Report, p. 17. 110. Ibid. See, also, Barbara A. Brown, Thomas I. Emerson, Gail Falk, and Ann E. Freedman, "The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women," Yale Law Journal (1971), vol. 80, pp. 871, 936-954. 111. See, e.g., DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (Pa Sup. Ct. 1975). 112. In Montana, for example, where an ERA is already part of the State constitution, the support law specifically states that each spouse must support the other to the extent each is able and that support includes the nonmonetary support provided by a spouse as homemaker. Mont. Rev. Codes Ann. Paragraph 36-103 (Supp. 1977). 113. U.S., Department of Commerce, Bureau of the Census, Divorce. Child Custody and Child Support (June 1979), p. 1 (hereafter cited as Divorce, Child Custody and Child Support. ) 114. Foundation for Child Development, State of the Child: New York City II (June 1980) pp. 45-46, 51-52; see Divorce, Child Custody and Child Support, pp. 4-5. Almost one-third of all women receiving child support need public assistance. Divorce, Child Custody and Child Support, table 8, p. 14. 115. See David Chambers, Making Fathers Pay: The Enforcement of Child Support (Chicago: University of Chicago Press, 1979), p. 42-50; Saul Hoffman and John Holmes, "Husbands, Wives and Divorce," pp. 27, 31, in Five Thousand American Families--Patterns of Economic Progress, vol. IV, ed. G. Duncan and J. Morgan, Institute for Social Research, University of Michigan, (Ann Arbor, Michigan 1975). Although the studies show a decline in absolute income for divorced men, when income is considered on a per capita basis, their economic status often improves. Lenore Weitzman and Ruth Dixon, "The Alimony Myth: Does No-Fault Divorce Make a Difference?" Family Law Quarterly (1980), vol. XIV, pp. 172-78. 116. DiFlorido v DiFlorido, 331 A.2d at 178. n.10. 117. See Leatherman v. Leatherman. 297 N.C. 618, 256 S.E.2d 793, 796 (N.C. Sup. Ct. 1979) (wife denied property interest in husband's business even though she performed services for the business, which was capitalized out of money from their joint bank account; services of the wife to the husband or his business are presumed gratuitous). 118. DiFlorido v. DiFlorido, 331 A.2d at 179. 119. Id. 120. Id. at 179, 180. 121. Lower courts in Pennsylvania have begun to apply this rule to real property as well. See Bibighaus v. Bibighaus, 66 Del. 281, 288-90 (Delaware County, Del. 1979). 122. Few divorced women are awarded alimony, and fewer still receive alimony payments. In 1978, only 14 percent of divorced women reported that they were awarded alimony; only two-thirds of those women actually received some payment, the amount averaging about 52,850. Only one-half of divorced and separated women with children under 21 were supposed to receive child support in 1978; only one-half of those mothers received the full amount of child support that had been awarded. Among all mothers who received some child support, the mean payment was $2,000. U.S., Department of Commerce, Bureau of the Census, Child Support and Alimony: 1978 (advance report), p. 1, and table A, p. 3. There is no evidence that this represents any "new" trend: data collected by the Bureau of the Census indicate that only 9.3 percent of divorces between 1887 and 1906 included provisions for permanent alimony, as did 15.4 percent of divorces in 1916 and 14.6 percent of those in 1922. Weitzman and Dixon, "The Alimony Myth: Does No-Fault Divorce Make A Difference?" p. 180. 123. Orr v. Orr, 440 U.S. 268 (1979). The Court reasoned that sex could not be used as a "proxy" for need and suggested that individualized hearings in which need for alimony could be established would better fulfill the State's objective of aiding the "needy spouse." Id at 280-82. This result does not mean that all women are now or will be required to pay alimony to their husbands. Rather, as the Court suggested, trial courts will now evaluate the financial position of each spouse before making a determination of the determination will be made on a gender-neutral basis--the criteria being financial need, not sex. Id at 282-83. 124. Eg., Ariz. Rev. Stat. Ann. Paragraph 25-319 (1976); Fla. Stat. Ann. Paragraph 61.08 (Supp. 1979); Ga. Code Ann. Paragraph 30-209 (1969); Ill. Ann. Stat. ch. 40 Paragraph 505 (Smith-Hurd Supp. 1980-81); N.J. Stat. Ann. Paragraph 2A-34-23 (West Supp. 1980-81); N.C. Gen. Stat. Paragraph 50-16.2 (1976); Okla. Stat. Ann. tit. 12 Paragraph 1276 (West Supp. 1 980-8 1). 125. In Tignor v. Tignor, Div. No. 12601 (Md. Cir. Ct., Anne Arundel County, 1974), for example, the husband was awarded support from his wife when the marriage dissolved because he was blind and had relied on his wife's financial support during the marriage. 126. E.g, Ala. Code Paragraph 30-2-31 (Supp. 1980); Fla. Stat. Ann. Paragraph 61.13 (Supp. 1980); Minn. Stat. Ann. Paragraph 518.17 (Supp. 1981); Conway v. Dana, 318 A.2d 324, 326 (Pa. 1974). Cf. McCrary v. McCrary, 599 P.2d 1248 (Utah 1979) (affirming trial court's decision modifying divorce decree to require former wife, rather than husband, to pay child support). 127. Id. 128. E.g, Com. ex. rel. Wasiolek v. Wasiolek, 380 A.2d 400, 403 (Pa. Super. Ct. 1977). 129. See, for example, Rand v. Rand, 280 Md. 508, 374 A.2d 900 (Md. Ct. App. 1977); Conway v. Dana, 318 A.2d 324 (Pa. 1974); Krempp v. Krempp. 590 S.W. 2d 229 (Tex. Ct. Civ. App. 1979). 130. Eg. Rand v. Rand, 374 A.2d at 905 (parents share responsibility for parental support "in accordance with their respective financial resources"); Krempp v. Krempp, 590 S.W.'d at 230 ("equality does not require that the courts. . .make equal the amount of financial contribution required of the spouses"). See 1978 ERA Statement, pp. 24-25. 131. Com. ex. rel. Wasiolek v. Wasiolek, 380 A.2d 400. 132. Id at 403. 133. See, e.g., Del. Code Ann. tit. 13, Paragraph 722 (1974); Mass. Gen. Laws Ann. ch. 208 Paragraph 31 (West 1958); N.D. Cent. Code Ann. Paragraph 14-0-9-06 (1971); Ore. Rev. Stat. Paragraph 107.137 (1977). 134. Okla. Stat. Ann. tit. 30 Paragraph 11(2)(1976). 135. A trial court in Iowa, for example, recently denied custody of her sons to a mother attending law school, concluding that the demands of study and the ability of the father to engage in various activities with the children required that the father be granted custody. The Iowa Supreme Court reversed, finding that the court's conclusions not only lacked evidential support, but that the court's award was improperly based, in part, on a stereotyped view of sexual roles that has no place in child custody adjudication. The Iowa Supreme Court found that it was in the children's best interest that they live with their mother. In re Marriage of Linda Low Tresnak and Emil James Tresnak Case No. 170/3997, slip op. (Iowa Sup. Ct., Sept. 17, 1980). 136. Colorado State Constitution, Art. II, Sec. 29. 137. In re Marriage of Franks 542 P.2d 845, 852 (Colo. Sup. Ct. 1975). 138. U.S., Department of Health, Education, and Welfare, Social Security and the Changing Roles of Men and Women, (February 1979), appendix C, p. 168 (hereafter cited as Changing Roles). 139. One of every three single women over the age of 65 has income less than the poverty rate of $2,730 per year. Ibid.. pp. 167-70. 140. The Social Security Act of 1935, ch. 531. 49 Stat. 620 (codified in scattered sections of 2, 26, 42. and 15 U.S.C.), as amended (1976 and Supp. III 1979). See, also, Changing Roles. p. 1. 141. Changing Roles p. 4. 142. Ibid., pp. 10-12. Nearly 80 percent of all female beneficiaries receive less than 53,300 per year in social security payments; only 30 percent of male beneficiaries receive benefits below this level. Ibid., p. 23. 143. 42 U.S.C. Paragraph 423(c) (1976). See, also, Garrett v. Secretary of H.E.W., 397 F. Supp. 400 (D. Va. 1975); Changing Roles. pp. 11, 27-28. 144. 42 U.S.C. Paragraph 402(b)(2) (1976 and Supp. III 1979). 145. Id. See also President's Commission on Pension Policy, Working Women, Marriage and Retirement. p. 6 (August 1980); Changing Roles pp. 23-24. 146. 42 U.S.C. Paragraph 403(b) (1976). See Changing Roles. p. 24. 147. 42 U.S.C. Paragraph 402(q) (1976 and Supp. III 1979). 148. 42 U.S.C. Paragraph 402(b)(1)(G)(Supp. III 1979). See, also, Changing Roles. p. 23. 149. 42 U.S.C. Paragraph 402(e)(1)(B), 402(g) (1976 and Supp. III 1979). See also Changing Roles. p. 14. 150. 42 U.S.C. Paragraph 402(e)(1)(B) (1976). 151. Changing Roles. p. 28. 152. Ibid., p. 25. 153. 42 U.S.C. Paragraph 402(a)(b)(1976). See also Changing Roles. pp. 4-5, 10. 154. Ibid. 155. Changing Roles. p. 10. 156. Ibid., p. 1. Some of the inequities providing different dependency benefits to male and female dependents--but not all--have been eliminated. Ibid., pp. 14-19; President's Commission on Pension Policy, Working Women, Marriage and Retirement. Appendix A, (hereafter cited as Working Women.) But the more subtle and devastating discrimination against women in social security persists. 157. Changing Roles. 158. For example, legislation that would provide social security credits for individuals who perform homemaker services has been introduced in past Congresses. Ibid. p. 104. 159. The Employment of Women, p. 7. 160. Naomi Naierman and Ruth Brannon, "Sex Discrimination in Insurance," in U.S., Commission on Civil Rights, Consultation on Discrimination Against Minorities and Women in Pensions and Health, Life and Disability Insurance (April 1978) pp. 473-74 (hereafter cited as Consultation on Discrimination in Pensions and Insurance). 161. For example, the Employee Retirement Income Security Act of 1974 (ERISA), which governs private pensions, permits employers to require an employee to work 10 years before being entitled to a pension and to work at least 1,000 hours in a year before entering a plan. 29 U.S.C. Paragraph 1052(a)(3)(A), 1053(a)(2)(A) (1976). This disadvantages women who enter and leave the work force to devote time to child-rearing responsibilities. Working Women, p. 37, appendix C, pp. 70-71. 162. Ibid. p. 31. 163. For example, one 1974 study demonstrated that women were charged premiums one and a half times higher than those charged to men in the same job classifications. Baierman and Brannon, "Sex Discrimination in Insurance," Consultation on Discrimination in Pensions and Insurance, p. 480. A complaint currently pending before the Insurance Commissioner of the Commonwealth of Pennsylvania challenges a disability insurance premium charge that is approximately 25 percent higher for female workers than it is for male employees receiving the same coverage. Starer v. Browne, Docket No. P80-8-11 (filed Aug. 14. 1980). 164. A recent New York case involved a pension plan administered by the group that administers most of the pension plans covering university faculty in the United States. The challenged plan paid women benefits 10 percent lower than benefits paid to men. Spirt v. Teachers Insurance and Annuity Association, 475 F. Supp. 1298 (S.D. N.Y. 1979). See also EEOC v. Colby College, 18 E.P.D. @8734 (1st Cir., 1978); Peters v. Wayne State University, 21 E.P.D. @30,344 (D. Mich. 1979). 165. Note, "Challenge to Sex-Based Mortality Tables in Insurance and Pensions," Women's Rights Law Reporter (Fall/Winter 1979-80), vol. 6, pp. 59-64. 166. In inviting proposals for a pension plan to cover State employees, Missouri instructed bidders to list payout benefits and premium rates for males and females. Missouri, Deferred Compensation Commission, Invitation for Proposals for the State of Missouri Deferred Compensation Plan for Public Employees (May 1979). See also Mo. Rev. Stat. Paragraph 104.330 (1969). 167. In the area of health and disability insurance, for which women are charged higher premiums, there is evidence that women have shorter hospital stays than men. H. Denberg, "An Overview Report: Discrimination in the Insurance Marketplace and in the Insurance Business," Consultation on Discrimination in Pensions and Insurance, p. 271. A New York State Insurance Department study suggests that women's claim costs for accident-only benefits are lower than that of men at certain ages. New York State Insurance Department, Disability Insurance Cost Differentials Between Men and Women. (June 1976) (excerpted in Consultation on Discrimination in Pensions and Insurance. p. 565.) 168. The pension benefits received by women are typically one-half of the amount of men's benefits. Working Women, p. 31. 169. City of Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 710-11 (1978). 170. Id. at 711. See "The Supreme Court, 1977 Term," Harvard Law Review (1978), vol. 92, pp. 299-301. 171. See City of Los Angeles. 43S U.S. at 710. 172. It has been noted, for example, that since the insurance industry is left free to discriminate and may therefore charge higher rates to employers who hire a large percentage of women. 435 U.S. at 717-18, a burden is placed on employers that may serve to undermine equal employment opportunity requirements. See Merton C. Bernstein and Lois G. Williams, "Sex Discrimination in Pensions: Manhart's Holding v. Manhart's Dictum," Columbia Law Review (1978), vol. 78, p. 1241. 173. Spirt v. Teachers Insurance and Annuity Association, 475 F. Supp. 1298 (S.D.N.Y. 1979). The exempted plans were regulated under the McCarran-Ferguson Act, which preserves the power of the States to regulate the insurance field except in instances where the Federal Government explicitly assumes control. 15 U.S.C.A. Paragraph 1011-1015 (1976). 174. Under the Equal Rights Amendment, the concept of what constitutes government action in this area will be developed on a case-by-case basis. The insurance commissioner of Pennsylvania, relying in part upon the "strong policy of the State's ERA," has invalidated the use of sex-based actuarial data in computing auto insurance rates. In re Mattis v. Hartford Accident and Indemnity Company, Docket No. R78-7-2 (Apr. 17, 1980, unpublished). A similar claim challenging sex-based rates in disability insurance is now pending before Pennsylvania's insurance commissioner. See Starer v. Browne, Docket No. P80-8-11 (filed Aug. 14, 1980). 175. 29 U.S.C. Paragraph 1001-1381 (1976 and Supp. III 1979). See U.S., Department of Justice. The Pension American Pension System from the Viewpoint of the Average Woman, p. 47 (1979). The divisibility of private pensions is a widely litigated issue See. e.g. Johnson v. Johnson. 5 F L.R. 2045 (Ca. Ct. App. 1979): cert. denied. 48 U.S.L.W. 3452 (1980); General Dynamics Corp. v. Harris. 5 F.L.R. 2644 (Tx. Civ. App. 1979). See also Gill Ellen Bass, "Update: Division of ERISA Pensions and Other Benefit Plans," 6 F.L.R. 400 1 (1979). 176. Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979). 177. McCarty v. McCarty, rev. granted, No. 80-5, 6 F.L.R. 2945 (October 21, 1980). 178. Brief for certiorari for the United States as Amicus Curiae at 6, Cose v. Cose, No. 79-1469 (pet. for cert. filed Mar. 19, 1980). 179. A recent reform measure amending the Foreign Service Act provides some rights to pension benefits for former spouses of Foreign Service personnel. Pub. L. No. 96-465. 94 Stat. 2079, 2102, 2113 (1980)(to be codified at 22 U.S.C. Paragraph 4054). In addition. several similar measures, such as H.R. 2817 (Military Retirement Income Equity Act) and H.R. 2818 (Civil Service Retirement Income Equity Act), were introduced in the 96th Congress, but died without being passed. 180. See generally President's Advisory Committee for Women, Voices for Women (Washington, D.C.: Government Printing Office, 1980) pp. 23-47; 1978 ERA Statement pp. 14-16. 181. Senate ERA Report p. 17. The legislative history also makes clear that the ERA will not require that dormitories or bathrooms--in schools or anywhere else--be shared by men and women. Ibid. 182. See Laurie Harrison and Peter Dahl, Executive Summary of the Vocational Education Equity Study (Palo Alto, Calif.: American Institutes for Research, 1979); American Civil Liberties Union Foundation of Georgia, Vocational Education Monitoring Project, The Unfulfilled Promise of Vocational Education. A Look at Sex and Race Equity in Georgia (1980). 183. Vorchheimer v. School District of Philadelphia, 532 F.2d 880 (3d Cir. 1976), affd 430 U.S. 703(1977). See Andrea Novick and David Griffiths, "Sex Segregated Public Schools: Vorchheimer v. School District of Philadelphia and The Judicial Definition of Equal Education for Women," Women's Rights Law Reporter (1978), vol. 4, p. 79. 184. See Lenore J. Weitzman, Sex Role Socialization (New York: Mayfield Publishing Co., 1975); U.S., Commission on Civil Rights, Characters in Textbooks: A Review of the Literature (1980). 185. 20 U.S.C. Paragraph 1681-86 (1976). 186. See. e.g. 20 U.S.C. Paragraph 1866, 2301-2380 (1976 & Supp. III 1979). 187. E.g. Wash. Rev. Code Ann. Paragraph 28A.85.010-900 (Supp. 1980-81); Mich. Comp. Laws Ann. Sec. 37.2401 (1976); N.J. Stat. Ann. Paragraph 18A:36-20(1973). 188. Mass. Const. pt. 1, art. 1; Pa. Const. art. 1, Paragraph 28. 189. 20 U.S.C. Paragraph 1681 (1976). 190. Id. Paragraph 1681(a)(1). 191. 45 C.F.R. Paragraph 86.11 (1979). 192. Othen v. Ann Arbor School Board. 502 F. Supp. -- (E.D. Mich. Feb. 23, 1981). 193. E.g. Conn. Gen. Stat. Ann. Paragraph 10-15 (1975); Mass. Gen. Laws Ann. ch. 76, Paragraph 5 (1972); Wis. Stat. Ann. Paragraph 118.13 (1977) (prohibiting single sex public schools). 194. President's Advisory Committee on Women, Voices for Women, p. 29. 195. U.S., Commission on Civil Rights, Enforcing Title IX (October 1980). 196. Ibid., pp. 2-3. 197. 45 C.F.R. Part 86 (1975). Regulations promulgated by the Department of Health, Education, and Welfare (HEW) became effective June 4, 1975. See also Now Legal Defense and Education Fund. Project on Equal Education Rights Stalled ar The Start (Washington, D.C.: 1977). Other agencies with enforcement responsibilities still had no regulations more than 6 years after Title IX became law. See National Advisory Council on Women's Educational Programs, The Unenforced Law: Title IX Activity by Federal Agencies Other Than HEW (1978). 198. U.S., Commission on Civil Rights. More Hurdles to Clear (1980), p. 33. 199. 44 Fed. Reg. 71413 (Dec. 11, 1979). 200. See "U.S. to Act on Complaints of Bias in College Sports," New York Times. p. A-20, Aug. 11, 1980. 201. E.g., Leffel v. Wisconsin Interscholastic Athletic Ass'n., 444 F. Supp. 1117 (E.D. Wisc. 1978); Fortin v. Darlington Little League, 514 F.2d 344 (1st Cir. 1975). 202. See 1978 ERA Statement, pp. 28-29. 203. Vorchheimer v. School District of Philadelphia, 400 F. Supp. 326, 340-41 (E.D. Pa. 1975), rev'd 532 F.2d 880 (3rd Cir. 1976), affd, 430 U.S. 703 (1977). 204. Other civil rights laws, such as those affecting school desegregation, already have been weakened by amendments limiting enforcement that are attached to appropriations bills in order to circumvent usual legislative processes. See U.S., Commission on Civil Rights, Civil Rights Update (November 1980). 205. Rostker v. Goldberg, Civ. No. 71-1480, slip op. at 30 (E.D. Pa. July 18, 1980). stay granted,--U.S.--, 101 S. Ct. I (July 19, 1980), prob. juris. noted --U S--.101 S. Ct. 563 (Dec. 1. 1980) 206. U.S, Department of Defense, Use of Women in the Military (1977), p. 3 (hereafter cited as Use of Women in the Military). 207. Although women serve in jobs such as nurses, truck drivers, radio operators, or technicians, which are classified as noncombatant, they have served and will continue to serve in combat environments. See Goodman. "Women, War and Equality: An Examination of Sex Discrimination in the Military," Women's Rights Law Reporter (1979), vol. 5, pp. 243, 259 (hereafter cited as "Women, War and Equality"). 208. One indication of their efficiency and effectiveness is the fact that women on active duty are being promoted at the same or higher rates than men. Overall retention rates for women are the same as men. Use of Women in the Military, pp. 7-8. The exercises tests conducted by the Department of Defense document that the field performance of men and women under normal conditions is equal. See U.S. Army Research Institute, Women Content in Units Force Development Test (MAX-WAC) I-23 (1977); Women Content in the Army, Reforger 77 (REF-WAC 77) I-4. (1978); "Women, War and Equality," pp. 256-57 209. Ibid. pp. 251-52. 210. Use of Women in the Military, pp. 15-17. For example, "although only 6 percent of Army enlisted skills are closed to women. fully 42 percent of all billets filled by enlisted personnel in the Army are in specialties, skills, or units not available to women." [emphasis in original] U.S., Congress. Senate, S. Rep. No. 96-226, 96th Cong. 1st sess, 1979 p. 8. 211. Use of Women in the Military, pp. 15-17; see "Women, War and Equality," pp. 251-52. 212. Use of Women in the Military, p. 7. 213. U.S., Department of Defense, Advisory Committee on Women in the Services, "Spring Meeting Minutes," Recommendation no. 4, Field and Organizational Clothing, Apr. 1-5, 1979 (unpublished). 214. U.S., Department of Defense, Advisory Committee on Women in the Services, "Spring Meeting Minutes," statement of Donald S. Gray, "Department of Defense Policy and Position on Sexual Harassment," Washington D.C., Apr. 21-25, 1980, pp. E-S-E-7 (unpublished); Hearing on Sexual Harassment in the Military Before the Subcommittee on Military Personnel, House Armed Services Comm., 96th Cong., 2d sess. (Feb. 12, 1980). 215. Women were restricted by statute to 2 percent of total enlistments in the armed forces until 1967. The Women's Armed Services Integration Act of 1948, Pub. L. No. 625, ch. 449, Paragraph 102, 62 Stat. 357 (1948). Although this restriction was removed by Pub. L. No. 90-130, Paragraph 1(9)(H), 81 Stat. 375 (1967), the representation of women in the armed services by 1985 is projected at only 12 percent. Presidential Recommendations for Selective Service Reform: A Report to Congress Pursuant to Pub. L. No. 96-107 (Feb. 11, 1980), p. 42. See also Use of Women in The Military, p. 4; "Women, War, and Equality," p. 55. 216. Id, See also Pub. L. No. 93-290, Paragraph 1, 2, 88 Stat. 173 (May 24, 1974). 217. U.S., Congress, Senate, D.O.D. Fiscal Year 1982 Authorization Request-- U.S. Army Total Manpower, Hearing before the Manpower and Personnel Subcommittee of the Armed Services Committee, 97th Cong., 1st sess., Feb. 26, 1981, testimony of William Clark, Acting Assistant Secretary for Manpower and Reserve Affairs (unpublished transcript). 218. Use of Women in the Military, p. iii. Kathleen Carpenter, "Women in The Military and The Impact of The Equal Rights Amendment," testimony before the Illinois House Judiciary Committee, Apr. 30, 1980 (unpublished), p. 6. 219. These benefits include loans and scholarships for education, insurance, health care, dependent benefits, and veterans preferences in public employment. See, e.g, 5 U.S.C. Paragraph 3309 (1976)(employment); 38 U.S.C. Paragraph 610-628 (1976 and Supp. 1979) (medical and dental care); 38 U.S.C. Paragraph 1802 (1976) (home loans). See. generally, Personnel Administration of Mass. v. Feeney, 442 U.S. 256, 261 at nn. 6, 7 (1979); "Women, War and Equality"), pp., 244-45. 220. Ibid., p. 244. 221. Use of Women in the Military, p. 21. 222. "Women, War and Equality. p 246-18. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), the conclusion that blacks could not be citizens of the United States was supported in part by the fact that they were excluded from the U.S. and State militias. Id. at 705: see "Women, War and Equality," p. 247. 223. Owens v. Brown, 455 F. Supp. 291 (D.D.C. 1978). 224. Rostker v. Goldberg, slip op. 225. Id. 101 S. Ct. 563. 226. Id, slip op. at 38-39. The court also stated, "The record reveals that in almost any conceivable military crisis the armed forces could utilize skills now almost entirely concentrated in the female population of the nation." Id. at 39. 227. See e.g., Craig v. Boren, 429 U.S. 190 (1976) (to survive scrutiny, such classifications "must serve important governmental objectives and must be substantially related to achievement of those objectives"). 228. U.S., Department of Defense, America's Volunteers--A Report on The All-Volunteer Armed Services, pp. 69-71 (1978) (hereafter cited as Americas' Volunteers); Rostker v. Goldberg, slip op. at 33, n. 25. 229. America's Volunteers, pp. 76, 182; Rostker v. Goldberg, slip op. at 41. 230. See Carpenter, "Women in the Military." 231. Senate ERA Report. p. 13. 232. Ibid. 233. Ibid. 234. U.S. Const. amend. X. 235. U.S. Const. amend. XV. 236. Voting Rights Act of 1965, as amended, 42 U.S.C. 1973-1973p (1976 & Supp. III 1979). 237. The range of classifications available in any given situation depends on the subject matter to be addressed by the law. For example, in the interest of promoting traffic safety, a State may classify on the basis of frequency of road use, past driving record, or condition of vehicle, but it may not impose limitations on drivers on the basis of whether they are female or male. In other words, "the law may make different rules for some people than for others on the basis of the activity they are engaged in or the function they perform." Brown and others, "The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women," pp. 871, 889. 238. See, for example, Senate ERA Report, pp. 12, 17. 239. Chicago Council of Lawyers, "Position Paper: The Equal Rights Amendment," pp. 9-11 (May 1980). 240. Senate ERA Report. p. 12. The narrow "unique physical characteristics" exemption would permit, for example, laws that regulate sperm banks or provide programs for prenatal care. Brown, and others, "The Equal Rights Amendment," pp. 893-96. To survive ERA scrutiny, such laws must be narrowly drawn and serve compelling State interests. Ibid., p. 894. 241. Ibid., pp. 904-5. See. also. Washington State Attorney General, Legal Opinion. No. 8 (Mar. 17. 19-6). 242. U.S., Const. amend. XIII, XIV, XV, XVIII, XIX, XXIII, XXIV, XXVI. 243. See Interim Report; U. S. Commission on Civil Rights, Sex Bias in the U.S. Code(1977). 244. See Brown and others, "The Equal Rights Amendment," p. 910. 245. See, e.g., Brown and others, Women's Rights and the Law. pp. 37-40; Note, "State ERA's: Legislative Reform and Judicial Activism,' Women's Rights Law Reporter (1978), vol. 4, pp. 227, 232. 246. Murphy v. Harleysville Mutual Ins. Co., 422 A.2d. 1097, 1105, n.14 (Pa. Super. Ct. 1980). 247. Id. at 1105. 248. See., e.g., Lundgren v. Whitney's, Inc., 614 P.2d 1272 (Wash. Sup. Ct. 1980) (court can change common law rule prohibiting wife from recovering for loss of husband's consortium): Kline v. Ansell, 414 A.2d 929 (Md. App. 1980) (common law gender-based action for criminal conversation held unconstitutional and no longer viable). 249. Senate ERA Report, p. 15. See also Ruth Ginsburg, "Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation," Cleveland State Law Review (1979), vol. 28, pp. 301, 316; Brown and Others, Women's Rights and the Law, p. 32. 250. 1978 ERA Statement. pp. 10, 15, 20-21, 24-29. 251. Pennsylvania Attorney General, Opinion No. 76-6 (Mar. 17, 1976). 252. Mass. Gen. Laws Ann. ch. 188, Paragraph 1-9 (West 1976), as amended by St. 1977, c. 791, Paragraph 1-9 (West Supp. 1977). 253. See Senate ERA Report, p. 15. 254. Pennsylvania Attorney General, Opinion No. 71 (1971). 255. Seven States (Alaska, Colorado, Maryland, Montana, New Mexico Pennsylvania, and Washington) have effected comprehensive code reform to comply with their State ERAs, which has eliminated the need for many lawsuits. Note, "State Equal Rights Amendments: Legislative Reform and Judicial Activism," Women's Rights Law Reporter (1978), vol. 4, pp. 227, 232-33. 256. William Van Alstyne, "The Proposed Twenty-Seventh Amendment: A Brief, Supportive Commentary," Washington University Law Quarterly (1979), p. 200, n. 26. 257. Ruth Ginsburg, "Sex Equality and the Constitution," Tulane Law Review (1978), vol. 52, pp. 452-53. 258. Ibid., p. 453. 259. Rostker v. Goldberg, 101 S. Ct. at 3. 260. Under the equal protection clause of the 14th amendment, laws that involve fundamental rights (such as voting or the right to travel) or suspect classifications (such as race or alienage) are subject to "strict judicial scrutiny." These laws are upheld only if the State can carry the heavy burden of demonstrating that the classification promotes a compelling State interest and is narrowly drawn. Few statutes have been upheld under this standard. All other equal protection claims, such as those involving economic regulations, survive constitutional scrutiny upon the minimal showing of a governmental interest. Most statutes examined under this rational basis standard are upheld as appropriate governmental action. Gender classifications are treated differently from the others. Sex has been given "quasi-suspect" status: to survive constitutional scrutiny under the equal protection clause, classifications based on sex "must serve important governmental objectives and must be substantially related to achievement of those objectives." Craig v. Boren, 429 U.S. 190, 197 (1976). 261. Id. at 220-21. (Rehnquist, J., dissenting). 262. In Kahn v. Shevin, 416 U.S. 351 (1974), the Court held that a Florida law that offered a $500 property tax exemption to widows but not to widowers did not violate the equal protection clause. The Court found that the law was designed to compensate women for the economic discrimination they had suffered historically. The Court has used this rationale to uphold two other gender-based laws. Schlesinger v. Ballard, 419 U.S. 498 (1975): Califano v. Webster, 430 U.S. 313 (1977). 263. Even when the courts understand the standard, they often disagree with its validity. See Peters v. Narick, 270 S.E.2d 760, 764 (W. Va. Sup. Ct. 1980) ("We are unimpressed with the lineage of the middle-tier approach which. . .is largely the product of 'result-oriented' decisionmaking."). 264. Wengler v. Druggists Mut. Ins. Co., 583 S.W.2d 162, 168 (Mo. Sup. Ct. 1979) (Donnelly, J., concurring) rev'd,--U.S.--,100 S. Ct. 1540 (1980). 265. 583 S.W.2d 162 (1979). 266. 100 S. Ct. 1540 (1980). 267. U.S., Congress, Senate, Committee on the Judiciary, Hearings on S.J. Res. 61 and S.J. Res 231. 91st. Cong., 2d sess. (1970); U.S. Congress, House, Committee on the Judiciary. Hearings on H.J. Res. 35. 208 and Related Bills. 92d Cong., 1st sess. (1971). 268. U.S., Congress, Senate. Committee on the Judiciary, S. Rep. No. 92-689; 92d Cong., 2d sess. (1972); U S.. Congress. House, Committee on the Judiciary, Rep. No. 92-359, 92d Cong., 1st sess. (1971). 269. E.g, Senate debate: 118 Cong Rec. pt. 7:9314-72 (1972); 118 Cong. Rec. pt. 8:9517-40, 9544-99 (1972): House debate: 117 Cong. Rec. pt. 27:35295- 326 (1971); 117 Cong. Rec. pt. 27:35782-815 (1971). See generally Library of Congress, Congressional Research Service, Equal Rights Amendment: Selected Floor Debate and Votes. Dec. 21. 1974; The Equal Rights Amendment Project, The ERA: A Bibliographic Study (Conn.: Greenwood Press, 1976), pp. 3-32. 270. See 1978 ERA Statement pp. 23-24, notes 27-28, 30-32. 271. See ibid., pp. 23-24; Darrin v. Gould, 85 Wn.2d 859, 540 P.2d 885, 889-90 (1975). 272. See, e.g., Rand v. Rand, 374 A.2d 900 (1977). 273. 1978 ERA Statement, pp. 23-29. 274. Townsend v. Edelman, 518 F.2d 116 (7th Cir. 1975). 275. The U.S. Supreme Court has stated that constitutional provisions must each be accorded equal dignity in their meaning. Ullman v. United States, 350 U.S. 422. 428-29 (1956). 276. See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 154-55 (1950) (Frankfurter J., concurring); Ashwander v. Tennessee Valley Authority, 297 U.S. 333. 347 (1934) (Brandeis, J., concurring). 277. See Uorris D. Forkosch. Constitutional Law (Mineola, N.Y.: Foundation Press, 1969), p. 72.