Originally published as: "From Protection to Equal Opportunity: The Revolution in Women's Legal Status", in Women, Politics and Change ed. by Louise Tilly and Patricia Gurin, New York: Russell Sage, 1990, pp. 457-481. Permission to copy electronically is given by author provided that copies are not made for financial gain and the paper is distributed in its entirety, including title and author. No more than one paper copy may be made without permission of the author. This file was prepared for electronic distribution by the inforM staff. From Protection to Equal Opportunity: The Revolution in Women's Legal Status by Jo Freeman jfrbc@cunvyvm.cuny.edu 410 East 8th Street Brooklyn, New York 11218 Between 1963 and 1976, Congress and the courts made revolutionary changes in women's status in law and public policy. Congress led the way by passing the 1963 Equal Pay Law which for the first time committed the federal government to improving women's economic position. It followed this up with the prohibition of sex discrimination in employment as part of the milestone 1964 Civil Rights Act. In the early 1970s Congress sent the Equal Rights Amendment to the states and added to the books numerous laws whose primary thrust was to prohibit discrimination in a wide variety of federal programs and to encourage equal opportunity for women. Parallel to this development, the Supreme Court fundamentally altered its interpretation of women's position in society. Until 1971, the judicial approach to women was that their rights, responsibilities, opportunities and obligations, were essentially determined by their position in the family. Women were viewed first and foremost as wives and mothers. Their individual rights were subservient to their class position. From this perspective virtually all laws that classified by sex were constitutional; their purpose was to protect a dependent group. Today most such laws have been found unconstitutional. Furthermore, the remaining laws and practices that treat the sexes differently are subject to more scrutiny than in the past, and the Court is particularly disapproving of rationalizations that encourage dependence. Although courts, if not Congress, would never acknowledge suseptibility to public pressure, the primary stimulus for these revolutionary developments was the new feminist movement which emerged in the late sixties and exploded into public consciousness with a publicity blitz in 1970. Feminist organizations, their supporters in government and other interest groups were largely behind the legal changes of the 1970s. They wrote laws, lobbied, mobilized public opinion, represented plaintiffs in key cases and filed amicus briefs which persuaded all branches of the government to alter their perspective on the role of women. Obviously the new feminist movement was not responsible for the 1963 and 1964 Acts, but feminism was. Both the Equal Pay Act and the "sex" amendment to Title VII were a direct result of activities by feminists and other women concerned with women's status. These activities had their origin in several decades of conflict over the paramount feminist issue -- the Equal Rights Amendment. This chapter will review the history of that conflict and the judicial decisions which accompanied it in order to set the stage for understanding the legal revolution. Equality vs. Protection The Woman Suffrage movement was not a united movement. It had two distinct branches with different strategies and goals which were not abandoned even after suffrage was attained. The moderate, and larger, branch, dominated by the National American Woman Suffrage Association, is given most of the credit for the Nineteenth Amendment. Under the leadership of Carrie Chapman Catt, NAWSA mobilized the ratification campaign through its state chapters. Even before final ratification Catt successfully urged her followers to disband the feminist organization and form a non-partisan, non-sectarian League of Women Voters (LVW) to encourage women to work within the parties and would support a broad range of social reforms. Under the banner of the National Woman's Party (NWP), the militant feminists had used civil disobedience, colorful demonstrations and incessant lobbying to get the Nineteenth Amendment out of Congress. Once it was ratified, they decided to focus their attention on the eradication of legal discrimination against women. Concentrated in Washington and funded more by legacies and wealthy benefactors than a large membership this strategy was suitable to the NWP's particular strengths as well as its feminist ideology. The vehicle through which the NWP sought to attain legal equality was the Equal Rights Amendment, written by its guiding light, Alice Paul. The original version of the ERA, first introduced into Congress in 1923, stated that "Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction." It was strongly opposed by the LWV, the newly created Women's Bureau of the Department of Labor, the National Women's Trade Union League (WTUL), the National Consumer's League (NCL) and most other women's organizations. Their opposition was based on the one fact about the ERA on which everyone could agree, that it would abolish protective labor legislation for women. (J. Stanley Lemons, The Woman Citizen: Social Feminism in the 1920s, Urbana: U. llinois Press, 1973, Chapter 7. William H. Chafe, The American Woman: Her Changing Social, Economic and Political Roles, 1920-1970, New York: Oxford University Pres, 1972, Chapter 5.) Protective labor legislation was a generic label for a host of state laws applicable only to women which restricted the number of hours women could work, the amount of weight they could lift, occasionally required special benefits such as rest periods, and sometimes prohibited work in certainoccupations. Passed at the turn of the century in an attempt to curb sweatshop conditions, its proponents had originally intended them to apply to both sexes, but the Supreme Court declared these laws a violation of the right to contract. In 1905 Lochner v. New York found unconstitutional a New York law that prohibited bakers from working longer than ten hours a day or sixty hours a week because "the statute necessarily interferes with right of contract between the employer and employee... [which] is part of the liberty of the individual protected by the Fourteenth Amendment." (Elizabeth Baker, Technology and Women's Work, New York: Columbia University Press, 1964, pp. 91-96. Lochner v. New York, 198 U.S. 45, 53 (1905).) This set-back prompted social reformers to turn their attention to laws which applied to women only. The Court was more receptive three years later when it heard Muller v. Oregon. Strongly influenced by an extensive brief prepared by Louis Brandeis for the National Consumer's League (NCL) that documented women's physical disabilities, it upheld an Oregon law that restricted the employment of women in factories, laundries, or other "mechanical establishments" to ten hours a day, on the grounds that women's physical structure and a proper discharge of her maternal functions--having in view not merely her own health but the well-being of the race--justify legislation to protect her.... The limitations which this statute places upon her contractual powers... are not imposed solely for her benefit, but also largely for the benefit of all.... The reason rests in the inherent difference between the two sexes, and in the different functions in life which they perform. ...[H]istory discloses the fact that woman has always been dependent upon man.... [S]he has been looked upon in the courts as needing especial care that her rights may be preserved... [because] she is not an equal competitor with her brother. (Muller v. Oregon, 208 U.S. 412, 422 (1908).) Reasoning based on inherant differences between the sexes both physically and socially was not unprecedented. Ever since the Court decided the first sex discrimination case in 1873 it had maintained that "[t]he paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother." What made Muller so important was its assertion that "[t]his difference justifies a difference in legislation." Muller made legal sex discrimination the law of the land.< Bradwell v. Ilinois, 83 U.S. (16 Wall.) 130, 142 (1973). Muller at 412-13. >> The NWP correctly feared that Muller would become a precedent justifying different treatment of women in areas far removed from limitations on their hours of labor. The NWP originally intended the ERA to serve as a means of eradicating laws which restricted women, not those that protected them. The ERA was aimed primarily at the plethora of laws which restricted women's property rights, disadvantaged them under state family laws, or barred them from holding office or serving on juries. However, the overwhelming conclusion of legal authorities was that the amendment would nullify or throw open to question all legislation aimed at women. After an attempt at compromise wording the NWP admitted the ERA would eliminate protective laws, but asserted it would be to women's advantage because such laws only limited women's opportunities. (Lemons, p. 187.) The conflict between those who favored the ERA and those who favored protective labor legislation reflected a fundamental difference of perspective over the meaning of equality. The NWP favored absolute equality of opportunity. Laws based on the assumption that women were weaker than men portrayed them as "'semi-invalids', stricken with the incurable 'disease' of womanhood". Feminists felt women would never achieve economic freedom if assumed to be perpetually shackled by the "malady" of "maternity". The very phrase "protective legislation" implied that women were second-class citizens. Reformers, on the other hand, accepted fundamental differences in physiology and family role as incontrovertable. True equality required different treatment. While reformers believed that women had a right to work, they assumed that women's real contribution to society lay in the separate sphere of the family, and that the burdens this placed on those who had to work required special consideration. The protection of legislation was necesary to put women on an equal plane with men. (Susan D. Becker, The Origins of the Equal Rights Amendment: American Feminism Between the Wars, Westport, Conn.: Greenwood Press, 1981, pp. 49, 51. Chafe, pp. 125-129.) From the NWP's perspective any law that differentiated women from men made them less competitive. In 1923 it was even quoted in oral argument before the Supreme Court in support of a challenge to a law establishing a minimum wage for women only in the District of Columbia. The NCL was on the other side. Five justices took the feminist position, and in Adkins v. Children's Hospital struck down a sex specific law for the first time. They concluded that it was "simply and exclusively a price-fixing law, confined to adult women..., who are legally as capable of contracting for themselves as men." The court distinguished Muller on the grounds that while physical differences might justify regulation of hours of labor. They didn't justify regulation of wages. (Adkins v. Children's Hospital, 261 U.S. 525, 552-53 (1923). Barbara Babcock, Ann E. Freedman, Eleanor Holmes Norton, Susan Ross, Sex Discrimination and the Law: Causes and Remedies, Boston: Little, Brown, and Co., 1975, p. 49n76.) With this 1923 decision both sides hardened, and over the next few decades each devoted itself to undermining the position of the other. The Women's Bureau took the lead, organizing what historian Cynthia Harrison has called the "Women's Bureau Coalition" of organizations opposed to the ERA. It conducted studies to show that protective labor laws did not handicap women and testified to this before legislative committees. It's Director, Mary Anderson, was "convinced that in some cases the Woman's party was used as a front by the employers' associations that wanted to kill legislation for women." (Cynthia Ellen Harrison, Prelude to Feminism: Women's Organizations, The Federal Government and the Rise of the Women's Movement, 1942-1968 (unpublished Ph.D. Dissertation, Columbia University, 1982). Mary Anderson as told to Mary N. Winslow, Woman at Work, Minneapolis: U. Minn. Press, 1951, p. 171.) The NWP argued that "[W]hatever the effects on women of sex legislation aimed to protect them, it has been a real protection to men by slowing down the competition of women for their jobs." Although all labor unions, including those whose members were mostly women, supported protective labor legislation, the labor movement's lack of interest in organizing women and occasional opposition by its leaders to laws applying to both sexes gave credence to the NWP's views. (Quote by Alma Lutz in Chafe, pp. 124-5.) Lacking the prestige of a government agency or the large membership of the opposition women's organizations, the NWP relied on protest and publicity to promote the ERA and oppose protective legislation. NWP members were wealthy enough to attend conferences on women all over the world where they expressed their views, and persistent enough to persuade the House and Senate Judiciary Committees to hold hearings on the ERA every few years. They were particularly vociferous at Women's Bureau convocations, if necessary disrupting them to discuss the ERA. As a result of a major confrontation at a 1926 Women in Industry conference, the Women's Bureau conducted a major study on the effects of protective labor legislation, predictably concluded that protective laws for women helped rather than hindered them. (Anderson, pp. 165-70. Becker, p. 212. Chafe, p. 119, Lemons, pp. 192-5. 12: 51 Equal Rights, January 30, 1926, p. 402-3. Women's Bureau, U.S. Dept. of Labor, Bulletin 65, The Effects of Labor Legislation Upon the Employment Opportunities of Women, Wash. D.C.: GPO, 1928. See Baker, pp. 401-4, for a summary.) During the Depression feminists who believed that every woman had a right to work and reformers who wanted to protect women for the good of their families joined in common cause against federal and state policies designed to remove married women from the labor force. Public sentiment had long disapproved of women continuing to work after marriage. As unemployment grew, the traditional argument that working wives were undermining the family and neglecting the home was bolstered by the claim that they were taking jobs away from unemployed men who needed them to support their families. Many state and local governments ordered the dismissal of wives from public jobs and thousands of them (particularly teachers) lost their positions. (Becker, pp. 138-9. Lois Scharf, To Work and To Wed: Female Employment, Feminism and the Great Depression, Westport Conn.: Greenwood Press, 1980, Chapters 4 and 5.) In 1932 the Federal government joined this movement when Congress passed Section 213 of the National Economy Act, which prohibited husbands and wives from working in the federal civil service at the same time. Because the Act was attached to a desperately needed appropriations bill it was passed by Congress over the joint opposition of all politically active women and signed by President Hoover, who nonetheless censured Section 213. (Scharf, pp. 46-47. The one compromise was the substitution of spouse for woman, even though everyone knew it was the wife who would lose the job.) For the next five years the NWP and the Women's Bureau Coalition fought an uphill battle until Congress repealed Section 213 in July of 1937. Even though they lobbied, wrote letters, compiled studies and publicized personal horror stories, their efforts were drowned out by the thousands of letters sent to periodicals and newspapers opposing the employment of married women. When mass polling began in the mid-1930s, it showed that 80 percent of all respondents opposed wives working if their husbands could support them. They also lacked the support of the Roosevelt administration, though Eleanor Roosevelt called Section 213 a "very bad and foolish thing." During this time over 1,600 married women were dismissed from the federal civil service, and some men also lost their jobs. Wives' attempts to evade dismissal by hiding their marital status was complicated by the Comptroller General's ruling in 1933 that they must use their husbands names. (George Gallup, Gallup poll: Public Opinion 1935-1971, New York: Random House, 1972, AIPO poll 136. Scharf, p. 50. Becker, p. 203. Susan Ware, Beyond Suffrage: Women in the New Deal, Cambridge: Harvard U. Press, 1981, p. 79.) The victory of organized women in removing Section 213 was overshadowed by much more dramatic events. President Franklin Delano Roosevelt had begun his presidency with a mandate to alleviate the suffering caused by the Depression. During the first hundred days of his administration Congress passed an enormous amount of economic reform and social welfare legislation. These laws were challenged in the courts and by 1935 the Supreme Court was pronouncing many of them unconstitutional on the grounds that they exceeded the government's authority. The same Court continued to strike down state labor legislation it felt violated an individual's right to contract. In response to the Depression and the resulting disintegration of the wage structure many states had enacted new minimum wage and other regulatory laws with somewhat different language in hopes that they would pass muster. (Baker, p. 405.) Although based on precedents of almost 50 years, these decisions were usually by a slim five to four majority. It was not until 1937, after Roosevelt had been overwhelmingly reelected and precipitated a major Constitutional crisis by proposing to increase the size of the Court to 15, that the balance of power shifted in favor of greater federal authority. (Laurence H. Tribe, American Constitutional Law, Mineola, N.Y.: The Foundation Press, 1978, p. 449.) The "switch in time that saved nine" was by a single Justice, Owen J. Roberts, and occurred in West Coast Hotel v. Parrish which specifically overturned Adkins. By 5 to 4, the Court ruled that Washington state could set minimum wages for women because the state "had the right to consider that its minimum wage requirements would be an important aid in carrying out its policy of protection". (West Coast Hotel v. Parrish, 300 U.S. 379, 399 (1937).) Only a few months before Roberts had voted differently and the Court had invalidated a similar New York law because it found no essential difference between it and the one declared unconstitutional in Adkins. (Morehead v. Tipaldo, 298 U.S. 587 (1936). Both the NWP and the NCL submitted amicus briefs in this case, but West Coast Hotel caught them napping.) Although there is some evidence that Justice Roberts' views had never been as firm as those of the other four conservatives on the Court, public response to the Court's opposition to minimum wage laws was overwhelmingly negative. One study reported that the New York decision was criticized by 79 percent of all commenting newspapers. (Tribe, p. 449n13.) The Court's condemnation of labor regulatory measures had been criticized for years, but with the Depression this criticism became particularly cogent. As the Court said: "recent economic experience" has shown that "exploitation of a class of workers who are in an unequal position with respect to bargaining power ... is not only detrimental to their health and well being but casts a direct burden for their support upon the community." (West Coast Hotel v. Parrish, 300 U.S. 379, 399 (1937).) This decision was followed by several others in which Justice Roberts' crucial vote favored expanded government powers and permanently reversed the Court's direction. In June of 1937 one conservative Justice resigned to be replaced by Hugo Black, and in July Roosevelt's "court-packing" plan was dropped. In 1938 Congress passed the Fair Labor Standards Act (FSLA), which once again established minimum wages, regulated workers' hours and limited child labor. Since it applied to both men and women producing goods for interstate commerce it was immediately challenged, but upheld by the Court in U.S. v. Darby in 1941. Although the decision was primarily concerned with other issues, the Court noted that the fixing of minimum wages and maximum hours for either sex was no longer open to question. (U.S. v. Darby, 312 U.S. 100 (1941).) These two decisions -- West Coast Hotel and Darby -- were a watershed. The former specifically demoted liberty of contract from its pedastal of fundamental rights, and the latter implicitly extended this demotion to men as well as women. But in doing so the Court cemented even further the exception for women carved out by Muller. Long after the Progressive era ended, the goal of reformers to use state power to protect all workers from the vissicitudes of the free-market was finally achieved. The legality of sex-specific laws remained as a residue. (See Leslie Goldstein's commentary in The Constitutional Rights of Women, New York: Longman, 1979, p. 44, on the strategy of obtaining social welfare legislation by the technique of women-and-children first and Judith Baer's The Chains of Protection: The Judicial Response to Women's Labor Legislation, Westport, Conn.: Greenwood Pres, 1978, for a fine review of the cases, history and politics of this era.) Transition During the 1930s and early 1940s, the coalition of women's organizations that opposed the ERA slowly disintegrated as the social reform movement which fed them died out. Some of the key organizations of the social feminists, such as the Women's Trade Union League, completely disappeared. Others, such as the LWV, turned their energies to other problems. The type of well-educated, socially concerned woman who had formed the core of the active membership of reform organizations during the first third of the Twentieth Century went to work for New Deal agencies in the second. But by the late 1930s the network they had created in the federal government began to shrink. Most of FDR's appointments of women had been to independent agencies newly created to deal with the Depression. Some of these agencies were declared unconstitutional by the Supreme Court, and others were later abolished or saw their budgets slashed in the interests of economy. (Ware, pp. 117-24.) At the same time, support for the ERA expanded beyond the NWP to include the National Federation of Business and Professional Women's Clubs (BPW), social clubs such as the Soroptimists, and organizations of women lawyers, dentists, osteopaths, real estate agents, accountants and physicians. Many NWP activists were founders or members of these groups. (Lemons, p. 204. Becker, pp. 197-9, 226-7.) Although some industrial women supported the ERA as a result of losing their jobs due to protective labor legislation, over time the division became increasingly one of class, or more specifically, occupation. Women in or associated with women working in industry, particularly unionized industries, opposed the ERA because they supported protective legislation. Business and professional women supported the ERA because they saw protective labor legislation as a barrier to their effectively competing against men in their professions. Indeed it was the attempt of protectionists to bring women in mercantile establishments under the protective umbrella which pushed BPW from neutrality to support for the ERA. From the businesswomen's perspective, clerical and retail sales jobs were not industrial ones and these workers were potential executives and managers who should not be protected from promotions and the responsibilities that went with them. (Lemons, p. 24, 196, 199-200.) Despite the Depression these developments subtly shifted the balance of opinion in favor of the ERA. After 1936, Congressional subcommittees reported the ERA favorably virtually every year. When the FLSA was passed and affirmed by the Supreme Court in U.S. v. Darby the momentum behind the ERA increased considerably. Though the Court decisions did not sway the true believers, such as Mary Anderson of the Women's Bureau and leaders of the NCL and the LVW, it rendered their position much less persuasive. Their argument was undermined still further when War World II brought large numbers of women into the labor force who were not visibly harmed by the suspension of protective labor laws in the war industries. And the inclusion of support for the ERA in the 1940 Republican Platform gave it legitimacy. In 1942 the full Judiciary Committees of both houses in Congress voted favorably for the ERA. (22 Congressional Digest, April 1943, p. 106.) Though aided by circumstances this increase in momentum was not accidental. During the twenties and thirties Alice Paul had lived abroad and devoted most of her time and attention to international activities for equal rights. The war in Europe forced her return to the United States in 1941 where she resumed active leadership of the NWP, reorganizing and revitalizing it. Recognizing the similarity of the wartime attitude toward democratic ideals and slogans about equality with that of the Suffrage era, she began a massive publicity campaign. Successes included endorsements of the ERA by noted public figures such as Nobel novelist Pearl Buck, artist Georgia O'Keefe and actresses Helen Hayes and Katherine Hepburn, newspapers, such as the New York Herald Tribune and the Christian Science Monitor, and major women's organizations such as The General Federation of Women's Clubs. (Becker, p. 182. Amelia R. Fry, Conversations with Alice Paul, an oral history interview, Bancroft Library, University of California, Berkeley, 1972-3, pp. 440-2. Thomas C. Pardo, The NWP Papers 1913-1974: A Guide to the Microfilm Edition, Sanford, N.C. Microfilm Corporation of America, 1979, p. 104. Harrison, pp. 59-60.) The opposition, while weakened, mobilized its resources. In 1941 Senate opponents expressed concern that the wording of the ERA would be interpreted by the Supreme Court to require identical legislation by all the states. Therefore Alice Paul drafted a new version to meet this objection which was introduced in 1943. It read: "Equality of rights under the law shall not be denied or abridged by the United States, or by any State, on account of sex. Congress and the several states shall have power, within their respective jurisdiction, to enforce this article by appropriate legislation." With the new wording's approval by the Senate Committee the NWP pressured state legislatures to pass resolutions urging Congress to act on the ERA, and persuaded both political parties to add endorsements to their 1944 Platforms. While remaining a small, exclusive organization itself, in 1943 the NWP formed a coalition of all groups supporting the ERA, called the Women's Joint Legislative Committee (WJLC), which it could argue represented several million American women. (Pardo, pp. 105, 113-4, 116, 129. Harrison, p. 60. ) In response, opponents formed the National Committee to Defeat the Un-Equal Rights Amendment (NCDURA) late in 1944. The composition of this new anti-ERA coalition reflected the political changes of the previous two decades. The original Women's Bureau Coalition had been a coalition of women's organizations, most of which had been formed during the Progressive Movement. The NCDURA reflected the rise to power of organizations involved in the New Deal coalition. Its 27 affiliated groups were mostly labor unions, joined with those remaining organizations of the original coalition who had kept alive and kept the anti-ERA faith through the years (NCL, YWCA, LVW). It also included some additional women's organizations such as the National Council of Catholic Women, and new organizations, such as the National Council of Negro Women. (Harrison, p. 71-72.) The NCDURA's first move was to propose an alternative to the ERA in the form of an Equal Pay Act. The idea that women should receive equal pay for equal work was not a new one -- and equal pay laws existed in a few states -- but there had been no organized effort to pass federal legislation. Opponents of the ERA had long argued that the proper legislative route was "specific bills for specific ills", not blanket prohibitions. The Equal Pay Act was aimed at an acknowledged "ill" that had become even more apparent during the War when women moved into previously male jobs. While the NCDURA saw the proposal as meritorious in its own right, it hoped that this "positive alternative" would pre-empt the ERA. This presented a dilemma to the NWP. Caught between its fear that the EPA would deflect interest from the ERA and a concern not to be seen as against all bills on women, it was publicly neutral and privately opposed. The was particularly concerned that the proposed bill would be enforced by its arch enemy, the Women's Bureau, and that since the language only prohibited paying women less than men, not vice versa, the EPA was just another form of sex-specific protective labor legislation. The NWP argued that equal pay would undermine women's job opportunities by removing the economic incentive for employers to prefer them to men. (Harrison, pp. 157-58, 164-66. See Caruthers Gholson Berger, "Equal Pay, Equal Employment Opportunity and Equal Enforcement of the Law for Women," 5 Valparaiso Law Review, Spring 1971, p. 331 for the view of an NWP National Council member.) As an anti-ERA measure the EPA was not successful, and the Senate voted on the ERA for the first time on July 19, 1946. However, the vote was unexpected and supporters unprepared. The tally of 38 to 35 was well below the two-thirds required for a Constitutional amendment. (92 Cong. Rec. July 9, 1946, p. 9405. Pardo, p. 127-133.) Nonetheless, expectations of favorable action in the next Congress were high because "there has been a subtle change in the public attitude toward [the ERA.]" ...the recent war brought about a shift in the strategic positions of the opposing factions...[because] these things happened: In the interests of high production, most "protective" industrial laws were waived by State legislatures and labor boards. Women in industry worked side by side with men around the clock. WACS, WAVES, SPARS and women Marines took over strenuous jobs, some of them on front-line assignments. Nurses worked at advanced battle field stations. WASPS flew cumbersome bombers and "hot" fighter planes under the Ferry Command, establishing an excellent record. (25 Congressional Digest, December 1946, p. 290.) To reverse the flow of support the NCDURA proposed the "Status Bill". Introduced on February 17, 1947, the bill declared that the policy of the United States to be that "in law and its administration no distinctions on the basis of sex shall be made except such as are reasonably based on differences in physical structure, biological or social function." Instead of enforcement provisions, it proposed the creation of a Commission on the Legal Status of Women to study sex discrimination. Along with this "more positive" approach the NCDURA decided it needed a more positive name and became the National Committee on the Status of Women (NCSW), headed by Mary Anderson, former head of the Women's Bureau. (Harrison, pp. 84-87, 94. Rawalt, p. 53. The NWP derisively referred to it as the Biological Status Bill; Pardo, p. 147.) In January 1950, the ERA was debated on the Senate floor once again. When the Status Bill was overwhelmingly rejected by 18 to 65, ERA opponents made their next move. At the end of the debate, Sen. Carl Hayden (D. Ariz.), at the suggestion of the Women's Bureau, proposed an amendment which read: "The provisions of this article shall not be construed to impair any rights, benefits, or exemptions now or hereafter conferred by law upon persons of the female sex." ERA proponents were caught by surprise, and many Senators, whose support for the ERA had been on the record but never very strong, took advantage of the opportunity to vote for both amendments. The Hayden rider passed 51 to 31 and the ERA, thus vitiated, passed 63 to 19. This strategy was repeated when the ERA once again came to the Senate floor in July of 1953. This time the rider passed by 58 to 25 and the ERA by 73 to 11. (96 Cong. Rec., Jan. 25, 1950, pp. 872-3. 1950 CQ Almanac, p. 539. 99 Cong. Rec. July 16, 1953, pp. 8954-5. 1953 CQ Almanac, p. 386. Harrison, pp. 103-106.) When Eisenhower was inaugurated in 1953 ERA proponents thought that its time had finally come. Eisenhower favored the ERA, albeit weakly, as did the new appointee to head the Women's Bureau, Alice Leopold. Although Leopold withdrew the Bureau's longstanding opposition, the new Secretary of Labor, a Democrat and official of the Plumbers Union, continued the Department's policy of official opposition, but it was muted. In effect the Administration withdrew from the arena, leaving the battle to Congress where key committees were headed by ERA opponents. (Harrison, pp. 117, 122, 126-137.) The gap left by the defection of the Women's Bureau was filled by organized labor. In 1957 Esther Peterson became the legislative representative of the industrial union department of the AFL-CIO and orchestrated an anti-ERA lobbying campaign. Her main weapon was the Hayden rider, which was supported even by members of Congress listed as sponsors of the ERA. The ERA's main sponsor in the House, Rep. Katherine St. George, (R, NY) tried to find substitute language which would not undermine the Amendment, but since the rider was really just a ploy to kill the ERA, no compromise could be found. The ERA seemed blocked at every turn. (Harrison, p. 124.) By this time public interest in the ERA was very low and the "feminine mystique," as described later by writer Betty Friedan, had settled in like a shroud. Even if the NWP had wanted to combat this conservative public consciousness it didn't have the resources to do so. Between 1946 and 1953 the NWP was embroiled in internal disputes and suffered a serious decline in membership. After many decades of keeping the faith, many NWP stalwarts had died or retired and its active members were few. It's journal, Equal Rights, ceased publication in 1954. Although by then many other organizations supported the ERA, the NWP maintained exclusive rights to leadership of the struggle. BPW, which opened an office to work on the Amendment in 1947, often found its efforts thwarted by the NWP, which "reacted to any suggestion that they give up control of the campaign with hostility." The NWP had been an "exclusive" organization for many years, making no attempt to recruit new members and defeating all attempts to replace it's leaders. It could still get the ERA introduced into every new Congress, but it could not get it out. (Leila J. Rupp and Verta Taylor, Survival in the Doldrums: The American Women's Rights Movement, 1945 to the 1960s, New York: Oxford University Press, 1987, p. 74-5. Harrison, p. 123. Judith Hole and Ellen Levine, Rebirth of Feminism, New York: Quadrangle Books, 1971, p. 80.) Turning Point The ERA hit its nadir in 1960 and also began its resurgence. The key person in both these developments was Esther Peterson. As an advisor to Presidential candidate John F. Kennedy, she convinced the Democratic Party to drop the ERA from its platform in favor of a vague expression against barriers to employment based on sex and "equality of rights under law, including equal pay." After Kennedy was elected she asked, and received, appointment as Director of the Women's Bureau, and was also made an Assistant Secretary of Labor. Few other women received such important appointments, a lack of action for which Kennedy was roundly criticized. (Harrison, p. 268.) Peterson had two major items on her agenda to improve the status of women: passage of the Equal Pay Act and derailment of the ERA. To accomplish the first she organized a concerted lobbying campaign which drew upon the expertise and contacts Petersen had developed as a lobbyist for the AFL-CIO. Although the final bill was narrower than Peterson and Equal Pay advocates had wanted, and only covered 61 percent of the female labor force, when passed in 1963, after numerous hearings and intensive lobbying, it committed the federal government to its first active efforts to improve the economic position of women. One of Peterson's first recommendations to the new President was the creation of a national commission on women, one of the components of the 1947 Status Bill once proposed by ERA opponents. To avoid the NWP lobbyists, the Commission was created by Executive Order 10980 on December 14, 1961. Members were selected to represent mainstream opinion on women and to come up with suggestions that would be acceptable to the Administration. Marguerite Rawalt, a former BFW president, was the sole ERA supporter. Eleanor Roosevelt was asked to Chair the President's Commission, and when she died almost a year later, she was not replaced. Peterson...and her colleagues used the presidential commission on women to stop the E.R.A. dead in its legislative tracks. Peterson reasoned that Congress would not be likely to act on the E.R.A. while the matter was under consideration by a presidential panel. In addition, she presumed that eventually the Commission would offer substitute recommendations which would continue to stymie the Amendment's progress. But obstructing the E.R.A. was not really her primary motive. Peterson regarded the Commission's most important function to be the creation of an alternative program of "constructive" action to improve women's status, a possibility which before had always been blocked by the E.R.A. dispute. (Harrison, p. 378.) Despite the fact that opposition to the ERA was foreordained, as were objections from the NWP, the Commission did offer a middle ground. After much debate and many alternative proposals on wording, the final Report declared: "Equality of rights under the law for all persons, male or female, is so basic to democracy ...that it must be reflected in the fundamental law of the land...." The Commission acknowledged unreasonable distinctions based on sex in State laws and practices which discriminated against women. It considered three different ways to achieve "greater recognition of the rights of women": 1) test litigation challenging laws under the 14th and 5th Amendments to the Constitution, 2) the ERA, and 3) state legislative action. The commission expressed a preference for the first and third routes but did not squarely oppose the ERA. Instead, in deference to Marguerite Rawalt, it said the ERA "need not now be sought." Instead the Report called for "judicial clarification ... in order that remaining ambiguities with respect to the constitutional protection of women's rights be eliminated. (President's Commission on the Status of Women, American Women: Report of the President's Commission on the Status of Women, Washington, D.C.: Government Printing Office, 1963, pp. 44-45.) Although the President's Commission gave Congress an excuse to abstainfrom further consideration of the ERA, it also was a key element in its resurgence. Governors in all but one state were prompted to create their own state commissions on the status of women. These prepared extensive reports documenting discrimination against women in their states. The members of these commissions were invited to annual conferences in Washington by the Women's Bureau. It was at the third such conference in June 1966 that the National Organization for Women was formed. In 1967 NOW formulated an eight-point Bill of Rights which included the ERA. It also supported a woman's right to choose abortion, which prompted Board member, Elizabeth Boyer, to leave NOW and form a separate organization, the Women's Equity Action League (WEAL) which concentrated on eliminating employment and education discrimination, particularly through litigation and lobbying. (Jo Freeman, The Politics of Women's Liberation, New York: Longman, 1975, Chapters 2 and 3.) It was several years before the ERA became a NOW imperative. Initially, NOW was more concerned with changing the guidelines on sex discrimination promulgated by the Equal Employment Opportunities Commission, which was created by Title VII of the 1964 Civil Rights Act. The addition of "sex" to the section of the Act prohibiting discrimination in employment on the basis of race, color, creed and national origin was more opportunistic than planned. It was not brought up in Committee and no hearings were held. Instead it was a floor amendment in the House made by a male ERA supporter from Virignia which received several hours of humorous debate before being passed by 168 to 133. The NWP had wanted to amend all the relevant sections of the Civil Rights Act, but it could find support only for the employment section, and this was shaky. Alice Paul considered such maneuvers as "sideshows" to the ERA campaign, engaged in only because the organization did not want to see any group given rights not also given equally to women. Throughout the fifties the NWP lobbied for the inclusion of sex discrimination in Executive Orders prohibiting race discrimination by government contractors and had tried to add "sex" to other Civil Rights bills. Despite opposition from the Women's Bureau, the "sex" amendment was passed in the House primarily by a coalition of Republicans and Southern Democrats. It was not removed in the Senate because the Johnson Administration wanted to minimize the differences which would have to be ironed out in the House/Senate Conference and because the President had made several public statements in January 1964 on the importance of bringing more women into government. (110 Cong. Rec., February 8, 1964, pp. 2577-84. Pardo, pp. 161-2. "Converations with Alice Paul: Woman Suffrage and the ERA," an interview with Amelia Fry, November 1972, May 1973, Suffragists Oral History Project, Bancroft Library, University of California at Berkeley, p. 615. Patricia G. Zelman, Women, Work, and National Policy: The Kennedy-Johnson Years, Ann Arbor, Mich.: UMI Research Press, 1982, pp. 45-7, 61, 67, 70. Carl M. Brauer, "Women Activists, Southern Conservatives, and the Prohibition of Sex Discriminaiton in Title VII of the 1964 Civil Rights Act", 49 Journal of Southern History, February 1983, pp. 37-56. Edith Green (D. Ore.) was the sole woman to vote against the "sex" amendment.) The EEOC chose to follow what it felt was the true intent of Congress rather than the actual wording of the law and ignored the sex provision. The first executive director of the EEOC publicly stated that the provision was a "fluke" that was "conceived out of wedlock." (Herman Edelsberg, at the New York University 18th Conference on Labor, cited in 61 Labor Relations Reporter, August 25, 1966, pp. 253-55.) Initial guidelines prohibited segregation of want-ads by race but permitted them by sex. The EEOC also supported State protective labor legislation, forcing opponents to go to court. Several of these cases were handled by lawyers on behalf of NOW, including Weeks v. Southern Bell Telephone, the first major decision by an appeals court. The Fifth Circuit's ringing denunciation of "protection" in March 1969 was cited in virtually all subsequent cases. Southern Bell ... would have us "assume" on the basis of a "stereotyped characterization" that few or no women can safely lift thirty pounds, while all men are treated as if they can... ...Title VII rejects just this type of romantic paternalism as unduly Victorian and instead vests the individual woman with the power to decide whether or not to take on unromantic tasks. Men have always had the right to determine whether the incremental increase in remuneration for strenuous, dangerous, obnoxious, boring or unromantic tasks is worth the candle. The promise of Title VII is that women are now to be on an equal footing. (Weeks v. Southern Telephone and Telegraph, 408 F.2d. 228, 235-6 (5th Cir. 1969).) This ruling that state protective laws were pre-empted by Title VII and therefore invalid was consistently followed by other courts, thus paving the way for reconsideration of the Equal Rights Amendment. (Freeman, pp. 76-7, 212.) Since the traditional opponents of the ERA had based their opposition on the need to maintain protective labor legislation, theywere neutralized by its invalidation. Several unions were impressed by the plethora of legal complaints filed by blue collar women about the restriction of their job opportunities by protective labor legislation. The United Auto Workers endorsed the ERA in 1970 and was soon followed by others. The AFL-CIO, however, didn't change it's policy until late 1973. The Women's Bureau switched in 1969 when the Nixon Administration appointed as its Director Elizabeth Duncan Koontz, a black former President of the National Education Association from North Carolina who, like the NEA, was an ERA supporter. She quietly lobbied union women who in turn lobbied union men. (Freeman, pp. 209, 212.) In 1970 the emerging women's liberation movement became a major public phenomenon with massive press publicity. This generated an enormous momentum for the ERA and eventually for additional legislation to eliminate sex discrimination. The first governmental body to endorse the ERA was the Citizen's Advisory Council on the Status of Women, a successor to the President's Commission, which did so on February 7, 1970. The second was the President's Task Force on Women's Rights and Responsibilites, which had been created the previous year by Nixon to appease feminists. It prepared a report with detailed policy proposals to improve the status of women, including Presidential endorsement of the ERA, which was held up for six months because it was "too strong". Much of the legislation to be introduced into Congress in the next ten years was first spelled out in the Task Force report, A Matter of Simple Justice. (Freeman, 148-40, 207, 212.) In May 1970 hearings were held in the Senate Judiciary Subcommittee on Constitutional Amendments, chaired by ERA sponsor Birch Bayh (D. Ind.), as a result of disruptions by NOW members of February hearings on the 18-year-old-vote. In June the new Secretary of Labor added his endorsement at the Women's Bureau's fiftieth anniversary conference, where the Task Force Report was also released. During that conference Rep. Martha Griffiths (D. Mich.) announced she was sponsoring a discharge petition to release the ERA from the House Judiciary Committee where Chair Emmanuel Celler (D. NY) had locked it up for almost twenty years. As a result, the House voted on the ERA for the first time in August 1970; it passed by 350 to 15. However, the Senate voted to add two amendments; one to exempt women from the military draft and another to permit prayer in public schools. Therefore the ERA was dropped for that session. After reintroduction into a new Congress, the House Judiciary Subcommittee held new hearings and Celler tried once again to block the ERA in Committee with a crippling amendment. Nonetheless, it reached the floor again on October 12, 1971 where it was approved by 354 to 24. In the Senate the following March, Sam Ervin (D. NC) proposed eight separate substitutes that all met with resounding defeat. The final vote was 84 to 8. (Freeman, pp. 213-220.) Passage of the ERA came at a unique point in its history. It had been debated for years by mutual antagonists who would not compromise an inch. In the meantime, social and legal changes intervened to undermine the basis of the opponents' position. Between 1970 and 1972 opposition was greatly attenuated. With a few notable exceptions, the ERA became a symbolic issue on which everyone could agree. Yet even as this agreement was reached a new opposition was developing. Ironically, it was from the right, which had mostly supported the ERA during its lengthy stay in Congress. This opposition grew and eventually consumed more moderate forces, even while the ERA gained support from ancient foes to the left. Legislation Although the ERA was not ratified, the two-year battle had some very beneficial side effects, impressing Congress with the was a serious constituent interest in women's rights, and establishing liaisons between feminist organizations and Congressional staff. With this impetus the same Congress that sent the ERA to the states passed a bumper crop of women's rights legislation--considerably more than all relevant legislation previously passed in the history of this country. These laws: 1) expanded the coverage of Title VII and the enforcement powers of the EEOC; 2) prohibited sex discrimination in all federally aided education programs (Title IX); 3) added sex discrimination to the jurisdiction of the U.S. Commission on Civil Rights; 4) prohibited sex discrimination in State programs funded by federal revenue sharing; 5) provided free day care for children of poor families and a sliding fee scale for higher-income families which was vetoed by President Nixon; 6) provided for a child care tax deduction for some parents; 7) added prohibitions against sex discrimination to a plethora of federally funded programs including health training, Appalachian redevelopment, and water pollution. Subsequent Congresses have not passed as many major laws but they have been active. New laws include the Equal Credit Opportunity Act, the Women's Educational Equity Act which provides grants to design programs and activities to eliminate stereotyping and achieve educational equity, creation of the National Center for the Control and Prevention of Rape, an amendment to the Foreign Assistance Act requiring particular attention be given to programs, projects and activities which tend to integrate women into the national economies of foreign countries, prohibitions of discrimination in the sale, rental or financing of housing, an amendment to Title VII to include pregnancy in employment disability insurance coverage, admission of women to the military academies and the addition of still more anti-discrimination provisions to federally funded programs. The States have also been active arenas in the last fifteen years. Laws have been passed in most states prohibiting sex discrimination in employment, housing, credit, and in some states prohibiting discrimination in insurance, education and public accommodations. Most states now have no-fault divorce provisions; all but four have equal custody and support laws (two others have equal custody but provide support only for the wife). The changes have been partially a result of pressure from feminist and other public interest groups and partially in response to changes in federal legislation and Supreme Court decisions. Many states have followed the lead of the federal government in conducting studies to identify gender-based distinctions in their laws and recommend changes. Most of these studies were in response to efforts to adopt a state ERA or ratify the federal amendment. (The 1983 Handbook on Women Workers, Women's Bureau, U.S. Dept. of Labor, Washington, D.C.: Government Printing Office, 1983, Chap. 7.) Sex and the Supreme Court The proposal of the President's Commission that women seek "judicial clarification" under the Fifth and Fourteenth Amendments was not a new idea. It had been tried during the Nineteenth Century without success. After Muller declared that sex was a reasonable basis of classification further efforts were futile. Although the rationale of Muller had rested on public concern with maternal health, it was cited as a precedent in support of excluding women from juries, different treatment of the sexes in occupational licensing, and excluding women from state-supported colleges. (Commonwealth v. Welosky, 276 Mass. 398, 414, 177 N.E. 656, 664 (1931), certiorari denied, 284 U.S. 684 (1932). Quong Wing v. Kirkendall, 223 U.S. 59, 63 (1912); People v. Hunter, 208 Ore. 282, 288, 300 P.2d 455, 458 (1956). Allred v. Heaton, 336 S.W.2d 251 (Tex. Civ. App.), certiorari denied, 364 U.S. 517 (1960); Heaton v. Bristol, 317 S.W.2d 86 (Tex. Civ. App.), certiorari denied, 356, 230 (1958).) To understand why Muller was so important one has to understand the structure of legal analysis that has developed around the Fourteenth Amendment. The simple language of Section I imposed restrictions on State action that had previously been imposed only on the federal government: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The Supreme Court ruled in 1872 that the "privileges and immunities" clause did not convey to citizens any rights that they had not previously had, and it thus shut off that avenue of legal development. (Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1872).) The "due process" clause was for many decades used to undermine state economic regulations such as protective labor laws applying to both sexes. This left the "equal protection" clause. Initially the Court ruled that race and only race was in the minds of the legislators when the Fourteenth Amendment was passed, but its coverage was soon expanded to include national origin and alienage. However, what is prohibited is not all official discrimination, but only invidious discrimination. If a compelling state interest is served by discrimination -- such as the need to integrate school districts -- distinct laws or state practices based on race or nationality are permitted. The essence of this approach is that certain classifications made by laws are "suspect" and thus subject to "strict scrutiny" by the courts. Unless there is a "compelling state interest" they will be struck down as unconstitutional. Classifications that are not suspect are not subject to the same searching inquiry by the courts. The state need only show that there is a "rational basis" for their existence, and the court will then defer to the legislature. In practice, classifications that are subject to strict scrutiny are almost always invalidated as unconstitutional. Classifications that need only a rational basis have almost always survived challenges to their constitutionality. The courts have shown great deference to the state legislature and have gone out of their way to construct rationalizations for legal distinctions that to the untrained eye seem to have only the flimsiest of reasons. (Tribe, pp. 994-1002. "Strict scrutiny" is also employed where fundamental rights, such as voting, travel, procreation, criminal appeals, or those protected by the First Amendment, are involved.) The consequence has been a "two-tier" system in which the type of analysis applied to a classification, rather than the reason for the classification, determines the outcome of its constitutionality. The "strict scrutiny" test is usually fatal, while the "rational basis" test is usually meaningless. Thus, in order to eliminate a legal classification, the courts must be convinced that strict scrutiny is necessary. In 1961, only two years before the President's Commission urged courts to examine the validity under the 5th and 14th Amendments of "laws and official practices discriminating against women, to the end that the principle of equality become firmly established in constitutional doctrine," (American Women, p. 45.) the Supreme Court had upheld this discrimination as valid. Reviewing the conviction of a Florida women by an all male jury for murdering her husband, the Court upheld a law exempting women from jury service unless they registered a desire to serve with the clerk of the circuit court. Even though this virtually insured that there would be no women in the jury pool, the Court justified it as acceptable because of women's "special responsibilities" as the "center of home and family life". (Hoyt v. Florida, 368 U.S. 57, 62 (1961).) Ten years after Hoyt, the Supreme Court began to take a different view. The turning point came in 1971 when the Court unanimously held unconstitutional an Idaho statute giving preference to males in the appointment of administrators of estates. In Reed v. Reed (Reed v. Reed, 368 U.S. 57 (1971).) the Court found the "administrative convenience" explanation of the preference for males to have no rational basis. Although unexpected, this development was not unforseeable. During the previous few years the Court had been adding a bit of bite to the rational basis test by looking more closely at state rationalizations for some classifications that did not trigger strict scrutiny. During the previous two years the emerging women's movement had become publicly prominent, and the Equal Rights Amendment had been battling its way through Congress. One sign of this "sea change" in public attitude was given by the American Civil Liberties Union, a traditional opponent of the ERA. In 1968 the National Board had rejected a proposed policy statement about women's legal rights which would challenge sex-specific legislation. Two years later, Suzanne Post and Faith Seidenberg, NOW's Vice President for Legal Affairs, organized a women's caucus at ACLU's 1970 National Biennial Meeting. It persuaded the Board to pass a resolution supporting the ERA and litigation to foster women's rights. Shortly thereafter a staff member spotted Reed in a legal publication while it was still in the Idaho courts. The ACLU became co-counsel and asked Ruth Bader Ginsberg, a professor at Rutgers Law School, to write a major portion of the brief presented to the Supreme Court. The change was not solely due to pressure within. In the preceeding few years the ACLU's affiliates had been bombarded with requests by women to take on sex discrimination cases. Ginsburg's students had likewise brought cases in state courts to her attention. After Reed the ACLU obtained a major grant from the Ford Foundation for a Women's Right's Project (WRP). Ginsburg argued several key cases before the Supreme Court, and the ACLU wrote amicus briefs in others, but there was never any strategy to bring cases in a particular order to achieve a particular result. (Phone interview with Ruth Bader Ginsberg, now a judge on the D.C. Circuit Court of Appeals, April 16, 1984. Phone interview with Faith Seidenberg, Syracuse attorney, June 5, 1987. Letter of June 26, 1987 from Suzanne Post to author.) The WRP was quickly followed by the emergence of several other projects devoted to women's rights cases, including the Women's Legal Defense Fund (WDLF), Equal Rights Advocates (ERA), the Women's Law Fund (WLF), the Women's Law Project (WLP), and Human Rights for Women (HRW). In addition the attention of other public interest litigation organizations, such as the Southern Poverty Law Center (SPLC) and the Center for Constitutional Rights (CCR) turned to developing case law in this area and the Center for Law and Social Policy (CLSP) set up a special Women's Rights Project like the ACLU. Both NOW and WEAL created Legal Defense Funds. With the help of foundation financing, these groups were responsible for most of the important women's rights cases to be litigated in the next ten years. Their efforts were not well co-ordinated, and at times one would bring a case inconsistent with the strategic aims of another. However, they did share information about possible expert witnesses at the trial stage, and divided up the points to be made in amicus briefs once a case reached the Supreme Court. (Karen O'Connor, Women's Organizations Use of the Courts, Lexington, Mass.: D.C. Heath, 1980, Chapter 5.) The next key case was brought before the Court in 1973 by the SPLC and ACLU-WRP. after Air Force Lieutenant Sharon Frontiero challenged a statute that provided dependent allowances for males in the uniformed services without proof of actual economic dependence, but permitted such allowances for females only if the women could show that they paid one-half of their husbands' living costs. Eight members of the Court found the statute unconstitutional but they split on the reason. Four applied strict scrutiny, thus granting sex the long sought status of a "suspect class." Three applied the traditional rational basis test, but found the statute unconstitutional on the authority of Reed. One Justice concurred without giving an opinion. Justice Rehnquist was the sole dissenter. If only one more justice had joined the plurality opinion, "legal equality", or at least as much as any other group had, would have been achieved. Ironically, the three justices who deliberately avoided characterizing sex as a suspect classification asserted that [t]he Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. If ... adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily,... the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment. It seems... that this reaching out to pre-empt by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes. (Frontiero v. Richardson, 411 U.S. 677, 692. (1973). In her April 16, 1984 interview, Ruth Bader Ginsberg stated that this rationale was merely a convenient excuse because a majority of the Court was not yet ready to declare sex a suspect class.) In cases after Reed and Frontiero the Court applied a "strict rational basis" standard with greater and greater scrutiny, until in 1976 a new standard, subsequently referred to as intermediate scrutiny, was articulated. On the surface, Craig v. Boren did not appear to be a momentous case and was not sponsored by any of the feminist ligitation groups (though the WRP did file an amicus brief). It concerned an Oklahoma law that prohibited selling "3.2" beer to men under twenty-one but allowed sales to women over eighteen. The state's rationale for this law was that more than ten times as many males as females between eighteen and twenty-one were arrested for drunk driving. The Court found the law unconstitutional, holding that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." The Court was not satisfied that "sex represents a legitimate, accurate proxy for the regulation of drinking and driving." (Craig v. Boren, 429 U.S. 190, 197, 204 (1976).) After Craig the Court no longer wrote plurality opinions in which some justices supported use of strict scrutiny in gender cases and others concurred or dissented on a different basis. Instead the "heightened scrutiny" of the new intermediate standard was applied consistently, though not unanimously, usually to strike down laws that made distinctions by sex. Yet even before Craig, the language of decisions after Reed reflected a very different approach by the Court to women's status. No longer was family status the determinant of women's legal status. Instead the very articulation by a state of the desirability of women's ecnomic dependence or women's unique responsibility for family obligations led the Court to view it as irrational. Two cases decided in the spring of 1975 illustrate this profound transformation from the assumptions of Hoyt and earlier cases that a woman's family role created a valid basis for classification by sex. Weinberger v. Wiesenfeld, brought by the ACLU-WRP with the CCR on amicus, challenged a provision of the Social Security Act that provided benefits for the surviving widow and minor children of a working man covered by the Act, but only for the minor children of a covered woman. The unanimous opinion of the Court pointed out that Since the Constitution forbids ... gender-based differentiation premised upon assumptions as to dependency ... [it] also forbids the gender-based differentiation that results in the efforts of female workers required to pay social security taxes producing less protection for their families than is produced by the efforts of men. The Court further recognized the father's as well as the mother's responsibility for child care. It is no less important for a child to be cared for by its sole surviving parent when the parent is male rather than female. And a father, no less than a mother, has a constitutionally protected right to the "companionship, care, custody, and management" of "the children he has sired and raised." (Weinberger v. Wiesenfeld, 420 U.S. 636, 645, 652 (1975), quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972).) A month later the Court went further in Stanton v. Stanton, a Utah case in which a divorced father ceased paying child support to his daughter when she reached age 18, but continued it for his son on the grounds that in Utah girls were no longer minors after 18, but boys were until age 21. It found that: No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas....[I]f the female is not to be supported so long as the male, she hardly can be expected to attend school as long as he does, and bringing her education to an end earlier coincides with the role-typing society has long imposed. (Stanton v. Stanton, 421 U.S. 7, 14-15 (1975).) The Supreme Court has continued to strike down state statutes which reinforced role-typing and economic dependency, or which rested on "archaic and overbroad generalizations". In doing so it has invalidated statutes that provided for Social Security benefits payable to widows but not to widowers, (Califano v. Goldfarb, 430 U.S. 199 (1977).) for alimony for wives but not for husbands, (Orr v. Orr, 440 U.S. 268 (1979).) permitted an unwed mother but not the father to block adoption of illegitimate children, (Caban v. Mohammed, 441 U.S. 380 (1979).) paid welfare benefits to families with unemployed fathers but not unemployed mothers, (Califano v. Westcott, 443 U.S. 76 (1979).) and worker's compensation death benefits to widows, but to widowers only if they could prove economic dependency. (Wengler v. Druggists Mutual Insurance Company, 446 U.S. 142 (1980).) In 1982 the Court ruled for the third time in twelve years on the issue of whether sex-segregated schools were violative on the Constitution, and for the first time, in a very limited context, it held they were. Mississippi University for Women had established a Nursing School in 1970. Like the rest of its programs it was restricted to women only. Men could audit classes, and participate as though they were students, but they could not matriculate. A male R.N. who lived in the same town as MUW wanted a B.A. in nursing but didn't want to move to attend one of the other two schools in Mississippi which offered that degree coeducationally. In a 5 to 4 decision written by the newest member of the Court, Justice Sandra Day O'Connor, the Court held that "MUW's policy of excluding males from admission ...tends to perpetuate the stereotyped view of nursing as an exclusively woman's job," and thus is not consistent with the State's claimed justification that the single-sex admissions policy "compensates for discrimination against women and, therefore, constitutes educational affirmative action." Instead the Court found that the "policy of permitting men to attend classes as auditors fatally undermines its claim that women, at least those in the School of Nursing, are adversely affected by the presence of men." (Mississippi University for Women et. al. v. Joe Hogan, 458 U.S. 718. 73 L.Ed.2d 1090, 1100, 1101-1102. 102 S.Ct. 331 (1982).) However, since Congress in Title IX of the 1972 Educational Amendments Act had specifically authorized the continuance of single-sex public undergraduate institutions which "traditionally and continually from its establishment has had a policy of admitting only students of one sex," 20 U.S.C.  1681(a), this ruling probably applies only to the School of Nursing and not to the entire University. Only twelve years previously the Court had found differently when it affirmed without a written opinion the ruling of a District judge that men could not attend South Carolina's female only state college. (Williams v. McNair, 401 U.S. 951 (1971) affirming 316 F.Supp. 134 (D.S.C. 1970).) The lower court had relied on the rational basis test--eight months before Reed. Midway between these two cases a more ambivalent Court had split 4 to 4 (Rehnquist didn't participate) on whether or not Philadelphia could maintain sexually segregated public high schools. By dividing equally on appeal the Supreme Court left the decision in force but without the precedential value of an affirmation. (Vorchheimer v. School District of Philadelphia, 430 U.S. 703 (1977), 532 F. 2d 880, 886, (3rd Cir. 1976), overturning 400 F. Supp. 326 (E.D.Pa. 1975).) However, the record of the women's rights litigants is not unblemished, as the Court has not ruled against all sex distinctions. Both before and after Craig the Court has looked favorably on statues that it felt operated "to compensate women for past economic discrimination." Califano v. Webster, argued by the ACLU-WRP, upheld a Social Security provision that, prior to 1972, permitted women to eliminate more of their low-earning years from the calculation of their retirement benefits than men could eliminate, because it "works directly to remedy some part of the effect of past discrimination." (Califano v. Webster 430 U.S. 313, 318 (1977).) Kahn v. Shevin, also an ACLU case, upheld a Florida statute giving widows, but not widowers, a $500 property tax exemption. The Court ruled that the state law was "reasonably designed to further state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden." (Kahn v. Shevin, 416 U.S. 351, 355 (1974).) The other rationale that the Court has employed to uphold some sex distinctions is that men and women are not "similarly situated." Schlesinger v. Ballard, argued by the SPLC, upheld federal statutes that allowed more time for female than for male naval officers to attain promotion before mandatory discharge on the ground that they served the goal of providing women equitable career advancement opportunities. The Court found that, because women were restricted from combat and most sea duty, it would take longer for them to compile favorable service records than it took men. Therefore, "the different treatment of men and women naval officers...reflects, not archaic and overbroad generalizations, but, instead, the demonstrable fact that [they] are not similarly situated with respect to opportunities for professional service." (Schlesinger v. Ballard, 419 U.S. 498, 508 (1975).) This explanation was also relied on to uphold a California statute that made statutory rape a crime that only males could commit against females. The state supreme court had already subjected the classification to "strict scrutiny" and found that the statute served a "compelling state interest" in preventing teenage pregnancies. Applying the lesser standard of "important governmental objectives." the Supreme Court came to the same conclusion, but only by ignoring the dissent's objection that a sex-specific statute was not "substantially related to a stated goal as long as a gender-neutral one could achieve the same result." (Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 472 (1981).) These cases led inexorably to Rostker v. Goldberg, in which the ACLU-WRP contested the requirement that males but not females register for a potential draft. Giving great weight to the legislative history, the Court noted that Congress' thorough consideration of the issue had clearly established that its decision to exempt women was not the "accidental by-product of a traditional way of thinking about females." It concluded that the "purpose of registration ... was to prepare for a draft of combat troops" and that "[w]omen as a group,... unlike men as a group, are not eligible for combat." Because men and women were not "similarly situated" with regard to military service, it was not unconstitutional to distinguish between them. "The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality." (Rostker v. Goldberg, 453 U.S. 57, 74, 76, 79 (1981).) Although the Court has not adopted the same standard for sex cases as it has for race, religion and national origin, for both categories there are some exceptions to the mandate for equality, usually ones involving rectification for past inequalities. However, cases permitting different treatment of the sexes on the grounds that they are not "similarly situated" could, under a different Court, lead the way to a modern version of Muller. On the surface it might seem desirable for the Court to require equality where men and women are similarly situated and to make exceptions apparently in women's favor where they are not, but there are very few circumstances in which men and women are similarly situated. Muller was also perceived to be in women's favor from the perspective of reformers of the time. Yet later courts, and legislatures, relied on it to restrict women's opportunities. An example of the consequences of protecting women from military service is to be found in Personnel Administrator of Massachusetts v. Feeney. While the Federal Government and almost all states give veterans preference for civil service jobs, Massachusetts is one of the few that gives them an absolute preference. After job candidates' scores have been computed on the basis of an examination and an assessment of their training and experience those who pass are ranked. However, all passing veterans are ranked ahead of all nonveterans. Consequently, nonveteran Helen Feeney had never been able to secure one of the many civil service jobs she took exams for over a twelve year period even though she scored very high. She held a lower level civil service job during this period which was abolished in 1975, prompting her lawsuit. A lower federal court held the statute unconstitutional on the grounds that while it was not intended to discriminate against women, since only 1.8 percent of the veterans in Massachusetts were female the exclusionary impact was so severe that the State should be required to find a less extreme form of rewarding veterans. The Supreme Court found otherwise. Ignoring the fact that until recently women were restricted to only 2 percent of the armed forces, the Court nonetheless said that a neutral law with an adverse impact is unconstitutional only if discriminatory intent can be shown. It rejected the argument that the exclusion of women was such an inevitable and forseeable consequence that the Massachusetts legislature must be held responsible for intending it even if exclusion were not its primary objective. Instead the Court said that "the law remains what it purports to be: a preference for veterans of either sex over nonveterans of either sex, not for men over women." (Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 280 (1979), overturning 451 F.Supp. 143 (Mass. 1978).) In three other cases the Court has held that gender neutral distinctions which nonetheless had a discriminatory impact were not unconstitutional. Geduldig v. Aiello upheld the exclusion of pregnancy from coverage under the California disability insurance system. The Court said that the "program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition--pregnancy--from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification...." (Geduldig v. Aiello 417 U.S. 484, 496 n20 (1974).) Parham v. Hughes concerned a Georgia statute which permitted mothers but not fathers of illegitimate children to sue for the wrongful death of a child. Since fathers who subsequently legitimated their children could also sue, the court found that the actual distinction in the law was not one of gender but one between fathers who did and did not legitimate their children. (Parham v. Hughes, 441 U.S. 347 (1979).) Similar reasoning was followed in Lehr v. Robertson in which an illegitimate father objected to an adoption without his consent. In these cases findings that the distinction was not gender based led the court to apply the rational basis test, and conclude that the statute was reasonable. (Lehr v. Robertson, 463 U.S. 248 (1983).) These deviations from the pure feminist approach should not detract from recognition of the revolution in judicial thinking on women that has occurred since 1961. Sex is not yet a suspect class, but legal sex discrimination is no longer sanctioned as a necessary protection for a dependent class. What's even more remarkable is that the revolution took place in such a short period of time for judicial doctrine. True, the 1937 Court changed directions in only a few months, but the decisions both before and after the change were by a vote of 5 to 4 and the country was in the midst of a major crisis. Most of the decisions on women's rights made since 1971 have been by comfortable pluralities. The extent of the revolution is perhaps best seen in two challenges to national service organizations which have traditionally excluded women from membership -- the Jaycees and the Rotary Clubs. Not only did the Court rule that any "slight infringement on Rotary members' rights of expressive association ... is justified because it serves the State's compelling interest in eliminating discrimination against women", but even Rehnquist joined in the unanimous ruling. (Rotary International v. Rotary Club of Duarte, 55 USLW 4606, 4607 (May 4, 1987). Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984).) The Next Revolution While the finishing touches are being applied to the legal revolution of the 1970s, the stage is being set for the next act. As revolutionary as were the changes in public policy toward women, there is still a fundamental assumption that the principle economic unit is the two parent family, only one of whom is the primary wage earner, with the other being cast in a supporting role. It is this assumption that feminist theory and feminist policy proposals need to challenge. Feminist proposals must recognize that all adults should have responsibility for the support of themselves and their children, regardless of their individual living situation, and that all are entitled to policies that will facilitate carrying out this responsibility regardless of sex, marital, or parental status. Acceptance of this idea would require an entire reconception of women's role in the labor force, of what is a family and of what our social obligations to it are. It would also involve the recognition that one cannot have primary responsibility both to a career and to a family, and that rather than divide such responsibilities by sex as they are now, modifications should be made in both so that women and men can participate equally in both. The revolution in consciousness wrought by the women's liberation movement has resulted in acceptance of the idea of "equal opportunity." This view asserts that women who are like men should be treated equally with men. Though drastically different from earlier views, it accepts as standard the traditional male lifestyle, and that standard in turn assumes that one's primary responsibility should and can be one's job, because one has a spouse (or spouse surrogate) whose primary responsibility is the maintenance of house and family obligations. Women whose personal lifestyle and resources permit them to fit these assumptions, could, in the absence of sex discrimination, succeed equally with men. But most women cannot do this, however, because our traditional conception of the family, and women's role within the family, make this impossible. Despite the fact that only 20 percent of all adults live in units composed of children plus two adults, only one of whom is income producing, our entire social and economic organization assumes this as the norm and maintains that it is socially desirable for one class of adults to be economically dependent on another. Consequently, couples who equalize family responsibilities, or singles who them all, pay a price for deviancy. Women who spend the greater part of their lives as dependent spouses only to find their "career" ended by death or divorce pay a price for conformity. The fact that a majority of the population is paying these prices is compelling some reforms, but a total reorganization is necessary. This reorganization must be one which abolishes institutionalized sex role differences, and the concept of adult dependency. It needs to recognize the individual as the principle economic unit, regardless of what combinations individuals do or do not choose to live in, and to provide the necessary services for individuals to support themselves and help support their children. In pursuit of these goals, programs and policies need to make participation by everyone in the labor force to the full extent of their abilities both a right and an obligation. They should also encourage and facilitate the equal assumption of family responsibilities without regard to sex, as well as develop ways to reduce conflict between the conduct of one's professional and private lives. While transition policies are necessary to mitigate the consequences of adult dependency, the goal should be abolition of the sexual division of labor. They should not be ones which permanently transfer dependency from "breadwinners" (male earners) to society in general, nor should they be ones which encourage dependency for a major portion of one's life by extolling its benefits and minimizing its costs. Instead transitional policies should be ones which educate women to the reality that they are ultimately responsible for their own economic well-being, but are entitled to the opportunities to achieve it. Needless to say the consequences of revising our policies to focus on the individual rather than the family as the basic economic unit, to deliberately eradicate the sexual division of labor in both the family and the work force, to establish equal participation in the labor force as a right as well as an obligation, and to institutionalize the support services necessary to achieve the above, would not merely be felt by women. Such policy changes would reverberate throughout our entire economic and social structure. Thus one should not anticipate their achievement in the near future. But one will not be able to anticipate their achievement at all until the ideas are raised and the need for change understood. To do this the movement needs to return to its origins and begin the process of questioning and consciousness raising all over again.