1983 Senate Hearing Transcript
1983 Senate Hearing Transcript
ABSTRACT
Presented are eight congressional hearings on a joint
resolution proposing an amendment to the Constitution of the United
States relative to equal rights for women' and, men. The hearings focus
on a constitutional overview; the impact of the Equal Rights
Amendment (ERA) on private and parochial education, military law and
policy, abortion policy, veterans' programs, the Social Security
program, and homosexual rights; and defining discrimination under the
proposed amendment. The text of the proposed legislation is provided.
Testimony includes statements, prepared statements, and miscellaneous
materials (newsletters, letters, reports, etc,.) from U.S. Senators,
entatives in Congress, and individuals representing Cornell
University, Hunter College, Harvard University, Rutgers University,
University of California at Berkeley, Tulane University, Emory
University, Veterans of Foreign Wars, American Legion, American
Veterans Committee, Vietnam Veterans of America, AMVETS, University
of North Carolina, National Endowment for the Humanities, Catholic
University, Dickinson College, and various law firms. (Y/413)
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Reproductions supplied by EDRS are the best that can be made
from the original document.
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S. Hilo. 95-1259, Pr. 1
THE IMPACT OF THE EQUAL RIGHTS AMENDMENT
N.
HEARINGS
BOORS THZ
te1
SUBCOMMITTEE ON TILE CONSTITUTION
OT mm
CI
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-EIGHTH CONGRESS
FIRST AND SECOND SESSIONS
ON
S.J. Res. 10
A JOINT RESOLUTION PROPOSING AN AMENDMENT TO THE CONSTITU-
TION OF THE UNITED STATES RELATIVE TO EQUAL RIGHTS FOR
WOMEN AND MEN
MAY 26, SEPTEMBER 13, NOVEMBER 1, 1983; JANUARY 24, FEBRUARY 21,
MARCH 20, APRIL 23, AND MAY 23, 1984
PART I
/
EDUCATIONAL RESOURCES INFORMATION
CENTER (ERIC)
I This document has teen reproduced
as
received frOm the person or orearesstion
origineting it.
L I .Mrror cheriges have
been made to improve
»Production guiltily.
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Point' of view Of opinions stated in this docu-
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position or poky.
2
sir
SUBCOMNUMS ON MR CONIFTITUTION
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina DENNIS DeCONCINI, Arizona
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
STRPHIN 4. mARKKAN. Chief Counsel and Staff Director
'RANDALL RADilt. Genera/ Counsel
CAROL Errs, Chief Clerk
Boa FIDDLIKR, Minority Chief Counsel
3
V
CONTENTS
(Part 1)
Hearings held on: pose
May 26, 1983
September 1983 95
November 1, 1983 25I
January 24, 1984 487
February 21, 1984 677
March 20, 1984 809
April 23, 1984 8'17
May 23, 1984 941
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Senator Orrin G 1, 95, 251, 437, 677, 809, 877, 941
DeConcini, Senator Dennis 4, 142, 262, 501,810
Grass ley, Senator Charles E 5, 488
Thurmond, Senator Strom 6, 96, 911
Kennedy, Senator Edward M 7, 259
Sidon, Senator Joseph R 10
Leahy, Senator Patrick J 42
Metzenbaum, Senator Howard M 252
PROPOSED LEGISLATION
B.J. Res. 10, a joint resolution proposing an amendment to the Constitution of
the United States relative to equal rights for women and men 12
. CHRONOLOGICAL LIST OF WITNESSES
THURSDAY, MAY 26, 1983
CONSTITUTIONAL OVRRYIEW
Tsongas, don. Paul E., a U.S. Senator from the State of Massachusetts 14
,Tucker, Marna S., attorney, Washington, DC, and Walter Berns, resident
scholar, American Enterprise Institute 43
Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois 82
MISCRLLANICOUS MAT1UUAL
Text of H.J. Res. i208, 92d Congress 91
"Ratification History of Equal Rights Amendment," from the Congressional
Research Service 92
"Standards of Review: Scheme of Analysis Used Under the Equal Protection
Clause of the Fourteenth Amendment,"
. from the Congressional Research
Service 1983 94
TUESDAY, SEPTIIMIIIR 13, 1983
PRIVATIS SDUCATION
4
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Page
1
Sha Iola, Donna E., president, Hunter College of the City University of New
York 113
0
MISCELLANEOUS MATERIAL
Questions from Chairman Strom Thurmond for Prof. Jeremy Rabkin 160
Responses of Prof. Jeremy Rabkin to questions from Senator Strom Thur-
163
mond 166
Responses of President,Shalala to questions of Senator DeConcini
"Taking the ERA Literally," by James J. Kilpatrick, from the Washing-
ton Poet, October 14, 1983 167
The doctrine of State action 168
Tax exempt status and the ERA 169
Donna's Dilemma, by Daniel Seligman, from Fortune magazine, Oct. 31, 1983 172
Dear colleague letter and analysis from Senator Orrin G. Hatch 173
Impact of the ERA upon private and parochial education, from the Sub-
committee on the Constitution 174
Responses of president Shah& to questions of Senator Thurmond 175
"Women get a ticket to ride-after train leaves the station," from the Stanford
Observer, October 1983 184
"A Legal Analysis of the Potential Impact of the Proposed Eual Rights
Amendment (ERA) on Private Single Sex Education Institutions,' by Karen
J. Lewis, from the Congressional Research Service, The Library of Con-
green, March 6, 1984 186 e
Statement of the U.S. Commission on Civil Rights on Civil Rights Enforce-
ment in Education, June 14, 1983 248
THE MILITARY
Packwood, Hon. Bob, a U.S. Senator from the State of Oregon 254
Cohen, Prof. Eliot A., professor, Harvard University, Department of Govern-
ment; and Antonia Handler Chayes, partner, law firm of Csaplar & Bok 269
MISCELLANEOUS MATERIAL
ABORTION RIGHTS
Gam, lion. Jake, a U.S. Senator from the State of Utah, prepared statement
on ERA's potential effect on American abortion law 440
Freedman, Ann E . associate professor of law, Rutgers University Law School,
Camden, NJ; and John Noonon, Jr., professor of law, University of
California at Berkeley, Berkeley, CA 451
Li
Li
Pate
MI9CRELANEOU8 MATERIAL
"The Equal Rights Amendment and Abortion, Why the ERA May Enhance
Abortion Rights," from the Subcommittee on the Constittan 548
"A Legal Analysis of the Potential Impact of the Proposed Equal Rights
Amendment (ERA) on the Right to an Abortion or to the Funding of an
Abortion," by Karen J. Lewis, Congressional Research Service, The Library
of Congress, October 20, 1983 549
Letter from Ann E. Freedman, associate professor of law, Rutgers University,
to Hon. Don Edwards, ehairMan, Subcommittee on Civil and Constitutional
Rights of the House Judiciary Committee, November 7, 1983 624
Letters to Hon. Orrin G. Hatch from:
Lynn D. Wardle, professor of law, Orem, UT, January 16, 1983 626
Mitchael E. Smith, professor of law, University of California, Berkeley,
February 2, 1984 629
Letters to Doug Johnson, National Right to Life Committee from:
Pai4e Comstock Cunningham, executive director-general counsel end
Thomas J. Marzen, chief staff counsel, Americans United for Life,
January 5, 1984 630
Grover Rees III, assistant professor, School of Law, University of Texas,
December 7, 1983 632
Senator Florian Chmielewski, chairman, employment committee, senate,
State of Minnesota, January 10, 1983 633
Letter from Paul Freund, Harvard Law School, to Senator Florian
Chmielewski, April 25, 1984 634
Letter to Ms. Cres Apprill, St. Louis, MO, from Thomas I. Emerson, Yale
University Law School, January 15, 1974 635
Memorandum from the law offices of Ball & Skelly, January 16, 1984 636
"ERA and Abortion, by Cardinal Bernardin, from the Chicago Catholic,
February 24, 1984 637
"Bishops Say They Will Oppose ERA Without Anti-Abortion Amendment
(,570)," from NC News Service, April 19, 1984 638
"Abortion Rights Where Do We Go From Here?" by Rhonda Copelon, from
Ms., October 1983 639
Resolution on ERA passed ot National NOW Conference, October 2, 1983 640
Excerpts from Joanne Fischer, et al. v. Department of Public Welfare, et al ,
February 7, 1984, in the Commonwealth Court of Pennsylvania 641
Excerpts from Joanne Fischer, et al. v. Department of Public Welfare, et al ,
Brief of Appellants, November 28, 1984, in the Supreme Court of Pennsyl-
vania.. 844
Excerpts from Rosie J. Doe, et al. v. Edward Maher, et al., Superior Court,
District f New Haven, October 9, 1981 655
Excerpts rom Moe v. Secretary of Administration, 417 N.E. 2d 387 (Mass
19801 657
"From t Executive Director's Desk," August 1980 Docket, newsletter of the
Civil L berties Union of Mass 657
Excerpts from Hawaii RIIht to Life, Inc. v. Andrew I.T. Chang, motion to
interve e,-in-.-the-Circuit Court of the First Circuit, State of Hawaii, May 1,
1978 659
"The E.R.A./ Abortion Link and How It Can Be Broken,' by Douglas Johnson,
NRLC legislative director, from the National Right to Life Factaheet 661
"E.R.A, and Abortion: Really Separate Issues ?' by Douglas Johnson and
Paige Comstc,c!r. Cunningham, from America, June 9, 1984 665
Letter to Hon. Jake Gam, U.S. Senate, from Lincoln C. Oliphant, counsel,
U.S. Senate Republican Policy Committee 670
TUESDAY, FEBRUARY 21, 1984
VETERANS PROGRAMS
Meloy, Michael, attorney at law, Helena, MT; Prof. Gary L. McDowell, Tulane
University; Charles A. Shanor. dean, Emory University School 678
vI
Parr
Schwab, Donald , director, National Legislative Service, Veterans of For-
eign Wars of the United States, accompanied by Kim Graham, Veterans of
Foreign Wars of the United States; E. Philip Rigg...1, director, National
Legislative Commission, the American Legion; June A. Willenx, executive
director, American Veterans Committee, accompanied by Frank E.G. Weil,
counsel; Dennis K. Rhoades, Vietnam Veterans of America; and David J.
Passamaneeek, national legislation director, AMVETS 721
MISCELLANEOUS MATERIAL
Sherburne, Jane C., Washington, DC; and Judith B. Finn, economist and
author 811
MISCELLANEOUS MATERIAL
MINING DISCRIMINATION
Wegner, Prof. Judith Welch, University of North Carolina School of Law; and
Prof. Edward J. Erler, National Endowment for the Humanities 878
MISCELLANEOUS MATERIAL
"Constitution Isn't Place for Remediation of Bias," by Carol Tyler, from the
Wall Street Journal, January 25, 1984 935
Excerpts from a Commentary on the Effect of the Equal Rights Amendment
on State Laws and Institutions, prepared for the California Commission on
the Status of Women's Equal Rights Amendment Project, by Anne K
Bingaman 937
HOMOSEXUAL RIGHTS
MISCELLANEOUS MATERIAL
"The Legality of Homosexual Marriage," from the Yale Law Journal, vol. 82;
573, 1973 985
VII
Pig
"A Legal Analysis of the Potential Impact of the Proposed Equal Rights
Amendment (ERA) on Homosexuals," by Karen J. Lewis, from the Congres-
sional Research Service, the Library of Congress October 12, 1983 1002
"Partnership Law Vetoed on Coast," by Wallace Turner, from the New York
Times, December 10, 1982 1021
"Homosexual Weddings Stir Dispute," by Edward A. Gargan, from the -New
York Times, Se mber 5, 1984 1022
"The State Equa Rights Amendments and Their Impact on Domestic Rela-
tions Law," by Paul M. Kurtz, excerpts from the Family Law Quarterly,
volume XI, No. 2, summer 1977 1024
8
Pogo
Phillips, Dean K.Continued
Letter from Charles W. Hinkle, Director, Freedom of Information and
Security Review, Office of Assistant Secretary of Defense 692
Rabkin, Jeremy A.:
Testimony 98
Prepared statement 101
Rhoades, Dennis K.:
Testimony 749
Prepared statement 752
Letter to Senator Hatch, June 20, 1984 755
Riggin, E. Philip:
Testimony 730
Prepared statement 732
11
Schwab, Donald H.:
Testimony 721
Prepared statement 723
Shalala, Donna E.:
Testimony 113
Prepared statement 117
Shanor, Charles A.:
Testimony 698
Prepared statement 698
Sherburne, Jane C.:
Testimony 811
Prepared statement 814
Teenier, Senator Paul E.:.
Testimony 14
Prepared statement 15
Tucker, ?dame S.:
Testimony 48
Prepared statement 51
Wegner, Prof. Judith Welch:
Testimony 878
Prepared statement J. 884
Willenz, June A.:
Testimony 785
Prepared statement 788
Letter from Elizabeth L Chittick, president, National Women's Party 743
9
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rious content. Only when this has been achieved can the American
people and their elected representatives make a truly informed and
intelligent decision about the effect the proposed constitutional
amendment will have upon this country.
I look forward to our witnesses this morning helping us take a
first step toward this critically important objective. We intend to
hold a series of hearings on this subject that I think will be equally
as interesting.
We have excellent witnesses today on both sides of this issue and
I am looking forward to hearing from them.
Senator DeConcini?
OPENINf; STATEMENT OF SENATOR DENNIS DeCONCINI
Senator DtCosicitli. Mr. Chairman, thank you very much. I am
pleased that Chairman Hatch has seen fit to commence hearings
on the ERA. Many questions have been raised as to the scope of
the amendment, its meaning, and potential impact. Considered dis-
cussion of these issues will be most helpful and, I feel, serve a most
important purpose.,
As always, the chairmen has been most gracious in 'extending
truly equfil rights to the proponents of the_arriendment. I look for-
ward to workihi, \4it,h you, Senator Hatch, on this issue as we have
in the past.
Mr. Chairman, the equal rights amendment is our Nation's most
importance piece of unfinished business. It is a 24-word text that is
straightforward language. It sets out a basic principle that equal
treatment under the law shall not be abridged on accotmt of sex.
I have supported the ERA prior to coming to the Senate and
during my Senate term, and I remNalcommitted to seeing that this
is passed. t,
The proposed equal rights amendment to the U.S. Constitution
was first introduced in 1923, although it was not passed until 1972.
As has been pointed out by the chairman, a 7-year time limit was
placed on it. In 1978, the proposed amendment had been approved
by 35 States. Unfortunately, no additional States had voted for rati-
fication before the new deadline and the proposed amendment died
on June 30, 1982.
It is not really dead. On July 14, 1982, the amendment was re-
introduced in Congress, using the form devised in 1972. The amend-
ment was referred to the House and Senate Judiciary Committees,
but no further action was taken.
This year, the ERA was reintroduced in the Senate on January
21; as Senate Joint Resolution 10, with 56 cosponsors. It was re-
introduced in the House on January 3 as House Joint Resolution 1,
with 239 cosponsors.
As I understand, the subcommittee will hold a series of hearings
on Senate Joint Resolution 10 extending through the summer and
into the fall. The House Judiciary Committee will do likewise, com-
mencing June 8.
A constitutional amendment which guarantees equal rights
under the law to all persons regardless of sex is long overdue. I
personally find it difficult to understand the controversy that has
swirled around this issue. It is a simple matter. In a society of laws,
3
5
which the United States is, all citizens must have equal standing.
Anything less is simply unacceptable.
I fear that too many well- meaning, - individuals have lost sight of
the simple and profound elegance of the prOposition and have gone
looking for demons and dragons. There are nonee. The equal rights
amendment is what it saysnothing more, nothing less. We all are
equal. That is all there is to it.
No one would disagree with the notion that the United States
has long been moving tcward equality of rights without the :,RA.
Indeed, great strides have been made. The reason for this is that
the entire society is suffused with the concept of equality.
But having said that, we must also acknowledge that there are
still great obstacles to overcome. Working women still lack in wage
equality with their male counterparts. Divorce, property, and re-
tirbmeni, laws still undervalue the worth of a woman's work and
services. Thousands of Federal, State, and local statutes treat citi-
zens differently depending on their sex. -
Women comprise the vast majority of the poor, and head over
one-half of America's impoverished families. Despite title VII of the
Civil Rights Act, title IX of the educational' amendments, the Equal
Pay Act, the Equal Opportunity Act, and numerous ether statutes
designed to bring equality to won4en,' women still have not been
brought into the mainstream as equals.
The time has come to make clear in the governing document of
this Nation, the Constitution, that women have earned and deserve
equal treatment under the. law: The time to act is now. An over-
whelming number of Americans-75 percentsupport equal rights
for women under the law. Today's hearing is the first step in a long
path toward passage.
We must renew the fight for the ERA. It is the right fight and
we must see it through to its conclusion.
I thank you, Mr. Chairman.
Senator HATCH. Thank you, Senator DeConcini.
Because Senator Grassley has a subcommittee that he must
chair, we will turn to Senator Grassley, with Senator Thurmond's
permission, at this time.
OPENING STATEMENT OF SENATOR CHARLES E. GRASSLEY
Senator GRASSLEY. I thank you, Mr. Chairman, and I thank the
Senator from South Carolina for his cooperation. I have only a
short statement because I do have my own subcommittee hearing. I
do expect, though, Mr. Chairman, to participate in future hearings
on this proposal.
This is the third time in my duties as a legislator that I have had
to pass judgment upon this amendment. The first instance was in
March 1972 when I joined my colleagues in the Iowa Legislature in
voting to ratify the amendment less than 48 hours after its submis-
sion to the States by the CongresJ.
The overwhelming margin of the vote that day in that body was
a reflection of what we legislators believed we were voting upon
iv, simple question of whether we were for or against equal rights
women.
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With the rIiival of this proposal, all of the old issues and m y
new questiona will undoubtedly be brought forth for our consider-
ation Due to the importance of this amendment, its far-reaching
effects, and the fart that it has already been before the States, I
will be taking a keen interest in the renewal of the effort to attain
passage of this proposed change.
As you know, I was an original cosponsor of the equal rights
amendment in 1972. Further, I support the effort to eliminate all
vestiges of discrimination against women. I remember when I was
teaching school when I first started out, the men in the school re-
ceived more money than the women. I did not think it was fair
then and I do not think it is fair now. I think one of the main
things that women want is equal pay for equal work, and they are
certainly entitled to it.
The question that is immediately presented is whether section 2
will operate to transfer from the State legislatUres to Congress
total authority over questions involving equality of the sexes. It is
my view that such a transfer would be extremely harmful to our
efforts to preserve to the States power over issues such as this
which concern the very fabric of our society.
The equal rights amendment in its current form has just ended a
10-year period of public debate and review by the American people.
From this long period of consideration, it is clear that there is no
consensus as to the meaning of this amendment, and that there are
sharp differences of opinion as to its operative effect.
These hearings should focus renewed attention on the many
questions surrounding the amendment, thereby helping to ensure
that the effects of this proposed change will be consistent with the
intention of Congress.
I do think we have got to clarify just what this amendment
means. If it can be modified to be absolutely clear what it means
and women's rights are protected, then that is one question. But if
it is not clear on that point, it is another question.
So, I think these hearings will be very helpful to hear both sides,
to hear the finest scholars in the country, to hear the laymen, to
hear the women, to hear the men, to hear everybody concerned
with this amendment.
We must have equal rights. The only question is how those rights
are best attained.
Thank you, Mr. Chairman.
Senator HATCH. Thank you, Mr. Chairman.
We are happy to have here with us today an esteemed member
of the Judiciary Committee and a friend of all of us, Senator Ken-
nedy. Do you have any remarks?
OPENING STATEMENT OF SENATOR EDWARD M. KENNEDY
Senator KENNEDY. Yes; Thank you very much, Mr. Chairman.
I was somewhat interested in listening to your opening state-
ment, Mr. Chairman, about some of the States that acted early in
consideration of the equal rights amendment. Massachusetts was
proudly one of those States. We acted within the first, several
weeks after the. ERA passed the Congress of the United States.
16
And with all due respect Mr. Chairman, we knew exactly what
ve were passing in Massachusetts; we knew exactly what we were
passing. We believed in Massachusetts that women in our society
should have just as many rights and should have just as many pro-
tections under the Constitution of the United States as men should.
So, I do think we do a disservice when we make rather an elitist
iargumentand particularly from some of those who are constantly
beating the drum on behalf of all the wisdom not being here in
Washington but out in the Stateswe make rather an elitist argu-
ment when we suggest that the States themselves did not quite un-
derstand what they were doing at the time when they were ratify-
ing this particular amendment. I just want to make it extremely
clear that with regard to my State, we had a very clear idea of
what we were doing.
Second, I think it is rather interesting to hear at the start of this
debate and discussion that we are going to put aside mottoes and
slogans, because if we yield to mottoes and slogans, then those who
favor the ERA are going to prevail. Well, I hope we do eliminate
mottoes and slogans. As one who is a strong supporter of the equal
rights amendment, I think the whole argument would be better
served, and I hope that that is going to be guidance for those who
support it as well as those who are `against it.
I hear at the outset about how are we going to pass an amend-
ment when the language is not clear? I wish our former colleagues
in the Senate of the United States that passed the 14th amendment
with words like "equal protection of the laws"marvelous specific-
ity in those words; "due process"marvelous specificity in those
words; the privileges and immunities clause could hear thl, admoni-
tions of the chairman.
I hope the learned caembers of the Judiciary Committee are
going to be able to define with the kind of precision that they
expect from those who support the equal rights amendment, those
particular words that are enshrined in the Constitution of the
United States and which our Supreme Court has interpreted over a
period of years.
At least now, after 200 proud years of making choices and deci-
sions, under the Constitution, considerably less with regard to the
14th amendmentI thbk our Supreme Court has breathed life
into those particular words in a way which has eliminated some of
the aspects of prejudice and discrimination in our society, but
clearly has not done so with regard to women and we meet here to
consider how one of the important vestiges of discrimination can be
eliminated. And it is with this amendment that I believe it can.
So, I want to thank you, Mr. Chairman, for holding these hear-
ings today, and for at least giving some assurance to the majority
members of the U.S. Senate who are cosponsoring this that we will
be able to get some action on this amendment. I think that that is
extremely, important.
I welcome the chance to be here to reaffirm my own strong com-
mitment to making ERA a part of the Constitution and ending the
shocking and shameful gender-based discrimination which persists
in our Nation.
I was proud to stand with Senator llayh and other leaders at the
forefront of the ERA battle more than a decade ago. And I was
9
proud of the fight that we made for extension of the deadline for
the ratification of ERA in 1978. 1 welcome the opportunity to help
guide the ERA through the Judiciary Committee and this Con-
gress.
Equal opportunity for all, which is the cornerstone of our Repub-
lic, demands inclusion of the ERA in our Constitution. We must at
last recognize the essential contributions of millions of homemak-
ers in America who, in the prime of their lives, nurture our future
citizens an-!.. too often live their olden years in poverty. We can no
longer justify denying the 48 million women in our Nation's work
force their right to pursue any career and to be paid a fair and eq-
uitable wage and a comparable wage for comparable work.
I invite anyone who suggests that we do not need ERA to study
the current facts of economic discrimination against women. We
are all too familiar with the fact that women earn only 59 cents for
every dollar earned by men. Even worse, black women earn only 54
cents, while Hispanic women earn only 49 cents for every -dollar
earned by white men.
These facts are disturbing on their face, but they become dis-
graceful when we look at what they mean to American families.
There are now 8.2 million families headed by females in this coun-
try, and-they represt half of all the poor families. If working
women who are heads\enof households were paid comparable wages
to men's wages, half of the poor families in the United States
would no longer be poor.
As of September 1982, women comprised 43 percent of the total
work force. But women are not represented in all occupations in
proportion to their nutnbers. They continue to be concentrated in
low-paying jobs which of er little job security and little opportunity
for advancement.
While 99 percent of the secretaries in offices across the country
are women, only a tiny percent of the business executives support-
ed by secretaries are 'women. And pay inequity continues to be a
national disgrace. I urge those who claim that ERA is unneeded to
tell that to registered nurses who earn less than $8 per hour, while
their hospitals pay maintenance workers more than $11 per hour.
Although many statutes and executive orders affecting sex dis-
crimination are already on the books, the policies of this adminis-
tration have reminded us how fragile our fabric of laws really is.
We need the ,protection that only a constitutional amendment can
provide to prevent the arbitrary modification of regulations and ex-
ecutive orders that insure equal rights for women. Equal rights are
too important to depend on individual policies of each administra-
tion.
The ERA continues to enjoy strong, broad-based support. The
hundreds of organizations in Massachusetts and across the country
who have publicly expressed their support for ERA include groups
reflecting the entire range of opinion in America. In the U.S. Con-
gress, a majority of Members in both Houses are cosponsors. Three-
quarters.of Americans live in States which have ratified ERA.
Opponents of equal rights boasted that the expiration of the time
for ratification last year would be the death of ERA. But to para-
phrase Mark Twain, the obituaries for ERA were premature. ERA
k alive and well in every region of America, and the sooner the
1141.', 11 N.') 2
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Congress under stands that ERA will not go away, the sooner this
amendment will take its rightful place in the Constitution.
I am proud to stand with the cosponsors and supporters of
Senate Joint Resolution 10 and the 60 percent of Americans who
pledged their support for ERA in a national poll last summer. We
know that ERA Is here to stay.
The failure of ratification the first time aroundballot
has encouraged
box. Women ac-
women to wield their enormous poWer at the
tually cast more votes than men in the 1982 elections, and the po-
tential of those votes will be there in every future election in every
community in America. Every candidate fig k. public office now un-
derstands that when the votes are counted, women count, and our
democracy is better for it.
Americans in cities and towns all acipss our Nation are watching
these hearings carefully and the will spay close attention to what
is decided here. They will not allow a mall number of legislators
to frustrate the wishes of the vast major ty of citizens.
We have heard opponents of ERA at mpt to justify their posi-
tion by offering anachronistic rhetoric bout the need for special
protection for women. But the facts belie the solicitousness of these
opponents.
Women have fallen through the administration's safety net in
with
record numbers. The $1.2 billion reduction in Aid to Families
Dependent Children and the $757 million reduction in food stamps
stripped many women and their families of the only protection
they had against abject verty. And Medicare
I I changes requiring
elderly citizens to pay $1, Is' more of their medical bills before they
become eligible for governmental assistance threaten to put essen-
tial medical care out of reach for half of the older women in Amer-
ica.
What protections do the opponents of equality offer to a working
woman who is denied her pension because she interrupted her
job long
career to bear a child and did not work at the same
enough to become vested in a plan?
The most important protection we can provide for women,Con- and
the beginning of all other protections, is the protection of the
stitution. It is time for Congress to adopt the equal rights amend-
ment, and this time we will not rest until ERA is ratified by the
States and becomes the 27th amendment to the Constitution.
Finally, Mr. Chairman, I want to give a very special welcome to
my colleague, the Senator from Massachusetts, Senatorhis Tsongas,
strong
who is the principal sponsor, and again/reaffirm, I know,
and continuing commitment to this proposal, and indicate how wel-
come he is to this committee this morning.
We welcome his statements and his comments as the leader and
spearhead of this movement.
Senator HATCH. Before I call our first witness I wish to place the
prepared statement of Senator Biden ands copy of Senate Joint
Resolution 10 in the record.
[ Material follows:}
PREPAR1 '9 STATEMENT OF SENATOR JOSEPH R. BIDEN, JR.
For over 60 years, since it was first introduced in Congress, the Equal Rights
Amendment has represented the greatest of all American ideals: Equal justice
11
under law. Hut the American people are not satisfied with symbols, and by a large
majority insist that we make the ERA a living embodiment of that ideal by enshrin-
ing it in our Constitution.
I look forward to taking part in this effort.
It is simply not sufficient to claim that existing laws provide equal protection to
the sexes. Many laws actually embody sex discrimination and even a law which is
completely six-neutral can be repealed at any time. Equal treatment unt'er law
must not be subject to the whim and caprice of some legislative body acting la satis-
fy some temporary popular sentiment.
Nor is it enough to claim that the Constitution already provides sufficient protec-
tion against sex discrimination.
Remember, it took half a century following passage of the 14th Amendment for
women to gain one of the most basic American rights of all: the right to vote. Re-
member, too, that for many years after the 14th Amendment was ratified. many
states still prohibited women from owning property and from holding certain jobs.
The history of the 14th Amendment with regard to equal protection of the sexes is,
at best, uneven.
The American people have demanded action on this issue. Let us listen to the
people and take that action.
'4:
12
98TH CONGRESS
1HT'SESSION
S. J. RES. 10
Proposing an amendment to the Constitution of the United States relative to
equal rights for women and men.
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United
States relative to equal rights for women and men.
21
18
2
1 purposes as part of the Constitution when ratified by the leg-
2 islatures of three-fourths of the several States
within seven
3 years from the date of its submission by the Congress:
4 "ARTICLE
5 "SECTION 1. Equality of rights under the law shall not
6 be denied or abridged by the United States
or by any State
7 on account of sex.
8 "SECTION 2. The Congress shall have the power to en-
9 force, by appropriate legislation, the provisions of thii article.
10 "SEcTrox 3. This amendment shall take effect two
11 years after the date of ratification.".
22
14
Senator HATCH. Our first witness for today will be the distin-
guished Senator from Massachusetts, Paul Tsongas. That is not to
say that the other Senator is not distinguished, also. [Laughter.]
Senator Tsongas, we will have you as our first witness. Senator
Tsongas is the chief Senate sponsor of Senate Joint Resolution 10,
the proposed equal rights amendment.
So, we will be happy to hear your viewpoint, Senator Tsongas. I
will have a few questions for you. Go ahead.
STATEMENT OF HON. PAUL E. TSONGAS, A U.S. SENATOR FROM
11/E' STATE OF MASSACHUSETTS
Senator TSONGAS. Thank ycu, Mr. Chairman. Senator Packwood
had hoped to be here, but he was called away to Oregon.
Senator HATCH. I understand.
Senator TSONGAS. He is the other cosponsor of the bill and I
would like to express his support as well.
I have a statement here which has been covered by all the open-
ing statements of my colleagues, so I will submit that for the
record.
Senator HATCH. Without objection, we will put your complete
statement in the record.
[The prepared statement follows:]
2a
15
clear and compelling one. It would, for the first time, grant
women
full status as equal citizens under the Constitution and establish
a
standard for eliminating discrimination based on sex.
Only a constitutional
24
amendment can adequatelyassure equal rig4ts to the women and men of this
nation. It is the only insurance that women will have fair and equal
Chairman, but one has to wonder about the genuine sincerity of those who
at either the Federal or state level. The Equal Pay Act has not changed the
fact that working women still,earnionly 60$ for every dollar paid to men,
the same ratio that existed a quarter century ago. Title IX of the Education
Amendments has not altered the course set for female students, often steering
paying
them away from the education that could pierce the barrier to Malt'
Jobs. Title VII of the Civil Rights Act has not eliminated over 800 sections
ailderal laws
of what the U.S. Civil Rights Commission has identified
for improving the legal status of women; how ERA might affect such
ECONOMIC EQUITY
degree earn less on average than a man with an eighth grade education.
And while women account for more than forty percent of all white
25
17
RIU4i Qf POlvicv
Opponents of the ERA have expressed concern. that, with the adoption
of the ERA, separate restrooms, prisons, and dormitories for mules and
discount these concerns. The ?.972 report of the Senate Judiciary Committee
states that two legal principles are especially significant-in this regards
and prisons.
MILITARY
volunteer for military service, including combat duty, on the same basis
as men. But thii duty would not be arbitrary. Women would net have to
serve in any capacity to which thuy wuru nut fit jus,t as mule aru not
The ERA would require Congress to treat women and men equally
27
19
ERA will not require 'that ell'women must serve in the military
any more
than all, men must serve. Women who are conscientious objectors, who are
In its effect the ERA would mean a more efficient and capable
OONESTI; RELATIONS
LABOR LEOISLATIO
28
20
laws limiting the hours women can work. Title VII of the Civil Rights
have invalidated many state laws based on Title VII which prohibit
women and men with respect to state labor laws. State statutes which bar
which offer a real benefit could be extended to protect both women and
men. For example, the ERA would ensure chat laws providing rest periods
CRIMINAL LAW
from providing for different punishments for women and men who commit the
same crime. Laws which are limited to one sex would have to be extended
to both, or such laws would become invalid. For example, many prostitution
UN make only the acts of women criminal and not those of men. Under
the ERA, these laws could be extended to cover both prostitttes and patrons.
young daughters, aged two through nine. By the time they are
described has changed and that their opportunities are just as limit-
29
'21
Senator TsoNt;As. I would like to begin by acknowledging the
work that Senator Kennedy and Senator Bayh did in bringing this
issue to the forefront in the previous reincarnation. It was my
hope, and that of the majority of this country, that that would
have settled the issue. It did not, and here we are back again.
I must say, Mr. Chairman, that there is something unseemly
about the male Members of this body saying to the women of this
country, "We know what is best for you and we are going to save
you by killing the ERA, and thereby make you free."
Senator HATCH. That might. apply both ways, Senator;
Senator TSONOAS. I think the only response to this kind of ap-
proach is to simply say thanks, but no thanks. This issue is going
to triumph, and I think it is in our interests that we resolve it here
once and for all and put the issue behind us.
To bring up. in essence, 19th century arguments to kill off a 20th
century idea, I do not think is worthy of this particular body. His-
tory does not treat well those who stand at the courthouse door.
They are remembered by history as not part of the hope and solu-
tion of America, but part of the fear and the darkness that reside
in all of us.
This is a great committee and the members of this committee are
very distinguished. I suggest that we all join together and pass the
ERA, Let us not spill blood over this issue. Let us join together and
heal what I think is an unnecessary rift between us, which will
enable us to go on to the other great issues that face. thin country.
I have two other final points. One is that one of the effects of the
nonratification of the ERA ironically has been to bring women into
the political process. They have now understood that you cannot
leave it to their male fellow citizens to do what is right;'that they
have to have their hands on the levers of power.
I think, long term, that the nonratification of the ERA is going
to bring women into the political process and you are going to hear
from them not only on this issue, but human rights, the social pro-
grams, education ---the whole range of issues before our Nation.
Those who were able, to defeat the ratification will, I think, in
time regret having succeeded.
The final point: somewhat more personally, Mr. Chairman, I
have three children. They happen not to be male; they happen to
ho female. I have three daughters between the ages of 1 and 9.
What am I supposed to tell them, that we brought them into this
world and that they are somehow different and less worthy than if
they had been born male?
The nonratification of the ERA tells them that, 'Ind I must say
that Iwill do all that I can to make sure that the children we
bring into this world have the same rights that they would have
hod had they been born male. That ib not a great deal to ask, and I
would hope that this body would reflect the feelings of the Ameri-
can people and the majority of our colleagues and finally do what
is right and get the issue behind us so we can all go home and look
at our children who happen to be female and say we now have
equality in the truest sense of that term.
That would be worthy of the U.S. Senate. and I would hope we
could join together in that endeavor. I thank the chairman.
22
31
23
I-) 1
'3
26
35
27
frankly, your answers thus far have been that the courts are going
to determine what it means.
I think we ought to determine some of these things in the Con-
gress of the United States because we are elected to determine
them rather than leave them all to unelected judges who are not
accountable.
But be that as it may, I am concerned, as a person who believes
in the first amendment freedom of religion, that if ERA is passed
and a standard of review equal to or higher than those relating to
suspect classifications for race, national origin and religion, some
of these interpretations are going to come down exactly as NOW
desires.
That would mean Government imposition of its viewpoint on the
Catholic Church, the Mormon Church, the Jewish orthodox faith,
and countless other religions in this country unless they were will-
ing to lose their tax-exempt status.
I might add that the courts determine unanticipated conflicts.
That is the purpose of the courts. But we are now discussing fully
anticipated conflicts and controversies.
Let me give you another question. This is one that is very
Senator TSONGAS. Could I respond to that?
Senator HATCH. Excuse me. Go ahead.
Senator TC3NGAS. Mr. Chairman, it seems to me that if one is
concernedand I understand the legitimacy of that concernthat
there be a more definitive view of what we are passing, it seems to
me that the best way of doing it-islet us work together; let us pass
the amendment. Let us work together in terms of the legislative
history and what the intent of the Congress and the Senate would
be, as opposed to what is happening, because we have those who
are in favor and those who are opposed who are now going to
engage in legalistic arguments as to why it should not pass.
It seems to me that if we were to work together in this particular
matter, I think some of these issues will be resolved. Some will not
be resolved and will have to go to the courts.
But I would only reiterate that if that argument is sufficient to
knock off the ERA, then there is an obligation on those who do
that to go back to all the other amendments which have been
passed which have also caused legislative ambiguities and have led
to court cases, and you will viscerate the entire U.S. Constitution.
And I would suggest that nobody is in the mood to do that.
Senator HATCH. The difference is there will always be unantici-
pated conflicts and uncertainties in any constitutional amendment.
These, however, are fully anticipated conflicts; these are uncer-
tainties that I think have been discussed and considered by propo-
nents of the equal rights amendment. I think proponents of the
ERA ought to state clearly which way they think this amendment
will be applied, because once the amendment is ratified, assuming
that it is, it will then be too late to make these determinations.
I might add that it will then be virtually impossible to change
them legislatively. These issues will be "constitutionalized."
Senator T8ONGAS. Mr. Chairman, if I were to give you examples
of anticipated conflicts with the human life amendment, would you
withdraw it?
.28
3"
29
people would say that the equal rights amendment would flatly
prohibit sex-based discrimination in insurance policies and actuar-
ial tables.
That is df pite the fact that men and women, on the average,
have different life expectancies. They would pay identical amounts
for annuities, and pensions, and despite differences in accident
records, they would pay identical amounts for automobile and casu-
alty insurance policies.
Let me just ask you this: Would there be any impact upon sex-
based insurance policies as a result of the equal rights amendment,
in your opinion?
Senator TSONGAS. Mr. Chairman, if we pass this amendment, the
issue will end up in court. Mr. Chairman, if we do not pass the
amendment, this issue will end up in court.
Senator` HATCH. Well, I would much rather be able to legislative-
ly resolve it if the court does not resolve it favorably. And 1 think
if the court came down against your position, you might want to
resolve it legislatively. Once it is kcked into the Constitution, you
will not be able to do it.
Senator TSONGAS. Can the Chairman give me an example of an
amendment which has passed in whieh there were no court cases
subsequent ly?
Senator HATCH. Well, I agree with you that unanticipated prob-
lems come to court. We are talking about anticipated problems; we
are talking about problems that exist, that are concrete and cannot
be ignored.
We are talking about the Constitution of the United States. We
are talking about standards of review that could turn this country
upside down.
I do not think that the majority of the people in this country are
willing to turn everything over to the Supreme Court of the United
States, or over to the Federal judiciary in general.
But be that as it may, let me ask you about--- -
Senator TSONGAS. Mr. Chairman, if I may respond- -
Senator HATCH. Sure.
Senator TSONGAS. We passed the MX missile yesterday.
Senator HATCH. Right.
Senator TSONGAS. There are a lot of anticipated problems in that
field. It did not stop us from voting.
Senator HATCH. And we can repeal that immediately because it
is a statute. But once you pass a constitutional amendment, it is
pretty tough to repeal it. That is the difference.
Senator TSONGAS. I will join you in the repeal.
Senator HATCH. I understand that. [Laughter.i
But at least we could join together if we wanted to as Members
of the Congress and as elected representatives. If the equal rights
amendment passes, all these anticipated problems are relegated to
the courts. They may not come down the way you or I would like.
But that is when they will be decided.
Legislative bodies change, but they change in response to the will
of the people; courts do not.
Let me ask you about fair housing. It is another very current
issue. Barbara Brown, one of the leading academic authorities on
the equal rights amendment, has stated that the equal rights
30
And if you do not, then I would call upon you to at least use the
same logic applied to the human life amendment, and withdraw
the amendment because of the anticipated legal turmoil that will
take place should it pass.
Senator HATCH. I would just remind the Senator with regard to
de-
the abortion issue that my amendment will take an issue now to the
cided by the courts and return the the
decisionmaking process
elected bodies in this. coun-
legislative bodies of this country
try.
Your amendment takes a series of decisions decided now by elect-
ed representatives and gives them to the courts, which are unelect-
ed and unaccountable.
Senator TSONGAS. Does the chairman suggest that the State
courts would not get involved in litigating the issue of abortion if
you returned it to the States?doubt that there will be many litigated
Senator HATCH. I have no
issues, and I would be happy to answer any and all questions. Let
me just ask you one more. here, that if
Senator TSONGAS. That is the point you are makingbecause there
these things are unresolved, we should not pass it
will be litigation.
Senator HATCH. Not necessarily.
Senator TSONGAS. YOU just admitted that on the
abortion issue,
they are going to he in the State courts ad nauseum. So, the logic
has to apply both ways. Mr. Chairman, not just in one direction.
Senator HATCH. That is fine. Let me ask you three or four more
questions. These'all involve well-known and recurrent issues. They
exist today; all I want is your opinion on
are genuine issues thatamendmentyour
how the equal rights proposal will be applied
with regard to these issues.
Let meo to the military issue.
The issue of the impact of the ERA upon the military has, of
course, been one of its most controversial aspects. Now, I would
just like to ask you several questions in this regard.
First, would the equal rights- -
Senator TSONGAS. If the chairman was se interested in my view-
point, why were these questions not submitted when we would
have a chance to review them and give you detailed answers?
Senator HATCH. In all the hearings I have ever held, we have
never submitted questions to the witnesses in advance. but the
I would
fact of
have been happy to have done so you had asked,
the ,matter is I am going to ask them. These are not difficult ques-
tions. that I
Senator TSONGAS. But I would be glad to get back to you so
have the same time to prepare the answers that your staff did pre-
__
paring the questions.
been debated for 12
Senator HATCH. Senator, these-questieni havesomething
years-50 years, some people say. This is not that is in-
comprehensible or that I am suddenly springing on you.
Senator TSONGAS. Did the chairman prepare these questions or
did staff prepare the questions?
Senator HATCH. I did a let of work on them myself.
Senator TSONGAS. Did you prepare all those questions?
4
33
--
Senator HATCH. AS a matter of fact, I have written an article on
this, I have done a lot of
Senator TSONGAS. Did you prepare those questions? The answer
is no.
Senator HATCH. Senator, let me ask the questions. When I come
before your committee, you can ask .me questions, OK?
Let me just ask you this. And even if staff did help, so what?
What is wrong with that?
First, would the equal rights amendment result in the overturn-
ing of the Supreme Court's decision in Rostker v. Goldberg that
Congress can limit draft registration to men? Would this policy
continue to be constitutional under the equal rights amendment?
Senator TSONGAS. I would be glad to supply a detailed, thought-
ful answer to the committee, taking the same time to respond that
the committee did to pose the question.
Senator HATCH. Can you give me a yes or no on that for today?
And then I will be happy to submit these in writing to you as well
and we will put your detailed answers into the record as well.
Senator 7'soNciAs. Well, I would appreciate the opportunity to
look at these questions in detail and submit the responses.
Senator HATCH. Let me ask you one that I think is even easier
than that. Would the ERA result in women being assigned to
combat units and related duties on an identical basis as men?
Senator TSONGAS. I did not hear the chairman.
Senator HATCH. Would the ERA milk in women being assigned
to combat units and related duties on the identical basis as men?
Senator TSONGAS. I have the same response, Mr. Chairman.
Senator HATCH. You are not going to.answer?
Senator TSONGAS. I mean, I have feelings about it, but I would
rather have the time to respond.
Senator HATCH. Well, tell ,me your feelings. That is all I want.
You know, I am not going to hold you to it. [Laughter.]
Maybe the public will, but I will not. I just want to build a
record.
Senator TSONGAS. Mr. Chairman, if you are not going to hold me
to it, then,you would have no objection to our having the same op-
portunity to respond that you did putting the questions together.
Senator HAWN. I will be happy to give you the questions in writ-
ing, but will you respond to that question?
Senator TSONGAS. I will, in writing.
Senator HATCH. All right. How about this one? Do you agree
with the U.S. Civil Rights Commission that sex harassment of
female enlisted personnel is pandemic, and that this is encouraged
by the "discriminatory environment" of the military, including a
wide variety of gender-based regulations and restrictions?
Would each of these allegedly discriminatory regulations and re-
strictions have to be eliminated under the ERA?
Senator TSONGAS. It is a question that we will take a look at and
respond to the chairman on.
Senator HATCH. Well, would you agree with Professor Emerson
that pregnancy in the military justifies only "slightly" different
conditions of szrvice for women!' VVould the military have to make
greater accommodations than they do now for pregnant women in
34
t)
35
that went into putting those questions together. You are a worthy
opponent, Mr. Chairman.
Senator HATCH. You are tough yourself, Senator.
Senator TSONGAS. I will expend the same amount of time and
answer-
I would
ing the questions as your people did preparing them,
hope we would have a chance to sit down, compare our answers
one to the other, see which ones are unresolved, then we will
do the same thing on the human life amendment. i
4r
37
These questions are important questions. They are not insignifi-
cant; they are not trivial. This country is going to be in an uproar
for years to come if the ERA is enacted without some reasonable
resolution of these fully anticipated questions. It is our obligation
to see that this is not the case.
I have taken enough of the time, Senator Thurmond.
Senator TSONGAS. May I respond to the chairman?
Senator HATCH. Sure.
Senator TSONGAS. Mr. Chairman, you are a sponsor of the
amendment to balance the budget.
Senator HATCH. That is true.
Senator TSONGAS. I remember that discussion very well and
there were a number of important questions that were raised that
would have to be resolved. For example, how does one resolve the
question of entitlements if you do not have a balanced budget?
chairman from sponsoring-- -
That would have ended up in the courts. It did not prevent the
Senator HATCH. Not necessarily. We put language in the report
that was very clear on that issue. In fact, we addressed every issue
that was raised with clear 1anuage in the report. Now, we may
have missed some, but if you will point them out to us,
happy to tell you where we stand, what the amendment iswe will be
intended
to mean.
On any constitutional amendment that I bring forward, I will say
where I stand on the issues. I will not say we will let the courts
decide the matter.
Senator TSONGAS. Do you think that if that amendment should
pass, it would not be in the courts?
Senator HATCH. I think any constitutional amendment may go to
the courts. But I think it is our duty, as legislators representing
the people of this country, to make sure we know, what an amend-
ment means and to make sure the American public knows about it
so that together they can make an informed decision as to whether
or not they want to adopt an amendment.
We should look into these matters very thoroughly and carefully.
This is the Constitution of the United States, not some statute we
are talking about, and I think it is pretty important.
Senator TSONGAS. Mr. Chairman, I fully agree. I think that
marching behind slogans is reprehensible. I felt that way last 'light
when people who signed on to the balanced budget amendment
voted to raise the debt ceiling limit.
Senator HATCH. Before I turn to Senator Thurmond, I'd like to
read a quote from Roscoe Pound, a former dean of the Harvard
Law School. He said:
If inything about this proposed amendment is clear, it is that it would transform
every provision of law concerning won n into a constitutional issue to be ultimately
resolved by the Supreme Court of the United States. Every statutory and common
law provision dealing with the manifold relation of women in society would be
furred to run the gauntlet of attack on constitutional grounds. The range of litiga-
tion im too great to be foreseen.
I would rather let elected legislative bodies resolve these issues. I
can take my losses when I disagree as long as there is a chance of
coming back and correcting problems and unintended results when
they become more apparent. But I think we ought to be very, very
,1 6
38
47
39
and there is no use for me to repeat them. But do you not have an
opinion on those matters that he asked you about?
Senator TsoNGAs. I will have an opinion. But, Senator Thur-
mond, I just would request that if we are going to talk about this
thing in a rational manner, I have as much right to ponder my an-
swers to these questions as the committee did putting them togeth-
er.
I would hope that I would be allowed that particular opportunity,
in that the committee would do what of per committees do, and
that is review the written responses.
The CHAIRMAN. Well, Senator Hatch said he would give you that
opportunity. But as the chief sponsor of the amendment, I would
have thought that you would have anticipated and explored all the
different facets of this amendment and all the phases of it, and
been able to express yourself as to how you feel.
It may be different from the way some other people feel, or it
may not be the final answer. But it seems that if you introduce an
amendment, you have an opinion on just what it will do, and that
is what we are trying to find out here. What will this amendment
do, and what will it do on these various questions that have just
been propounded to you? But you do not seem to have a fixed opin-
ion on any of these matters.
Senator TSONGAS. Well, I gave you answers on some, but even on
those that I did respond to, Senator Thurmond, you are quite cor-
rect that you have a right to have responses to them, and those re-
sponses will be forthcoming. I simply am asking that the commit-
tee give me the right to have a chance to look at them and respond
to you.
I did not anticipate the questions; I did not anticipate the tactics.
I commend the committee on both, and I will respond as soon as I
can.
The CHAIRMAN. Well, if you find from your study and research
that you are now going to make evidently, -you have not made it
heretoforeif you find that there is indefiniteness or weakness or
indecision in this amendment, I imagine then that you would wish
to offer amendments that would cure those matters, would you
not?
Senator TSONGAS. I would not. I would not presume that every
question is going to be resolved, just as the human life amendment
is not going to resolve all questions. If you go dovip one path, you
go down the other and you are going to end up in the same situa-
tion.
If you apply certainty of litigation as the only test for an amend-
ment, you have to apply that test elsewhere as well.
The CHAIRMAN. Well, if you conclude now from your research
that it is unclear what the effect of this amendment will be I pre-
sume you would wish then to make further study or to consider
changes and amendments so that it is clear to carry out your
wishes, would you not?
Senator TSONGAS. Well, perhaps a preferable alternative would
be to sit down with the distinguished Senator from South Carolina
and see whether we can arrive at some accommodation.
48
40
tio5 ll mr, 4
42
51
43
53
45
Child support awards are totally inadequate. Why judges feel
that they cannot award more than half a man's salary to a woman
wFm, has total responsibility for raising three-fourths of the family,
I will never understand.
Spousal support, or alimony, is chintzy..I find judges saying over
and over again, "Oh, the woman is. making $15,000 a year; that is
good pay for a woman; she does not need alimony."
Marital property distribution favors the wage earner. Why does
this happen? Why do judges respond that way? My own opinion on
that is based in a lot of the sexist presumptions that prevail in the
law. Those judges have some feeling that somehow men need
money for status more than women, and they know that women
will survive.
They know that women will not let their children go without
child care; if they have to go to work, they will not leave them on
the street. They know their children will not go without food. The
women will cut the meat a little thinner and eat less themselves.
They know that women will survive, so they have no reason to
change the rules, and they know they will survive because they
have survived for centuries. And men have traded on that, and it is
time to stop that right now in the family law courts.
Three problems that I have mentioned have found their genesis
in the underevaluation of the homemaker's contribution to the
family and to the acquisition of marital property. ,Very simply,
courts tend traditionally to view money as the controlling curren-
cy. Women want their contribution as wives and mothers to be
\ viewed as equal currency. That is what, we ask for and that is what
the ERA will give us.
In the 16 States which have incorporated an equal rights amend-
ment in their State constitutions, the experience has shown that
according legal recognition to the value of homemaker services
does insure economic protection for homemakers and equity in the
marriage.
In th41,, area of child support, State ERA's have been used to es-
tablish nOt only a mutual obligation for support of the parents, but
to accord economic value to custodial homemakers' nonmonetary
contribution of child care and nurturing. There are courts in Penn-
sylvania and Texas and Colorado who have all recognized the value
of the nonworking parent's custodial contribution and they have
begun to issue support awards in accordance with the respective
abilities for each spouse to contribute.
The importance of these rulings for the custodial, nonworking
parent is clear. Recognizing the economic value of the homemak-
er's contribution in the face of an equal and mutual obligation of
support has resulted in comparable and equivalent financial sup-
port being assessed against working, noncustodial spouses, men or
women.
In the distribution of marital property, State ERA States have
been responsible for equalizing each spouse's share of marital prop-
erty at the time of divorce. Consistent with the newly emerging
concept of marital partnership, the Pennsylvania courts, for exam-
ple, have interpreted that State's new equitable distribution law to
require a starting presumption of equal distribution.
46
59
51.
and emphatically affirmed for all of our citizens, for all time.
on race).
During the course of these hearings, you will undoubtedly
t
can identify. I also see a direct link between them and the
phenomenon of the feminization of poverty.
increases by 41%.
watching the steady progress that has been made in many of the
(1)3
55
ERA's have laid the foundation for a changing family law system
Employed women are today paid only 600 for every dollar
paid to men. There are, we feel, two principal
reasons for
this disparity. First, existing equal employment laws are
inadequate and enforcement is insufficient. Second, our system
6,1
56
I \
discrimination.
As useful as it may be, Title VII is only a statute. And,
Only an Equal Rights Amendment will insure that women and girls
will be given fair educational opportunities and that the wage
"r
57
or
41 MR 41 RA
58
progress can
women's issues) that the only way by which real
f;
ti
59
view. My opposition to the equal rights amendment is confined to
its ambiguity. I do not know what it means.
Senator HATCH. Can you pull your microphone just a little closer
so we can all hear you?
Dr. BERNS, I do not know what it means, and I said it in my pre-
pared statement.
Senator HATCH. We will put your complete statement in the
record, without objection.
Dr. BERNS. If you were to conduct a poll, a survey, among the
sponsors of this amendment in this SenateSenate Joint R-..1sAlu-
tion 10you would likely find a considerable amount of diskce-
ment as to its intended effect. And I find it somewhat astonishing
that this body would propose to amend the Constitution in what ev-
eryone regards as a fundamental way, an important way, without
knowing as precisely as possible what the purpose of that.change is
likely to be.
As I say, I do not know what it neans. In Senator Tsongas' testi-
mony this morning, I was confirmed in that opinion that the
Senate is not yet certain as to what it means.
I must say, it somewhat surprised me to hear him say that he
had not anticipated the questions that you asked him.
Senator HATCH. These are basic questions on this issue.
Dr. BERNS. Well, they certainly are
Senator HATCH. You ought to hear some of my difficult ques-
tions.
Dr. BERNS. I anticipated them because many of the questions you
asked are in my particular statement here. I am not going to read
that statement, largely because so much of it has to do with those
questions that you asked.
It is not my job to give you or this committee my answer to this.
Does this amendment, for example, outlaw a male-only draft? Or
would it, with reference to the Bob Jones decision yesterday, haver'
the same effect with rr.spect to private schools that segregate on
the basis of sex?
For example, to put it simply, would Wellesley College be in the
same position as Bob Jones University now if the ERA were to be
adopted?
Or to give one other example that you did not mention this
morning: What would be the effect of the adoption of this amend-
ment on what I call the second generation abortion cases? I have in
mind there specifically Planned Parenthood of Central Missouri
against Danforth, where, among other things, the court said, as I
mentioned in my sti,ementin fact, I might as well read it:
"A husband may have a deep and proper concern and interest in
his wife's pregnancy and in the growth and development of the
fetus she is carrying. But in the event of a conflict between him
and his wife with respect to that pregnancy, his interests must give
way to the wife's right to have the abortion." Now, it seems to me
that the ERA, if it is adopted, would have the effect, if the amend-
ment is read lice, ally, of elevating what the court here describes as
his "interest" in the birth of that child into a right to the birth of
6
60
he child. The courts again have to figure out how you resolve a
conflict between the right of the father to the child and the right of
the wife to abort the child. This is one If those questionsit is
about the only one that I anticipated that you did not anticipate in
your questioning of Senator Tsongas.
I would say only one ether thing here, really. When Senators or
when anyone else tells this committee Clot these are matters to be
left to the court's, it seems to me altogether proper for you to ask
the further question, "Are you perfectly willing, Senator Tsongas,
to accept any answer to these questions that the courts give?"
Let me take an example from 14th amendment equal protection
litigation. We left that matter to the courts. That is one of the
troubles with the 14th amendment, The Congress of the United
States did not, in fact, define, as it was entitled to do under the
fifth and concluding section of the 14th amendment, the privileges
and immunities of citizens of the United States. We then had about
a hundred years of indecision with respect to the meaning of the
14th amendment. And I would submit that this is a bad example
fOr the advocates of the ERA to point to, because that set back the
cause of racial equality in this country a long, long time.
But even so, here is the equal protection clause of the 14th
amendment. What does it mean? Does it mean what the court said
in 1896, in Plessey v. Ferguson, or does it mean what the court said
in 1954 in the case of Brown v. the Board of Education of Shawnee
County, Kansas? What does it mean?
Well, it seems to me that Senator Tsongas is saying:
We will leave this matter to the court and I, who have not been able to make up
my mind on this, will be satisfied with any answer the court gives. Military draft
for womenwhatever the court says; Wellesleywhatever the court says.
I think that is improper. I think it shows a certain disrespect for
the Constitution of the United States. One further point on that:
this Congress has an obligation to the people of the United States
from whom the Constitution comes. The Constitution does not come
out of this legislative body; it comes out of the people of the United
States. The people express their opinion with respect to this and
their considered judgment of this when, in the States, they vote on
the question of the ratification to the Constitution.
The people of the United States should know what it is they are
putting into the Constitution, and this body and the House, on the
other side of the Hill, has an obligation to Le specific as to what it
is the people of the United States are going to do to the Constitu-
tion, whose authors they are.
Thank you.
(Prepared statement follows:)
C
61
400
PREPARED STATEMENT OF WALTER BERNS
I must say at the outset that I agree with the effort to abolish all
someone who has taught constitutional law for thirty years, it has always
women from the practice of law, had to be ranked, if not, like Dred Scott
v. Sandford, among the most pernicious decisions ever to come down from that
notice that only one member of the Court (Chief Justice Chase) saw fit to
dissent in that case and that even he was too timid to write an opinion.
But, as the cigarette ads say, we've come a long way since then.
In fact, we've come a long way since 1972 when the Congress first proposed
"his amendment in this form. At least sixteen states now have constitutional
provisions similar to the proposed ERA; Title VII, of the Civil Rights Act of
1964 has been used effectively to extend the right of women to equal employ-
here in 1970 had to do with the right of young women to be accepted as students
in the service academies at Annapolis and West Point. A policy that then
almost everybody.
ment here as to what it means, not even among the resolution's co-sponsors.
authorized to secure for limited times the "exclusive right" of authors and
Nineteenth
inventors to their respective writings and discoveries, and with the
without
only provision in the Constitution bestowing or protecting a right
tions; that It means that the rights enjoyed by men cannot be denied to women
denied to men.
or, conversely, that the rights enjoyed by women cannot be
constitutional language forbids all laws,
That is to say, as drafted, this
co-sponsors of S.J. Res. 10 mean? I don't know and. I submit, neither does
this committee.
less absolutist in
Other supporters of the proposed amendment are even
intention is to make
their reading of its terms. Generally speaking, their
2. Ibid., p. 894.
3. ibid., p. 901,
hy
63
to know what the language means because in due course the courts will tell
contempt; if not, I would ask them to point to the standard on the basis of
which they could charge the courts with having misinterpreted the language.
If it is said, as it was when the PRA was lest. debated here, that the
provision, and the Constitution does not derive from or come out of the
people's will, and it can be mended only by a "solemn and authoritative act" -/
1
of the people. That it is the people (and not the courts or the Congress)
adopt amendments. And they ought to know what it is they are adopting. Cr,
they ought to know, and to know precisely, what it is they are being asked
to adopt. Are the co-sponsors of S.J. Res. 10 willing to say to the people
of the United States that by adopting this constitutional amendment they would
.'at means, but that, in due course, tie courts will let them know what that
means?
Let me he more precis.:. Are the co-sponsors willing to say to the American
people, "We don't know whether this amendment will invalidate a male-only
draft, hut, not to worry, the courts will tell yo`''? That we haven't been
the courts will decide And that if they can't come to a common decision,
a rAaitirit of thy ';iipreme Court will the matter" 'fliat, truth to tell,
64
some of us are of the opinion that the EPA will outlaw separate Junior high
schools, one for boys and one for girls, and that others - -that is to say,.
other co- s--are of the opinion that it will not outlaw them, but you
the sovereign people of the United State', ought not to let that bother yout
support from private sch 'A that segregate on the basis of race, but we
haven't been able to make up our minds as to 'whether the ERA will require
sex? That most of us are persuaded that the courts are already authorized
racial
to grant affirmative relief in order to remedy the effects of past
are aceeptahle--hut we ale not sure about benign sex quotas, but, again, we
are :ontent to allow the cow answer that question, and answer it one way
or the other? That we confess that we never thought about the issue of sex
minority to vete which, as we all know, now includes the right to be represented
be
about whether a gender group's right to vote can, like a racial *ivy's,
That- -and this
"diluted" when the group is not sufficiently represented.)
ERA on
will be my last example - -we have not wondered as to the effect of the
abortion cases, but we are delighted
what might be called the second - generation
4
to leave that issue to the courts?
against
I said at the outset that I am opposed to laws that discriminate
the complete
Rights Amendment, we have made considerable progress toward
that we had succeeded
elimination oC such laws; but I did not mean to suggest
of Congress. If, for the most obvious **awl., it is the will of Congress
elected President. 'Not one of its provisions had to be changed before women
jurisdiction of the federal courts, an act inviang the courts (and ultimately
the Supreme Court) to decide the particular issues that members of Congress
would appear eager to avoid. It would of necessity foster still more judicial
question into constitutional law."5 Off)cials with the power to decide "what
good for the country" are officials that I want to be able to vote out of
office when, in my judgment, they decide wrong. This, I close by saying, was
'S.
Kenneth L. Karst, "InvidiJus Discrimination: Justice Douglas and
the itetarn of the 'Natural- ..aw-laie Process Formula," U.C.L.A. Law Review,
vol. lh (hinc lq69), p. 720.
i it
tit;
Li!)
72
r
73
Ms. TUCKER. I think there are a lot of conflicting principles
there.
Senator HATCH. Di. Berns?
Dr. BERNS. Well, my answer would be the same; it is the same as
Senator Tsongas' answer. My indecision bothers me; his indecision
does not bother him.
Senator HATCH. In other words, who knowswhat in the world
the ERA does mean?
Dr. BERNS. Yes.
Senator HATCH. That is the point of your remarks and is of great
concern to me.
Dr. BERNS. Let me reiterate a point that you just brought up on
homosexual marriages. The Constitution of the United States is
quite clear with respect to laws forbidding miscegenation. We have
a decision from the Supreme Court of the United States in Loving
against whoever it was in Virginia on that particular issue.
I do suppose that this issue will arise, and if the amendment is
given its clear meaning, then it seems to me that you are depriving
a man of a right to marry a man simply because h., is a man,
which is a right enjoyed by a woman, and vice versa. How the
courts will decide that--
Senator HATCH. Well, if it is deemed a suspect classification,
much less an absolute one, how else eould they decide it?
Dr. BERNS. Well, that, of course, again is my point. If we are
equating sex and race discrimination under the formula of suspect
classifications, then here is a question that is going to arise. You
anticipated it; I anticipated it. If my memory serves me, Brown,
Falk and Emerson anticipated it back in 1971.
Senator HATCH. Prof. Paul Freund anticipated it.
Dr. BERNS. Paul Freund anticipated it in these hearings in 1972,
or whenever it was. It is a question that is going to arise. At a min- --1
imum, it seems to me, the cosponsors of Senate Joint Resolution 10
are obliged to tell the people of the United States what they intend
by this language with respect to this question.
Senator HATCH. The Civil Rights Commission has also concluded
that the Boy Scouts and Girl Scouts, which are federally chartered
organizations, provide "separate but equal" benefits to boys and
girls. The concept of "separate but equal," in their view, would be
outlawed by the ERA with respect to the sexes, the same as it is
with respect to the races under the 14th amendment.
As a result, the Commission states that "Review of the purposes
of these clubs should be undertaken to determine whether they
perpetuate sex role stereotypes." Now, under the ERA, could the
U.S. Congress continue to grant Federal charters to "separate but
equal" organizations, such as the Boy Scoots and the Girl Scouts?
Ms. TUCKER. I do not have an opinion on it, but I will again say
that this is an issue that does need review..
Senator HATCH. So the courts will have to decide this as well?
Ms. TUCK MM. The courts will have to decide it, but if we have an
ERA. Senator, they are going to have a clearer standard than they
do now to decide it.
Senator HATCH. They might just abolish the Boy Scouts and Girl
Scouts and substitute "person scouts." Is that what you are saying?
41 Iuir (1 Al.
U A:,
.74
86
7$
into the Social Sean-4y system for the spouse doing the work at
home. SenatorI think I
Ms. TUCKER. The specifics of the system,
would not be the best person to talk about 'he best way to imple-
ment it.
Senator HATCH. But, do you personally feel that way?
Ms. TUCKER. But my personal feeling is, with the limited knowl-
edge I have, that I think these women as homemakers, the
or men as
protection
house husbands, as you call them, should be given
and payment in their old age for work performed during their mar-
riage, yes, sir.
Senator HATCH. OK. You are an expert on property law.that Several
the
commentators on the equal rights amendment have stated
41f -or -so States whi h have adopted Cie common law concept of sep-
arate property wou be required to adopt a community property
system similar to that dopted by several western States.
in fact, Barbara Br n in her textbook states thatThe common law
Palifornia
property notions "violate equal rights this
principles,"
reform as being "one of the
Commission on the ERA describes
most important reforms to take place ever in American law," al-
though even this may not be enough to fully satisfy the ERA."
Would the ERA render systems of property ownership that rely
on title or direct financial contributionsthe common law property
conceptuncOnstitutional, in your opinion?
Ms. TUCKER: I would like to answer the question this way. I
think the common law notions that used to follow whoever paid for
several
the property or whoever had title got the property, which
States still have, by the ways and community property which is
parties,
baser) :n the idea of a comma city of the familythat both
whether they are working in the home or outside the home,under have
contributed to the community -- --both of those laws would be
scrutiny from the ERA.
The communi property States, although they have the concept
of recognizing the equal contribution of the homemaker in terms of
obtaining a piece of the marital piethose State laws havt: a lot of
vestiges of sex discrimination.
For instance, the men are allowed to control, the property wheth-
er or not the ives might have L Pen the ones that bought the prop-
er, N.
those l:n would he struck down.
In terms of the equal rights amendment's effect on the common
law notion, I think it will go to the fact that, you
or
recognize the
Nue] worth to
hometeaker':, contribution as being a currency
the dollar that the other spouse outsidt. the home brings in.
Senator Wercii. But many of those laws have alreadyclause. been
.,4tricken down in the States under the equal protection
What I was WA I:4 would COMIt1011 law principles of title and
title transfer tae st down as unconstitutional tintIer the equal
ie.)&4 amendment'?
"fitf.itiol. It they are sex lwed classifications, they would he
'ir
.4en:or II. \V '1I. ;t11 they `-4I`X based? If they are MO C1)111111t1
MIV 111'00'0 V IFftJ!,, %.4011111 they he SCX 1)1V-0,11, its ylour
opinion?
79
Ms. TIVKER. II it is mers,:y a title law, I do not think they would
be covered by the equal rights amendment.
Smator HATCH. OK. Now, let me ask you just a couple of ques-
tions about the military Which ; asked Senator Tsongas.
Do you believe that. the equal rights amendment would result in
the overturning of the Supreme Court's decision in Rostker v. Gold-
her that t..7ongress can limit drat': r:.gistration to men? Would that
be ov :urned?
M8. TUCKER. Senator, I am not an expert on the military,
Senator ElArcti, You did discuss it in your paper, however.
Ms. TVCKKR. Yes; but I will attempt to answer it in saying that I
believe the registration system and the draft system should not dis-
criminate on the basis of sex. In fact, with the registration system,
all men are required to register whether they are blind or lame,
and no women are required to register.
Senator ',Awn. You w old require it of women, then?
Ms. TUCKER. Yes, I would.
Senator HATCH. OK. Second, would the ERA result in women
tieing assigned to combat units and related duties on the identical
basis as men?
Ms. TuricHt. I believe I answered that before. I believe the as-
sigifirient to combat duties is based on a commonsense classification
of who is the best person to do the job. And if a woman can shoot
gun better and is able to be in combat, more power to her.
SellItOr HATCH. In a Yale Law Journal article entitled "ERA and
the Military," the following quote appears: "High physical stand-
ards or skill requirements which eliminate a large portion of
women might also he Challenged as unnecessarily restrictive at a
time when 8 percent of military jobs are noncombatant." Do you
agree with that?
Ms. T:irKER. I did not hear the last part.
Senator IIAT('u. "High physical standards or skill requirements
would he stricken at. a time when 85 percent of military jobs really
art, noncombatant."
Tialmi. I do not understand. The high physical standards-
,ire they in the noncombatant jobs?
Senator FlAin. What?
Ms. Ti cKER. Are the high physical requirments in the noncom-
batant johs'.1 l that what you are saying?
Senator HATI tc. Well. orross the hoard in the military. S5 pm--
timi of our people' in Ow military are in noncombatant posts right
110,A.
Trckit. Ye::,
Sen,,t fir II,va rt Now, Wintry the military require skill require -
nn :toil physical flandards, would they be stricken unless there
were approximately equal results.
Ms. Tto.sva. I do not think they would equalize the standard.
think what it would do would prohibit a general c;assifici:tion,
., :avant; anyone who Call Meet the strenuous standard can be al-
lowed to take that position. It would require that interpretation.
Senator I ATcu. Then you would disagree with that article in the
Yale Law loon-tat that stated that they would lie prohibited?
Ti,csult That they would he prohibited."
S,,nater Ilfercit Th:ot !boy would In' prohibited.
MS, TUCKER. I do not know on what basis they are prohibiting.
Senator HATCH. OK.
Ms. TUCKER. I think the equal rights amendment would say that
women as well as men can compete for those jobs, and if they can
do it, they should get it.
Senator HATCH. Dr. Berns, do you have any comments on these
military questions?
Dr. BERNS. Well, I would agree with much of what Ms. Tuckei.
said. I suspect, however, that the physical capacity to perform a job
is not the only criterion that the military uses when it assigns per-
sonnel around the world.
As someone who floated around much of the world for over 4
years on a naval vessel, I am very much aware of the fact that
there were no women on that naval vessel, much as I might have
wanted them on occasion.
Senator HATCH. OK. Pis. Tucker, as an expert in domestic rela-
tions law, let me just asli you a few queStions about the ERA vis-a-
vis domestic relations law.
First, would laws which place primary responsibility upon the
male for either family support o; child support be in violation of
the ERA?
Ms. TUCKER. If the laws placed primary support on the male?
Senator HATCH. Primary responsibility, yes.
Ms. TUCKER. Yes, they would be in violation.
Senator HATCH. Would laws establishing a presumption that a
child takes the surname of its father be in violation of the ERA?
Ms. TUCKER. I had not thought about that question, Senator. I
am unaware of any law which requires it. It is the common law
that is usually followed.
Senator HATCH. Most States do have laws that require the child
to take the surname of the father.
Would those laws be challenged as unconstitutional?
Ms. TUCKER. I suspect they would be challenged, sir; yes, I do.
Senator HATCH. Do you think that under the ERA, they would be
stricken?
Ms. TUCKER. I venture not to give you an answer to that, I think
they would be challenged. I would like to think about that one
some more.
Senator IIATrir. OK. Would laws that grant a husband a divorce
if at the time of marriage he was unaware of the pregnancy of his
wile by anothe, man be in violation of the ERA? iLaughter.1
Now, we are going to have order in here
Ms. TUCKER. I think any laws, grounds, or statutes for divorce
that are sex based would fall.
Senator IIATro. And that one would fa; '
Ms. TuemER, Yes that one would fall
Senator IIATen. Would existing alimony or child custody awards
that were given under pre-ERA non-sex-neutral statutes he opened
up at the time of passage of the ERA?
Ms. TileNER. There were too ninny negatives in that. I did not
Senate, HATC11. Let me do it again. W(rild existing alimony or
child cteitiely awardli that v (,,re given under a non-sex-netitriil stat-
liti.:4 he opt>ned op by the ERA? Would such continuing &yr...Ts be
opened up?
4
Si
Ms. Tut sm. I think it should be known that alimony and child
support awards are always open to the court under existing
Jaw--
Senator HATCH. I agree.
Ms. TUCKER (continuing). On the basis of a major change in cir-
cumstances.
Senator HATCH. So, the ERA would be a major change?
Ms. TUCKER. If the ERA is determined to be a major change in
circutnstance, I would say that indeed those laws might beopened
up. And if that means that women can come in and get increased
child support awards because their contribution was not recognized
before, I aqua!! for it.
Senator Ham!. Would you agree with Barbara Brown's textbook
ERA that, "The, use of fault as a factor in alimony and support
awards would be unconstitutional under the ERA because they
have a disparate impact upon women?"
Ms. TUCKER. Senator, 1 think the use of fault is disappearing on
a State-by-State basis now anyway.
Senator HATCH. Would it be required to disappear?
Ms. TUCKER. I am unsure whether fault is a sex-based classifica-
tion or whether the disparate impact would be the standard to
apply to that.
Senator HATCH. OK. Would State laws against the recognition of
common law marriages be in violation of the equal rights amend-
ment? Some ERA commentators have argued this.
Ms. TUCKER. Could you repeat that?
Senator HATCH. Would State laws against the recognition of
common law marriages be in violation of the equal rights amend-.
ment?
Ms. TUCKER. I do not have an answer for that, Senator.
Senator HATCH. OK. Would you agree that the traditional mar-
riage contract in this country would be sharply redefined by the
ERA? The California commission says it would be.
Ms. TUCKER I do not know what the traditional marriage con-
tract is, Senator
Senator HATCH. OK. Would you agree with the Civil Rights Com-
mission that
Ms. TUCKER. Could you tell me? I would Zilen to try to answer
that question.
Senator Myren. It involves assumptions about the respective
roles of the husband and wife in the martial relationship. I am not.
going to get into that thicket, either. [Laughter.]
Would you agree with the Civil Right Commission that:
me I resent 14tel structure of domestic relations represents the in corporation into
law of soetal and religious views of the' proper roles of men and women with respect
to faintly life, and that such deeply ernbcdtled .lereotypes would he uddrt,ssed by the
ERA.'
Ms. TttcHEtt, 1 kite to ask you this again. but could you revi,,at
that again?
Senator I IATell. Sure. The Civil Rights Commission ha.4 said that:
pr,,,,nt legal structure of iltoorstit relations represents the incorpumfion into
lay: of ,mcial told viewg of the proper riAt,s Of 1111,11 Mid Wir11111/ tGii,1. respect
to fondly 4ohl 1111 !41101 (1,,s,111,1/ ettillelitted stereotypy,' %mild he add/v..94'cl
by
82
91
83
First of all, is there a connection between the proposed equal
rights amendment and abortion or abortion funding? Logically,
there should be no connection, but as Justice Holmes has reminded
us, tt.., life of the law has not been logic; it has been experience.
And recent experience suggests that the ERA, if it is proposed and
ratified without an explicit provision against its use as a proabor-
tion device, will, in fact, be used to sweep away the minimal protec-
tion of unborn children that the courts currently allow, and also to
mandate tax funding for abortions.
Law, including constitutional amendments, should be interpreted
in accordance with the intentions of those who wrote and adopted
them. Some of the most important supporters of the ERA have
argued and stated publicly that they regard restrictions on abor-
tion, and even the refusal of legislatures to finance abortions, as a
form of sex discrimination. And judges, including some Justices of
the U.S. Supreme Court, have given reasons to believe that they
will be receptive to such arguments.
One important source of evidence about how the ERA would be
interpreted is litigation under the State equal rights amendments
in various State constitutions. In several recent controversies in-
volving State ERA's, it. has become clear that the proabortion
movement regards ERA as a valuable tool in the fight against
abortion funding restrictions.
In the 1978 case of Hawaii Right to Lift!. v. Chang, a group of
doctors argued that they had a constitutional right to be paid for
abortions with State funds. The abortionists were represented by
the American Civil Liberties Union, which has been prominent
both in the proabortion and the pro-ERA catE...s.
They argued that the State ERA secured a right to abortion
funding because
Abort ion is a mei;ical procedure performed only for women. Withdrawing 'funding
lOr ;dilations while continuing to reimburse other medical prwedures
both sew, or nob; by own would he tantamount to a denial of equal rightssought by
count of vex on ac-
95
R7
But the point is nobody knows what courts will do under the
broad umbrella of the ERA, and this lack of certitude requires us
in passing an ERA, if indeed we do, to try and eliminate a major
sensitive public policy question that we want decided not by the
whim of the courts but by longressional affirmation.
Senator HATCH. I take it, then, that it is your viewpoint that the
Equal Rights Amendment would invalidate the Hyde amendment
on Medicaid funding for abortion, as well as similar amendments
that now exist at the State and local levels?
Mr. HYDE. I do not want to say it will do that, but I will tell you
that there is an awfully good chance that it would do that. It is
very much in doubt. I do not want to be confronted with an ERA
and a court saying, "Well, even Congressman Hyde said it would
be invalid under this." I hope that is not so, but I am in doubt, as I
think every person has to be in doubt, having read some of the
cases that I have talked about.
Sena& HATCH. What is the general perspective of the prolife
community on the Equal Rights Amendment?
Mr. HYDE. In my travels and in my years of dealing with this
issue, I have found many women and men who are supportive of
the ERA and supportive of the prolife position. I think they have
riot seen a connection between the two, but I think that is all
before the ACLU decided to utilize the State ERA's in litigation.
I think some very prominent people, such as Claire Booth Luce,
for example, and others, are going to have to rethink their support
for an ERA that is unadorned Li an appropriate amendment elimi-
nating abortion from its purview.
So, I think we all have to rethink that, seeing what has hap-
pened in the courts. I have, certainly.
Senator HATCH. Could you describe the so-called conscience
clauses that many hospitals have adopted with respect to abortion,
and comment on whether the ERA would have an effect on those
conscience clauses?
Mr. HYDE. Well, conscience clauses are a recognition of human
nature by the legislature that many nurses and surgical attend-
ants, doctors, and interns are repelled by abortion. They feel that
they are there to heal and to cure, not to exterminate, so they
refuse to participate in these by now legal, under court fiat, surgi-
cal procedures. Recognizing the right of conscience, laws have been
passed to protect these people from losing their jobs.
If, of course, the ERA is to reconfirm Roe v. Wade rather than
give us a chance to reverse Roe v. Wade, I would suspect that those
conscience statutes would be challenged and attacked. I do not
know how successful those attacks would be because you cannot
really force somebody, and you ought not to force somebody, to do
something against their conscience.
Senator HATCH. But they may very well be forced- -
Mr. HYDE. They will surely be challenged.
Senator HATCH [continuing]. If sex is treated as an absolute clas-
sification or even a suspect classification, is that right?
Mr. HYDE. Yes, they will surely be challenged and I would nei-
ther be optimistic nor pessimistic on it. But I would rather they do
not have any basis for challenge.
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41 005 O 4H5 7
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MiSCIELLANEOUS MAMMAL
IL J. Ike MS
3slat Itushtion
Proyaelag as areadmest te tee Ommotitelka of the UMW Stake Motive to
Mewl NOM tfo mei awl weans.
CARL ALBERT
Speaker of the House of Reprerestivee.
W. PAT JENNINGS
Clerk.
BY W. RAYMOND (ALLEY
WM WOO' HISTON1
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Minnesota: House-ratified, 01/17/73, 104-28. Senate-ratified, 02/08/73, 48-18.
Mississippi:'Senate-rejected in Senate Committee, 02/08/73, 7-2; rejected in com-
mittee, 03/09/76, 4-3; rejected in committee 01/28/77, 5-4.
Missouri: Senate-rejected in committee, 02/06/73, 7-3; rejected in Senate, 06/02/
75, 20-14; rejected, 03/15/77, 22-12. House-rejected, 05/09/73, 81-70; ratified, 02/
07/75, 82-75.
Montana: House - ratified, 01/18/73, 73-23. Senate-rejected, 02/02/73, 25-2; rati-
fied, 01/11/74, 35-14; rejected rescission, 02/09/77, 25-25.
Nebraska: Unicameral legislature-ratified, 03/23/72, 38-0; rescinded, 03/15/73,
31-17, rejected ratification, 02/04/75, 25-25.
Nevada: Senate-rejected, 03/01/73, 16-4; rejected, 02/19/75, 12-8; ratified, 02-08-
77, 11-10; defeated, 01/16/79, 14-3, House-ratified, 02/17/75, 27-13; rejected, 02/
11/77, 24-15.
New Hampshire: House-ratified, 03/23/72, 179-81. Senate-ratified, 03/23/72,
21-0.
New Jersey: House-ratified, 04/17/72, 62-4. Senate-ratified, 04/17/72, 34-0.
New Mexico: House-ratified, 02/13/73, 40-22. Senate-ratified, 02/13/73, 33-8.
New York: Senate-ratified, 04/20/72, 51-4. House-ratified, 05/03/72, 117-25.
North Carolina: Senate-rejected, 03/01/73, 27-24; rejected, 03/01/77, 26-24; re-
jected in committee 02/16/79; motion to table 06/04/82, 27-23. House- rejected in
committee, 01/21/74, 10-6; approved on first reading, 04/15/75, 60-58; rejected on
second reading, 04/15/75, 62-57; ratified, 02/09/77, 61-56,
North Dakota: Senate-ratified, 02/07/73, 30-20; ratified, 01/24/75, 28-22; reject-
ed rescission, 02/17/77, 32-18. House-rejected, 02/23/73, 51-49; ratified, 02/03/75,
52-49.
Ohio: House-ratified, 03/28/73, 54-40. Senate-rejected in committee, 04/22/73,
6-3; rejected in committee, 05/08/73, 5-4; ratified, 02/07/74, 20-12,
Oklahoma: Senate-ratified, 03/23/72, voice vote. House- rejected, 03/29/72, 52-
36; rejected, 02/01/73, 53-45; rejected a "do pass" motion, 01/21/75, 51-45; rejected a
"report progress" motion, 01/21/75, 51-45; approved a "do not pass" motion, 01/21/
75, 50-43; referred back to second House Committee, 03/15/77.
Oregon: Senate-ratified, 02/01/73, 23-6; reaffirmed their ratification, 02/22/77,
48-14. House -- ratified, 02/08/73, 50-9.
Pennsylvania: House--ratified, 05/02/72, 178-3. Senate-ratified, 09/20/72, 43-3.
Rhode Island: Senate-ratified, 04/04/72, 39-11. House-ratified, 04/14/72;70-12.
South Carolina: House-ratified, 03/22/72, 83-0; rejected, 04/26/73, 62-44; reject-
ed on a motion to table, 03/6/75, 46-43. Senate-- rejected on motion to table, 02/07/
78, 23-18.
South Dakota: Senate-ratified, 01/29/73, 22-13; rejected rescission, 03/08/77.
House-ratified, 02/02/73, 43-27. 03/01/79, Senate concurred with House in holding
prior ratification of ERA null and void, effective 03/23/79.
Tennessee: House-ratified, 03/23/72, 70-0; rescinded, 04/23/74, 56-33. Senate-
ratified, 04/04/72, 25-5; rescinded, 03/19/74, 17-11.
Texas: Senate-ratified, 03/29/72, unanimously. House-ratified, 03/30/72, 137-9.
Utah: House-rejected, 01/24/73, 51-20; rejected, 02/18/75, 54-21.
Vermont: House-rejected, 1972, 59-67; ratified, 01/12/73, 120-28. Senate-rati-
fied, 02/21/73, 19-8.
Virginia: House-rejected in committee, 02/06/73, 13-2; rejected in committee,
02/27/74, 12-8; House failed in effort to change rules, 01/21/77, 62-46; rejected in
committee, 02/09178, 12-8. Senate-rejected in committee, 02/28/74, 10-5; approved
in committee, 01/17/75, 6-5; rejected in Senate, 01/21/75, 21-19; rejected in commit-
tee, 01/23/75, 8-7; rejected in committee, 01/04/76, 8-7; rejected in Senate, 01/27/
77, 20-18 as 21 votes were necessary for ratification; Senate Privileges and Elections
Committee voted 8-7 against a proposal to ratify; Senate rejected, 02/12/80, 19-20
(21 votes necessary to ratify); Senate rejected, 02/17/82, 19-20.
Washington: House-ratified, 03/09/73, 76-21. Senate-ratified, 03/22/73, 29-19.
West Virginia: Senate-ratified, 04/21/72, 31-0; rescission defeated, 02/26/74, 18-
15. House-ratified, 04/22/72; unrecorded vote.
Wisconsin: House-ratified, 04/19/72, 81-11. Senate-ratified, 04/20/72, 29-4.
Wyoming: House-ratified, 01/15/73, 41-20. Senate-ratified, 01/24/73, 17-12; de-
feated rescission, 01/22/77, 16-14.
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STANDARDS Or REVIEW: SCHEME or ANALYSIS USED UNDER THE EQUAL PROTECTION
asuss or THE FOURTEENTH AMENDMENT
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Mr. Chairman: I want to commend you for holding this the second day of hearings
on Senate Joint Resolution 10, the proposed Equal Rights Amendment. From past
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experience, I know that under your able leadership that this hearing will provide
for thc. fairest possible presentation of the views from both sides of this important
issue.
As you know, I cosponsored the original ERA back in 1972. During the national
debate that ensued, many important questions were raised concerning the possible
impact of this amendment on American society. Because of these questions many
of which remain unansweredI have decided to examine this proposal anew.
From the last hearing conducted on this resolution, I found the testimony present-
ed to be interesting but not very helpful in providing the answers to some of the
questions surrounding this amendment. It is very bvident that the proponents are
not sure what the Wel effect of this proposal will be. Rather than provide the an-
swers so sorely needed by those Senators who are undecided on this issue, those
speaking in favor of the passage of the ERA simply said that much of what is un-
known about the effect of the amendment will be decided in the courts.
Simply stated, I am not pleased by such a vague and open-ended response. With
the activist stance that much of the Federal judiciary has taken in recent years, the
response that "the courts will ultimately decide" raises the unfavorable prospect of
having Federal juftes remodel American society on the basis of an absolute stand-
ard of judicial 4wone that could allow for no governmental distinctions be-
tween men and women.
I believe that a proposal such as this one could bring about unexpected and, per-
haps, unwanted changes in our society as we presently know it. Therefore, it is im-
perative that we as lawmakers obtain the best and most complete information possi-
ble about this proposal. This is the only way that we can make an informed decision
before casting our votes.
Mr. Chairman, I sincerely hope that today's hearing will provide us With some of
the information on the effect of ratification that we so badly need. Again, I thank
you for the fine work that you have done in putting this hearing together. I look
forward to hearing the testimony to be given today.
..),,!1 106
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uals have must be afforded to female homosexuals as well, and vice versa. It would
neither grant additional, nor take away existent rights for homosexuals.
Finally, the question of combat duty for women is raised. This, I believe, is a le-
gitimate concern that would be affected by the ERA. An analogy to government em-
ployment is appropriate. The ERA would not say that an equal number of men and
women have to be employed in a given agency or job position. However, it would say
that both men and women must be equally considered for the jobs, and based strict-
ly on their qualifications, they get the jobs, promotions and salary benefits. All the
decisions are based on factors other than sex.
Likewise, in the military, the draft, if one is instated, as well as specific posi-
tionscombat or otherwisecan be based on factors legitimate to the common de-
fense and to the special functions of the military. If women meet the conditions,
then there is no reason to exclude them.
In conclusion, Mr. Chairman, I firmly believe that the guarantee of equality be-
tween the-sexes should be raised to a heightened constitutional level by adopting
the Equal Rights Amendment. Any attempts to amend the currently proposed lan-
guage to provide for specific concerns should be resisted. Our judicial system, based
on legislative intent and established constitutional adjudication, will adequately
and in fact most appropriatelyhandle the various concerns that have already been
raised, as well as those concerns about which no one has yet speculated that are
sure to be raised in the future.
Senator HATCH. Ladies and gentlemen, we have two outstanding
witnesses before this subcommittee today who, I am confident, will
shed a great deal of light upon the impact of the ERA in the area
of private and parochial education. I very much look forward to
their testimony here today.
Our first witness today will be Prof. Jeremy Rabkin, professor of
government at Cornell University and director of the program on
courts and public policy at Corned. Professor Rabkin has contribut-
ed to many popular and academi journals and is one of the most
thoughtful observers of American education policy.
Our next witness after Prof r Rabkin will be Ms. Donna Sha-
lala, the former Assistant Secretary of the Department of Housing
and Urban Development during the Carter administration. Ms.
Shalala is currently the president of Hunter College in New York
City, one of the most important schools ln that city's system. As
with Professor Rabkin, she is also widely recognind on the issues
of educational policy. Ms. Shalala has been s' lected by ERA propo-
nents on this committee as their preferred witness on this matter.
This committee is proud to have two top experts testify before us
today, one for and one with some serious reservations about the'
equal rights amendment.
Professor Rabkin, we will turn to you, please.
STATEMENT OF JEREMY A. RABKIN, ASSISTANT PROFESSOR, DE-
PARTMENT OF GOVERNMENT, AND DIRECTOR, PROGRAM ON
COURTS AND PUBLIC POLICY, CORNELL UNIVERSITY
Professor RABKIN. Thank you.
I beileve this subcommittee is performing a great service to this
country in attempting a careful assessment of the legal implica-
tions of the equal rights amendment. I feel honored at being asked
to contribute to this assessment of the legal implications of the
likely
equal rights amendment, and I will focus my remarks on the
effects of the ERA on private education, a problem which I think
has not yet received the attention that it deserves.
Because the language of the equal rights amendment is ad-
dressed to the State and Federal governments, many people
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assume that its effects will be limited to public schools and to State
universities, But I think this view is certainly mistaken. I will try
in a brief space here to indicate some of the ways in which the
equal rights amendment is likely to impact on private education.
Title IX of the Education Amendments of 1972. lready prohibits
sex discrimination in any education program or activity receiving
Federal financial assistance. There are, however, a number of ex-
ceptions in title IX. Most importantly, there are a series of excep-
tions dealing with admissions, which allow private institutions to
receive Federal funding and still be single-sex institutions up to the
level and including the level of private colleges: The other excep-
tion there is for any school controlled by a religious organization to
the extent that its prohibition on sex discrimination would not be
consistent with the religious tenets of such organization.
To begin with,: it seems to me indisputable that the equal rights
amendment would prohibit direct Federal, or for that matter,
direct State grants to any single-sex institution. In the second
place, I think it is very, very likely that the equal rights amend-
it would prohibit tax exemptions for single-sex institutions and
med, tax exemptions for institutions that practice any form of
sexual differentiation.
I would have predicted that even last year, and ovei.the past sev-
eral \ years a number of scholars have predicted that. I think you
can say this with much more confidence and certainty since the de-
cision of the Supreme Court in Bob Jones University v. United
States. In that cabe, many of you will recall, Bob Jones University
was finally judged \ not eligible for tax exemption because it has a
ban oft interracial dating. This school is integrated, that is, it does
accept black students,, but it had this peripheral aspect of its policy
which was discriminatory, and the Supreme Court held that that
was enough for the IRS to deny its tax exemption.
Now, it seems 4o me if you follow that precedent with regard to
the ERA, it really is inescapable that not only single-sex schools,
but schools which maintain some kind of incidental differentiation
or, if you like, discrimination, on the basis of sex would also be dis-
qualified from receiving tax exemptions. That means, it seems to
me, not only that, for example, Catholic seminaries which exclude
women would be ineligible for tax exemptions, but Orthodox
Jewish schools which maintain separation in seating between men
and women in religious ceremonies would on the same reasoning
be ineligible for tax exemption.
Now, the significance of losing tax exemption is not only that
you may, as a school, have to pay some taxes directly; more impor-
tantly, it is that contributions to the school are not tax deductible.
And for many schools, that means losing an important source of
income. It has been estimated that as much as 20 percent of the
income of private elementary and secondary schools would be lost
to them if they lost their tax-exempt status. For private colleges
the figure is undoubtedly much higher. Since many private schools
are in a financially precarious state, I think that means for a great
many private schools, they will either conform to national stand-
ards on sex, or they will, perhaps, be driven into oblivion.
There are lots of other ways, it seems to me, in which the equal
rights amendment would very much constrain private education.
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102
institution. Nor has any commentator argued that it would provide any
As it is, the Supreme Court has held that the First Amendment
private schools at this level are not very common or very extensive.
sexual ratio in their student body, may thus face some painful financial
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108
Since 1970 the Internal Revenue Service has been denying tax exempt
ble" organization -- one eligible foi tax exempt atatus -- must be with-
fundamental public policy." The tax coda need not directly prohibit
this activity: it does not expressly prohibit racial discrimination.
dating that got it into trouble with the IRS. The Supreme Court held
that the IRS was nonetheless justified in revoking the tax exempt status
the court saw it. that Bob Jones University was acting "contrary to
11.2
104
institutions must be
that all single-sox
then, it seems inescapable
all -women
Thus the E.R.A. would not only make
denied tax exemptions.
but also Catholic seminaries,
colleges ineligible for tax exemptions,
for training to the priesthood.
for example - unless they admit women
applicants of both sexes would not be sufficient,
Indeed, admitting
the institution is oblivious
according to the Bob Jones ruling, unless
It did not save Bob Jones University.
to gender in all its activities.
dating was rather incidental to
after all, that its ban on interracial
integrated
program -- which was, it appears, fully
its basic educational
inescapable that an institution like Yeshivah
after 1976. Thus it seems
coeducational programs. must
University in New York, which does have
seating for men
still'forfeit its tax exemption if it maintains separate
That this practice is required by
and women in religious services.
of
would be of no relevance to the operation
Orthodox Jewish tradition
the tax law. In the Bob Jones case, the Court emphatically rej:cted the
1 1 :3
105
the E.R.A. itself by maintaining that it had not, after all, made
opposition to sex discrimination such a "fundamental public policy" as
The Court did leave itself a possible escape hatch by resting its
room for Congress to rescue the Court, by amending the tax code to
which had recently reendorsed the E.R.A. might not feel at all comfort-
the tax code -- not from any particular desire to deny tax benefits to
of the E.R.A., the U.S. Commission on Civil Rights urged as far back as
1975 that the I.R.S. had the authority and the obligation under existing
opinion to support the view that tax exemptions are a form of "state
tax benefitn. In the Bob Jones case the Court noted that many of the
41 MI) 4) 145 14
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106
Coleman, who was appointed by the Court, itself -- argued that, whatever
constitutional Josue, but did not dispute the force of the argument.
was never overruled and ies reasoning has indeed been cited with
Amendment would require the dithdraval of tax exemptions for single sex
14
schools and for schools practicing any form of sex discrimination.
After Bob Jones, this seems even more likely -- even for religious
institutions.
First, it is worth noting that the Bob Jones case dealt not only
with direct tax exemptions but with tax exempt status generally.
internal Revenue Code do not have to pay any form of income tax them-
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107
But tax subsidies are not the only form of state assistance
threatened by the E.R.A. In Norwood v. Harrison, tee Supreme Court held
students made no difference; not did it make any difference that the
books were available on the same basis to all students at all schools in
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108
entire college and all its activities must comply with the federal law
The Supreme Court has not yet endorsed this approach as a proper inter-
have very great difficulty in disavowing the policy under the E.R.A.
and other joint ventures with public institutions. Nor is this all.
use the playing fields in a public park, because this would constitute
18
Under
unconstitutional state involvement with racial discriminatiop.
scout and girl scout troops may have to be excluded from public school
college
facilities and fraternities and sororities banished from state
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109
directly reach all schools. public and private. There are a few strands
Court has never held that racially discriminatory private schools are
21E se unconstitutional.
This does not simply mean that single-sex schools will have to admit
students of the opposite sex. This probably means that from kinder-
equality and I do not mean to nay themat there is anything wrong with
running schools in thin way. The question is simply whether all educa-
zo such patterns.
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110
cial strain on such schools and a large number may not survive. It has
been estimated, for example, that loss of tax exempt status would cost
the average rr4--,:te school (at the elementary and secondary level_ over
21
20 percent of its annual income. That exceeds the margin for survival
for many schools and those that are able to absorb such a loss will be
forced to curtail their programa and limit access (by increased tuition
even more hard hit and become even less accessible - those that survive.
And beyond all the financial blows, unconventional private schools and
tions. Those schools that can still attract students under these
Now we have done all this to private schools that persist in racial
condemnation, imposing the same financial penalties and the same moral
traditional women's college on the same plane with the racial bigotry of
I will not here attempt to argue the moral differences between race
strong impression that Americans now seem to share this sense that
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fir religious schools and for most kinds of single sex schools, Congress
private education.
flexibility and greatly reduce such diversity. And this will not he the
ful people support the Equal Rights Amendment precisely because they
ty. The country as a whole should consider what this means, however,
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112
NOTES.
1. 20 U.S.C.i 1681-86.
2. 42 U.S.C.M 2000d.
7. Ibid at 4601.
10. The objections to the Court's purported basis for decision are powerfully
articulated not only in the dissenting opinion by Justice Rehnquist, but
also in the uneasy concurrence by Justice Powell in Bob Jones.. See also
the strong arguments rejecting IRS authority on the basis of existing law
in Bob Jones Univers a v. Blumenthal, 468 F. Supe.890(P.S.C., 1978).
14. Monica Gallagher, "Desegregation: The Effect of the Preposed Equal Rights
Amendment on Single Sex Colleges," 18 St. Louis Uiversity L.J. 41(1973);
Testimony of Laurence Tribe, Professor of Law, Harvard University, Tax Exempt
Status of Private Schooln, Hearings Before the Subcommittee on Oversight
of the Committee on ways and Henns, House of Representatives, 96th Cong.,
1st Session (Feb.-March, 1979), p.385.
I/. this provision in th. Title IX regulation is now before the Supreme Court in
Grove City College v. Bell. In Hillsdale College v. HEW, 696 F.2d418(1982),
the 6th Circnit Court of Appeals invalidated this provision but indicated thnt,
It would probably not have d so if the I4tatutory prohihition on sex dis-
crimination were based on constitutions] requirements - as would he the case
under the F.H.A.
19. The argument could he made that education is inherently a "public function"
and that even private schools would therefore be covered by constitutional
prohibitionn on government. Thus Prof. Emerson noted in his widely cited
article on the E.R.A. that in the field of education (along with other fields)
"the public character of the function would lead to the requirement that the
state assume extensive responsibility." Emerson, et.al. "The F.R.A.: A Con-
121.
113
Senator HATCH. Ms. Shalala, let us turn to you and take your
testimony at this time.
STATEMENT OF DONNA E. SHALALA, PRESIDENT, HUNTER
COLLEGE OF THE CITY UNIVERSITY OF NEW YORK
Dr. SHALALA. Good morning. I am Donna Shalala,
Hunter College of the City University of New York.presidentI am here
of
today to speak in favor of the equal rights amendment. That
amendment would finally make it unconstitutional
dividuals equal rights on account of sex in any area to deny any in-
action. No longer would women be required to rely ongovernment
of
work of antidiscrimination laws to enforce their rights the patch-
portunity and equal treatment; nor would they bear thetosubstantial
equal op-
risk that the claim for equality is unenforceable because the Gov-
ernment does not stand behind it, or insupportable because of some
exception in the laws.
In no area of public life is the ERA more important than in edu-
cation. In virtually every aspect of education, both
vate, sex discrimination continues to exist. And I public and pri-
discuss with you the extent of that discriminationamand here today to
its impact
on women and on American society.
By denying equal access to education to a woman, we clearly
narrow her choices and options in employment, in income, and in
mobility.
Discrimination based on sex in educational institutions creates a
host of problems for female students and female employees on
every level. While women now have better access to education,
helped substantially by title IX, they still face the heavy
proving themselves in many areas. The resulting patternsburdea are
of
evi-
denced in tha employment of women in education,
courses of study and athletics. Without a constitutional admissions,
ment, the gains women have won are vulnerable to politicalamend-
whim.
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%A 1 44 13
115
professor in another college, the Chair of my department counseled
me that I need not work so hard, since the department had
and would never grant a women tenure. My publicationsnever and
teaching record, which he conceded were distinguished, would
make no difference whatsoever. I left that institution to go to an-
other institution that awarded me early tenure. But many other
women were not so lucky.
With such active discouragement and stereotypic treatment of
women in professional training, it is not surprising that the
number of women teaching in higher education is low, and many
fewer of them are untenured. And my complete testimony, Senator,
has a lot of statistics on the number of tenured and untenured
women and male faculty members by discipline.
Senator HATCH. We will put both complete written
the record. They are both excellent statements; I readstatements in
both of them
prior to coming here, and I want to compliment you both of you for
it. But continue, ,Dr. Shalala.
Dr. SHALALA. Let me make just a couple more points.
The impact of the statistics on the loss of role models for
women, leaders for all women, and lower wages mean less jobyoung
secu-
rity for women. We need the equal rights amendment to supple-
ment the protections afforded by title VII to women employed in
educational institutions.
Lie pattern in higher education is not unique. Similar
are found in the employment of women in elementary andpatterns second-
ary education.
At the present time, the principal laws we rely on to redress sex
discrimination in this cot at include title IX of the Education
Amendments of 1972, title VII of the 1964 Civil Rights Act, equal
rights amendments in State constitutions and the 14th amend-
ment. What are rarely addressed. are the major gaps in the cover-
age of all of these laws. Title IX's provisions apply only to admis-
sions practices of vocational education,
graduate higher education, and to public professional education,
undergraduate higher
educational institutions. In other words, the statute does not pro-
hibit sex-based discrimination in admissions, whether a complete
bar to women's enrollment, or a quota, or a demand for higher
qualifications in the Nation's elementary and secondary school, in
private colleges, and even in public colleges, if they have always ex-
cluded persons on the basis of sex. These exceptions go to the heart
of discrimination in education.
Girls and women can be denied equal access with boys and men
to all educational opportunities at certain institutions, even with
title IX. The statute now precludes a claim against a school district
that imposes different entrance requirements on the basis of sex.
The primary weakness of title VII to redress discrimination
against academically employed women is the reluctance of Federal
judges to closel examine university hiring, promotion and tenure
procedures. While I do not advocate a judicial takeover of academic
decisionmaking, the equal rights amendment would require closer
judicial scrutiny of these procedures, and it would force colleges
and universities to examine their own policies and affirmatively to
remove artificial 'barriers to women's employment and advance-
ment.
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125
PREPARED STATMENT OF DONNA E. SHALALA
12(
118
now have better woos to ediKolin (helped substantially by Title IX) they
still face the heavy burden of proving themselves in many areas. The resulting
patterns are evident in employment of women in edueation, admissions, courses
of study and athletics. Without a constitutional amendment, the gains women
have won are vulnerable to political whim.
in its 1981 report Title IX: The Heff Pull. Half Empty Glass, the
male applicants.
At the New York State College of Agriculture at Cornell, women
were required to have SAT scores 30 to 40 points higher than those of entering
men.
A male applicant at Penn State was five times more Ilteki to
be admitted than a female.
Although Title ... outlawed these particular discriminatory practices
especially in professional and graduate programs, the percentages of women
enrolled in certain courses of study still fall short of full access to these
programs. In 1980, the proportion of women In mediael sehool was 26 percent;
in law school 34 percent; in dental school 17 percent; and in veterinary school
39 percent. Women earned only 30 percent of doctorates awarded In 1980.
The problems In secondary and postsecondary education are oven more
severe, almost half of all programs are still overwhelmingly segregated by
tional education in 1978 were
sex, Seventy-two percent of all women in vow-
still enrolled In predominantly female clerical programs or in home economics
elessm The percentage of women enrolled in training that leads to higher
paid typically !onto skills is still quite low. Seventeen percent In agricultural
127
119
128
120
work is not appropriate for them. Many counselors warn girls to avoid jobs
in which they could face harrasament (verbal and physical) rather than
counseling them how to avoid the harrassment. The result is that those gin
who aclave academically despite this discouragement are Mewlse excluded
from and discouraged in the job market. Women ere harrassed In many job
environments, and many employers refuse to consider hiring females for "male"
jobs, such as plumbers, electricians, etc.2
The failure wily* to remit female students into traditionally male
courses is sex-based discrimination fri recruiting and training. It effectively
endorses and perpetuates the pattern of discrimination that has kept women
out of high-paying blue-collar. skilled craft jobs. The notion that a girl should
be discouraged or not encouraged in acquiring the special skins demanded by
these changes, unless she herself exhibits an intense desire to do so, is
economically catastrophic to women and fails to recognize the depth of the
vocational training. The stereotype that women are not good at Ifinath end
science is still widely indulged even though these Are extremely important
exclusion of
areas of future employment. The result of this historic unfair
women from math and the sciences has proven difficult to overcome.3
It Is
reflected in the counsel that girls receive as they choose a cotrse of study.
There are severe consequences to the cultural bias that math and
science are properly in the male domain. in 1981, only half of college-bound
girls, compared to two-thirds of college-bound boys, had completed four years
of high school math. The gap in enrollments, especially In advanced courses,
persists despite the assistance of Title IX.
Rights
A study of math enrollments by the Project on Equal Educational
in
of the NOW Legal Defense in Education Fund In 113 school districts
Michigan in the fall of 1981 confirmed this pattern. Boys outnumbered girls
two to one in computer math muses. In one school district the percentage
of girls in computer math was as low as 21 percent. Girls were 40 percent
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121
the elementary and secondary level are tolerated under both Title IX and the
equal protection clause of the Fourteenth Amendment. In 1977, the U.S.
Supreme Court upheld on an equal protection challenge the exclusion of a
Philadelphia girl from the all-male Central High,4 one of the city's two
academic high schools, and the one with the best reputation and the most
prestigious graduates. The other academic school, the all-female Girls High,
was good but, not quite on a par with "Central" The appellate court ruled
in favor of "separate but equal", emphasized that Central and Girls High were
Girls, therefore, are often barred from entering programs in which math and
science learning is required. The evidence confirms that girls, like most
people, gain confidence in their ability to perform a difficult task only after
they have tried ILO The exclusion from a superior program of education can
be fatal to any woman's development of interest and abilities in math and
science.
414111 --V
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122
jobs in math, computer and life science. Women have historically been missing
from other expanding career fields as well. In 1976, women held only 7.5
percent of the jobs in the physical sciences and one percent of the jobs in
engineer Ing.7
that would be affected by the equal rights amendment. The strongly held
must be provided comparable equipment and supplies, travel and per diem
dining facilities. Since the passage of Title IX the Increase in women' and
girls' enrollment In athletic programs reflects the active desire that girls and
women had for sports participation that was denied to them. However, the
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'123
Last year only 35% of the high school varsity athletes were girls.
During the 1977-78 school year, the average Big 10 school athletic
budget for women was between $250,000 at smaller schools and $750,000
at
larger schools. In the same year, however, the
average men's Big 10 athletic
was 3 million dollars.
and the incentives for that development, the stereotypes remain unchallenged
and the talented athletic woman remains an aberration.8 For girls, els much
as for boys, physical development through athletics is a crucial part of their
education. 'May, we continue to deny our girls and women this access to a
full education.
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124
lueky.
in higher education in low and many fewer of them are tenured. In the
humanities, women are one third the number of men (14,500/42,200), and only
46 or older, 90.22 percent of those men are tenured in the humanities while,
of all academically-employed female Ph.Ds aged 46 or over, only 68.7 percent
are tenured. The situation in similar in the sciences. The number of women
teaching in the sciences Is one fifth the number of males (24,200/157,000),
and only 37.6 percent of women as compared with 64.6 percent of men are
tenured.
The breakdowns do not change markedly for professors in the younger
45.7 percent are tenured. In the sciences, for the age category 36 to 45,
there are 60,800 men who are academically employed, and 66.5 percent of
them are tenured. Only 41 percent of the 9,200 women employed in the
gelenees are tenured. in the under 35 category, many have not yet come up
for tenure. The humanities employed men (4,100) nearly twice as many than
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125
full-time instructional staff during the period 1972 to 1983. There have been
a small gal mostly among women in the lower ranks. Women lecturers
increased by 12% (from 34.4% to 47.1%); woman instructors increased by 13%
all ranks combined the number of women increased by only five pereent.10
I speak from first-hand experience and observation when I say that even for
the last ten years, the disparities are the product of continuing discrimination
against women in higher education opportunities and employment.
The impact of these statistics is the loss of role models for young
women and leaders for all women and lower wages" and less job security
for women.
academic promotion and tenure is the most difficult area to challenge under
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126
coverage. Title IX provides "(n)o person in the United States shall, on the
basis of sex, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any educational program or activity
receiving Federal financial assistance." It covers most areas of school life
including admissions, access to courses, counseling and testing, scholarships
and awards, health and insurance benefits, treatment of unmarried students
and students who are parents, access to housing and other facilities and
employment. Title IX has been seen as the primary remedy for sex
discrimination in schools and is largely responsible for beginning the important
process of change toward equality for women in these aspects of education.
What are rarely addressed are the major gaps in Title IX's reach. Its
provisions apply only to the admissions practices of vocational education,
professional education, graduate higher education and to public undergraduate
higher institutions.11 In other words, the statute does not prohibit ,sex-based
discrimination in admissions whether a complete bar to women's enrollment,
a quota, or a demand for higher qualifications in all the nation's elementary
and secondary schools, private colleges, and even public colleges, if they have
always excluded persons on the basis of sex. These are not minor exceptions.
They go to the heart of discrimination in education. airs and women can
be denied equal access with boys and men to all educational opportunities at
certain institutions even with Title IX. The statute now precludes a Title
against
IX claim against sex-segregated elementary and secondary schools, or
a school district that imposes different entrance requirements on the basis
of sex.1 8
Sex segregation hi schools can be extremely detrimental to girls and
13&
127
boys, reinforcing sex stereotypic roles which artificially limit the options of
both. The Vorehheimer case showed Philadelphia reserving its best science
preparation for the boys who could attend "Central" those who could be
future leaders of the nation.19 The girls attending "Girls High" presumably
did not need superior science instruction. Similarly, the all-female Winthrop
Men at the companion state college, The Citadel, are prepared for careers
in engineering and the military. When the University of Virginia at
Charlottesville was reserved for men, great asperities between the state's
male facilities and the female facilities were revealed in litigation.21
The men's college offered the highest average faculty salaries In the state.
The state appropriation per student at the men's college was more than double
that at each of the two women's colleges. Men had access to sophisticated
astronomy and science facilities; women did not. Men could take degrees in
astronomy, batin-American studies, and nine foreign languages all
unavailable to women. The men's college offered a far greater variety of
courses in almost every departmeht, especially in government, astronomy,
economics, English, history, physics, geology, geography, sociology and
anthropology. In short, the lawyers showed in detail that the state reserved
its highest-quality educational facilities "For Men Only."
Yet these kinds of blatant violations are immune from attack under
Title IX,
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128
Other major laws concerning equality for women in education are stag
equal rights amendments. Only sixteen states22 have equal rights provisions
in their constitutions. The cases under state ERAs demonstrate that the
federal ERA will be an effective tool for all women seeking an equal education.
The United States Constitution as it is presently interpreted is of only
Court did strike down the exclusion of men from a state university nursing
about their abilities. With the Equal Rights Amendment, unless the purpose
educational purpose), the equal rights amendment would not abrogate thy First
137
129
of affirmative action, schools must treat males and females the same. Every
legislator, federal and Mate exeentive and administrator, every educational
policy-maker, every school board, every educator and teacher will receive
the clear and final message that discrimination on account of sex will not
be permitted. The ERA will establish equality on a permanent basis hi a
way not subject to the vagaries of administration policy. This is important
since the alternative of prohibiting sex discrimination statute by statute, as
Congresswoman Barbara Miku WI says, "is a little Ike elimInstirg slavery
plantation by plantation."
The ERA will do much more than any statute to ensure enforcement.
Although Title IX was passed In 1972, It was not fully enforced by the
government as was contemplated. For years, HEW, now the Department of
Education, failed to comply with regulatory requirements of prompt resolution
138
130
The ERA will also afford each woman a right to unqualified equality.
A statute, like Title IX, is the product of political trade-offs, and the resulting
statutory scheme is riddled with exceptions and limitations on remed!es. With
the ERA, a woman's right to equality will no longer be part of the bargain.
The result: Congress will no longer be assailed by lobbyists to minimize
their rights by private lawsuits. Now women face more than neglect in the
government's enforcement of Title IX. Officials of the current administration
have launched a concerted effort to severely limit the scope and effectiveness
federal aid for more genera! purposes. For example, this administration has
to turn back the clod: on women's rights by reducing the number of schcols
covered by Title IX, and limiting educational opportunities and activities which
women are guaranteed access to by statute. Many academic programs,
including athletics, will be herd hi' by the proposed Interpretation of Title IX.
equality no longer a political football. For those of you who share the view
that women are entitled to equality, the ERA would free you and your
colleagues in the House, and members of executive and legislative branches
139
131
in most states throughout this nation, to debate the most efficacious and
cost effective means to implement women's right to equality, not whether
they are entitled to that equality. That, I believe, is what the vest majority
of you would Ike to do and what the vast Majority of Americans, would Ike
you to do.
ENDNOTES
1. National Center for Educational Statistics, Department of Education, 1980.
2. For an hi-depth analysis of the various factors in operation, see R.
Friedman ex T. Hu ling, Their Proper Place:
A R rt on Sex Discrimination
in New York exploring the forces that le to cont nu e aeto segrega n
grife7s 751T City's vocational high schools once the explicit legal bars were
(topped.
3. National Research Council,
the Ladder: An Update on the Status
of Doctoral Women Scientists (National Academy Press, 1983).
4. Vorchheimer v. School Distridt of Philadebhia, 592 P. 2d 880 (3rd Cir.,
1978) aff'd by an equally divide) court, 430 U.S. 703 (1977).
5. Newb v. Board of Public Educatb
5822, August 3 ,
(Court of Common Pleas No.
1 . ,
140
182
22. The states are Alaska, Alaska Coast. Art. I, Section 3; Colorado, Cob.
Const. Art. II, Section 29; Connecticut, Conn. Coast. Art. I, Section 20;
Hawaii, Hawaii Coast. Art. I, 512; !Dino's, ILL Coast. Art. I ? 18; Maryland,
Md. Const. Art. 46; Massachusetts, Mass. Const. Part 1, Art. I; Montana,
Mont. Coast. Art. II, Section 4; New Hampshire, N.H. Coast., Part 2, Art.
11; New Mexico, N.M. Coast. Art. II, Section 18; Pennsylvania, Pa. Const.,
Art. I, Section 28; Texas, Tex. Cgnst., Art. I, Section 3; Utah, Utah Const.
Art. TV, Section 1; Virginia, Va. Canst. Art. I, Section 11; Washington, Wash.
Coast. Art. XXXI, Section 1; andl Wyoming, Wyo. Coast. Art VI, Section 1.
23. Misl_d_Ays Univerisity for W rn Y. Hogan, 102 S.Ct. 331 (1982).
25. ,Women's Equity Action League v. Califano, No. 74-17220 (r.u.c. Dec.
29, 1977).
26. Hillsdale Coll e v. 0 artment c.f Health Education and Welfare, 696
F.2d 1 , t Cir.
27. UniverNity of Richmond v. Bell, 541 P. Supp. (ES). Va.,1982)
141
133
14'2
134
144/
136
try. And I think there is some history with those black institutions
that'would be helpful.
My `point about the women's colleges could be expanded. I have
argued `that it would be possible for them under the ERA to contin-
ue their \single-sex admissions policy if they could make a case that
they were naking a positive contribution to overcoming the effects
of discrimination and promoting sex equality. The alternative for
them would be to stay as women's colleges, but to admit men; that
is to say that men are also welcome to come to those institutions. A
number of the women's colleges in this country do have men on
their campuses for programs or as part of a sharing operation.
That would be another alternative.
Senator METZENBAUM. Dr. Shalala, I am disturbed, and I am
frank to admit it. The disturbance arises from the fact that I am
opposed to discrimination, whether it is women discriminating
against men, or men against women, or blacks against whites, or
whites against blacks or pinks, or whatever the case may be. And
you advance a rather intriguing judicial concept that I think Dr.
Rabkin is addressing, and you answered by saying, "I know of no
instance of any effort on the part of Government to integrate black
schools."
Dr. SHALALA. Private schools.
Senator METZENBAUM. Private schools. But that does not seem to
me to be the real issue. The real concern that I have is what judi-
cial precedent do you find for saying that it is OK for women's
schools to discriminate, but not for men's schools to discriminate,
and further, that if all women's schools were established to elimi-
nate past discriminationI would guess that not many schools that
have been qpened in recent years would fit into that category, but
if a college was established 150 years ago for that purpose, that
would justify the present-day ,discrimination. And I must tell you
that, as you well know, I am a strong supporter of ERA, but I am
not sure that I follow this legal approach of yours. I have special
regard for you since you are a former Clevelander, and anybody
who comes from Cleveland has a special warmth in my heart, and
we take pride in your accomplishments, but that does not mean I
have to agree with you if I am not sure you are right.
Dr. SHALAIA. Fair enough, Senator.
Senator HATCH. Dr. Shalala, how do you disting..ish between all
women schools based upon affirmative action precepts and all
women's schools which are not? I think this goes along with Sena-
tor Metzenbaum's question.
Senator METZENBAUM. Yes.
Senator HATCH. Who makes those determinations?
Dr. SHALALA. Well, I think the court would end up making that
determination.
Senator HATCH. So we are going to let the courts determine
which schools can receive Government aid?
Dr. SHALAI,A. Senator, since I am not a lawyer, let me end on
this point. I said that there was a possibility that if the women's
collegesthat one way the women's colleges could remain as
women's colleges is if they could demonstrate that they were
making a positive contribution to overcoming the effects of discrim-
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137
ination; that there was a possibility that under those narrow guide-
lines, they could remain single sex and still get public aid.
If I remember correctly in my reading of the Mississippi case, in
Mississippi University for Women v. Hogan, the Court did say that
you could have affirmative action as a justification for sex segrega-
tion, but only on a narrow--
Senator HATCH. That was in a case invoking public schools,
though.
Dr. SHALALA. The other thing is that there wou
tions on this. What I am suggesting under the E beistime limita-
period of time until there was, in fact, demonstrated equality,forfora
that
affirmative action purposes, if an institution or a pro ram demon-
strated that it was there for the purposes of overcoming past dis-
crimination, it could exist for that period of time.
Senator METZENBAUM. Dr. Shalala, I want the Su rem Court to
understandand I assume that we will pass ERA this yea it will
be ratified this year, and it will be to the Supreme Court within
the following yearthat this strong advocate of ERA is not* all
in agreement with the suggestion that it is justifiable for wothen's
is to discriminate and for men's schools not to be permit to
d inate. I think that ERA would not justify or legalize
crimination.
Senator HATCH. Senator, would you be willing to write that int.t,
the law itself, so ilat there is no question about it? 1
14
139
Dr. SHAIALA. I think that in Bob Jones, the Court was very care-
ful to distinguish between educational institutions and religious in-
stitutions, and single-sex seminaries would be allowed; religious ac-
tivities that discriminated within institutions would be allowed, but
that educational institutions 'sponsored by religion would not be
able to get Government aid.
Now, they would not be compelled to lose tax exemption accord-
ing to the Bob Jones decision, but they would not be able to get
Government aid under the ERA.
Senator HATCH. Dr. Rabkin?
Professor RABKIN. I disagree with that. First of all, I think it is
clear from the Bob Jones decision that this is not up to Congress or
the IRS: that the Constitution itself, under the ERA, the ERA as
part of it, would require that you deny tax-exempt status to single-
sex institutions. That is one. Second, I think Dr. Shalala really is
not accurate in saying that the Bob Jones decision makes a big dis-
tinction between educational institutions which happen to be reli-
gious and religious institutions which happen to be educational.
Senator HATCH. Well, all religious institutions happen to be edu-
cational, don't they?
Professor RARKIN. Exactly.
Senator HATCH. Hebrew .universities, seminariesI do not see
how you make the distinction?
Professor aKIN, Exactly. I do not either,.and I do not think the
court was making any effort to make that distinction.
Senator HATCH. If the Court allowed the IRS to
Jones' tax exemption, notwithstanding the exception inremove Bob
title IX for
religious institutions, what do you think would happen if the ERA
was ratified thus raising the issue of sex to the same suspect classi-
fication level as race?
Professor RABKIN. Right. I do not think there is any question
that under the ERA, institutions which maintain any kind of reli-
gious practice that distinguishes between the sexes, those institu-
tions would have to lose their tax exemption, I really do not think
there can be question on that.
Senator HATCH. Do you agree with that, Dr. Shalala?
Dr. SHALALA. I agree with that, but I do not agree that seminar-
ies would be covered under that. I believe them amendment
would prevail in this case.
Senator HATCH. You believe that seminaries. wo' id not be cov-
ered under the ERA. But, Senator Tsongas, when ne was here, as-
serted that the courts would have to balance the first amendment
issue and the ERA issue. Do you agree with that?
Dr. SHALALA. Yes.
Senator HATCH. Do you agree with the general rule of constitu-
tional interpretation, that the last amendment in time would tend
to be the controlling amendment?
Dr. SHALALA. No.
Senator HATCH. You would not agree with that as a matter of
constitutional interpretation?
Dr. SHALALA. I think the first amendment would prevail in this
case.
Senator HATCH. How would you distinguish the first amendment
issues in this question from those involved in the Bob Jones case?
148
140
149
141
Dr. SHALALA. But the key, Senator, is whether you believe that
the Court would consider a single-sex seminary to be covered under
the first amendment, or whether it would see it as an educational
institution. In my judgment, it would see it as an organization of
religion rather than an educational institution.
Senator HATCH. Well, I hope you are right, but nobody can say
for sure.
Dr. Shalala, have you been affiliated with the NOW Legal De-
fense Fund?
Dr. SHALALA. No.
Senator HATCH. You have not been. Well, let me read a NOW
resolution which I think touches on this issue. It says:
In light of the enslavement of body and mind, which the church historically has
imposed on women, we demand that the seminaries la) immediately stop and repu-
diate their propagation of sexist male supremacist doctrine; (b) initiate women's
studies courses which cut through the traditional male religious mythology to
expose church and other social forces denying women their basic human dignity; lc)
actively recruit, employ and justly promote women theologians and other staff in all
departments; Id) actively recruit, enroll, financially aid, and seek equal placement
for women theological students.
Do you agree or disagree with that?
Dr. SHALALA. Well, Senator, I do not think that my personal
view on religion and the integration of religious institutions is rele-
vant to a hearing on the ERA in education. 1 do not think the ERA
covers the NOW statement, or their views on whether the Catholic
Churchand I happen to be a Catholicought to allow women to
be priests, or whether there ought to be women rabbis in the Or-
thodox Church. I mean, I happen to very much want my chu.th to
make women priests, but I just do not think it has anything to do
with educational policy in this country.
Senator HATCH. Let me go back to the Bob Jones case in some
more detail.
Following the Court's decision in Bob Jones, would as Professor
Rabkin suggests, all single-sex institutions be denied tax exemp-
tions?
Dr. SHALALA. What the court said in Bob Jones is that the IRS
can, but is not compelled to, remove tax exemption for educational
institutions ithat discriminate on the basis of race. I would expect
the court to do no more and no less than that on the subject of sex.
But I keep wanting to repeat that we ought to be very precise
about what the case said, because the court did not mandateit
was short of a mandate, for the removal of tax exemption. It
simply gave the option to the IRS-- -
Senator HATCH. So, the IRS could remove the tax exemption at
their discretion.
Dr. SHALALA. Yes.
Senator HATCH. In any case.
Dr. SHALALA. Yes.
Senator HATCH. Dr. Rabkin.
Professor RARKIN. I do not think that is an accurate character-
ization. It is true that the court did not go the last step and say,
"This is absolutely required by the Constitution, whatever Congress
may say about it. But it went to very great lengths to attribute to
Congress an intention which was by no means obvious as having
150
142
openly
been congressional intention, and it did so, I think, rather
by the Consti-
for the reason that it regarded thiswhich
as being required
could be attributed to Con-
tution, and therefore, something
gress.
Let me just add one other thing to yoiir previous question about
the effect on private institutions. I think you are talking, in the
but an institu-
Bob Jones case, not about a single-race institution, racially discrimina-
tion which has a fairly peripheral policy that is
tory, and that seems to me the thing which is most striking about
ERA. It
the case and most alarming about its implications for the insti-
does seem to me you are not simply talking about single-sex
tutions, but institutions which maintain some kind of sexual policy,
even if it is in a fairly peripheral aspect of the school's operation. I
gave the example at the beginning of an orthodox Jewish school
that has son-ae kind of religious service in which men and women
are separated. It seems to me under the Bob Jones case, that if
would
it is a
be enough for that school to lose its tax exemption, even
coed school in all other respects.
Senator HATCH. The chairman of the full Jurl.i.:;ary Committee
would like to put something in the record, and then I am going to
turn to Senator DeConcini, the ranking minority member, as soon
as Senator Thurmond is through. Chairman, I ask
The CHAIRMAN. Thank you, Mr. Chairman. Mr.
unanimous consent that my opening statement follow yours in the
record, if there is no objection.
Senator HATCH. Without objection, we will put that in the
record.
The CHAIRMAN. Now, I have some questions for Dr. Shalala, and
Prof. Jeremy Rabkin, and if you would answer these for the record,
we would appreciate it.
Senator HATCH. We will submit those to you in writing, and if we
could have your vnswers as soon as possible, we would appreciate
it.'
The CHAIRMAN. We have a hearing on the Korean plane that
was shot down, and I will have to go to that, but Ithe
want to thank
answers for
you for your appearance here, and we appreciate
the record.
Thank you, Mr. Chairman.
Senator HATCH. Thank you.
Senator DeConcini? letting me in-
Senator DECONCINI. Mr. Chairman, thank you forfor the record.
tervene at this time. I have a statement submitted I would like to
and I also have some questions, Mr. Chairman, that
submit to the witnesses, if they would he so kind as to answer
t hem)
Senator HATCH. Without objection, we will submit those ques-
tions, as well.
j P, epa red statement follows:1
PREPARED STATEMENT OF SENATOR DENNIS MCMINN!
the Equal
I would Aue to thank Chairman Hatch for calling this hearing onand Jorenly
Rights Anivralment. and I weleonw today's witlics.si-s, Donna Shillala
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143
itabkin I trust that today's hearings will go a long way in alleviating the concerns
of many about the impact of the Equal Rights Amendment.
Without a doubt, the ERA is one of the most important pieces of legislation pend-
ing before this Congress. As I have said before, I urge my colleagues in both the
House and the Senate to support the very crucial goal of obtaining a constitutional
guarantee of an equality of rights.
Existing laws fall far short of ensuring women equal rights in our society. The
tact that women, who now make up 42.4% of this country s workforce, only, make
51ot for every $1 a man earns is cause enough for change. But more intrinsically, it
is our longstanding belief in America that quality of opportunity is the foundation
of our Constitution and Declaration of Independence.
This Administration has given lip service to a statute-by-statute approach to en-
suring equal rights for women. Such an approach is grossly inadequate. Even more
telling is the fact that this Administration's inaction in this arena speaks louder
than it eubbe declarations.
The bqual Rights Amendment is essential if we are to establish a coherent na-
tional standard for the elimination of discrimination based upon sex. Today's focus
on education at this hearing will be further evidence that the ERA will fulfill the
true meaning of democ-acy and equal opportunity.
Senator DECONCINI. Mr. Chairman, I want the record to show
that 1, as one cosponsor of the equal rights amendment, appreciate
the time that you have put in and your willingness to examine
both sides of this issue, in the detailed fashion that you have done.
This hearing and other hearings that are coming up are occurring
because of your sense of fairness, and I appreciate that, even
though we may disagree on the actual issues.
Mr. Chairman, I also am going to attend the briefing on the inci-
dent with the Korean Airlines plane and the Soviet Union. I
wonder if it might not be wise to recess this hearing for an hour so
that the chairman could also attend, unless he has other plans.
hate to put these witnesses to that inconvenience, but I feel that it
is paramount that we have this briefing. I ant going to have to
excuse myself if the hearing continues.
Senator HATCH. I would be happy to accommodate our ranking
minority member. My only problem is that I have got to be at a
meeting at about 11:45, and if I do not continue, we will not be able
to complete these hearings. I will try and finish this up. Let me
just ask a couple more questions.
Dr. Shalala, Professor Rabkin asserts that the ERA would not
only make single-sex colleges ineligible for tax exemptions, but also
other religious institutions as well which adopt policies that distin-
guish between men and women. Do you agree with his assertion in
this case?
Dr. SHAL.AJ.A. Yes, as long as they are educational institutions. I
think we just answered that.
Senator ilovrit. Under the ERA, would it be constitutional for
Federal or State laws to allow charitable tax deductions to be
taken for private contributions to single-sex private educational in-
stitutions?
Dr. SHALAIA. I gu-ss the answer is "No," Senator.
Senator Do ;you agree, Professor Rabkin?
Professor RAI%KIN. es.
Senator IIKrutt. You hot h agree On both of those points.
Professor Rabkin, apart from Catholic educational institutions,
ate there any other religious educational '.nstitutions which prac-
tice policies relating to the sexes which may not pass constitutional
muster uncle. flu, equal rights amendment?
152,
144
6--
147
156
148
1 57
149
158
150
1 59
Senator HATCH. What if they have themthey have fraternities
and sororities that are single-sex fraternities and sororities.
Dr. SHALALA. If they get public aid ,
Senator HATCH. Then they would have to cut that out.
Dr. SHALALA [continuingl. They would have to cut that out. Or, if
they are so integrated into the academic life of the institution-
Professor RABKIN. That is what I am disputtng. That, I think is
-
wrong. Dr. Shalala is saying fraternities will only be in trouble if
they are extensively integrated into the academic life, and that, I
think, is just incorrect.
Dr. SHALALA. No. I said that if they also got support, public sup-
port.
Professor RABKIN. No. It does not matter whether the fraternity
itself gets the aid. It matters whether the institution gets the aid.
Senator HATCH. This is extremely interesting to me. You wanted
to say something, Dr. Shalala.
Dr. SHALALA. No, that is all right. I think we have had enough of
fraternities and sororities.
Senator HATcH. What if the fraternity or sorority was housed in
a school dormitory? Is that sufficient?
Professor RABKIN. Yes. Again, the way it works---
Senator HATCH. These are important questions.
Dr. SHALALA. I understand that.
Professor RASKIN. Yes. The way the law now works, if my own
university, Cornell University, gets money from the Federal Gov-
ernment, Cornell University has various fraternities, some of
which are in buildings that Cornell owns and rents to the fraterni-
ty. The fact that the fraternity itself does not get Federal money is
irrelevant. The fact that Cornell itself is giving only a very inciden-
tal benefit to the fraternity is irrelevant. If Cornell gets Federal
money, it cannot have a fraternity which practices race discrimina-
tion, and in exactly the same way it seems to me, you are going to
say a school which gets any kind of Government assistance cannot
give any kind of indirect support to a fraternity.
Senator HATCH. And you agree with that?
Dr. SHALALA. I agree with that.
Senator HATCH. So in essence, you agree with the Civil Rights
Commission?
Dr. SHALALA. Yes, we just oppose it differently.
Professor RABKIN. Yes, but the previous-- -
Senator HATCH. Let her answer first, and then we will come
back. I know this is a good interchange, and I want to hear both of
you, but go ahead, Dr. Shalala.
Dr. SHALALA. The ERA would not prohibit the existence of fra-
ternities as purely private entities even at public institutions,
unless they themselves were supported with public funds, or they
were so integrated into the academic life of the institution.
Senator HATCH. Or they had any connection with public funds.
Dr. SHALALA. Well, if they are using the facility of an institu-
t ion--
Senator HATCH. Or if they live in a dormitory or use the facili-
ties.
Dr. SHALALA. That is right.
G
152
I \,
A I; 1
153
Ii 1111:-, 0 WI II
162
Dr. SHALALA. Yes, Senator, I am arguing against that. I think it
is wrong to talk only to young, women about the responsibilitieseduca-
that come with pregnancy. Everything we know about sexand the
tion in this country tells us that discussions of pregnancy
implications of pregnancy and shared responsibilities for family
ought to be discussed wjth-young men and young women at the
same time, and with equ(al fervor.certainly agree to disagree. That is
Senator HATCH. Well, like can
all I can say. Rabkin --I have a
Dr. SHALALA. Senator, could I comment on Mr. dobut it does
reputation for never getting angry, andis Ianeververy serious issue and
seem to me that the issue of counseling
dismissed lightly. We have now a generation
that it is not one to be
of girls growing up in this country who have, for all practical pur-
poses, been channeled outside of where the job opportunities are
going to be in this country. They are given less opportunities for
math training, in computer science; they are being advised to go
into areas in which they are going to be locked into professions
that may disappear in the next generation. And therefore, for
many of us who want to make sure that there are equal opportuni-
ties for women, the whole issue of counseling is quite central.
Senator HATCH. I do not d4agree with you on that, but I am
saying I think Professor Rabkin's point is well-taken.policeRather than
counsel-
have the Government come in under the ERA and
ors. Perhaps it would be a better approach for us to educate coun-
selors so that they treat women equitably. intend to do.
Dr. SHALALA. Senator, that is exactly what we
Senator HATCH. Yes, but ERA is not going to ensure that.
which is broad-
Dr. SHALAIA. The advantage of having the ERA, schools
based, which will hit elementary schools time,
and high and pri-
vate and public colleges, is for the first we can raise, so to
speak, the consciousness of educators in this country, so we com-
pletely review every area of subtle or overt discrimination, so that
we understand that if we are going to affect young their
women's lives,
educational ex-
they are going to be affected very early on in
perience, and unless we do something there, then you end up talk-
in af-
ing to me about what we need to do in women's colleges or
firmative action programs. of various sex
All of our experience now L selective enforcement approach to equal
education laws is that we need as broad-based an if we
opportunity in this country, with special emphasis on women,
women's lives that will give them
are going to have an impact onAnd that means we have to look at
equal opportunities with men.
every area. In basketball language, it means that we need a full
court press.
Senator HATCTI. Dr. Rabkin, you seem to disagree. saying before
Professor HARKIN. Yes, I disagree very much. I was
that if you have problems with law doesenforcemeni4 the mere exist-
ence of a constitutional amendment not eliminate those prob-
lems. I do not see how it even lessens those problems. And I say
Shalala is talk-
the same thing about the educational campaign Dr.
ing about. have not heard
If guidance counselors or educators generally debate and a lot of
about women's equality after 10 :ears of furious
63
155
publicity and a lot of effort on this, if they still have pot heard of
this, if it still has not penetrated to them, 1 do not know why she
thinks that the ERA is suddenly going to turn them around.
It seems to me to the extent that people disagree with what the
National Organization for Women or some other women's group
thinks is the proper way to advise or the proper way to run a
school, to the extent that people disagree, they disagree because
they have serious differences, and I do not think there is anything
so terrible about having a country in which different people have
different opinions, and yes, in which they run institutions sor,16-
what differently because of those opinions. It seems to me that if
Dr. Shalala is really concerned about the effects on children, the
people she should be reaching are the parents, and you should
alert parents to the fact that different schools have somewhat dif-
ferent policies, and therefore, they should be careful about the kind
of school they send their daughter o. It happens that there are a
lot of parents who want their children to be raised in a way, or
educated in a way, which Dr. Shalala does not agree with. I just do
not see why that is so terrible. I just do not see why we cannot
have room for some diversity in this country.
Dr. SHALALA. The problem, Mr. Rabkin, is there is not any diver-
sity. Women are discriminated against in most educational pro-
prams in this country; in very large percentages, they are out of
educational programs. I would like there to be an increase in diver-
sity, which would be some recognition that we have had some suc-
cess in some of these areas.
Professor RABKIN. But with all respect, I think it is preposterous
to say that there is no diversity, and all institutions are uniformly
hostile to women. I mean, that is just silly. There is quite a bit of
variation as far as how different institutions deal with sexual dif-
ferences, as well as differences on all kinds, of other things. It
really is, I think, just empty rhetoric to say there is not a wide
range of choice. Surely, Hunter College is much better than Bob
Jones University, from your point of view, on these things.
Senator HATCH. Let me move to another subject. You cite, Dr.
Shalala, approvingly, the recent Pennsylvania State decision, in
which the State ERA was used as a basis for eliminating all single-
sex public schools. Now, do you believe that this would be the
result under the equal rights amendment, as well?
Dr. SHALALA. Yes, with the exception that I noted.
Senator HATCH. With the only exception being any public all-
women's school that L. dedicated to affirmative action.
Dr. SHALALA. Right, and the religious exception for training for
religious purposes.
Senator HATCH. I am talking about public schools, now.
Dr. SHALALA. Yes, yes, in public schools.
Senator HATCH. So you are saying that they would-- -
Dr. SHALAIA. Yes, for public institutions, there would be an
elimination of singe -sex institutions. That case, of course, was very
important in demonstrating that even though those young women
went to the best so-called girls' schools, there were lesser opportu-
nities in term if science training and math training, which is an-
other clear example of what I have been saying about the quality
of education for women in this country.
16.1
156
Senator HATCH. Now, Dr. Shalala, yeu argue that the ERA would
properly require closer judicial scrutiny of university hiring, pro-
motions, and tenure procedures. Would yoe elaborate on that'?
Dr. SHALALA. Senator, I should have said early on, but it is prob-
ably quite obvious, that I am not a lawyer, so the use of these fancy
terms is not my expertise.
Senator HATCH. That is OK. I understand.
Dr. SHALALA. I would expect that we ould have to lay out much
more carefully, our procedures on tenure, promotion, and over a
period of time, be prepared to justify those procedures as well as to
rut together firmer affirmative action plans when there were par-
ticular problems. The point is that with a consistent law that col-
leges and universities knew was not going to be scuttled periodical-
ly, I think that universities would be able to plan better in this
area and would be clearer about their goals for tenure and the
qualifications required for tenure and promotion.
Senator HATCH. Did you have a comment, Dr. Rabkin?
Professor RASKIN. Just two quick things. First, again, I do not
see why having a constitutional amendment is going to give you
better law enforcement than you already have. It is already illegal
to discriminate against women in university hiring.
Now, second, if Dr. Shalala is for some reason correct about
thisand I am really puzzled as to why this should be--but if it
really does turn out to be true that, yes, judges will now scrutinize
much more carefully these university hiring decisions, I would con-
sider that to be a very damning charge against the ERA. It seems
to me there is a very good reason why judges are reluctant to scru-
tinize these decisions too carefully, and that is because most aca-
demic decisions turn not on immediately apparent external crite-
ria; they turn on rather delicate judgments of quality.
Senator HATCH. Subjective judgments?
Professor RARKIN. Of course., they are somewhat subjective. But
certainly, they have to be highly trained. It is not enough to say,
"This person published a book. That person published two books.
Therefore, obviously, the second person should get the job or should
get tenure." I mean, one book may be a really important work with
a ;ot of original insights in it, and the two books by the other
person may be very pedestrian and very shallow and not much of a
contribution to scholarship. And I think it is very unrealistic to say
that a judge is going to be able to evaluete that. He should read
the :corks of these various academics who re competing for jobs
and decide-
Senator HATCH. There is also the problem of all the underlying
education needed to make that kind of value judgment, That is not
necessarily how judges or lawyers are trained.
Professor RABKIN. Exactly right.
Dr. SHALALA. Weis, we would expect a judge to review tile proce-
dures, not necessai ilv all of the materials for an individual deci-
sion. The question that I was asked was whether there would k'
close scrutiny of the decisions, which I would expect there to be
closer scrutiny of the decisions.
Let me say, though, on the fact that we have had these laws on
the books, it seems to ine, and I would like to repeat it, that the
Grove City caw gives us an example where there has been such un-
157
16'7
cellent. They will make a very significant part of our record. So I
want to personally thank you again. I appreciate your being here.
Our next hearing will focus on the impact of the ERA upon the
military. I hope we will have equally intelligent and articulate wit-
nesses on both sides of that issue.
Thank you, and we will recess until that time.
[Whereupon, at 11:20 a.m., the subcommittee was adjourned.]
[The following was submitted for the record:]
160
MISCELLANSOUS MATmum.
United States, the United states Supreme Court, while couching its
tion, is it not logical to assume that the Supreme Court would even-
tually rule that primte colleges and universities that are all-male
remaining but there are over 100 all women's institutions of higher
will lose Federal aid such as grants for research? Considering the
It can be summed
for the academtcally-oifted student..
ttst State and local !school oiuthorttiem /owe a rational basic
/,
ft9
161
of this land, could we hold out any real hope that local
4.
In the recently decided case of Arizona vs. Norris,
the Supreme Court held that the practice of the companies
This decision was based upon the 1964 Civil Rights Act pro-
viding for equal employment opportunities. This decision
represents another instance where a practice of sex discrim-
ination was ide:cilied and outlawed. Do 4 ,u see any reason
why this process of judicial identification and reversal will
1.70
162
know it?
in corwerned?
168
indeed most "logical to assume" that the Supreme Court would find single-
It would Indeed mean that contributions from alumni and frianda would
operate.
to riulPntifir research, then, 1 do not think E.R.A. would impose Any signifi-
.
Thete are certainly areas rent covered by existing law', but in sir-
172
164
Unless we are prepared to say that government or laws should never treat
hand,as the question suggests, the courts have not been at all reticent in
sserting and enforcing women's rights where statutes fin prohibit sex dis-
ten state and federal laws to eliminate sexual distinctions under existing
or tax exempt status - in other woids, virtually every school - from main-
sex basis. On the other hand, the amendment would probably allow "neutral"
ties height, weight, 'speed, etc. "Contact sports" may also be treated dif-
ferently. for the implementing regulations for Title IX hove recognized that
such as wrestling. Either way, I do not think we are likely to see women in
the greatest impact of the Amendment would probably be on women's teams, for
many men are likely to meet the standards for "women's" teams, while my guest'
I. thin would be less comuon for womel, seeking to join "men's" teams. The
comparing mar's and women's sports programs. This means that if there are
mire, more men Invol ed in sport. programs than women, proportionately more
approach does not allow for the fact that "men's" teams tend to be much big-
ger ,oney-wakes while, an big spectator ',ports, they may also require
larger expenditures for equipment, Incilitiee std so on. The rdueatton Depart-
far as I AM aware, ft hog nor yet been endorsed by federal appellate courts and,
In troth, it does nut seem to have been very edunt,only enforced by the Ed-
173
165
ucatlea Department. Under the !A.A., however, I am not even sure that thr
8.
Nothing Infuriateo proponents of the P.X.A. more than the suggestion
am not at all confident of this and I do not understand how the proponents
they involve "privacy" in the sense that the state or public audlortty
is
tories wen and women do nha,0 the name tolletn and the SOW e/enning
rooms.
It the F.R.A. to rotliien, then, and the boy in your question ie really
con-
cerned nbnnt hin privacy, he might be better advised to think carefully be-
174
166
Question 1.
Regarding Title IX, President Sha Ida, could you comment on what the present
Administration is doing to enforce the statue and whether the existence of the ERA
would effect theft executive actions?
Question 2.
Can major civil rights legislation be made lea effective without a change in the law
simply by the way in which it is enforced?
The topic of the ERA hearings on September 13, 1984 before this Subcommittee
was not, until the very opening of the hearings, focused on the very narrow subject of
"the impact of the ERA In the area of private and parochial education." Hearing
Amendment provides that "(e)quality of rights under the law shall not be denied or
abridged by the United States or by any State on account of sex" (emphasis added), it
is widely accepted by legal scholars that the ERA, like the Equal Protection Clause of
the Fourteenth Amendment, governs only those actions or activities that constitute
"state action." Constitutional provisions that govern "state action", Including the Equal
Protection Claus, do not ordinarily reach into the private sector. As a result, the
Subcommittee Chairman's decision, stated for the first time on the day of the hearing,
to focus the inquir$ solely an the relationship of the ERA to private and parochial
education, was en odd decision. This %etudes' inquiry Into the legal application of
the ERA In the private teeter is more appropriate for witnesses who are lawyers than
for witnesses such as Mr. Rabldn, a political scientist, or for me, an educational
administrator at a public institution and a political economist.
The result of the Chairman's decision was that the entire focus of the questioning
by the Subcommittee MtS on the nos row private Interests topic dunned by Mr. Hatch.
During the questioning, Mr. Rabkln made extreme claims that, among other things, the
PRA will virtually eliminate parochial and private schools, and that the ERA will require
the intwation of seminaries and rabbinical schools. I believe that I answered clearly
and simply his claims concerning seminaries and rabbinical schools with the explanation
that the First Amendment would insulate such institutions. It is not necessary to
elaborate upon that strews. Judging from inaccurate newspaper claims about my
testimony, (se Kilpatrick, Taking the ERA Literally, Mash. Post, A24, October 15,
1983, and a "feet sheet" being circulated to the press by the Chairman purporting to
summarise my testimony, attaels_1.103 I believe it Important to clarify why the ERA
175
167
would not reach into the private sector in the rinumar end with the Hb'eme
00sINKNOsteed
Mr. Ratak him claimed that it will. in ardor to provide an irowate explanation,
I
have consulted my own mumd and she in tura has anwelted with other
attorneys and
law professors knowledgeable to constitational kw including Professor
Mn Freedman
of Bulger, Law School and Profaner Wendy Williams of Georgetown University
Law
Canter.
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176
188
Private
The Equal Rights Amendment would affect government action only.
would be exempt
colleges, Including single sex institutions, ea purely private entitles,
Institution
from the ERA. The determination of whether actions by en apparently private
government's relationship
are really government action is based on the tub of the
to the institution.'
state action
There are three basic principles governing the determination whether
Pint, "'the mere feet that (an entity)
is present for federal constitutional purposes.
that of OA State
Is subject to state regulation does not by itself carry its action into
for purposes of the Fourteenth Amendment.'"
There must be "'a sufficiently close
regulated entity so that the
nexus between the State and the challenged active of the
iteelf.'"2
action of the latter may be fairly treated as that of the State
Second, the state
It
can be held responsible for a private decision only when
has exercised coercive power or has provided such significant
encouragement, either overt or covert, that the choice must
In law os deemed to be that of the State (onetime omitted).
Mere approval of or acquieseenee In the initiative of a private
party is not sufficient to justify holding the State responsible
for those initiativas under the terms of the Fourteenth
Amendment (citations omitted). Third, the required nexus
may be present It the private entity has exercised powers
that ere "treditionsily the exclusive prerogative of the
State."3
It clear that
A recent decision of the United States Sisprema Court makes
not be construed
ordinarily, under federal standards, a private educational Institution will
under the Fourteenth Amendmentand did not require constitutional due process of law,
involvement in the funding and operation of the school .4
despite extensive government
concerning other kinds of private institutions having
Two other oases decided lest year
institutions, other
significant state involvement make clear that, like private educational
private entities do not come within the scope of federal constitutional reciu!rements
These cases are consistent
oven where there is significant government involvement.5
407 U.S. 103 (1972), it
with the analysis applied in Moose I wise No. 107 v. Irvin
state liquor license to privet: club
which the court concluded that the grant of a
.stater intforyttinent to .
that excluded individuals on the basis Sot, M8010
support a finding
ettritette the discriminatory conduct to the state and, thus, did not
177
169
that the conduct was unconstitutionel. From these cases taken together, my legal
advisors conclude that absent additional legislative or executive action, private
institutions will rarely be subject to the requirements of the ERA just as private
Institutions are now rarely subject to the 14th Amendment requirements.
The argument by ERA opponents that the ERA will require integration of private
single sex schools and other institutions because it will require removal of their tax
exempt status was not Whored, but in fact was put to rest, by the Supreme Court's
decision in Bob Jones University v. United States, 75 L.F.d.2nd 159 (1953). The Bob
Jones opinion was not based an the Constitution but on a federal statute.
in Bob Jones, the Supreme Court did not take up the reasoning of certain eases
holding that tinder the Constitution the federal approval of en organisation's receipt
of tax deductible contributions or tax exempt status "call(s) forth a duty to emit*
compliance with the Fifth Amendment:41 Instead, the Court applied the analysis of a
separate line of cues holding that a federal statute the Internal Revenue Code
required the denial of tax exemptions to racially discriminating private eehools.
These eases reasoned that, in light of unambiguous national policy, the Internal Revenue
In short, the denial of tax exempt and tax deductw.e status at issue in Bob
Jones was based. In the Court's decision, on provisk of sections 501(c) (3) and 170 of
the Internal Revenue Code, 25 U.S.C. Section 501(e) (3), 170, and not the U.S.
comtitution. The court held, based on explicit language in section 170, the
76 1.1,.4.2d at 170. The Court went on "(w)hen the Government grants or allows
deditetions...(0110 institution's purpose must not be an at odds with the common
41 icor, t) Mr
17.E
12
170
racial dis-rimination In every area of life, the Court relict on the feet that all throe
branches of the federal government had taken deer action to *Unlink racial segregation
in education, and on the particular policy against racial segregation In education set
forth In Brown v. Board of Educate') 347 U.S. 483 /1954), end follower, in a lam line
of subsequent cases.
There factors mole clear that the racially discriminatory policies of Bob Jones
University, and of Goldsboro Christian Schools, Inc., so offended public policy as to
defeat any bons Me charitable purposes of those inititutions. 76 .P.d.24 at 174-76.8
In his oral testimony, Mr. RabkIn argued that Bob Jones would most certainly
compel denial of tax exemption to private singleesx Peticoli. In support of ht, view
against this result, Mr. Rabitin belittled and characterized the discrimination in Bob
Jones as de minimus and as not a "fundemental aspect of their prognim,4
I strongl disagree with Mr. Rabkin that the dieerimination of Boo Jones was so
unimportant to the university's program and to this country's public policy that it did
not strongly and overwhelmingly offend public policy. The Bob Jones rule reads:
Bob Jona, Unlverslty v. States 7,1 I..Ed.Id 157, 167 (1983). As I interpret these
rules, a student at Bob Jonas could b" expelled for arguing that the Supreme Court's
decision overturning Virginia's entimiscegenation statue' in Loving v. Virginia, 388 U.S,
1 (1967), was correct. lion can this be inciderital to the program of secular editeatiu..?
We are not addressing here the question "whether (awl. Rchools) should be forced to
make thernselvets more inviting and attractive to blacks" as Mr. itahkin so intensively
suggested in his article "Behind the Tax -Erec.pt Schools Debate^ in 67 Mt Public
Interest 21, 23 119821. Instead, Bob Joules tl en etprele, ',envy of punitive Fiction
against student,i for engaging in pri,onte nAlvity that affects virt,nstly every 0..1i pi of
their iiVet, and for eN, Aging {wraiths' /ipso ah.ntit the exerAse of citizens' rights of
Ph, FHA fir 1)1 it.g ti, . Ir 011.3tivr Ignorti asfplirs.. e in that ,etrrmbtetitm, without
tie 1,1Not II of ft..if.,nt govonittir,ii taiitItt-T tit, cout-1,, ttittt twcititq of fit,
'j 1j
nor Congress would be required by the holtilog in Rob JOrie9 to cut
of the tax exempt status of a private single-sex school as a rirstili of ratification of
the alone. Furthermore, according to the flupreme Court's reasoning in the Bob
Jones opinion, :here is no reason to fear that the !HS could set with impi.iity
unilah.rally to do The Court approved the IRS'n Implementation of Its policy of
tensing tax exempt 'status to racially discriminatory private !schools and found that the
had not exceeded Its authority In enforcing the policy, on the grounds that the
action WW4 taken In the context of uniform action of the executive, legislative,
and pull ^sal branches to frivilorite racial segregation and was not overriden by Congress
any ort of numerous opportunities. Under Rob Jones, a similar examination would
re., .1 tnore the rune policy were applied to sex diseriminatcry private schools.
Conclusion
irtv.,Ivwg riot, 1,11u-silty. It would he n nnfor mistake of policy to exempt from scrutiny
BY DANIEL SEIIGMAN
Donna's Dilemma
What has gone before: Orrin Hatch of Utah
keeps trying to find out what the Equal
Rights Amendment means. His Senate Judi-
ciary subcommittee hears testimony from
Paul Tsongas of Massachusetts, a leading
bleeder for ERA, but it turns out that Paul
has no idea what laws and institutions would
be affected by the amendment and gets sore
at Orrin for asking. Hatch decides to hold
more hearings and get witnesses who know
which end is up. Subject of the first hearing
in this new series: the effect of ERA on pri-
vate education. Principal question on the ta-
ble: could women-only colleges continue to
receive the federal aid and tax exemptions
needed for their survival If the ERA were in
place? In the witness chair: Donna Shalala,
president of Hunter College and an ERA par-
tisan. Does the question get clearly an-
swered? Are you kidding?
Cor cider Donna's dilemma. If she says
that women-only colleges would have to go,
she outrages some highly influential wom-
enalumnae of Barnard, Wellesley, Smith,
Mount Holyoke, etc., who firmly approve of
such institutions while also tending to sup-
port ERA. But if she hays that these colleges
could coexist with ERA, then she has to ex-
plain how an amendment designed to end all
sex-based discrimination could permit dis.
elimination against men. Tough problem, eh?
Donna's attempted solution: Women's col.
leges could exist under ERA if they were
there "for the purposes of eliminating past
discrimination and for affirmative action."
Huh? This answer seems to have boggled
the minds of all present. Hatch asked who
would decide whether a particular women's
college passed the affirmative-action test
Nonconfidence-inspiring answer: "I think
tht Cowl would end up making that deterini
nation." ERA fan Howard Metzenbam of
Ohio said the amendment couldn't possibly
leave room for women's coll-ges.
In the nett insiallment, we learn about thy_,
effect of EPA .n the military, or maybe not.
l81
178
-:
aa.wa d...7C14
en esttrtagoy
AI, 1,1111
,g I VA, III ',CO united tatcs iSenate
WM.PAIGTOM VC 20110
DOir
Orrin G, fatc:h
Urtxttd 5tates Senete
ip
InACT OF THE EFA UPON PRIVATE AND PAROCHIAL EDVCATION
(4) Public Facilities-- The ERA requires that the use of all
publicriEirraes, e.y. parka, auditoriums, be denied to single-
lex private schools end colleges.
(5) Fraternities -- The ERA requires ':he integration of any fro-
rernity or soriiTrEy associated with either a public college, or
i l.ri.vate college receiving direct or indirect public funds.
,.1.1! 1
11 r ,r11
175
Question l:
Dr. Sha Ida, over the seers regregation has been a policy and practice of exclusion.
I doubt that mons would contest this statement insofar as It applies to separation of
the mem. However, It appears that most ail - women's colleges were established for
the speolfie purpase of promoting equality between the sexes In the area of education.
Thee" all- female Institutions os a great deal to bring about equality for women by
produeing graduates win become Potentiate, educators an0 political leaders. In thb
way, women's Gallegos Wanee opportunities for women. If tEe Equal Rights Amendment
were to beeome a part of our body of law, wouldn't those who have traditionally
promoted oquel opportunity for women through support of single-ass colleges be put In
an untenable phllosophleal position?
The simple answer to your question Is no, absolutely not: but let me elaborate.
Private woman's colleges, as I pointed out in my earlier reply respecting all private
institutions, vary well may not come within the sweep of the ERA because the ERA
applies only to state action. Bo it may be that the affirmative action exception for
private women's colleges will have no practical Impact.
In the unlikely event that particular private colleges do come tinder ERA, it is
important to look at the statue of women's colleges in light of the history of women's
edottetion. Most private all-women's collages were established Ina time when women
were excluded from education in male institutions. The policy and practice of exclusion
of girls and woman from education, like the policy and preutioe of racial exclusion, 13
long-standing and well documented."
Private all-women's colleges were established with the epacific purpose of
providing women the education that they would otherwise be denied on account of their
sex. Lack of resources: for women's education made any ',porpoise of promoting equality
between the sense" lofty ideal rather than a specific purpose.
Notwithstanding this lack of resourcee, women's institution,: have made a great
enotritiutinn to this ronntry and to Improving the status of women. Among other
itreomplishmenta, they have produced graduates who have become sclera /He, educators,
and priHttrial leaders of great stature in remportIone that far exceed what might he
expected from their enrollments," This may I e true In part because snob women are
twinmateri in en environment free from the wall- documented &Minteds to female
leadership to the elaretorm climate a encilwatinnal institutlenn that Is often hostile
to fronele atudenti."
The Donehatono ern: math,* action Is that the aotIon bra epee:ally designed and
serve* overcome the effects of Matfett, dlaeriminatton and to provide opportnottles
sot esivirceoneils for learning not readily nvattaltDt elsewhere, and they ?gamete equality.
This Noneept h Iflhrrorit t., the Ithithssi Amendment, not contrary to It. An all
176
romen'e !Petit:J(0n that setually serves the purpose of providing education and training
that truly advances women's role' in society and that doe: not perpetuate traditional
the need will continue for Institutions that are devoted to the education and advancement
of women. Dairy obiestive measures, It can be determined when the goal of equal
opportunity has been reached and affirmative action is no longer nicereary.
Question 2:
Pimps are two ways that Congress can bring about greater equality in education
for women In the field of education. One is through the enactment of specific statutes
and the other Is, supposedly, through the passage of the P.qual Rights Amendment. Do
you think that inequities In education for women can be adequately addretwed through
the enactment of epecifie pieces of legislation? If not, why not?
This question ammo that a constitutional amendment and specific piece, of
legislation can be equally effective alternatives for creating law. This assumption is
hir.emeate because it ignores the primacy of the Constitution in defining the priorities
of rights and protections concerning the relationship of the government to individuals.
The Equal Rights Amendment and statutes are not equal elternatites to the same end.
The ERA is nete'ed to 'establish once and for all that diszrimination on account of sex
r.1 trey level or branch of government In any aspect of its dealings is no longer an
llespito th ovrcine Court's wilding that Title IX is modelled after Title VI ,ee.t,
cqmion v. University of t2hicaliol 441 U.n. 677 (1979), reversing 559 V.2d 1083 (7th
n,,Verfli courts have cited the feet that racial diseriminatien is
clearly
ir. 1978),
in,oicribed by the ctt*tItntion while sex discrimination not, In concluding that Title
Pt sh-ailt1 not receive the seine broad enforcement as Title VI, seer Hilladatess
v. fiepartment of Health Education awl Welfare, 696 F.Tti 418, 429 (6th Cir. 1982).
Wnneti need the important statemer.t of principle that "equal rights shall not
'ended .Kr Rtr(ittrit of sex," unietrdroed by exception/1 that typically appear in statute*,
rtlrts are I.,r r feT too long hey 'rail to steel by white boys and met, eontinue
IS5
177
prime @sample is women's long seclusion, even under Title IX, from Philadelphia's
prestigious all male Central High. This exclusion was only finally overcome lest
year
under the Pentsylvante State.Cuestitutlun's ERA end Equal Protection Clause and the
(aria High. That cue 2ould not be It:caught under Title It because of eseeptions to
this useful, but flawed, statute.
Even vith the ERA. statutes will be needed. Statutes era the means of
implementing the equality mandate of the Constitution in an orderly and thoughtful
fashion and in a mannar that is both effillent and coat - effective. Indeed, the two-
year waiting period following ratification provide. Congress and the States the time
within which to consider and enact implementing changes in their statutes. It is In
this supportive implementing role that statetes are the most useful.
Question 3:
LW. She lela, It has neon concluded by some commentators that no law will ever
make women equal not even a "constitutional law." This conclusion Is based upon
the premise that making oneself equal is the responsibility of each individual. Supposedly,
an Individual Can start the move toward full equality by developing a very real sense
of self- worth as a person by acting In such a mane r that he or she will be accepted as
an equal by thole around that itidivIdual es a matter of course. This theory ties in
with your citation of the fact that of women enrolled in ..ccetionel training, only a
very small percentage take courses that prepare them for the higher paid, typically
male skilled lobs. Tle.esn't thl3 situation stIm more from the way women perceive
themselves In society than from sea discrimination In ye rational education?
rtin target of eirtnt rights under law Is not sameness. The opportunities for
women to develop is sense of self-worth and to benefit theanktIvea by means of drive
Ind determination are still IteRvily burdened in all aspects of education employment
in wnvn that men never (Roc. W.unen, because they are women, are frermently and
eon.dafrtitly noted 10131 O promotion or made the ohjcet of unwonted S-1111110 rinmenhtn,
riot+ tri,rit moot Is olway,t demeaning and demornliiing, riot 11 13 oven nioso, no where, ma
I; often tee: with women s'mu'ts of rthocirninntirin pot nnri pre:Ir,nt, onion optinnn ere
,,x1(0 idly ihtik; throe ,irinirnskrinocn, to 011111flill noinv the eirre t ntnittn of
aonion follttro 1aysacc,1 or develop n nerine of S1 If-worth
pnril Omit 'rattier-top of thi, pinions of tenoilori, einimeittirn, neighbors rind
onivor r"to rrooletv. tIoviover ponfirient RIO golf $1431114.11
'Ill 1114101,14' '11,1V )+, 11, .11,1L(' I. un le, oy111, f1S11 nnovIrt
3 4-
178
than in other areas. In non-traditional work situations, women not only face
discrimination and harassment, they are also virtually excluded from social groupings
in the wrkplace and from informal aommurdeation networks important to learning skills
and finding better jobs, among ether things. As reported in the attached sniffle from
The Stanford Observer (Stanford University, Ontober 111131, some researchers have
concluded that men want and affirmatively ant to keep women out of welt traditionally
Innle jobs to protect their own statue.
Everi day written of great courage, individual NU-possession, drive, and
determination endure low-paying See .md :As to keep their families together and face
demeaning sexual herasernant and dieet.miosterm In the bargain. 'Ripe knowledgeable
about the extent of tilterritnination naelnst ..ad harassment of women know that the
problem rot codenttally r teas genre of :Wu -worth on the pert of women. Rather it
0 a Arn!ol of oppcrtunity fps women and the resulting perception on the women's part
that ! ec(fic the boat here, I may have no job at all."
Me ERA sill sand en authoritative message to the entire e.antry that women
entr.tel to the safer, expirations, support, and training that men min take for rented.
179
question 4:
Continuing with the subject of vocational training, I believe you stated that only
In Ss of women enrolled In such training were enrolled in trade and industrial programs.
is It not possible that the low percentage of
participation In these areas which could
lead to higher paying skilled jobs l due, at lust in part, to differing physical
eharacteristics between males and tamales! VW instance, might not young women
decide to avoid courses in bolter- making and brie* masonry becesiae of the heavy physical
labor Involved as opposed to your theory that they have been "geared" by guidance
counselors away from these typically mile ocenpetions?
again referring to the October 1981 Stanford Observer report of the problems
women face In jots segregation and exclusion from employment traditionally hold by men,
I would note that so-called differences in physical characteristics Is not really the
source of the low enrollments of women in trade and Industrial vocational education
programs. Of course, counselors do often counsel girls to stay away from jobs thought
to be "too heavy", or so called dirty work, as not being "for girls." It is also true that
even women possessing considerable physical strength have been flatly excluded from
certain traditionally male jobs requiring such physical stength with the rationale that
"a man is needed." Furthermore, even where strength was not actually
required for
job performance, }ohs were defined as jobs for which "a man is needed." Sometime-4,
particularly following the eneetment of Title VII, employers continue to exclude women
from such jobs by imposing height and weight requirements or physical elretsgth tests
that fee exceed any real requirements that have a demonstrated relationship to the
Jobs. In many inetences these bogus requirements serve merely a proxy for the emple7er's
preference for males in th.a Job-selection proceas. We have seen this in employment
of pollee and !It% personnel, construotion workers, coal miners, and in other occupations.
(*.owls have concluded after long trials that many physical requirements have only a
superfielelly plausible basis, end limply did not hold up under careful examination of
to rephyv thcce ,eotypers with open and full opportunities for women oral girls to
:2111-4An freely from the Available occupations. White nit's VII was a mbetential
4Iep in lh,-! right dt7ootion, rIke,tmlnatory trmning nrul Prineation remait, the 10,11.7.0.3 of
sregrcgiit Son.
Question r
Increasingly, behavioral scientists and scholars are studying and expanding documentation
on the impact of these factors on women and girls that I will not recount here. The
impact of the ERA on the metal forces and structures that carne segregated economic
would be. Furthermore, unlike Title YU that most, women included, perceive as being
primarily a race statute, the ERA should he perceived by all as a clear mandate for
equality on the basis of sea. Thus, I believe that we would no longer tolerate sex
Question em
Dr. %stein, in your statement yot. corntlude that the diseouregment that many
young women receive which guides them into traditionally female positions of
employment has a catastrophic effect on the incomes of women. You also state that
this "discouragement' is sometime' overcome when, for example, a female student
exhibit.' a intense desire to acquire a special skill that will !sad her into a mere
traditional male occupation, isn't this an admission that all that Is needed for change
in many of what you perceive to be sex discriminatory aspects of life is for women to
set their goals high and r,o after what they seek with a great deal of drive and
determination?
ci re answer to qiestion 3.
Question
It has been contended by proponents of the ERA that no statute will provide
the ttedrock protection of women's rights that will be provided by a constitutional
amendment. This argument is timed, at least in part, upon the hellef that ennstItUtionally
protected rights are Immune from changes in "policy." With the increasing emphasis
on equelity in such tree.' as education, employment, and athletics for women, do you
torrsee the likelliwx1 that national policies promoting equal opportunities for women
will 'Jerome eroded or acti;elly reversed'
writ ion lb
Employment praetlerl Ur Institutions of higher learning have long been 3 subject
hluldy prnteetrf! by membert of the academic rommunity Faculty .nembers of colleges
and univesrdties have hhtoriestly ;Alt forth the argument that their profession is 'nacre
aryl should he go...ernes, by a different set of standards. I am referring, to polieles
governing hiring, promotions mud the grantin4 of tenure to faculty members. 1 believe
tbst seM Anted that you do not advocate a !allelel takeover of academic decision
mebing but ',Folicr clever judicial scrutiny of Iseademic procedures, If the ERA were
evi-ntually eAtifie.1 end tic, ,4tendard of judicial review was an st.s!..1..1., ores mandating
181
in fact some changes have already been mandated. One federal court
has ordered
disclosure of traditionally confidential Information to
rejected tenure eondidate who
presented claim of discrimination under the Pourteenth Amendment, see Gray V.
Hoard of Higher Education of the City of New York, 697 Ind 901 (19112).
90 academic
Inetitutions are already required to adjust some traditional policies to
accomodate the
dementia of fairness and equality under the Constitution.
There are those, however, who continue to maintain that the academic selection
process should remain entirely unexamined and that the chip's should fall
where they
;nay. POI' tenured scademleism, 9396 of whom are still men, that philosophy
has been
self-serving. it It they, and others like them,
who characterize any change as "a total
remodeling." qo far, the unexamined process has resulted in most academic
departments
recreating themselves in their own linage. 4s a result, the chips have fallen hard on
the .1 women rind oth, , groups.
1
tioemioo
(1961). It is
1. See, e.g., Burton v. Wilmington Parking Authority, 365 13.(4. 715, '22
widely acknowledged that with Burton and since Burton, the eaten have certainly
articulated limits upon and, with fRifirger Court, s priiiiitantly cut back the reach of
and H. Kay, Sex-
state action into the private seater. See K. Davidson, R. Ginsburg
Based Discriminatien, 91-92 (1974); G. Gunther, Constitutional Law, i007 -28 (10th
Ems.
2. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) citing Jecicer:tett Edison
Co., 419 U.S. 345, 3S0 and 351 (1974).
Iv.
(1982) citing Flagg Bros. Inc. Brooks,
3. Blum v. Ynretsisr, 457 U.S. 991, 1004-05
litan Edison Co. 419 U.S. 345 (1970; Moose
4161) Tir(19781; Jackson v. Metr
Lodge No. 107 v. IrvIs, t . I.! es v. . . Kress & Co., 398 1.1.§:T44
(IOTA
Perspectives School, a private secondary school
4. At issue was the status of the New
in Brookline, Massachusetts for so-called problem children. Almost all of the stedents
paid
enrolled in the school were referred by the public school system, and state funds
the tuition of all who were referred. Public funds accounted for 90% of In the private
one year.
school's operating budget for each of several years and 99% of the budgetranging from
The staLl required the school to comply with detailed regulations
recordkeeping to student-teacher estioa as a prerequisite for the referral of stueents
from the public .school system.
1003-12 (1982) (private nursing home receiving
5. See Blum v. Yaretsky, 457 U.S. 991,
signiiriant federal funds and subject to extensive regulation); Steeiworkere v. Sadlowski,
extensive
457 U.S. 102 (1982) (private union election not within state action despite Court
regulation of unions and union elections). During the same Tam, the Supreme In joint action
did find action "under color of state law" where a private party engaged
deprivation of constitutionally
with a state official to accomplish a prejudgementconstitutionally defective state
protected property interest by appU^stloc of e
party was
garnishment statute, and that a 42 U.S.C. S. 1983 claim against the private
supportable. Lap!! v. Edmondson 011 Co.,, U.S. 922 (1982).
14, Compere, Mississippi University for Women v. Hogan, 103 S.Ct. 3331 (1982)
(perpetuating stereotypes).
17,. rho fact that this Administration pursues such a narrowing interpretation
respect to Title'IX of the Education Act of 1982 while continuig to rely with
interpretation of Title IX's counterpart, Section 504 of the Rehabilitation on a broad
Section 794, in the now much-publicized Baby Act, 29 U.S.C.
Doe enforcement efforts by the
Department of Justice, demonstrates that the basis fcr its action is hostility to women's
rights and not a principle concern about federal encroachment.
184
1 'I 3
185
Pap 11
194
11 095 0 -19
186
0
r Congressional Research Service
The Library of Congress
irs
41""
4 s
Karen J. lewis
Legislative Attorney
American Law Division
March 6, 1984
195
18?
Executive Soma
With respect cocthe other side of the problem, unrelated to the issue
of 'state action" but directly concerned with suits against the government
to enjoin the government from continuing a policy that fosters discrilina-
tion, the issue is whether the state's activities violate constitutional
standards of governmental conduct. The problem is basically one of whether
the government should be permitted to continue to 'encourage' the existence
of a discriminatory practice. Soo. of our research indicates that I
may be
conceivable that should the ERA be ratified, privately sponsored schools which
elect to adhere to a single sex policy may have to do so at the price of
governmental support. There is some authority for the idea that the
govern-
ment would be prohibited from sustaining, through the private educational
entity, discrimination which it could not practice directly. The result
flowing from this principle Is that such an institution's eligibility for
government grants and subsidies, for tax-exempt status, and the advantage of
receiving contributions tax-deductible to the donor would likely be lost.
This conclusion can be derived from the Norwood v. Harrison line of cases.
196
188
While Eastern Kentucky Welfare Rights Organisation would make the suc-
cess of Suits against the government highly unlikely, there is another line
Of cases indicating that black citizens have standing to complain
against government action alleged to give aid or comfort to private schools
practicing race discrimination, Green, Harwood, and Gilmore.
Another case pending before the Supreme Court which may provide insight
into the problem of the potential impact of the propoesd ERA on private sin-
gle sex schools is Goetz- Bethke v. itb....Leyem. Here, if the Court
reaches the constitutions question, we may have a clearer undetstsnding of
what the limits are on government regarding the prevention of nongovernmental
discrimination.
This paper concludes that the proposed ERA would probably not make a
private sing.. sex school, witch is tax exempt, susceptible to a state action
position that tax- exempt
challenge. There ars court decisions supporting the
197
status is insufficient government involvement
to make the school "state
actor" subject to the Tourtsecth Amendment.
By analogy, the same would
probably be true under the ERA. furthermore, as the current
state of the
law indicates, there may be strong obstacles limiting the ability of
plaintiff to 1) establish standing
eo sue the government and 2) prove that
"but for" the government's favorable
tax treatment, the private institution
would not bs engagiag in discriminatory practice. Also, there are two
pending cases before the Supreme Court this term which may provide
greater
clarity respecting not only how far the government can intrude
on a private
entity concerning enforcement of
nondiscrimination principle., but also the
law regarding standing to sue.
iii
198
190
Introductioa
Equal Rights Amendment (ERA), questions have arisen concerning the potential
The issue has been expressed in various ways. Two specific queries include:
(1) whether the ERA would cause private single sex colleges receiving no
federal funds to lose their tax exempt status (Presuming, of course, that
they enjoy such a benefit); and (2) whether the ERA would permit individual
taxpayers, who contribute to these tax exempt private single sox educational
tributions.
proponents and opponents of the ERA have expressed differing opinions con -i
one must understand the nature of the arguments and the concerns advanced
analyze the status of private single sex schools in the context of the
proposed ERA. By addressing the points that have been raised in the debate
over the ERA regarding its effect on these private educational entities
admitting only members of one sex, a legal discussion that is both thorough
199
191
cu -2
At the very outset, we discuss the arguments that have been made with
respect to the ERA and private single sex schools. After this review of
pending in the 98th Congress, H.J. Ras. 1/3.J. Res. 10. This discussion
involves an explanation of the state action doctrine, the significance
regarding state action and sex discrimination to. the problem at issues
the potential impact of the proposed ERA on private single sex schools.
This section of the paper will address the matter of whether the Supreme
Court's decision in lob Jones University v. U.S., 103 S. Ct. 2017 (1983),
a case involving tax policy with respect to private schools and race
CRS-1
concerning precisely what the nature of the intact of the proposed Equal
In this
Rights Amendment (Ell) would be on private *lolls mss schools.
fold: (I) If one were to analyse the problem from the standpoint of
"state action," the proposed ERA would be unlikely el, result in conic/cu
The author concluded that various foras of government aid. e.g. grant, tax
exemptions, student assistance end the like, would probably not be sufficient
conclusion was based was presented in the colts''r of suits against the
(2) After
school designed to stop the discriminatory schissions policy.
adhere
the ERA was ratified, privately sponsored rolleges which elected to
291
193
CRS-4
less rigorous standards than would apply if the suit were against the
school itself. The author felt that there was substantial authority for
The result flowing from this principle would be that such an institution's
1
2 2
194
CRS-5
University.
2'13
195
CRS.-6
Id. At p. ID.
September 13. 1983, at p. 21. Dr. Shelia* stated that this would be
the only exception and remarked further. however, that men's single-sex
2 r`,
196
CRS-7
Senator Metsenbaum posed the question of how any single sex educational
the fact that there could be an exception, for simple, for affirmative
205
197
CRS-6
on September 13, 1963, ss Dr. Shalala. Ile did not agree with a number
of the points she made concerning the potential impact
of the ERA on
private single sex schools. First of all, he addressed the natter of
2 ()
198
CRS -9
any single sex school. Be further concord:1d that the ERA would provide
207
199
CRS-10
21 S
200
CU-I1
with respect to the Bob Jones decision, however, even Assistant Professor
Rabkin recognised that there may be a distinction between it and the ERA.
he specifically stated that the Supremd Court left itself 'a possible escape
Thus, Assistant Professor Rabkin Mutual that, This say leave room for
Congress to rescue the Court, by amending the tax cods to clarify that --
a move because of their general commitment to the idea that tax benefits
Id.
should not be available to institutions discriminating on the basis of sex.
299
201
CRS-12
This would derive from the denial of their right to take a tax deduction
being similarly affected by the ERA as tax subsidies. State and federal
The major point he seemed to be making was that just as the soya `it
the ERA.
that private schools which are unprepared to forego all forms of govertment
emphasise that the ERA would allow such single sex school. to continue,
21
411E5 0-- F15 -14
202
CRS-13
but the financial cost CO them would be vary significant. The practical
assistant Professor Rabkrin took strong issue with Dr. Shalala's point
and promoting affirmative action could survive under the ERA and still
He specifically stated:
2I1
203
C18-14
212
204
ats-1.3
as a good example. First, he noted that the private single sex schools
local assist' we and those entities whose students receive some measure
the Sob Jones University decision as s forerunner for the Court's applica-
tion of the "fundamental public policy" doctrine to sex under the ERA.
2I3
C111-16
have been varied. Before the proposed amendment could even reach these
a debate over the extent to which the goverment and the private entity
One scholar believed that the "state action" doctrine was such that
2.14
206
CIS-17
wrote:
of all single sex private schools receiving any fora of direct or indirect
public funds, including tax exemptions. The onl exception to her conclusion
the sans subcommittee that the 'state action' doctrine would not bar
215
pr7
CRS-18
Semitor Orrin G. Hatch also did not regard the "state action"
prevail, 'a purely private school might find itself under legal attack
tional history has been to expand the notion of what constitutes State
esistance or 'State action' and to obscure the distinction between the
The other side of the problem concerning the potential impact co! the
ERA on private single sex institutions does not have anything to do with
216
208
CRS-19
schools which only admit one sex but not the other? Dr. Shalala argued
that the government could only continue to do so with respect to the all-
questioned her reasoning with respect to that view which she expressed
between the sexes under the proposed ERA. Assistant Professor Rabkin
and Senator i'.atch both expressed the opinion that the government assistance
government aid. They even saw the impact reaching parochial schools and
drew analogies from the Bob .ones Universj decision. Senator Hatch
went so far as to state that the ERA could reach into the affairs and
The author of the 1973 St. Louis University L.J. article did not go
but she did conclude that the private entity electing to adhere to a
217
209
CU-20
which it could not practice directly.' 18 St. Louis University L.J. 41,
starl at 14 (Fall, 1973).
Amendment.
218
DISCUSSION OF H.J. RES 1/S.J. RES. 10 -- THE STATE ACTION DOCTRINE
AND SEX AS A PROHIBITED CLASSIFICATION
contained in the second section (whit! read since 1943: 'Congress and
the several States shall have power within their .aspective jurisdictions,
history the 98th Congress develop, through the course of the hearings
record exists with respect to the 92nd Congress proposal, A.J. Res. 208,
21,E
211
CRS-22
the current measure because the actions of one Congress do not bind a
its own legislative history for H.J. Res. 1 and S.J. Res. 10.
court dwzisions, the rationales used, and the standards of review applied
ment "Equality of rights under the law *hall not be denied or abridged
that the Amendment would affect only goverimental action, with the private
actions and private relationships of t.en and women left unaffected unless
these rise to the level of state action; and that the only requirement of
possess such authority under their general police power) and provides that
the Amendment shall take effect two years after the date of ratification,
cwo year period is provided presumably for the purpose of giving state
legislatures and the Congress time to amend their laws to bring them in
j
212
CRS-23
and local, treat men and women equally as citisens and individuals
under the law. It would eliminate from she law sex-based classifi-
distinction between women end men would be invalid under the ERA,
are now, extended only to members of one sex would have to be either
one would generally have to pose the same framework of analysis consisting
basically of four separate questions: (1) Is there state action? (2) /a there
facially neutral, does a plaintiff have co prove intent to make out a ESE
institutions, the major issue that has to be resolved et the very outset is
221
213
CRS-24
Section 2.
12!gfME!!!LJEFALJ211/211E!E
enforce, by apiwcobtepriiiiiis
of this article.
(Emphasis added.)
that "(n)o State..." and "nor shall any State..." engage in the proscribed
222
214
CRS-23
state power, into any scheme" to deny protected rights. Terry v. Adame,
5/
345 1.7.5. 461, 473 (1953).
The complexity of the state action doctrine becomes apparent when the
action of a state but is, perhaps, the action of a minor state official
state Law, or is, perhaps on the other hand,.the action of a private party
has been sufficient state involvement to bring the Fourteenth Amendment into
P 2 11
215
CIS-26
the existence of state action. Instead, the Court has said that, "the
State and the challenged action of the regulated entity so that the
action
of the latter may be fairly treated as that of the State itself." Jackson
v.
Metropolitan Edison Co., 419 U.S. 345, 351 (1974)(under the WO Process
Cicala). In other words, the state has to be involved with the particular
plaintiff, i.e. the state action, and not the private, has to be the
Orange Mem. Hoop. Corp., 513 F.2d 873 (Sth Cir.), curt den., 423 U.S.
1000 (1975); Wahba v. New York Univ., 492 F.2d 96 (2nd Cir.), cert. den.,
22.1
216
CtS-27
:crt'in their actions nest in c7der tc be acle to bring their suit show
that revocation cf the benefit would cause ti:e institutions to cease the
tion; 426 U.S. 26 (1576). See id. at 46., 63-64. Justice Brennan concurring
and dissenting.
Luring the 19E2 Term, the Supreme Court handed dew three decisions
the state action doctrine: 612s, Copplasion of the row York State Desert-
tent of Social Services V. Yaretsky, 457 U S. 991 (1962) (no "state action'
457 C.S. 830 (19E2)(s private school.whose income is derived primarily from
public rources and which is regulated by public authorities. did not ect
1ugar_v. Edmondson 01.1. Co. Inc.. 457 E.S. 922 (198Z) (no state action
law; but state action' exists to the extent that petitioner's complaint
was whether the state could be held responsible for those decisions so as
225
217
CRS-28
226
it le; o 815 lb
218
CRS-29
interpre-
as 3.us v. Taretsky, the Supreme Court invoked a very stringent
tation of the state action doctrine. The Court addressed the question
that the school's action did not constitute state action, and in its
funds does not stake the discharge decisions acts of the State."
. .
in contrast to the extensive regulation of the
school generally, the various regulators showed relatively
little interest in the school's personnel matters. The
most intrusive personnel regulation promulgated by the
various government agencies vas the requirement that
the Committee on Criminal Justice had the power to
Such
approve persons hired as vocational counselors.
a regulation is not sufficient to make a decision to
discharge, made by private management, state action.
Id. at 841-842.
227
219
CRS-30
Id. at 842.
Finally, in Rendell-Baker, the Court held there was
no "symbiotic"
relation_110 between the state and the school.
It found that the 'school's
Thus, from the language quoted above in Blum v. Yaretsky and Aendell-
oil Co. Inc. case, 457 U.S. 922, which it decided on the same day.
The Court spelled out the striagent mode of analysis employed and the
228
CRS -31
457D.S, at 936-937..
The foregoing discussion, however, has shown that the Court has over
have to examine the facts and weigh the circumstances in each situstioa.
LAA upon private single sex educational institutions, one would have
to examine the factual situation very closely and analyze the number
229
221
CRS-32
t/ the
Spreme Court's recent decision In Grove City_Collem v.
R II. 5: S.t 20 (Feb 2F 1964) can be distinguished from the
cuestfon cf the potential impact of the EPA on private single
sex
educational institutions because the issue in Grove City revolved
the scope of coverage of around
a statute, scecifically Title IX of the
Education Amendments of 1972. Here the Court was interpreting the
of the language In Title I!' and was trying to determine Ccngress' meaning
'y examining the legislative history. intent
Grove City was a case of statutory
construction. the Court held that federal
assistance to students
constitutes federal aid to the private educational institution itself.
thus
making thv requirements of IX applicable to the school Therefore.
if Grove City wanted to continue to admit students who were recipients
of
federal funds, it would have to sign the assurance of compliance form
agreeing not to discriminate and to comply with Title Ws mandate.
Court went one step further however. and held that the enforcement The
mechanism, i.e. cut-off of federal funds. was to be program apecific and not
institution-wide hence in the instance of Grove City the cut -off would
apply only to the financial aid program of the school.
Serails, the Court's decision in Grove City was en interpretation of a
statute and not of a provision in
the Constitetion. Congress is free to
amend the statute to change its language and meaning if it believes the
23 0
222
tion may be less clear -,cut by virtue of the lengthy statement Justice
U.S. 745 (1966), which dealt with the analogous issue in the Fourteenth
that Congress' power was not so narrow as to be limited ty the state action
requirement.
L.S.C. :41, a statute Imposing criminal penalties for certain civil rights
and to travel in interstate commerce. Although the Ccurt read into the
231
223
CRS-34
rights.'
232
2?A
CRS-35
without state action that interfere with Yourteenth Amendment rights was
dicta in the case since Justice Stewart, who authored the Court's opinion
Ac the sane time, Justice Stewart narrowly limited his views to Siction 241
and did not purport to address the question of what kinds of othet and brr_acier
legislation Congress might constitutionally enact under j 5 of the 7ourteenth
Amendment to implement that Clause or any other provision of the Amendment.
225
CRS-36
)l/ United States v. O'Dell, 462 F.2d 224 (6th Cir, 1972);
v. Purvis, 5$h F.2d 1S3 (5th Cir. 197h). United States
.2
226
CRS-37
If state action exists, then the proposed ERA would apply. In the
If t,,ers is no state action, and the courts were to take a narrow view
posed ERA would not have an immediate impact on private single sex educational
irstitutions, Thus, there would be no need to inquire into the type of judicial
review and 'onstitutional analysis the Court would apply to the alleged sex-based
12/
classification.
4r) t]
4.40
227
CPS-38
23
228
CIS-39
related to the issue of "state action." This aspect concerns suits against the
differs from a suit against a private actor. In a suit to enjoin the offensive
whether the state is operating through the guise of the private actor so that
the conduct in question may be attributed to the state itself. On the other
hand, in sn action to enjoin the grant of state aid or to remove the benefit of
a tax exempt status, the issue is whether the state's activities violate consti-
in the latter instance is clearly state action, and the problem is one of whether
authority for the idea that the government would be prohibited from sustaining,
which it could not practice directly.
through the private college, discilmination
T:ie result flowing from this principle is that such an institution's eligibility
'orvood v. 4arrisci, 413 U.S. 455 (1973) and 74 Columbia University Lag Review
382
'15h, "J98 (194); also Cornelius v. Benevolent Protect ve Order-of Elks,
2,,
229
CRS-40
23S
230
CIS-41
hospital service because of their indigency; that each of the hospitals involved
i
and that by extending tax benefits to such hospitals the defend ants were "en-
couraging" the hospitals to deny service to the plaintiffs. The Supreme Court
held that the plaintiffs lacked standing to bring the suit because they failed
to carry the burden of establishing that, in fact, the asserted injury to indi-
gents was the consequence of the defendants' actions or that prospective relief
would remove the harm. In describing the standing requirement, the majority wrote,
The Col,rt found that the respondents here were not injured in fact, even though
some were denied service by a hospital. The Court pointed out chat, "... injury
troversy in the context of this suit, for no hospital is a defendant. The only
lefendants Are officials of the Department of the Treasury, ano the only claims
tnose Id. at
The 'Court also discussed the problem of proof, i.e. establishing that "but
for the government's favorable tax treatment, the hospitals in question would
grant the seTvices demanded by the indigents. Justice Powell, writing for the
or Instead result frau decisions made by the hospitals without regard to the tax
tm 'cations Id at 47-43.
CRS-42
2,10
232
cas-43
broad
forth in\&%Iscern Xencockz yelfare Rights Crjanirstiop has potentially
242
41 006 0 14.6 16
234
ML5-45
to outweigh any burden placed on the school's exorcise of their religious be-
lists.
Currently pending before the Court is the related case of 129. v. Wright,
656 F.2d $20 (D.C. Cir. 1981), cart: gr. 103 S. Ct. 3109 (1983) (Docket No.
15/
81-970) This case involves the important question of the standing of private
nondiscrimination policy.
:nder the facts of the Bob Jones University and Goldsboro Christian Schools,
:nc. :am', supra, both institutions had had chair tax exemptions revoked and de-
schools argued that the IRS lacked the legal authority to impose the nondiscrimini
ation condition on their tax exemption. Both argued as well that even if the IRS
had the authority, the were constitutinelly exempt from its application because
:he Court of Appeals for the Fourth Circuit upheld IRS' legal authority to
inclose the condition of racial nondiscrimination and the application of the con-
16/
dition to religious schools. It is this decision that the Supreme Court af-
15/ Consolidated with this case is Allen v. Alp!, 656 1.2d 820 (D.C.
Cir.-T981), cert. gr. 103 S. Ct. 310) (1983) (DoaiE-Ro. 81-757).
16/ See Bob Jones University v. United States 468 F. Supp. 890 (D.S.C. 1978),
and Goldsboro Christian Schools, inc. v.
reversed 639 P.2d 147 (4th Cir. 1980)
L!nited Wit's. 436 F. Supp. 1314 (E.D. N.C. 077), aff'd 644 F.2d 870 (4th
Cit. i981).
2,1t
225
CIS-46
In its decision, the Supreme Court said that the IRS properly read
into Sec-
tion 501(c)(3) of the tax cods the common law meaning of the term "charitable",
Moreover, the Supreme Court pointed out that Congress dellberstal, ac-
amended Section 501 of the tax code but it did not alter IRS' ruling regard-
24 4
236
CLS -47
governmental interest outweighed the burden placed on the schools' free exercise
that
of religion and that no less restrictive means were available to vindicate
interest.
Justice Powell concurred in the Court's decision but on the narrower basis
that Congress had acquiesced in, and thus ratified by implication, IRS' construc-
21
237
CRS -48)
believed the ERA would make opposition to sex discrimination a matter of 'funds-
17/
mental public policy.' He specifically stated:
The Supreme Court's holdings in the Lob Jones University and Goldsboro
Christian Schodis _Inc. cases can be distinguished from the issue of whether
the ERA would have an,impact on private single sex educational institutions.
This commentator believed that the main reason for the Bob Jones University opin-
ion's apparent weakness was 'the Court's failure to acknowledge that in any case
Involving more than a mechanical rendition of a statute, the Court's interpre-
tive role is not wholly disjunct from its role as the guardian of the Constitu-
tion." Id. at p. 266. This failing led the author to view the holding in Bob
Jones University as shedding "little light on the prospects for future, more
difficult cases involving relations between the government and discriminatory
private Institutions.' Id. at 269.
246
238
CRS-49
of ,t a ttostItitional provision. Not only did these two cases represent the
,upreme :ourt's statutory interpretation of the tax code, but also the type of
Supreme Court may have a different standard in mind concerning gender, and also,
with respect to the tax code situation, Congress could alueys amend the code
to clarify tne nature of the 'fundamental public policy" against sex discrimin-
ation. After all, the Supreme Court was not articulating constitutional stand-
ards when it decided the Bob Jones University and Goldsboro Christian Schools,
18/
;MC. cases.
ination cases from the ERA private slave sex educational institution issue is
the crucial role that the particular facto play in each situation. It would be
critical to review the historice. bitceground concerning the founding of the in-
5titution, tha policies it has practiced ov,r the years, and the announced pur-
poses of Its programs. Caurts have to assess such facts in order to ascertain
CRS-50
91 '6_
240
CRS-51
situatiou explicitly but would instead be defining the limits concerning gov-
The gigntn Circuir decision had stated that the State of Minnesota', interest
dation" was not strong eocugh in the circumstances of the case to be considered
'_yeses v. McClure, 709 F.11 1560, 1561 (8th Cir. 1983). The court also ruled
ttst the irate law wee unconstitutionally vague. However, the court did make
it clear that it v.'s not saying that or state law could be writtn to redress
oollt 'oy the 7.ighth Circuit is that the organization might be guilty of
nit overturn the men-only policy. It remains to be seen how the Supreme Court
It all.
The )r.!ler ..nee :urrently ;And:mg before the Supreme Court which may affect
dated with Allen v. aright, Docket No. 81-757. These cases focus on the questin
of standing to bring ,-ertatn types of civil right+, CASES. They follow on the
heel of tns Bob Jones University and Goldsboro Christian Schools Inc. cases,
The Issue in Regan v. ;tat!, and Allen v. Wright is whether federal courts
^a' hear qUi19 brought by taxpayers' Aalnst the treasury Department coocerniag
CRS-52
)
242
CAS -53
by the appeals court to support its holding that there was standing included Colt
v. :;teen, 404 997 (1971), aff'g mem. Green v. Connally, 330 F. Supp. 1150
D.D.C.); Norwcod v. Harrison, 413 U.S. 455 (1973); and Gil_ more v. City of
Irian v. Wright, the Solicitor General insists that Phe court of appeal, decision
lights case and specifically asks the Court to clarify the uncertainty created
oy the appeals court ruling concerning the law of standing. The government's
Orif ateracterized the parents of :he black school children as "mere disappointed
doservere of tie governmental process who are no more injured than other citizens
''undamel ally erroneous" and asked the Supreme Court instead to look to its own
oven how tie Supreme Court is going to resolve this dilemma regarding the stand-
:712 of :nird parties to sue tie government regarding enforcement of the govern -
rent's pruniJition of 'lx- exempt status for private schools engaging in racial
!!scriminazion. Now the Court decides this matter in the race context, and
whether it alters :he very narrow intetprecation set forth in its 1976
vealed when the Ccurt rules in Regan v. Wright this term. The holding in that
case will he significant as well for guiding an analviiis regarding the potential
tapect .;f the proposed ERA on private siuRle sex educational institutions.
243
CRS -S4
CONCLUSION
CMS -53
:1th respect ro the other lids of the problem, unrelated to the Jesus of
'state actioe but directly concerned with suits against the government to
enjoin the government from cootinulog a policy chat fosters discrimination, the
tory practice. Some of our research indicates that it may be conceivable that
should the ERA be ratified, privately sponsored schools which elect to adhere
There is some authority for the ides that the government 'Jou' be prohibited
It could not Prectie directly. The result flowing from this principle is that
:ne donor would likely oe lost. This conclusion can be derived from the Norwood
sent :1 :he defendant and the plaintiff is a party, e.g. a taxpayer, trying to
cal to getting ins ours. The Supreme Court's rulings respecting the "standing"
precedent with respect to the law of standing. On the one hand, there is the
CRS-56
forth very difficult criteria for a plaintiff to satisfy in order to prove his
or her case. The heavy burden imposed on a plaintiff as a result of this de-
Currently, pending before the Supreme Court is Regan v. Wright, supra which
contrary to our natioo' fundamental public policy. The Bob Jones University
and Gold, sboro decisions can be distinguished from the question of the poL.ntial
impact of the ERA on private single sex schools on the ground that these two
cases involved race and not sex discrimination and represent a statutory and
Regan v. Wright case is important because it should shed light on the matter
4.0 a
246
CRS -57
Another :ase pending before the Supreme Court which may provide insight into
tne proolem of the potential impact of the proposed ERA on private single sex
schools 12 (iomer-Setnke v. U.S. Jaycees, supra. 'Here, if the Court reaches the
This case specifically involves alleged sex discrimination on the part of the
allmale Jaycees organization and puts before the Court the question of whether
private membersnkp groups which deal with the public have a constitutional right
:oust may decide to avoid this broader constitutional question. It could do the
:41::er Sy simply agreeing with the Eighzh Circuit that -ch. Minnesota Hunan Rights
to be seen what the Court will do. Lf it does decide the merits of the question
In auamarv, our research ingicetes that the proposed ERA would probably not
mace a private single sex school, which is tax exempt, susceptible to a state
action challenge. 'here are court decisions supporting the position that tax--
actor- subject to the Fourteenth Amendment. By analogy, the some would probably
be !rue under t'7e FAA. Furthermore, in light of the Court's holding in Eastern
;rove that 1t far' tae goernment's favorable tax treatment, :he private in
CM -s8
Karen J Lewis
Legiel tie Attoney
kmerica6 Law Division
March 6, 1984
11
4,
r El(1
248
on
There
Jones University v. U.S. and Goldsboro Christian Schools v. U.S.
riepte protecticne under Title V/ of the Civil Rights Act of 1964, Title
Title VI, Section 504, and the Age Discrimination Act prohibit
These
discrimination in education programs assisted by Federal funds.
Agencies must
laws include specific Federal enforcement requirements.
establish and enforce policies consistent with the purposes of the laws.
s, refuse
If recipients of Federal funds, despite all negotiation situ
The Oebate bout Title IX coverage haw invol%ed complex, somot mas
stand, with its predecessors, for broad and effective civil rights
2 r)
THE IMPACT OF THE EQUAL RIGHTS
AMENDMENT: THE MILITARY
U.S. SENATE,
SUBCOMMITTEE ON THE CONSTITUTION,
COMMITTEE ON THE JUDICIARY,
Washington, DC
The subcommittee met, pursuant to notice, at 9:45 a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch
(chairman of the subcommittee) presiding.
Present: Senators Thurmond, Grassley, DeConcini, Kennedy, and
Metzenbaum.
Staff present: Stephen Markman, chief counsel; Randal) Rader,
counsel; Sharon Peck, chief clerk; Dianne Franke, clerk; and
Robert Feidler, minority chief counsel.
OPENING STATEMENT OF SENATOR ORRIN G. HATCH
Senator HATCH. Ladies and gentlemen, this marks the third day
of hearings by the Senate Subcommittee on the Constitution con-
cerning the proposed equal rights constitutional amendment.
Today, we will again hear testimony on the impact of the amend-
ment on a specific area of the law. The subject for today's hearing
will 131. the impact of the ERA upon military law and policy. Forth-
coming hearings by the subcommittee will continue to focus upon
the real world impact of the ERA in a wide variety of public policy
areas.
As in our earlier hearings, we will only lave a small number of
witnesses before us today. And while all responsible groups and or-
ganizatiom will eventually he afforded an opportunity to testify,
the principal purpose now is to learn in detail the changes that
will be effected in law and policy by the equal rights amendment.
Our goal is to establish an appropriate and thorough legislative
hiqory. We are attempting to do this by allowing both proponents
;Ind critic, to invite to this panel the most knowledgeable and ar-
ticulate w tnesses available.
1 believe that these hearings have proven and will continue to
prove most valuable in building the record on what the proposed
amendment means. If, after this record is built, the Members of
'fitigro,s, and the .State legislatures, and the public wish the ERA
to proceed, I. Gil' one, do not intend to impede or obstruct its pas-
I do wain to insure, however,
that when I hom_i VOteS COMP, no
# I t- (
4. )
252
one can say that he or she dues not have available a contemporary
legislative history on what changes the ERA will require of society.
It is my understanding that the House of Representatives, follow -.
ing 4 days of hearings, plans to consider the ERA in subcommittee
as early as this Friday. After their opening 2 days of hearings, in
which 14 out of 15 witnesses testified in favor of the ERA, I am
pleased that they have subsequently allowed the opposing view-
point at least some additional opportunity to testify. I believe that
it is in everyone's interestespecially the public interestto make
clear what we are doing when we propose to amend the Constitu-
tion of the United States. There is no more serious responsibility
that we have as Members of Congress. Whatever one's perspective
about the ERA, I think that there is an interest in learning more
about its predicted impact.
I very much look forward to your hearir today. We have two
outstanding witnesses with us who will enable this body to better
understand the effects of the equal rights amendment. I welcome
both of them here today.
wotIld also observe at this point that this subcommittee recent-
ly approved legislation S. 501 that would eliminate more than 150
provisions of Federal law that unnecessarily distinguished between
men and women. At Teast 50 of those provisions relate directly to
the the military.
Thus, whatever happens to the equal rights amendment, our
Federal Code will take less cognizance of the sex of an individual if
S. 501 is approved. This matter is scheduled to be considered by the
full Judiciary Committee this Thursday, and I think it will be of
interest to everybody concerned.
Senator Metzenbaum, we will turn to you. so,
OPENING STATEMENT OF SENATOR HOWARD M. METZENBAUM
Senator METZENRAUM. Mr, Chairman, I left the hearing on Judge
('lark which just opened this morning and will have to return, but
I came over because I am concerned about time elements with re-
spect to this matter.
I know the chairman's record for fairness and I know he wants
to have a full and complete record, but having said that, I think
that the chairman would also be equally fair in recognizing that
these hearings are being drat red out considerably while we explore
each of these areas.
In all honesty, my opinion is not one vote will be changed on the
committee by reason of the extended hearings. Therefore, it oc-
curred to me if the Chair wanted to make a full and complete
record, he could do that equally as well by having written state-
ments submitted on or before a certain date.
I feel very strongly that time is of the essence, and I wonder if
the ('hair could give me some indication as to when this matter
will he disposed of and brought before the full committee for a
final determination.
senator Milli I cannot say at this point, although I have said
that I am not going to obstruct or prevent the ERA from coming to
the full committee.
Stqlit(ir NI ET/EN ItA I 'M I (OW 11;1Vt` WO U1 it now in the sub-
committee" Are we in the sitheonimittee
Senator I I ATCII. This is in the suhcomittee
Senator M ETZEN RAU M. flow long have we had it in the subcom-
mittee. Mr. Chairman?
Senator HATCH. I think since the beginning of the year, just as
long as the !lousy has had it.
Senator M ETZEN /MUM. Yes, hilt the Ilouse is novv going to act on
it
tienatiu. Ilivrt 'H. That is my uaderstanding
Senator M ETZEN BAUM I wonder if the Chair would not attempt
to bring it before the full committee prior to our adjournment On
or before N vernher 1
Senator Mil!. I do not think we can. There are a few more
hearings that I want to hold on this subject. I do not see any prob-
lem with getting the ERA to the floor should the full committee
decide to do so.
So we will do our best, Senator Metzenbaum.
But important issues, especially proposed constitutional amend
ments, deserve ;i more thorough analysis than written statements
can provide. That is why our committee system allows for the ques-
tioning of those who have submitted statements. Senators should
he able to ask witnesses to more fully explain certain aspects of
their statements, to defend their conclusions and to otherwise
assist the committee in making a more informed and balanced rec-
ommendation.
1 think ,ve have moved with t ispiitch and we intend to continue
to do so.
Senator Mi..TZENHAUM. A year is a lengthy time. Thtre are still
women, literally millions of them being diAcrirnlnated against. I
think that the passage of ERA is a n imperative, and I think it is
doing less than meeting our own responsibilities if we hold this
matter for a yeir in SUI1CMIIMil
I know that the chairman
wants to he fair.
Senator IIATen. That is right.
Senator Mr! ZENHA1 'M But I am conceted that he may he per-
ceived as being unfair if this matter goes beyond adjournment and
the full committee is not given an opportunity to vwe on it in this
session of the Corgress, and I would strongly urge upon him that
we really have permitted to leave this subcommittee, wbi , her with
or without favorahlt reemomondation, and go to the ti 11 committee
so that the full COMM Ice HUI V act and possibly even gt-, it to the
door befOre we r.diourn.
Senato, IIA Fit Well, I will take the Senator's 1,v1,:he!., into (,,n
sodisration 'MN I.; a ITN important issue.
Senator Mi-.17.nrinA M are not a woman
Senator' IIATuti. I understand that, I also understand that there
are well intOrmed women and mon on hot h sides of the-, is tie 13ot h
will he affected by the PAM, rnfortunately, Congress has never
been willing to reall examine the arguments these wointi and
inert offer to support their oppmuir
'Hits subcommittee has the ti frion.,ibil0 to stem Ow dim'ussion
eat the 1.:1?;\ away from emotional apio:ils in order to addres s some
l the iirp)rt:1111 rfne lioiir, rmod by tiosr \.11s) wli t er I' I
25.1
1,I1-
tow evet , the i 'OW 1110, 111 1111.' (1:1y: (01'11(1N1 full pr'ote'ction
111 t)111i'll II the Court had, wr might not he here today arguing
the equal rights amendment.
So the questions to ask oun,elves today are as follows.
I do we want women to have equal rights in this country? I
ye,-; For those who think
no, however, and there are some,
n, ed not ask any other questions
sfnad, it, however, you answer, f es, if you think that women
,should have equal rights, then the next questions is this;: Should
those right:- he guaranteed at the State or the Federal level? The
question. howeve. answers itself. You cannot have equal rights fir
women it those rights are disparate and can vary From State to
State II you are going to have equal rights, uniform equal rights
thrImghoni the Nation, they must he federally guaranteed and fed-
eally protected,
Third, assuming, therefore, that you support equal rights for
women and realize that such rights, if they are to he truly equal,
can only he guaranteed by unifiers Federal action, then the last
questions to ask are whether a Federal statute is adequate or
whether a C01151111/I tonal amendment is necessary.
Clearly a statute is inferior to a constitutional amendment as a
guarantor of equal rights. A statute does not rise to the dignity or
certainty of the constitution. A statute will be reviewed by any
court with less awe than is the ('e nstitut ion. And, of course, a stat-
ute can he repealed by a majority vote of Congress at any time.
Ch.aly, thet.tOre, only a constitutional amendment will guarantee
equal rights for women in this country.
,V:suming. therefore, that this committee comes to the conclusion
that it believes we have arrived at a time in our history when
women at last are to he guaranteed equal rights and assuming this
committee believes that equal rights for women can only be guar-
anteed by Federal action, then all this committee need do is to
.:end to the floor Senate Joint Resolution 10 which is before :t.
Mr. Chairman. I cannot accept the premise that we do not need
art equal rights amendment. A Nation founded on the ideals of
freedom of opportunity for all of its citizens cannot continue to
deny ofitialit of rights to more than 50 percent of its population.
T -ay that equality can he achieved through statute' is like saying
that the first amendment is not needed to protect free speech.
Vipiatit N. it a fundamental right. Its guarantee is constitutional pro-
l, thin
.1111'4' dn hi, 11h doubt that worsen roles in our society have
changed dramatically, especially in the last decade. Although many
factor- have brought about that clu,nge, the resultant effect on our
,,uclk -,wroheatit It is estimated that soon nearly half' of the
r
t inn
Federal funding of abortions?
lint what would it do to the Senator Cirassley, I do not
Senator PACK WI on). In my iadgment, F-deral funding unless you
think it would do anything to compel
mile under the "miaow physical characteristics" test and I am not
-;1(1V how a court would come
out on that.
that the courts would follow the recent Supreme
Nlv judgment is they cannot COM p(' I COIlf_;1Sti to Rind
Court ca:-;( and say that It wl)ItId he another thing if ('on
floe.; itet dtiattt to f1111(1
t i
old not do it equally. Hut f do riot think
funded 'Iliortion
f"!
259
under the recent Supreme Court decision even the equal rights
amendment would have the practical effect of compelling Congress
to fund abortion, since the analysis falls so rigidly under the consti-
t.utiona right to privacy.
Senator II Amt. Senator Kt nnedy?
Senator KENNEDY. Thank you, Mr. Chairman. I would like to
have my opening statement included in an appropriate place in the
record.
Senator II Amu. Wit how objection we will place it in the record.
I Prepared statement fol tows: I
OPENIN STATEMENT OF SENATOR EDWARD M. KENNEDY
welcome this hearing on the effect of the Equal Rights Amendment on the U.S.
Armed Forces Let me state at the outset that I am both a strong supporter of our
national defense, and a strong supporter of ERA. And Mr. Chairman, I would not
support a Coostithtional Amendment that would compromise our military readi-
ne-ks. ERA and national defense are not mutually exclusive; they are mutually com-
patible
A useful starting point for the examination of ERA and the military is the basic
purpose of ERA, which is to guarantee equality of rights under the law to men and
women To those who would exempt the military from the application of ERA. I say
that they miss the point of the amendment. You can't accomplish equality of rights
by sanctioning sex discrimination in the military, which employs more than two
million Americans. and provides its soldiers with skills and benefits that last a life-
time So an amendment to the ERA which excludes the military is unacceptable.
Those who support such an amendment are opponents of ERA and equal rights, not-
w it list mating their attempts to otherwise characterize themselves.
Let us look at the arguments made by opponents of equal rights in support of the
continuation of sex discrimination in the military: first, that the exclusion of women
from involuntary military service and all combat positions is a protection of women
which should he retained; and second, that the opening of all military positions to
qualified individuals, regardless of sex, would impair our military readiness.
The current quotas on female soldiers and combat exclusions do not protect
women from injury or death in the military. Women as nurses and other combat
support personnel have served in the combat theater of every war since World War
I Female soldiers in non-comb/it positions have been wounded, killed, and take ,1 ux
preame, in past wars. The Ai iy acknowledges that under current Army policy, in
any future war, female soldiers will serve in battlefield areas, be expected to defend
theroselve, and their units, and he exposed to the same risks of injury, death. and
c;ipilire ftwir male counterparts
tl,ii current all-volunteer force does not protect women from a future draft.
The DepartIPPlit id Defense Inc; already.developed a plan for a draft of medical per-
-,(ffin4,1 that would include own and women. Ho the argument that women currently.
Are protected from the realities of war is simply inaccurate
taponeats of FHA who churn that sex discrimination in our Armed Forces is es
oiaial to ma natiowil defense either seriously misinformed or deliberately at
liaopting to elide support for FHA by misrepresenting its effects. ERA will require
0.inlci neutral ciiierin to be 'used in recruiting, drilling, and assigning military per-
FIZA taltt 11,4 I 'quire that anyone, male or niniale, he assigned to a position
inilitari, fin khicb itr or sh is not qualified. Under ERA, military readiness
iinainue In hr tho pahtioliont coin ern of onr Armed Forces
I hop, 111,11 IMIOV and for all, flit' tipeIOIIS claim;; CO' it:Vrti
It 1 ntul Ow iildllitt\
1' haVr 1),(11 nmed hy opponents of equal right!. in au
ro otatme tin, real
t
of sex discrimination in the military, which is that
art fi, III it the ibirwryi of military life, but are denied rimy of the
ww.tit' 1,411 fc)14.tote the. any longer
2
awl I think in his response on this issue of the military, which is
the subject of this heainp., he has given us a very clear indication
as to what he believes would be the standard that would be used
under the ERA, and I agree with him. Individuals would be as-
signed to the military on the basis of their qualifications.
I suppose what would be reasonable to examine is whether the
qualifications which are established in the military for a particular
job category are fair and reasonable, and related to the job.
Senator IPArxwoon. The same thing we try to do in the private
employment market now. The Court has said on several cases that
the standard has to bear some relation to the job, and that y
cannot exclude people by an artificial standard that is really unre-
lated to the job.
Senator KENNEDY. I think that there are many who believe that
this may be a factor strengthening the Armed Forces.
Senator PA('kwoon. Well-
Senator Kr NNEUY. Strengthening the Armed Forces in terms of
establishing qualifications for each particular mission. So the ERA
may he helpful actually in insuring that we are using the best
qualified people to meet the dial)/ ages that are ahead.
I understand further if you are looking for the issue of qualifica-
tions, you would have to probably look at the reasonableness of the
qualifications for a particular kind of a role.
We have seen, for example, when women were brought into the
fire departments and police departments, that initially there were
qualifications or standards that were established which were really
unrelated to the particular skill needed for firefighting or police
work, and once the qualifications were really related to the par-
ticular responsibility, that women participated, and met the stand-
ards and that the various departments have had a very extraordi-
nary record of success. Would it be your understanding that under
ERA job-related qualifications in the military could stand?
Senator PArxw000. I do not think any of us advocating the equal
rights amendment are going to quarrel with fair qualifications. For
example, there are maximum-height qualification on fighter pilots.
If you are too big you cannot fit into the cockpit, and that applies
both to men and women if they are too tall, and I think also too
fat.
Senator KENNEnv. I just want to end with this. Do you not be-
lieve that many of the reasons which are raised for involving or
not involving women in the Armed Forces are similar to the argu-
ments that were raised a number of years ago to exclude blacks
and other minorities in the Armed Forces?
Senator PACKIAr(m. Absolutely, yes.
Senanir ki-ANKov. The same issues we're raised That we are not
going to he' able to keep up the morale, that we cannot expect to
have a good effective fighting force, that to maintain combat effi-
cii.ncv, we have to have separate units.
Ithink many of us remember the action that was taken by a
President to trim,, toward eliminating those criteria and standards
.uniber of year: ago with respect to race, but it woos to Inc. that
hear the same kind of echo at the present time when we are tall,
Mg about A'ornen in the Armed Forces that we heard prohably :
nears ago concerning racial minorities.
/Id I ,1111 111,,1
has given some thought lo it as someone who follows this issue arid
what your views are on this issue.
Senator PAch.woo. It is amazing to
changed. I and going to go back to 1970me how rapidly things have
and raise the four questions
that Senator Ervin raised in opposition to the equal rights amend
rio and its effect upon the military
at that time:
First Would women have to he admitted to the service acade-
mies"
Sperm& Would separate women's corps suchas the WAC's have
to he aLlished.!
'Third. Would women and men end u im ha-ac' training, together?
Fourth. Would women he required to perform jobs in combat
/lines"
thimgh We hove not had an equal rights amendment,
women are admitted to the service academies. They are doing very
well. They graduate high in the class. They are performing excel-
lently.
Would separate women's corps such as the WAC's have to he
ahidished? 1h 'v ahoiished a long time ago. Would men and women
end up in basic training together? The answer is yes, arid they are
101W.
Would women be required to perform jobs in combatzones? Does
Senator Frvin mean required regardless of qualifications? I think
he phrases it in th; wrong sense. All of these issues that just
13
year--; ago were raised as myths and horror stories have all come to
pas and our military can still give a good account of itself, and we
have no even got the equal rights amendment.
lien, t KENNFine. Well, the time is moving on. I do not know
whether von have seen that Army report, the HEE WAC report. I
will get into that later on perhaps with some of the other wit-
nesses It is an evaluation of the performance
with men on extended field exercises. I think the results ofinit units
of women
were
enormously important and impressive. I will develop that perhaps
later
Senator PAck wooly You mentioned the issue of race. History
does change. Within the last century and a half', England Fl ill had
what they called 'rest Acts.- where Catholics and Jews were
allowed to serve in the military. Whether they were regardednot as
untrustworthy or loyal to the Pope or loyal to somebody else, Eng-
laild's laws did not allow them in
changed. England has now had many, many, the military. Times have
many extraordinary
Catholic ;aid Jewish members of the military.
Society does change. Society has changed. By gosh, nowhere is
this rrlore evident then when you talk about physical qualifications.
We ad have vials that we Flay. Mine happens to he squash.
I have an old Ira of in Oregon. a women, who is rrti years old.
She look up squash at the age of 30. I have played it off and on
since I was in my midtwenties. She regularly beats me at squash,
and i mean handsomely heats me at squash.
I 1)1,1% over here at the local club
and took a lesson
then (MINH prOfi`titilMIll, and aFter she had beaten one day fr, n
t; or 1:1 i, she pat her racket up at linst the ow a game or
"New, Senator, i want you to bounce the ball onwall the
and she
ground
and hit the racket Well, I hiinnefq! it times and missed the
26;1
262
racket 10 times. Sin then took my racket and hit her racket 7
times out of 10.
Now, if that ability is anything akin to shooting a rifle, I want
her with me[laughter] if I have to be on combat.
Senator KENNEDY. You've convinced me, Senator. Thank you
very much.
Senator DECoNctm. Would the Chairman yield?
Senator HATCH. Yes, go ahead.
Senator DECoNciNt. Mr. Chairman, I have an opening statement.
I would like to have it appear.
Senator HATCH. Without objection, we will place it in the record.
I Prepared statement follows:I
OPENINI: STATEMENT OF SENATOR. DENNIS DECONCINI
4 ) ""1 d
)
11,1 tC10
come to this con,'Iusion Of course, we cannot prove now who is
right or wrong The only way to resolve it once and for all is to
write into the amendment specific language that will prevent the
ERA from affecting abortion.
Senator PAcKwoon. Well,
as I said, Mr. Chairman, vou and I dis-
agree on the ahortion issue, but this committee will have to do
what it wishes to do, assuming is going to send out the amend-
it
ment.
Senator Ilivrea. What I am trying to do, Senator Packwood, is
create legislative history of exactly what this amendment means.
Senator PAcKwoon. As I have indicated to you, I do not think the
amendment will compel abortion funding.
Senator HATCH. But you do not know.
Senator PArKwoon. I do not think anyone testifying can tell you
exactly whit the courts will decide or 100 years from now any
more than, Mr. Chairman, you could have predicted decisions
under the due process clause or any of the other major provisions
of the Constitution.
Senator HATCH. Well, what would your intent he, then? Is it your
intent to enhance abortion rights with the ERA'?
Senator PAcKwoon. I would be perfectly happy if we can One day
pass legislation funding abortion, and I hope we will. That fight
will come again another day, and second, I will be perfectly happy
if, apart from Raiding, no other change is made in the present
right of a woman to make the choice for herself as to whether or
not to have an abortio.i.
I do not regard that as a major issue in the equal rights
ment. That right is secured except for funding which I. do notamend-
t his amer,..ment will touch, and I think the abortion issuethink
is a
tactic thrown up in an effort to defeat the ERA.
Senator HATCH Op another issue. When you and Senator Tson-
gas reintroduced the ERA last year, You said, on the Senate floor,
that the ERA was "the most powerful tool" to insure women equal
pay and equal opportunities in jobs.
wonder if you could elaborate on this. Would the ERA require
haoges in the Federal Equal Pay Act or State equal pay act
Senator Pialminni. Mr. Chairman. 1 am going to answer your
questions very carefully because realize we are laying a !on'.
1
4
PAl'ilVOgill I dill t' ttw, iwt
tlutrr a !'hang)' San:1, C(11111.
Senator liArtt. Satnt, why Ifu you no; '41! thi'n."
Senator l'AcKI,virtm Yes, 1 ant goilig to Ilav hor sit
l'harrtnan, because in laying ;-1 rt.i..ord, I \*.'ant to ho vary ,;un
lav rcord that .4ay!-; oxactly what wt' rneIn
-lortritor I IATCH. I v,irit to ill' wort', too
Sonator .11i tttor ,11 I() 11 hpy.
(Laughtr )
Sontor 1 1Arcii That o, !;ho il, ono (If till' ho,t 41111.1
',outdo on till' 11111 And Senator I'acfc wood (M (if the 111.SI SP11:1
tors on tile !fill
Sriatc,, l'Akw'ntni I approciatc complimont It is l)orati:,,o of
good :tall
I do not Itnol(, Air Chatrman. that ho oqual I 1)2 ht roondinr t
tvtil roquire ;Tangos in any of the' Fortoral employment .;tatt.ites
Sontor 14.11.11 t lion it it clot'' riot, 1,chy would volt say that
it trill ho tho powrhil hrol" to onsuro w4nrirt pal; and
1'yli ii opnorturrit'
Sottator .o m till' question again
tionator flAluir holy 1,voulcl thy 1-1,1-t.11 ho tiro Ino.,1 pokvr ful
tool to nn!-;or that 1.corrrri would have outial pity ;Ind floral oppor
ninth, it it wouldn't afft rut hor tilt' Emplo\
wont tioliortor,ity
Son oor Kwrion ftocati,,s, thor.o 1141411' Nit
Chairman, than tino Constitution No :-tatiito IL corno cltro
to ihit
Soriator I Y()1.1 art. -!,lilt; by
I A II it lho Cori,tutiiion I
Ihtttr- han;.o autornoticailC
Sonator l'cKwHim No., tin. ERA
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111)11h-,o(lo.1,1
1,11'111111,
A.11!1(11V(.; `,111/111:/1111!;1.10 ,'.11'11 ,,11o11.)11111 sp10010.110O0.1 .11.10101
11.111. "-,1' '"-101-1...1111:-:4111 111)6
1A11111 111A 01011 111 1111.1 111/1111'(.1()
'.(1.11;.1.1111:0.1110 111 1111 'T.111.11 10
00111' 11 ..11I'1111111-111 lU 111111.:,111(,1 111
111.t11111, 1t1
1111' ilIpt I (1 M,1 \II
11
111,,,1 11).11.111(11 141'11'11.,
Alf (1.1 13,1/1 1,111 .1111 1Illy, ./1I1 .11111!-
111
, 1.1111'.1111ml:
(Loll if 1.11111 1(111: .)1(1110.1 OW' (If 1,1111111 ;0.1 I.111'01ii 1111,11111-,
pill!
"Ht 11"111 "" 11" ill "tti 0,V1 4011 kiwi's (oil v% 01I
lit I;'.11' 1/111' 11;11(1111M/A 1,1X,1 1111I 1111111 1/114)111,.11:(11111
111
Hid
,
111.11111 Ili', 1111 ',I1 1./111/.11/,) ) ',1,11111:.1 (14111,4,i iv)
111 10)1 1,111' JII!111111 111!11110 1r11111.1111!1 \ II 111111 11,111111311
- o
111
ei0111,-, Thi, H' the qualit% that
gave the out
o1,n1h$ red .Till in re!-pect:,
oef p.1; 01112,ornied 13ritisI4 conitita dos
Ieo %it torI, over. 'nine( ior
1111111' 14141') In the Lill-datid, of dug in Ar
year the iloolity that
ll c,, the ,7 t,, 10,1,1
IM th,, ,r)
1,
1
.1H ).111111
11111e-; hrir
old I ,onLo!.
I
,,'veryA.111,i("..vel. IO ( reale
11,1'1 II) H'CO'HI Atli( It IlVH i!'st.
,.;111),I! till !Wit I111 11()i ,I(141111- OW fill. 1v. ow_
c.i It. I.. 1 I 1114 II 4, 1'14 III 4' 1,, .111441'.1414r 14411,4 4I 411
1 II''''. .11111'/,'4141,111.111 114.141.1.11
H t.4,o,
11.144 I.. ,11'.14.1. thi'
I
Oil Ii.,111)1
11010.11 ph 411(1' till i
..11110 ()III'
4,' H. 1 .41444 it1,11 1',1110
.1 I. .44 44 .4 . 4
11,1.'441 II) 1114'
114 .` 44 4
,.41.44
,
I hi 1,1
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1. II,,
; 4 11 1. It 4444114,1
II 11.11.14
After Iii 'ii(;' 11:0, OW author lamely coneltirIes: "If these
,l)cciiLd lore. are it e, I (it) 110 know precisely what effect
vvornen in condi:A would kl%'(' C011efritO11."
;1114 not, ktAvever, mere specttlations Inn rather a staternent of so-
ciological fact, confirmed by empirical stutlies of soldiers' morale,
ittidies which I have footcnottli in my testirtmny.
\lint:kr% orranizat ion., make conscious 4144' (Cl ritascalirlity, ;11)-
1,14:II!, to it and, in.-Iced, at times exaggerations of it. Nin observe this
the marching i.dences of a itlatoati of troops, the ps.,1411olog,icl
:11111 plly :,ii' it cha!Ienit4'ti ni basic training, Milne(' tile everyday Lin-
serceants talliing to young in.i..ates. It occasionally strikes
tasteless arid the civilian worhi it \you'd certain
\ I 111:11)1)10!)6: 14', litit it performs; an itivahralth4 s(TViee ill wc'Id
1,;l4)tlft-, %.;1111r 11W1 Units Of prO11(1, .111(1 4'0111
t.110:11
11 4(11141 Itki. it) 111`4'11 at IIII:4 1)(41111 4111 ObSerV:11 Pill
1
I (In WA like to
correct Senator 1°:i.ctovne0, but he s not correct in saving that
(mien and nihn currently utlergo bitsic training together
'Mc III (11(1 experiment with that, anti it was It fit.11114'4'.
Arttl%,' iiriV ha ii.turtioil to haste training that is sex st1_,,regattql.
The Ilion-loin of physical capaitie:-;, therefore, though an ex-
t ren1141,. one is in sortie espects besides the point. There
ail', II)) (1(il lit. ;1 I('%(. ))111'11 '",11)111)14' of Illart111111.2," 211 miles; It (lay
%Vith at " 11,'1n'1 Hick .a('k, manhandling an antitank tnissilv au.
ilAalia); £iii. III at A v;(14141(10(1 ,!i)ttiraile to safety The whole-at(
lill'..11)()).1 I.))) 111 \VI)Illi.r) into Iltit-; of :111 kinds, lao,vever, will rip
the rolii"aori at a number Of points, and in combat, that
ifi 101';i11 wppri lac anti death
I I,;paho t, add that Ili:my uniformed women have, in the past,
.11 1')Hir 11 14' III t ilt
I re t() 1 11:1; hiffiorble ;1,,41 11,-,44111, I 11
wilt it;i1 r,lll 1II tilt) N. I1(14'1;,'!",1)(' Thr, has lief 4ii the ('xpe-
11,.11, I ,, I )1) 0, I .1 I Id (11 I WI', iii much tai,re dire !.
(1',1 1111'1'1' ,Itl rll,iri % fl`t 1yllich «omen 1-1' 11',
,
IiI II I, lIt (11,1 L(1110'111i
HI 1,1
V1.1,
Ill
V,Ii! Mr( 1 1 hl
m 3 011.111
co11-11Ici the ('o..t
1..11
111
1 I 11,1111.1:1 I -1 411 11-
'1
let oil\
Ill'
I'
hilt
ti 1111,
ill 1,1k,I !MM. !Hi;
215
r .1
e I, 0 1. t: )100', 11..1'1 ,P
aqr
276
and Air iv': vri ro- '1; cA1 linislAtiont in thc' Arvtiy it (inpi.n43,; on a refitilat ion
%, h it , thot ,n"'[1 arc, not auttiori-zed t:n sPrio in c..-vrtAul types of uni''..;
ttif in 17, )11111,1) ,ntillore, armor, roifil ..tr, lint vIvr, low ,11t.it_iide 3Ir leferviv4,
to womon; it hor
-4., I I:' 1, -; 11 Ll)';''', ct I .11-,
mirri urn vtinAlvi to think t hat. Eli A wv t hi, al. inf .,1
I 1 0117 I ! 7 I
1.1
v 6,1 Iv:. VI
1, 111,7 1 .7 1.!
277
Nontheletta. we all know, mandatory male draft regii7trat ion was niintrz.duced
under the Carter Administration And has teen c'ontinue'd until the preent.
Various attempts were made in Congri-y3s and the crurts to r,-,quire that women
as well as men regintnr for the draftr as Gallup poliri have continuously
clemonfirated, howevcr, meet Americans, though favo,ing draft t-eqii3tration (and
even, by a natrow margin, a reirtitution ef the draft) oppcx,e registration of
womi.tt. Ono roll conducted in the summer of 1901 revealed that 59 percent of
1,11c.ce ,,aid that they "apptovol the Suprurrio Court ruling that women
cannot be dialled". Only 36 parcerit di,approved of this rather distorted
rer,dition of the Supreme Court's holding.
M. .at-inificantly, crufilinn maioritie; have alwayr, rappieed the notion
i!io1 Ftp.sild in eligible for c_larritivit duty, let alone required to participate
1.,1 it. In a Marc 11 1980 Gallup poll only 21 pr_Tcent of the rx-ipuLatinn _urveycsil
thiinutii that wimen 'Sir rthJ h' "eligiNe" for combat tole,, if any kind of draft
fr-finir, .l. Tho wording of. the rairviv
women would
be obliged to -1-"1-Ve in combit, but rather: b allowed to
volantooc to (51/ In other wor,, thi.a meager percentage rk-A-_; not oven
ref-1,11 icoo uric r atolition the combat cyclii.-Aon policy, which
tom., .-liafteti-, tr1 participate in combat. Never, to my
iw ,%/1c.di h.i mu,il 10,11-1. than 11 1.1-ard of the American pitib, ever --ail lur irtori
f rot ini vi , k,./(1.11d paronthetir-ally
!,11'1,`1 !r-1-, r 41,121
vi( .11" 1f) 111 tepee 1 11 it 11)n 1' mon:
if f. .91e 54 igri-ons it, 'A tx-t `n1
I it 1 ITH 1:111,
o,. 14 nl.ilt,1.11 (l
I .;1.
`111
1 1, , n,,1 1
1, .
278
they do not eem have made a riowertul impor-inri on their German enemies.
After the wir the Soviets Ftopped drafting women, and today the Soviet Army
has zrarrely any female soldiers. Although Soviet women have long participated
tiutitbi. Fur a brief time, combat units of the Lsrael Defense Force aDF)
(Y,ntiunid men and women: by the end of that war, however, when
the acute
women
minrx)wor and '1r ttegir cricis of the opening !lages had been overcome,
V" Ill clarthlt units, and are, carPfolly excludiPd from front line
I, r ts I , rr mrilf off,,rt It the hogInnIng Of the 1973 war
,t!
!, I !I: 1 r! '!!! 1.
, f !!.I!
279
Proporation 14: An End to Combat Exclusion Would 13a the Armed Forces
Military organizations have functions and requirements utterly different
fmm those of civil organizations sueh as businesses, educational institutions, or
governmental bureaucracies. In the words of the greatest student of war:
War is a special activity, different and separate
from any other pursued by man. ... No matter
Now clearly we see the citizen and the ,rapier
in the flame man, how strongly we conceive of
war as the liminess of the entire nation... the
lxisines3 of 2rar will always remain irxtividual
and distinct-
r;;1 e, 1
1-.;. 1 ,
t.\111"3".-1-1 j":11111.11('-; ref
r.
111-111,',11r.,11i4
It 1.;m: r tther, t} 'j ,-vr.romie thou ( -or hee,11),
thou- "1,-40,1.7 .1.; :P"
111 rfl-',9`., .111,1 I1.4'11
. 1n 1.11 1. '.*
1.; 11 .1 Ite
tied One, crucial to military effectivene?-s, is thrcutened by the interventuin
of disturbing factors aich as romantic or Dual attachments or j.?alouries.3 In
the conditions of campaigning conditions of prolonged rhysical misery and
rcychohylical stress -- nothing is more important for the EUCC:'ait indeed the
!-urvival, of an army than the cohefavenem of its small groups. It is the auality
that gave the outnumberixl arid in some respects under -equipped laritiqi.
,14. kni_lw
! 'ff ,pe-culatiely;
I hasten to add that many uniformed women have in the past and will
continue in the future 'to play an honorable and useful, 'hewed, a vital role in
our nation's defense. This has been the experience of our country and others in
direr straits, such asLsraeL There are many raili.Ary positions for which women
are as well or perhaps on average better suited than men. But it is, I believe,
clear that many military Jobs should be confined to men, that women should be
integrated into military units only with the greatest of care, and that the
Z RA's al:nal/on of gender-based criteria in the armed forces would be an
unmitigated disaster.
Conelurion
Throughout these hearings you have heard or will hear how the Equal
Rights Amendment will affect the legal and financial status of varies
institutions. Many of the cons2quenoes will be serious, but there will be those
who will consider the cost or inconvenience inflicted .worth the goal of
-dilliplete sexual equality. Similarly, in the military realm the price of the Equal
Rif. s Amendment will include the expense of cumbersome draft procedures, the
28J
4! 006 O- -19
282
MOM
Amendment: A
'Brown, Emerson, Falk, and Frcedman, *The Equal Rights Law Journal, 968,
Women," 80 Yale
Constitutional Basis for Equal Rights for
969, 973, 978.
Paret trans.,
2Carl von Clausewits, On War, Michael Howard and Peter 187.
Book El, Chapter 5, p.
(Princetoru Princeton University Press, 1976),
3Romantic or sexual relationships con disrupt other organizations as well.
fluidness Review 61:5
See Eliza G. C. Collins, "Managers and Lovers," Harvard
contends that these relationships
(September/October 1983): 142-153. cegarization
The author
that the member of the couple
inherently destructive to an
are 03 both have to go." It romantic rdationehips
"least emential to the company or civilian world, how much greater the
require such drastic reactions in the far greater demands on one's time
problem in military organisations, which male military organizations
and isakitional commitment. Consider too the fact that
of the vagaries of love.
simply cannot afford to move people around because
Jenkins,
40n the British in the Falklands, see Max Hastings' and Simon the Israelis
W. Morton, 1983)1 an
The Battle for the Falklands (New York: W.
Collapse During the Six Day War,"
se177HaWn emirs of the ArabIsraeli Soldier (New York: Thomas
Ortis (Fall 1967); Samuel Rolkent, The
cohesion generally see S. L. A. Marshall,
Men
1"."-off, 1970), pp. 157-165; on 138-156, see also the Sers-
ainet Fire (New York: William Morrow, 1947), pp.
and Janowitz article cited below.
Shady Wechsler Segal, "The Argument for Female Combatants," in Macy
Combatants or Noncombatants?
Loring Goldman, ed., Female Soldiers
(Westport: Greenwood, 082), p. 278.
6See Edward Shits and Morris Janowitz, "Cohesion and
Disintegration in
Periphery: Essays in
the Wehrmacht" reprinted in Edward Shill, Center and: the
1975), pp. 355-6. When
Macrceociolr4x (Chicago: Chicago University Press,
families was threatened, soldiers were
physical survival of German soldiers'the greater the sense that they were
more likely to desert: conversely, will to fight. Another way of
defending three families, the greater thethe effects on morale of mail from
substantiating the same point is to look at
girlfriends, or wives.
home, particularly mail from mothers,
remarkable discussion in Glenn
7Ibid., p. 351-2, 359-360, 365; see also the
in Battle (1959; New York: Harper,
Gray, 1"W warriors: Reflections on Men warc-Zy and Foe".
1970), pp. 59-97, a chapter entitled "Love:
Mrs, Judith R. Cohen, and Professor
I would like to thank Mr. David S. Cohen, School of Government for their
William Kristol of Harvard University's Kennedy
help in preparing this testimony.
290
283
291
284
2 (14,(1 4,
285
29
28.6
a91
287
also free from these legislative restrictions has imposed its own
combat exclusion and has gone through a number of iterations in
the definition of combat, increasing the exclusion from 38 to 61 spe-
cialties and back down again to 49.
We worked hard during the Carter administration to eliminate
the combat restrictions. On several occasions we sought repeal of
those provisions so as to release the services from a burden of diffi-
cult legal construction and to leave military assignments to the dis-
cretion of military experts. I am convinced now that it will take
the ERA to accomplish this goal.
The implications of such a change are frightening to many
people. The shibboleths of women wounded and tortured, failing in
courage and destroying unit morale are not easy.to overcome, but
it is important to remember that almost any war in which we can
contemplate extensive U.S. military involvement is a war that is
likely to involve our Nation's soil. It will not be possible to protect
women from the scourge of war, if, in fact, we have been unable to
deter war from the beginning.
Under ERA, the sex-specific barriers in the selective services
laws and its assignment policies would have to be replaced with
gender-neutral criteria. The military will not be required to utilize
soldiers who are unfit or untrainable, will not be able to exclude
women from positions on the grounds of assumed lack of qualifica-
tions. By enlarging the pool of qualified applicants for positions re-
quiring specialized skills, ERA will strengthen, not weaken, nation-
al defense.
Up to now, under present constitutional tests, the deference
given to the military has obscured decisions rooted in prejudice and
unexamined stereotypes. With the adoption of the ERA, explicit
gender-based exclusions would fail. Tests of strength and apptitude
will have to bear proper relation to the tests whose qualifications
they purport to describe. The entire history of litigation under title
VII has illuminated the importance of such vadation. While it is
costly to construct validated tests, it is a process already well
begun and well worth that cost and effort. It will match personnel
to task based on performance criteria and help assure greater pro-
ductivity and effectiveness.
In my view, should we move to a draft, I would expect women to
he included even without the ERA as a matter of military exigen-
cy.
But in my view, however difficult it would be to make a case for
excluding women from the draft today, I do not think it will be pos-
sible to do so after the passage of the ERA. Its incorporation in the
Constitution will mean that any classification based on sex, just as
race, will he unacceptable.
The obvious and explicit gender-based exclusions will be elimi-
nated by the services, probably without resort to the courts. Civil-
ian and military leadership have already urged the end of major
statutory restrictions in order to enhance the flexibility and to pro-
mote national security.
Yet I do not believe the courts would construe the ERA to pre-
clude legitimate transitions or cause the courts to be deaf to all evi-
dence explaining disparate impacts in military assignments.
Strength differences remain, and the impact of long-term vocation-
295
288
296
289
weapons systems and strategy of the wars we can fight and win.
297
290
298
291
compared with less than 67% of the men. And high quality women
proved to be far less expensive to recruit than men of
299
292
the Pentagon.
DOD asked the services to_submit their own manpower
enlisted and 244. 500 officer positions. only 40% of each could
made before 1980 did not flatten appreciably for several years,
women "until such time 's we have confidence that the basic
360
293
301
294
the Army), the Army demonstrated that women did not adversely
better than men, they have a higher pain threshold, and perform
d(ombet vie°, the Army And the Air Force secretly submitted to
302
295
fine job and were valuable and productive sc:Oiers," there was
weight lifting test for recruits that was expected to bar women
from about 76A of the Army's jobs. In response to OSP
opposition to the plan, the Army has now proposed a modest
the women have performed well, and are here to stay. Yet
problem.
the Air Force. There was great support, some resentment and
304
297
in the military lose about 67%* more time than women while on
are on maternity leave, and those who can carry on with their
duties.
that they had joined the Air Force because, in contrast to men,
Women lose 422 days of service per 100 women; men lose 703
days of service per 100 men.
3:35
41 0411 U Hti 211
298
Overall, the attrition rate for.women has not been higher than
hard to expect the Air Force to invest the time and money to
fewet women are rated than aspire to pilot training. This use
3 ()
299
It was not the combat exclusion that kept them from Minuteman
II and /II; it was the fear of wives' resentment over
withtn and across services. In the Air Force. women pilots may
not he assigned to duty in aircraft engaged in combat
307
300
aircraft. C-130's.
The 'risk of hostile fire" is not a criterion that
could include women among their number. But since few ships
308
301
unacceptable.
The obvious and explicit gender-based exclusions will
which have been carefully designed are not apt to meet Court
.,:ungress. They are well equipped to make their case when they
national security. But the time has come to accept the contri-
Lution5 that women have made to our armed forces. Despite all
310
303
311
304
312
305
Ms. CHAYES. If a practice is challenged in a constitutional case, it
will be up to the courts, but what you build into the legislative his-
tory here will, of course, guide the courts.
Senator HATCH. I see. Mr. Cohen, what do you have to say about
that?
Mr. COHEN. I think it quite conceivable that, under the circum-
stances that Ms. Chayes describes, that you could have a situation
where you have a husband and wife and an infant, that the wife
and mother would be drafted, and the father would remain at
home.
I would also point out, and I think this is an issue that will cut
across a number of subissues, that although in theory advocates of
the equal rights amendment say that they are not concerned about
disparate impact, as a matter of practical political fact there will
be pressure to bring the percentages of men and women affected by
any provision of this into equality. For example, if physical
strength standards seem to have a disparate impact, those physical
strength standards will be fiddled with to allow more women in.
This is something that actually happened quite recently.
Senator HATCH. You are saying the standards would have to be
adjusted to reduce the disparate impact?
Mr. COHEN. Yes; that has alieady occurred at the military acade-
.nies.
Senator hATCH. Under the ERA, Ms. Chayes, would sex-restrict-
ed military units such as the Army Nurse Corps or the WAC units
be permissible? Now, I know that the WAC's have been abolished,
but my question is whether the ERA would require that sex-re-
stricted military units be abolished.
Ms. CHAYES. You certainly would not be able to exclude men
from nursing.
Senator HATCH. So they would be abolished then?
Ms. CHAYES. Sex-segregated units as such would be abolished.
Mostly they have been abolished without the ERA.
Senator HATCH. Do you agree with that?
Mr. COHEN. Well, it is true that they would be abolished. It is
untrue that they have been abolished. Infantry battalions do not
have women in them. Armor battalions do not have women in
them.
This would be quite a considerable change. Throughout this
debate, I think it is important to realize the extraordinary nature
of the changes that would permeate the entire military establish-
ment because of the equal rights amendment.
Senator HATCH. Prof. Norman Dorsc-t, the president of the
American Civil Liberties Union, has testified before Congress that
under the ERA it would not be permissible to exempt from the
draft women with small children but to draft men in the same situ-
ation. Do you agree with Professor Dorson, Ms. Chayes?
Ms. CHAYES. Not in exactly those words. I would go back to my
position that the focus will on the child, and the person respon-
sible for the care of the small child will be exempt or will be de-
ferred. I think that will be handled on a case-by-case basis.
If it turns out that 90 percent of children are in the care of their
mothers, there will be the exemption, but as I pointed out in my
testimony, the sole parent is male in over 58 percent of the cases in
313
ft
306
314
307
315
308
PART 1
EXECUTIVE SUMMARY
CURPOSEr The purpose of this research was to assess the impact of female
assigned to representative types a Category II and 111 units on
the capubilityof a unit to perform its mission under extended field
inditions. The objective was to provide empirical data to test the
hipothesea thit there will be no difference between all-male and mixed
,.ceder group performance and no difference between enlisted female and
-oihtl enlisted male individual performance that would impair unit
rformanee.
316
309
MAJOR FINDINGS:
SUPPLEMENTARY FINDINGS:
- About 15Z of available enlisted men and 29Z of the enlisted women were
nut deployable from CoNOS for REFORGER. Percentages were al t the name
for Europe-based troops. Of those nondeployables, 2% of the enlisted
men and liZ of the enlisted women were nondeployable for personal
reasons; 15% of the enlisted men and 12Z of the enlisted women were
nondeployable for administrative reasons.
- The percentage of enlisted women deploying in each unit (with one
sception) wee Jost under 10Z.
317
310
FART IV
2. CONCEPTS
a. Organisation.
TO manage the effort, the REF WAC 77 Test Directorate was established
with SO people organised into five observer teams to evaluate performance
in maintenance, medical, military police, signal, and supply and transpor-
tnt:on battalions deployed or participating in the REFORCER exercise in
Germany. Each team contained branch-q lifted officers, one combat arms
officer, one female officer, two other branch-qualified officers and
enlisted data collectors. They received thorough orientation on all
nnpects of the exercise and participated in the development of each of
the rating modules. The placement of observer teams in close proximity
to the rated Individunte, teams, and sections was crucial to the results.
b. Methodology.
Initial criteria fur group event rating modulus were extracted from
recent ARTEP experience. Individual performance standards for individual
event rating were taken from Soldier's Manuals. Personnel records were
111 reulipa from the units selected, including 360 women (of which 229 were
deployed) and approximately an equal number of male counterparts.
Rating modules were developed for three performance categories:
juh-specific tasks, sustainment tasks (e.g., tent pitching), and tactical
tasks, (e.g., perimeter guard). In order to identify performance trends,
the ratings fur each module were obtained for the beginning, m ddle, and
ending periods of the 10-day field exercise. To provide a bas,n for
comparison, both male and female enlisted soldiers were rated. In
addltio to the individual ratings, team performance (all male groups,
all temele and mixed groups) was rated.
319
312
c. Limiting Factors.
(I) Findings.
320
318
(c) Two enlisted men told a REF WAC 11 observer that if they had
to choose a partner, they would just as soon pick the newenlieted
woman, who had a reputation as a good worker.
(2) Conclusions.
.
b. LEglilinj for Tactical a d
(1) Findings.
(2) Conclusions.
and participating in life
Women need more instruction in coping with Women's basic, advanced,
in the field, to include tactical operations. training for life in
include the sane preparatory
and unit training must Additionally, both men and women, officer
the field that man receive. from the sta.i that all
and enlisted, must be thoroughly indoctrinated
share the load in the fulfillment
unit personnel, male and female, will
of the common unit tasks.
322
315
c. MOS Proficiency.
(i) Findings.
,,) conclusions.
(I) Findings.
(1) Conolusion
(I) Findings.
323
316
(a) While mess vehicle was being loaded, two female cooks sat
idly in a tent because they were not assigned any 'duties.
(d) A woman stated that women often sleep through guard duty
tours with no repercussions and often they were not informed of the
duty.
from her supervisor in setting up
(a) A woman requested assistance
The supervisor did not respond in any manner, but
a shelter half.
merely walked away.
(f) Four women set in a tent upom arrival in a new area, not
assisting anywhere because they were told they were in the way.
(g) One supervisor stated that the women on his team and other teams
refused to change or service generators at night because they were
afraid of the dark. fa a result, the men on the various teams had to do
the work that the women refused to perform, thus creating low morale
by accommodation,
among the men. The supervisor overcame the obstacle
rather than by analysing the problem, demonstrating his need for training
male and
in the management of women. The units in which all personnel,
female, were required to carry the same load demonstrated much higher
levels of unit performance, morale, and esprit.
(2) Conclusions.
(I) Findings.
from battalion level to that of
Descending the chain of command
opposition to women in the unit increased.
!.ricdfate supervisor,
officers, who were farthest removed from
ronerfit ly speaking, senior
o problem, fully accepted women, junior officers appeared indifferent
Or problem, and "old soldier" NCO's were openly opposed in word and
vttnn. Although NCO's generally admitted that women can perform
This NCO
wo11 to their tasks, most NCO's just do not want them around.
occurred during
ittltode in clearly evidenced in theme incidents thst
IIFFwAC 77.
324
317
(2) Conclusions.
(1) Findings.
over 100 female service members were interviewed during REFORGER and
questioned on the suitability of female clothing end equipment.
None of
the women interviewed felt the clothing and organisational field equipment
issued to women were adequate for field duty. The chief complaint, were
that fatigues were not wash-and-weer, were too lightweight to provide
adequate warmth, and were ill-fitting. Womn'e field jackets provided
little warmth in 300 temperatures end were discarded in favor of
men's fielJ jackets. The women also used male overshoes since
there was
an inadequate supply of female overshoes. The structure of women's
combat boots wee not sturdy enough to withstand the rigors of an extended
period in the field. The web gear and load- bearing equipment
were not
designed for the weight-bearing capabilities of women. The suspenders
of the load-bearing equipment placed pressure directly on the breast
and exerted an abnormal amount of pull across the shoulders and neck,
The equipment was very uncomfortable to women especially when used over
an extended period of time in the field. Also, gloves and field Jacket
liners were not made in sines smell enough for women. A shortage of
ti.use items had an adverse impact on the comfort, appearance, and morale
of female service members.
(2) Conclusion.
it. LeslpMILIgglaugLigattaigg.
(1) Findings.
Health and sanitation provided for woman during RS, MAC 77 proved
visits to shower
inadequate. The great distance and infrequency of
points were source of major complaint among the woman. They fond
helmet b-the unsatisfactory and voiced a desire for more frequent
tripe to the Shower point. This requirement for inquest Showering
received support from the medical Observers who verified that,
roman has greater used for more frequent"
gynecologicully enables,
attention to body cleanliness than a man. For similar reasons, pit type
latrines were not satisfactory for women, Who sought other source, for
relief. They expressed the added concern of possible assault whil.
visiting a darkened latrine site some distance from their billet,
although no such attack was aver reported. It was also noted durinp
facilities were not equipped to attend
1117 WAC 77 that field medical
to female-related disorders ea evidenced by the following medical
!Shortfalls:
The above list doss not identify the full extent of the problems
',satiated with the health cars requirements of a large number of
vneen on extended field duty. It doss, however, indicate problem
exists that requires special consideration. Since this medical capa-
bility we lacking, female-oriented medical problems were necessarily
referred to bass hospital ems distance from the 'maneuver sits.
(2) Conclusions.
i. Female Leadership.
(I) Findings.
326
319
(2) Conclusion.
(1) Findings.
(2) Conclusions.
(1) Findings.
(h) The REP VAC Test Directorate subjectively analysed this informs-
!Inn In the context of observations on WOMEN, taking into considers-
!inn tactical and sustainment requirements, to develop recommended
,,pp,ir limits for female content in the observed units. Observations
1,1 ronniderations in deriving these upper limits include:
A
b
327
320
(2) Conclusions.
The REP MAC 77 Test Directorate recommends that the upper limit
a( female content in the subject combat support /combat service support
unite be as follows*
Headquarters and
Light Company 113 29 25
II company 211 53 25
C Company 173 26 15
Medical Battalion
(MTOE 8-37)
Headquarters and
A Company 13B 35 25
t Company 76 19 25
4P Company 166 26 15
Signal Battalion
(MTOE 11-37)
HHC 96 24 25
A Company 704 51 25
B Company 123 18 15
C Company 153 38 25
Transportation
Battalion (MTOE 29-65H)
'Inc 49 12 25
A Company 140 35 15
B Company 183 46 15
4. FUTURE REQUIREMENTS.
a. REFORGER 1978.
(1) The military observers for REF WAC 77 do not recommend a repeat
of the experiment for REFORGER 78. It is their belief that sufficient
data were obtained during REFORGER 77 to offset the requirement for
similar testing in 1978. There would be justification for repeating
the experiment in 1979 if positive corrective action were taken on all
the REF WAC 17 findings, e.g., female clothing, sanitation, health
care, improved training of EW before the scheduled date of REFORGER
78, permitting the testing of innovations effected by this corrective
action. If the corrective action is not accomplished by the date for
REFORGER 78, then further tests certainly should be conducted at some
future date to determine the (affects, good or bad, of the corrective
action taken based on the results of RFF WAC 77.
328
321
(a) Predetermined AIT graduate fills of both male and female soldiers
in exercise units.
(!) Concept.
ibis con, ept calls for the controlled fill, organization, stabili-
!loo. training, and testing of teams and sections of the selected
q.
The research effort would be conducted over a 6- to 9-month
riod In five phases.
(2) Advantages.
The REF WAC 77 Militet, Test Directorate concept for future testing
offers several distinct advantages.
(d) Because the research staff can be relatively small and assets
to support the effort can be locally furnished, fund expenditures would
ho modest.
PART V
Introduction.
Further querying of the women about pre-Army factors which might have
influenced their ability to perform on Army field exercises was not
fruitful. There was vi tual unanimity among the respondents in their
inability to recollect any such pre Army experiences.
331)
323
One female mechanic felt that her $06 performance was more difficult
in the field, sway from the job aids she had in the motor pool. However,
4k, there was a paucity of such comments. The overwhelming majority of
women did'not indicate that job performance was more difficult in the
field than in garrison.
,Mu e rroblem the women agreed upon regarding adjustment to the field
1, that of clothing. The weather in Germany during REFORGER 77
particularly in the forest. The women said that their fatigues
.4J' too thin to afford the necessary protection from the cold. They
mad th.tt their own informal comparisons of men's and women's
...litett indicated that the men's fatigues were substantially superior.
rpcommenied that the women's fatigues be improved.
more difficult than for the men. As one woman noted 'they
,..o) worked In the same (hid did."
111141111'1'g.
',r ail to fhr whotp quorttion of the authority syntem within the
Oman felt compelled NI /track the nyucen. Mont *Pre
.11nµ ',Ike or give orders. itiwever, the women felt that they
Tip.itifmn r(0111,1 to orders t,1 determlne their
33 1
324
A. !aimmary.
ARE conducted interviews with the NCO data collectoro shortly after
&UNGER was completed. Some of these interviews were conducted in
USAREUR, but most were conducted in Alexandria, VAt Two eeneral impressiom
arose from reading reports of the interviews with:the NCO data collectors.
One impression on which there was almost couplet/ agreement was that
the effectiveness of the unite observed did not. suffer as result of
having had women assigned to them. The other topreseion which did not
have complete agreement was that the women, es individuals, did not
perform as well as the men on certain tasks. One type of task, that
Some NCO's said had not been performed as well by the women as by the
men, called for physical strength e.g., changing e tfre on a 2 1/2
ton truck or lifting a 5-gallon gasoline can. In part, the question is
simply whether an individual woman,ha the strength or not to perform
the tasks. In part, homever, the question is also whether the (primarily
male) supervisors think the women can perform them. Rather consistently,
women gave many more favorable opinion of what they could do than the
wen gave. (Many women reported either that they were not asked to
perform certain teaks or they avoided them by risking (even
with insufficient justification) not to be required to perform them.)
Without further research, therefore, it is nut possible to say how much'
of the alleged inability of the women to perform some tasks was an
actual inability and how much of it was not. In any event, when a
supervisor considered a particular task too demanding physically for an
EW to perform, he would usually aostgn the task to,n EN. Wher this
happened, some of the men would complain while others felt that they
ought to help the women with these tasks. (See Appendix A, page A-127.)
41.)4)/r.,
325
PART VI
I. SCOPE OP PART VI
The REF WAC research effort parallels with that investigations and
-inngement studies. all planned as input for mafisgement decisions that
be made in the Spring of 1916. The decioions relate to optimal
-sobers and utilisation of female soldiers for an effective Army having
;,erscinnel policies reflecting the will of the American people. Thom,
lone-range plans for accessioning women into the Army over the next
gruel-RI years will be determined.
ra. ar
BES I see siathluti.L
333
326
Army Mai. Survey data provided by military experts and career progression
eonsidsritione will enter into these recommendations. Several coordinated
investigations will provide physical strength tests 4y late Hill for
possible experimental use is a gender-free selection and assignment
system at a still later date.
The Sill VAC remelts provide the beet available information es perform.-
MMO of female moldier, to am intended field situation, as contrasted
with performance !e.g.:rims* type duties. Divisiesel support companies
almost always will have tastallatios support sissies@ shish do set
necessarily mirror their sissies of eupportimg combat brigades on a
battlefield. Therefore, the carsfel distinction between garrison
and field missions of support units is essential. Fellers to separate
the two missions is equivalent to confuoing the parade and fighting
kinctiese of combat erne troops.
From summer 1916 thru spring 1977, ART, augmented by 23 officers and
several enlisted soldiers, conducted the force development test "Maximum
Women Army Content," (MAX WAC). The goal was to determine the effect
of different percentages of female soldiers on unit performance in'a
12 -hour ARTEP exercise. A total of 40 companies was observed in 55
field exercises with 15 companies undergoing both fall and sprint
1971.
MAX WAC ARTEP. Final report on this test was provided in October
MAX WAC performance and questionnaire data supported a conclusion that
the addition of up to 35X women had s negligible impact on unit performance
during an intensive thres-day field exordia, for the type of companies
tested (maintenance, medical, military police, signal, end supply and
transportation). However, the shortness of the 72-hour ARTEP, tentative
evidence that female soldiers were more likely than men to be left
behind when support company went into the field, and the lack of data
on the performance of mixed gender platoons, sections, or teams, lad
managers to feel that more data were required before safely assuming that [belt
performance, in asneral, was not affected by unit content of women (up
to 352).
Table VI -1
3.
Teaks rated several times during PTX; MAX WAC - Tasks scored
once during ARM.
hi many ways. MAX WAC and REF WAC were quite similar. For example,
'.01 Involved the collection of performance 'coees of unite or groups
"I queationneire responses of soldiers. Both required establish-
-.as' of a miiitary test directorate to provide the expert raters for
oring field performance.
Nnr was it possible to compare task scores across the first and
.eennd MAX VAC ARTEP (for twice-tested companies). The first ARTEP was
4,0red by local evaluators in addition to (and quite independently of)
the MAX WAC officer evaluators. It can be presumed that poorly performed
'figke were identified to the company commander (per TRAIRIC doctrine) to
receive greater emphasis' in company training. Thus, if training were
Wiled correctly to the tasks moat in need of remedial attention, as
identified by the local evaluators on the fiOst ARTEP, the second ARTEP
leuld show en entirely different at of tasks as most in need of
further training. Obviously, ARTEN could not be compared, task by
ank, across twn successive ARTEP presentational comparison of task
q,orem across two successive ARTEPe for the some company would provide a
.puriously low estimate of test-retest reliability.
3:35
BEST COPY AVAILABLE.
328
c. Limitations: an thpAgjamillakiliceglingfigAil.
Only one -third of the c-penies that eight have been expected
1, change locations during CARBON EDGE actually moved one or more
tnms. The weather was relatively mild during the actual exercise
,!though in the pins forests where most encampments were placed it was
frequently too cold for the contort of female soldiers who relied on
standard Issue apparel. It is difficult to rredict how well the many
had
noun Who complained of the cold would have fared if illiPIXICER 77
colder neaten. The women may well have com-
been hold midwinter in
platned less if they had been adequately equipped with cold weather
fear.
3 6
Shortly alter the IR$JA 1.TR was issued, RA policy makers began to
emphasise the need fot.bnrd data on the impact of tousle soldiers
by "skill end. grade." In the eyed of many potential users of MAX MAC
results, this require.** wee added to the expanded list of management
objectives provided by th above letter as a hoped -for output of MAX
MAC. Unfortunately, MAX M had not collected the kind of data which
would maks this possible. .-...X WAG test results could not provide
a firm
basis on which the Army could make its decision regarding the optimum
level of female soldiers in the Army. Data were provided for decision-
makers only as to the impact that up to 332 women would have during
three-day exercises.
The HQOA LTR, dated 27 June 1977 establishing REF MAC, incorporated
as much of the managerial requires/tilts unmet by MAX WAG as appeared
compatible with the noninterference, short-leadtime utilisation of
REFORM 77 es the research vehicle for REP MAC.
REP WAC and all other on-the-job comparisons of male and female
performance in support units conducted op existing populations are also
subject to the criticism that female soldiers in support units are not
well-matched to their "same-rank" counterparts in the matching male
cohort on age, experience, end intelligence. The difficulty in achieving
a good match was due in part to female soldiers in support units tending
to have had less experience in support companies. This lack of experience
id correlated negatively with performance, while the higher academic
aptitude of females (ea measured by GT scores) is correlated positively
with performance. As more women come into the Army, the relationships
of age, experience, sod intelligence with gender cannot be assumed
.1
remain the same. There will be more female graduates of the new bauic
training (nane, and female educational and test entry standards might
possibly be lowered to hecome comparable to male standards. Hence, REF
WAC conclusions emerging from results obtained under today's conditions
will require revalidation.
41 OM I1 Hr,
337
330
Note that the events were not of equal difficulty. Making comparisons
on all event ratings without first matching groups on event rating
modules would distort the results in favor of the gender category that
happened to receive the easier assignments. This consideration may will
explain the small superiority attained by the mixed
gender groups--or this difference may well be the result of chance
per-
fluctuations. The only safe conclusion is not that mixed groups
formed slightly better than all-male groups, but that the above con-
clusion of the Test Directorate is in fact strongly supported by the REV
WAC analyses of group event module ratings.
338
331
received m slightly higher average rating than male soldiers for unique
tasks and sale soldiers performed a little better on common tasks. The
difference beteen man and women in one time period (pre-WTI, common
tasks) was statistically significant with the direction of difference
supporting the above finding. No statistically significant 4ifferefnce
continued into the later time periods. Overall, the quantitative data
add little in either support or contradiction of the Test Directorate
finding.
Table VI-2
Time Period
(5) Mail.
3(1
333
to difficult"
by wily a b Jil percentage of questionnaire respondents as
Mese MOS occur in signal companies and frequently have female
for J.
possibly placed more emphasis on
incumbents. Hest Directorate personnel questionnaire
tasks that occur only at set-up and take-down times, whereas
both
respondents were placing emphasis on tasks which occur after set-up.
Directorate personnel nominated some MO6 as
unit respondents and Test
performed
having Lasko that are too difficult for women, even though EW
REFORGER 77 according to both ili self -
well in these positions during
The armament of dif-
easesseent and evaluations by their supervisors.
ficulty may be due to the fact that only a small percentage of respondent.
had knowledge of the quality of EW performance on a given job.
n4.0srn
uthurwine nil-female unit), but became less dcminant an the mix
iu
Appr4, hod halt and half. It won 'Alit that thee.° concernn of unit
and should he, given further
,fit,oru end tit.0 auperviaora are legitimate
Ihe quvntlun muir/temale mix In ad important And
nwilderAtIon.
336
unresolved issue that require. a more complex solution than the designa-
tion of open and closed MOS.
a. Research Conclusions.
3 '1 3
336
(7) Of the 89 MOS considered (98 MOS were In the MTOE's of the
participating units), 18 were designated by 50% or more of officers or
NCO supervisors as being physically too demanding for women. Either
these jobs are in fact unsuitable for women or training, indoctrination,
and leadership within these unite had not adequately Informed male
supervisors of the capabilities and responsibilities of female soldiers,
lore USARRUR support would improve the quality of the data collected.
.osiderable ULM= support Is required for even a einimal effort. Some
,1 the improvements that would require more support than ads available
or REF MAC 77 follow:
(a) Provide each NCO data collector with a jeep -44n ha /she is
tuvoring more than one company.
(7)
Officer eveloatore and NCO data collectors should live and
army In the units. However, pup tents are not adequate. The requirement
for privacy to accomplish required paper work justifies at least a squad
tent for evaluator use in each company.
I, (
.eintqn may rpqnirm rho withdrawal of women hop
,111,,t( mssn In no A' emergency ew it bevueo appitoot that they
will be 1p loan sopp"ft of the bettlefiGIC leeving the vemps.y with
verso:tem key MON :hat era tiswwily ortAwled by unseen.
it
15
338
The AR1 five year research plan for the "Role of Women in the Army"
has provisions for research to be conducted on support company reaction
teams with prescribed gender mixes performing carefully controlled
and measured tactical contingency tasks. Current plans cell for using
the ARI-developed REALTKA1N "scopes" avvrosch to the measurement of
performance on contingency tasks such as reaction to ambushes, peri-
meter defense, removal of striper nests, and the establishment and
le,lding of road blocks.
1((,a,, ally( filig how ;stor writs will hy waged Ore aiwayo
tOormatl(m or gut-quilts that ore hornfully educated
((( Htouo no to the gender mix of Army units are among those
11.11r, ?, will affo(t the ronoureeo avntInhle to a ((Lehi cow
, (. 1,toon hunt made wIt1-. only p/irt!nl Information
1,11«tv ;atilt ;.(1W t,1d1.-1n it, dtilvtvm ;(1clitAl
voitorw, dudrlho ovallohtltty of men and women In
It onlintneut I((to the
1 No pKinttop
. I , (.1,1(n IflOit v. tin, qnunti,m1,7
(: ( Will up(Eirn ,w,(111(1c t,, aril 1st tit hies, n: tiltOP an higher
(do, ;.'mile lo( I 01 (I .474( ruyittcd t,. ovtvv In ((npW(rt mitt.
(1,, ((Hy ;I, tllrll i(T).(vAhIlify Ahl AIllognvm
1.,(11( 11,1; 1.1 (h.; ..t ,(;(
(.1 I.:, h( k.1 (.I(1 cm( hi: II1,1111t,t (If 1(1,1 IiI1 (11.11 1,1 (III('
(1.I "1,1, ( t(111, 111.11 1,11 1(.1 ,11 Id/
I I real
112.1(1.4.
t;
339
Mr. COHEN. Yes; I refer you to the Shits and Janowitz article,
"Cohesion and Disintegration in the Wehrmacht," which was pub-
lished in 1948 in Public Opinion Quarterly. It explicitly talks about
the role of masculinity and also the impact on morale of the sense
of concern about families at home.
I would be glad to send you a copy of the article. It is widely re-
garded by military sociologists as a landmark piece of research as,
indeed, it is. The purpose of the article was to discover why the
Wehrmacht held out as long as it did under extraordinary condi-
tions, outnumbered, completely inferior in the air, in equipment.
What they found was that this ability resulted from the cohesive-
ness of small groups, centering on what. they termed a "hard core"
of what Ms. Chayes might consider excessively macho men. In this
context, I find such pejorative terms ridiculous.
If I might comment on the Reforger exercises--
Senator KENNEDY. Just before we go to that, your sense is that
we are going to be fighting the wars of the future the way we
fought them in the past.
Mr. COHEN. I think World War II and the 1973 war in the Middle
East are very good predictors. One thing that is interesting is the
Israelis did take some female casualties at the very beginning of
the 1973 war in the air raids on Sinai bases. Women were not at
the front lines. They were at the rear bases.
Men reacted in an extraordinary fashion to the site of decapitat-
ed female bodies. No Reforger exercise, no peacetime exercise does
thatand thank goodness. The reaction was such that the men
were unable to participate in combat. This was a point that Gen.
William Westmoreland made in some of his testimony several
years ago on the impact of women in the military.
Senatir HATCH. Your time is up, Senator.
Senator Thurmond.
Senator THURMOND. Thank you, Mr. Chairman. I have a chair-
men's meeting I am going to have to go to. I would like to take this
opportunity to thank you for coming here, both of you, for your
presence and fer the testimony you have given in this hearing. I
am sure it will k very helpful to the committee.
I have some questions I will have the staff give to each of you. If
you would kindly respond to those, I would appreciate it.
Senator fiPaut. Thank you, Senator.
Ms. Chayes, under the ERA could there be any military positions
closed or restricted to women as a class?
Ms (7tiAms. No; the tests will have to he tests of capability. Tests
that are strictly gender based would not be permissible.
Senator Do you agree with that, Mr. Cohen?
Mr. CottEN. Yes.
Senator HATCH. In 1975, in Schlesinger v. liallurd, the Supreme
Court upheld a Navy policy under which male Navy officers were
allowed a shorter period of time than female officers in which to
receive a promotion or face discharge
Would military policies of this sort he allowed s continue under
the equal rights amendment?
('HAVES I think where ,vou are dealing with affirmative
Achim i!.;;-aies, where the poliies are designed to correct inequities
342
of the past, just as in race cases, they will be very carefully scruti-
nized the courts, if, indeed, they ever get to the courts.
But that beyond that, there will not be an absolute prohibition. I
I would not like to
mean there is a lot of language in that case thatprinciple
see repeated in another case, but I think the is correct,
Affirmative action, again, where it is carefully crafted and cat eful-
ly designed to correct past inequities should be allowed as it has
been in race cases under the 14th amendment.
Senator HATCH. Would it be fair to say, then, that according to
have
your interpretation the ERA requires equality unless women
the advantage?
Ms. CHAVES. No.
Senator HATCH. It would not be fair to say that?
Ms. CHAVES. No, it would not be fair to say that. In my view, the
correction of past inequalities, a transitional period may be needed
to brim the class that has faced systematic discrimination to equal-
ity.
Senator HATCH. 1 see. Mr. Cohen.
Mr. Couw.N. I think that would just exacerbate the problems that
I have outlined.
Senator HATCH. What does that mean? policy such as
Mr. COHF:N. That if you had an affirmative action
Ms. Chayes has outlined, you would have even further difficulties, I
think, particularly resulting from the disparate impact problem.
We would see further reduction of physical standards, further in-
troduction of women than one would have if there was simply a
gender-neutral standard which is the ultimate objective. Under
ERA, 1 think we will fudge a so-called gender-neutral standard
even more than we might otherwise.
Senator HATCH. The Commission on Civil Rights, in another
analysis of the equal rights amendment, concluded thatneed
following
for of
passage of the ERA there will be a particularly strong
action programs in the uniformed services.
Would affirmative action programs which are designed to pro-
vide preferences to members of one sex or another be consistent
with the eAplicit direction of the equal rights amendment?
Ms. Cum Es. I think you really have to look at specific facts.
What is interesting about Schlesinger v. Ballard is that the reason
to longer promotion time for women was the broad exclusions,
those designated as combat positions. Therefore, as I had said
before, this affected women's careers adversely.
So where we are dealing with prior discrimination mid exclu-
icms. affirmative action may he requiree. Where the situation has
III It iI>vulvetl discrimination. preferences
will not he allowed. Such
nyoff,rence!; would not pass at y constitutional test 01;11 I an con-
coivo
I d, riot see any problem wit affirmative action. We have dealt,
I think, very nicely with these problems iti theIttitle experience,
and ako Iltukt the equal protection ch. ,se does takes a long
time and it is very much case by case
-;vrt:t or Moll Mr Coheir'
Colit:N Let MP t'Xplitill (WV OF the kinds of problems that I
tlililk ctoild (Inc( (Itin,v1v(--; it'. If 1,M1,1` use the physical strength
u;old,o.d. ,vi, liavc now, it quill iclir. ;v4 Scniitor NcitWOrmi. itt
;)II
343
his testimony pointed out, that we would probably have very few
women going into, say, the infantry in the U.S. Army. Maybe the
infantry would be as low as 5 or 10 percent female.
Well, that is all very well. The problem is that promotion in the
military, particularly at the higher ranks of general and so on, is
strongly determined by one's previous branch and the combat
branches, infantry, armor, artillerythe areas from which women
on the basis of neutral tests would probably be largely excluded
are the branches that get the greatest number of promotions.
How is one going to deal with that? It seems to me we would be
likely to have affirmative action programs which would try to com-
pensate for that, and thereby completely disrupt the ethos of the
Armed Forces with regard to promotion.
Senator HATCH. Ms. Chayes?
Ms. CHAYF.S. I think, in a way, we are blessed by the fact that we
are in a high technology military at this point, that, in fact, the
requirements are changing and the kinds of skills that are required
are not just those of brute strength, but intelligence, capability,
technical background, all of those things are going to count for a
great deal. So therefore, I do not see a major problem of inequality
once the artificial combat restrictions are removed. Now, I think
one always has to be alert to the fact that affirmative action not
become a quota system. I think that is alwayi a problem. I see
nothing in the ERA and nothing in the interpretation that we have
suggested that you have heard before you previously that would
lead to that kind of result such as Eliot Cohen describes.
Senator HATCH. I do not want to belabor the point, but let me
read a quote from the California Commission on the equal rights
amendment: "For purposes of this commentary, it has been as-
sumed that neither benign nor compensatory aid will be allowable
under the absolute interpretation of the ERA since such programs
discriminate against men solely on the basis of their sex.' Do you
disagree with that statement of the California Commission?
Ms. ('HAYES. It is out of context. I do not understand it.
Senator HATCH. They are saying that preferential treatment
such as affirmative action will not be allowed under the equal
rights amendment since such programs discriminate against men
solely on the basis of their sex.
Ms. (1nAvEs. That is a very confusing statement as you have read
it. If you are talking about straight preferential treatment by sex,
that is correct. If you are talking about the kind of treatment that
compensates for past discrimination and that can be very clearly
shown to he that and has to he subject to very careful scrutiny,
think that is allowable.
Senator IIATrit. Let me ask you this. Prof. Paul Freund, who, of
course, is one of the great modern scholars of constitutional law,
stated that, under the equal rights amendment, "Women must be
adm tted to We t Point'', and presumably the other military acade-
nnw,. 'on a parity with men."
Do you agree with this observation? Will the admissions policies
at the military academies be affected by the equal rights amend-
ment"
344
Ms. (litAyKs. Of course, that issue became moot in that the mili-
tary academies, in fact, admitted women without the passage of the
ERA.
Senator HATCH. Nobody objects to that, but that is not my point.
Ms. CHAYES. Well, if he meant by parity that it would have to be
50-50, the answer is clearly no But if he meant by parity that
people, men and women, would have to be looked at with regard to
theirqualifications and that there would be no bias in the admis-
sions based upon the realistic qualifications for officers in each of
the three services, that kind of parity, I think, already exists.
Senator HATCH. Professor Cohen?
Mr. COHEN. I disagree for the reasons that I have discussed
before. I think there will be inevitably political pressure to drive
admissions ratios closer to parity. Again, I would point out that
West Point provides a disproportionate number of combat arms of-
ficers, which makes this a particularly sensitive point.
Senator HATCH. Senator Kennedy?
Senator KENNEDY. Ms. Chayes, I welcome your responses on a
number of these issues, especially on the question of the affirma-
tive action, because that issue has been made a red herring, and I
think wur responses have been very helpful.
Let n t ask you this question. Do you find that just as a general
matter those that are opposed to establishing an objective rely
criteria
on old
of qualification for the various military entities sort of
stereotypes with regard to women in the Armed Forces?
I do not want to be unfair to the professor, but it seems to me
that the kinds of comments that you hear as reflectinghave
upon
a
women and their performance in the military seem to me to
ring to them as to being the kind of reasons that women would be
kept out of the board rooms of major corporations or kept out of
the universities.
Do you find it may be that the military may be one of the last
Vestiges of this kind of stereotype or not, as someone who has fol-
lowed this issue for a number of years?
Ms. CHAYES. Absolutely. What is so curious is that when there
have been certain requirements in the military or in other profes-
sions, firefighting and the police, for example, on the civilian side,
and when those qualifications have been challenged and subjected
disappeared or been
to rigorous tests by the Court, they have often
altered. That is cited as evidence that the standards are being low-
ered. In fact, that is not the case. With the police, with firefighters,
the standards are being made really specific to the job. In those
professions, for example. it was found that incoming recruits could
meet the standards but the people performing the jobs very often
could not, yet they were performing the job. So the standards must
not have been job related.
Now. I am not for lowering standards. I am strongly for estab-
lishing standards that are needed for the job. Where the job needs
strength; if it really requires lifting 100 pounds, nobody who cannot
lift 100 pounds should be admitted to that specialty. But let us vali-
date those requirements.
Mr. COHEN. Senator, if I may have the opportunity, I did not in
any way suggest that women cannot perform well in other kinds of
organizations. In fact, in my testimony, I believe three times I ex-
352
345
illicitly say that women perform perfectly well in the board rooms,
in educational institutions, and governmental bureaucracies.
My argument is on the basis of uniqueness of military institu-
tions. I know as a constituent of yours how strong a supporter you
are of the State of Israel which, after all, has had a female Prime
Minister, unlike this country which has not yet had a female Presi-
dent.
And yet surely I would doubt that you would think that the Is-
raeli combat exclusion policy is simply based on old male stereo-
types. It is a country which is on the very margin of survival, as
you have so eloquently pointed out a number of times, and yet they
refrain from these kinds of policies.
Senator KENNEDY. Well, I dare say I think religion has got some-
thing to do with it, Professor, do you not?
Mr. COHEN. Not really because the--
Senator KENNEDY. You do not?
-
Mr. COHEN. No. The initial decision to pull women out of combat
units was made by Prime Minister Ben-Gurion, who was not per-
sonally a religious man. The way that religious factors have operat-
ed is through loosening of what is, in effect, a conscientious-
objection clause, but that has nothing to do with the bulk of the
military.
As I am sure you know, the dominant ideology of the State of
Israel, particularly at the very beginning but now as well, has
quite different roots from those of religion. In fact, it has roots in
late 19th-century socialism.
The religious factor plays no role whatsoever. Jewish law does
not prohibit the use of women in combat. I have had the privilege
of speaking to a number of Israeli generals and officers and sol-
diers, many of whom are quite secular, many of whom, in fact, are
antireligious, and without exception, they have been extremely
critical of American military policies involving use of women
Senator KENNED I. Well, rather than debating that particular
issue, my understanding, and I have talked to Jme generals as
well and have had the opportunity to visit Israel a number of
times, my information is contrary to yours, but rather than getting
into that, and I do believe having followed that issue for some time
that the basis for it has strong religious implications, but I will go
to Ms. Chayes if she wants to add anything to that particular
question.
Ms. CHAVES. Only that the treatment of women in the military
and the attitudes toward them is not based on performance. I agree
with you, Senator Kennedy. The underlying reason is religious atti-
tudes, and that has become stronger with the more tr.cent immi-
gration si ice 1948.
Senator KENNEDY. That is my understanding.
Ms. Chayes, as someone who has followed this issue over a period
of years, do you, in your own reading, remember arguments that
were made about this bonding concept when there were segregated
military forces. Weren't there those that argued that we would not
be able to have the kind of esprit de corps if we had integrated
units?
It seems to me that argument was made during that period of
time nod certainly is without support, given the performance of
II owl',
5+3
HI, ?:;
346
My own view is that people, when they are really pushed, will
recognize that everybody is going to be in combat in the sense of
being exposed to fire. Stereotypes will break down as the under-
standing of what is involved is increased.
&Ilia Or HATCH. Let me ask you two for a favor. I have a number
of questions that I think are crucial, but I am supposed to be at a
chairman's meeting, and Senator Baker has just asked me to come
to his office. It is 12:15 and I am sure you would like to have lunch.
Is it convenient for you to return here at 2? I would like to just
finish this up. I think this is a very important hearing, and both of
you hay(' helped us to better understand this issue.
Let us recess until 2. We will meet again in this room. I apolo-
gize I could not finish right now but it is important that I get to
the chairman's meeting. Thank you for accommodating me. I ap-
preciate it.
We will recess until 2.
[Whereupon a luncheon recess was taken.]
Senator HATCh. I want to thank both of you for being willing to
come back this afternoon. It has really helped me out. I know, Ms.
('hayes, you have to leave about 3:30.
Ms. CHAVES. I have to leave about. 2:45 to make a 3:30 plane.
Anyway, you are all alone. You have at us with no constraints, no
supporters of ERA. So I am all yours until I must leave.
Senator HATCH. Well, that is a unique position to be in. [Laugh-
ter.I
Ms. ('hayes, under the ERA, could there be any distinctions
whatsoever between men and women in the enlistment policies of
the military in such areas as minimum age?
Ms. CHAVES. Would there be any difference in minimum age?
Senator HATCH. Could there be under the ERA?
Ms. CHAVES. No.
Senator HATCH. Could there be any differences relating to such
matters as in parental consent or educational credentials9
Ms. CHAVES. I would think not. no gender-based differences.
Senator HATCH. Could there be any distinctions whatsoever be-
tween men and women in mental or physical aptitude scores?
Ms. CHAVES. No. Aptitude scores and mental ability are screens
for performance and not for sex quotas. Cutoff screen- will have to
he justified if tiny had a discriminatory impact.
Senator HATCH. So both men and women have to meet those
cutoff screen::?
Ms. CHAVES. They both will have to meet the cutoffs.
Sei.ator HATCH. Would physical standards have to be identical
for men and women under the ERA?
Ms. CilAvi,:s. I think you probably have screening physical stand-
ards that everybody will have to pass, and then you will have spe-
cialty standards that will 13: higher for certain specialties. So my
guess is, you know, there are different ways to do this.
Senator HATCH. Would these specialty standards be identical for
men and women?
Ms. ('HAVES. Specialty standards would be standards that bar
people, and therefore, men and women might enter at a different
rate, but the standards would not be based on gender. For example,
if the job requires Iz.,!inl able to lug something. 300 pounds, anybody
357
350
35
Ms. CitAvEs. I think preferences for a previously discriminated
against or protected class, as they call it under title VII, has to be
justified as representing remedial relief in a specific situation of
proven discrimination. Most often this is done not by court decision
but by consent decree.
So that if you have previously excluded Hispanics or *who-
ever--
Senator HATCH. Then it has to be done through the courts.
Ms. CHAYEN. There are cases under title VII where the remedy
has included compensatory action for the class discriminated
against. I just do not see those cases as being imported into the
ERA, and I certainly would not put forth an interpretation that
would suggest that be the case.
I can imagine, you know, a situation on benefits or something of
that sort as in Schlesinger v. Ballard where there was some w-
eaned preferential treatment. I would not want to, at this point,
predict as to what other compensatory treatment might occur.
But if you are worried specifically about hordes of women going
into the service academies, I do not see that as a problem, Senator
I lateh.
Senator HATCH. Well, I think this is an important question be-
cause you seem to be saying that compensatory affirmative action
in admissions are OK while preferential adiaissions are not. Am I
right?
Ms. (;HAVES. No. All I am saying is that I am defining affirma-
tive action and saying that that is an area that I can foresee that
sex differentiation in treatment might be justiflud, but only under
the strictest of scrutiny by the courts, and the n you are saying,
"Well, what are the fact situations in which you could imagine this
taking place?"
And I said, "A situation like Schlesinger v. Ballard where the
issue was differntial time for promotion. That is a situation in
which I might foresee compensatory treatment taking place."
I do not particularly see vastly greater numbers of women being
admitted to service schools, as compensation for past discrimina-
tion, particularly after the Bakke case, but I would rather leave the
constitutional experts to deal with a set of hypotheticals in which
affirmative action might or might not be permissible.
Senator HATCH. You are saying that the ERA then is not abso-
lute
Ms. CHAvEs. Pardon?
Senator HATCH. Are you saying that the ERA should not be in-
terpreted in the absolute fa hion that many suggest it would be?
Ms. Chayes, I think most of the people who have looked at the
ERA feel that there are, in constitutional interpretations, two
area!, that have to be really looked at further, and one of them is
the area of affirtnative action and the other one is that whole area
Involving physical characteristics.
Mr, roil N. It set ms to me there are a number of points to be
made here. One is that some very critical decisions about who be-
comes an officer or who gets promoted would now be handed over
to the courts.
The;se are matters which have an enormous practical impact.
They are. as I said earlier today, matters of life and death, anti one
: t;
of the questions we have to consider is whether we want those
kinds of decisions to be made on the basis of narrow constructions.
There is an additional point here as well, that although I certain-
ly agree that the strictly legal constitutional aspect has to be con-
sid0141111pERA would have a practical impact so that even if it would
not mandate affirmative action programs of the kind that I might
be concerned about, it would tend to have that effect.
I think one of the best examples we have of that is the changes
that have been forced on the Army which has tried to establish
some gender-blind weight lifting characteristics. Now, initially as a
result of the women in the Army policy review, a number of mili-
tary occupational specialties were effectively closed to women be-
cause they defined certain jobs as being very heavy, requiring the
lifting of 100 pounds or more. These standards were objectively
based. They used very elaborate means of validation, which includ-
ed such things as weighing the ammunition boxes that certain spe-
cialties required that one lift, ammunition boxes which weigh 120
pounds as it turns out.
Now, what happened was th,t there was an enormous amount of
essurc put on the Department of Defense by feminist groups. As
a result the standard was lowered to 80 pounds, and furthermore
female soldiers who did not meet the standard, who did not meet
the 80-pound standard, could still choose that specialty, but they
would be counseled against doing so.
This is a respect in which you see what the practical political
consequences of ERA would be even leaving aside some to the con-
stitutional questions.
Senator HATCH. A comprehensive article in the Yale Law &ir-
nal, concerning the ERA and the military, concluded that it is "un-
clear" whether or not entire housing facilities could be kept sepa-
rate between men and women in the military. Do you agree, Ms.
(lves, with that conclusion?
Ms. CHAYES. I think that is a silly outdated discussion, because I
think there are practical ways to meet privacy needs under any cir-
cumstances. I will cite for you the adjustment of the Air Force
Academy, where, in the end, unit cohesion, by the way, was
deemed very important and it was felt important to have women
living essentially with their units.
And the adjustment that was made was to put women around
the corners ;n their dormitory so that the women were clustered
facing outward to their units in two directions yet they were clus-
tered together in one corner.
There are always ways to deal with the needs of privacy, as the
prison cases, for example, have shown under title VII, and in
combat conditions in the field as our Refoeger exercises have
shown, those accommodations can be made. 1 think that is just a
{illy
Senator HATett. What about situations in the field?
Mr. COnEN. I completely disagree with the idea that this is a
Ally issue. The Army has actually spent quite a bit of time study-
ing the construction of barracks. Awhile ago, and this had nothing
to do with the introduction of women, the Army began to conste 'ct
barracks in which men had suites, four men to a room. These was
361
354
much more privacy than in the old das where there would be the
long squad bays that I am sure you are familiar with.
It was found that this had a detrimental effect on unit cohesion,
because previa:Ay what happened there was a lack of privacy
which was e good thing in terms of building up unit cohesion at
quite a low level. This is, by the way, a practice in which the
Marine Corps has continued to differ from the U.S. Army.
If I could just add one last point, one thing I would like to see
very much is a discussion of how the Marine Corps, which adheres
to much more traditional policies, which has many fewer women
relatively than the Army, has managed to maintain a very high
level of cohesion for precisely the reasons that 1 have indicated.
Senator HATCH. Is your statement, Ms. Chayes, consistent with
the statement you made earlier that any classification based on
sex, just as race, will be unacceptable? Certainly a policy of sepa-
rate but equal would be unacceptable today in the military as be-
tween blacks and whites.
Does the ERA equate sex and race discrimination or does it not?
If it does, then there is a real question as to whether Professor
Cohen is right?
Ms. CHAVES. But separate but equal, I think, means quite a dif-
ferent thing when you are talking about job opportunities and you
are talking about education- -
.Senator HATCH. We are talking about housing right now.
Ms. CHAVES. If you are talking about physical characteristics and
the notion of privacy, I think that sex and race cannot be equated.
The reason I say it is a silly issue is because I have a great deal of
personal experience there.
As a college dean, I integrated, as it were, the dormitories of my
college and did a study of ceeducational housing throughout the
country. As Assistant Secretary, I made sure, for safety reasons
among other things, that our dormitories were integrated, men and
women. We managed to do this and preserve privacy, and at the
same time to preserve the unit cohesion.
Maybe the Air Force has a very different concept of all of this, in
fact, it probably does, than the Army. But there it is. And the issue
of separate but equal never arose because they were not really sep-
arate and they were certainly equal.
Senator HATCH. The issue of E'er arate but equal came up as a
result of the utilization of facilities. If you are going to equate race
discrimination with sex discrimination, do we not run into the
same problems with regard to military facilities?
Ms. CHAVES. They are not comparable. You are really talking
about apples and oranges. We are talking about separate but equal
in the Plessy v. Ferguson, you know, blacks at the back of the
buses: you are talking about a very invidious discrimination. When
we are talking about separate but equal school, we are talking
about a stigma of bad schools for blacks, and that is the context out
of which Brown v. hoard of Education arose.
Senator HATCH. Or restaurants or military facilities or whatever.
In race, the old doctrine of separate but equal does not apply any
more. You said that sex would be elevated to the same type of clas-
sification as race.
32
355
Ms. CtiAvEs. Now, if you want to carry this over to segregation
by sex, if you were talking about dining facilities, if you were talk-
ing about anything that did not relate to a notion of privacy, I
thik you would be exactly in the same position of stigmatizing
women. Somehow whatever these facilities were Ike, they would
be considered somehow inferior. I think you cross that barrier
when you say there are different physical characteristics. Men and
women do not have to shower together. They do not have to use
the same bathroom, although that is not the most horrible thing in
the world. But we want to preserve a certain sense of privacy be-
cause of these differences in physical characteristics, without carry-
ing a stigma. I think in this area you might see some things that
depart from the analogy that we have been pressing so hard.
Senator HATCH. This right of privacy exception which you are re-
lying on, is it contained anywhere within the provisions of ERA?
What if you happen to be wrong?
Ms. CHAYES. I think.the right of privacywithout getting in
my head on constitutional interpretationshas been read intoover
the
interstices of the entire Constitution.
Senator HATCH. From where?
Ms. CHAYES. Well, if you go back the genesis of the Brandeis and
Warren article of 1911 or 1912 and go all the way through the first
amendment casesI am embarrassed that I do not remember the
name of the case.
Senator HATCH. Well, I do not expect you to do that.
Ms. CHAYES. But these are cases in which the freedom of the
press is posited against some inchoate notion that people are enti-
tled to maintain their personhood.
The woman who did not want her picture on the bag of flour,
whatever that case was, and that inchoate notion of privacy tem-
pers the absolutism. I think in terms of a military situation, the
closer you get to battle, the more minimal it is. It may come down
to the fact that men and women do not have to shower together.
Senator HATCH. Mr. Cohen?
Mr. COHEN. A number of points. First, the issue of housing is net
as Ms. Chayes initially suggested a trivial one. In fact, that was
what was at the heart of a lot of civil rights legislation with respect
to racial integration. Housing is a very Important matter.
Second point. Privacy is good in the civilian realm, and here let
nw again return to this distinction which is critical between what
military organizations do and what civilian organizations do.
Privacy in the military can be a had thing, and in fact, military
organizations deliberately deny soldiers privacy. That is the logic
behind the squad hays where everybody can see one another.
Now, Ms. Chayes said that men and women do not have to
shower together. The question to be asked is. well, what would be
wrong if they did, and I think Ms. Chayes would probably believe
that there would he something bad, likely to happen if they did
,4hower together, and that, in turn, open up a wiole set of ques-
tions which do come to hear on the issue of cohesion which I raised
at the very beginning.
Ms. CHAYES. You have to shower together to have unit cohesion?
Mr. ColiEN. You say they do not have to shower together.
Ms. CtiAvEs. No.
'3 tr;
356
365
358
366
959
So I think there are real questions as to whether these are good
standards in general at the moment. I mean, the last time I looked
at it, there was a lot of questioning of the standards in any case in
the way of getting predictable performance out of those standards.
But the answer is that the standards will not be gender based.
Senator HATCH. Will the military be permitted to maintain its
present height standards if ERA passes?
Ms. CHAIM. The height standards will have to be demonstrably
related to the job, and my guess is that there could be differentials,
just as with strength tests. Take the DMZ for example. When I was
at the DMZ in Korea, the army patrols were all about 6-3 and very
burly. My guess is for that particular assignments for specific psy-
chological warfare purposes there could be a continuation, but
these would be subjected to strict scrutiny to make sure they were
not a mask for discrimination.
For other kinds of jobs, say, dealing with maintenance of air-
craft, height standards might not be relevant, and be abolished.
Mr. COHEN. If psychological warfare standards are the standards
that Ms. Chayes would like to apply, then you have problems with
having women in the military at all because every study that has
been done of foreign attitudes toward the American incorporation
of women into the Armed Forces has been uniformly negative.
It decreases the deterrent effect of the U.S. Armed Forces. I am
referring in particular to Colonel Part low's paper on "Women. in
the Military" which has a fairly extensive survey of European atti-
tudes, of Soviet attitudes, and of Asian attitudes.
In each case they reduce the image of the effectiveness of the
United States, and that means if we do adopt this psychological
warfare standard, that we have problems with the number or per-
centages of women that we have in the military today.
Ms. CHAYES. But the psychological warfare was one of specific ap-
pearance in front of an enemy of small build. There was no fight-
ing going on. In fact, the image of women fighting might actually
terrify and confuse the enemy. How do you know?
Mr. COHEN. Well, because we do know what they say in their
press. Their discussions are contemptuous and people are not nor-
mally contemputous of something they are terrified of. The two
things are quite analogous, because what we are talking about is
deterrence, deterrence on the DMZ of North Korean military police
provoking incidents, in the larger picture deterring military con-
flicts launched by other stages.
So I tnink the two issues are quite analogous and I am glad that
Ms. Chayes brought the issue up.
Senator HATCH. Let me ask one last question. Ms. Chayes, you
alluded to the method of disparate impact analysis to he utilized
under the ERA. It was my understanding that the 14th amend-
ment does not apply the disparate impact analysis to distinctions
between race. I am thinking in particular of the Washington v.
Doris case, the Arlington Heights and the City of Mobile cases
where the disparate treatment analysis was not applied to distinc-
tions between races.
What will be the appropriate standard of analysis under the
ERA? The intent analysis exists under the 14th amendment or
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360
advanced by certain
the disparati.. impact analysis that has been
civil rights groups? that is a scholarly question on
Ms. CHAYES. If I may, Senator,
Washington v. Davis and the ArliNgton Heights case that I would
rather answer in writing along with putting in, if Iearlier.
also may take
I would
this moment, the NORC data that I had mentioned
like to submit that in writing. It is a very difficult problem.
Senator HATCH. It is a very difficult problem. You did say the
disparate impact analysis applied in your paper.
Ms. CHAYES. Yes.
Senator HATCH. But I agree with you.doIt that
is very difficult.
question justice if I
Ms. CHAYES. Right, and I want to
may. is not simply a scholarly
Mr. COHEN. I would just, add that it this trickles down
question. It is also a political question. The way not it is a good
into Congress and the bureaucracy is whether ordisparate impact
idea from a constitutional point of view based on
criterion that people use.
analysis. That is really the Professor Emerson has
Senator HATCH. Just one last question.
observed that under the ERA, mental andthey physical tests for the
"do 'not operate to
military must be "neutral," tomen."
insure that
Now, will such neutral policies
disqualify more women than
be required under the the ERA? will be required under the
Ms. CHANTS. Such neutral policies
ERA. be-
Mr. COHEN. Such neutral policies are not, in fact, neutralalter
cause what they will end up doing is requiring the of
military to
its force. I think
its standards and thereby alter the compositioi.
that is a particularly important point. standards means.
Ms. CHAYEB. That is not what neutral
Mr. COHEN. In the context of the article, I think it is.
standard says "let the chips
Ms. CHAYES. Not at all. A neutral it can meet it, and that
fall where they may." Those who can meet
is where disparate impact analysis comes in. The disparate
impact analysis would get you to the point where justification is re-
quired. If you add on top of that the Washington v. Davis rationale,
you have a somewhat different picture. history of interpretation, I
But nevertheless, given the whole
going to be left. with a 50-50 situation as
think that you are not the entire testimony.
you imply, as you have implied throughout Emerson then?
Senator HATCH. Then you disagree with
Ms. CHAYES. No, f think-
Senator HATCH. He is really talking about the disparate impact
analysis in his comments. Or do you agree with Emerson?
I probaby dis-
ME; CHAYES. Read me that part of your sentence.
agr"e with it. observed that under the
Senator HATCH. Professor Emerson has military must be neutral to
ERA, mental and physicaloperate
tests for the
to disqualify more women than
"insure that they do riot
men." Do you agree with that? that, but I think my attitude
Ms. CHAYES. No. I do not agree with demonstrably job related, even
is that the disqualifications must be
disquafificd from a particular job. There has
if more women are
been a long history of disparate impact since Professor Emerson
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'I f)
11 !HI, 11 11, '1
362
MISCELLANEOUS MATERIAL.
MANGY HOUSE
HARVARD UN"JIIIRSITY
CAMIIRIDGII. MASIACHUSITTS 021311
4. As the fathers of small children have been drafted in the pot, so, in the
future, under the ERA, the mothers of small dilldren would also be drafted.
5. As Ms. Chayes and others have argued, no amebal permillons could be made for
(rather, as such. There might be proviions for parents of small children. This in itself
would be a change. because the military talus no cognisance of the parenthood of ita
members. To do no would be to add one further isessive administrative complication to
a host of problems that would be imposed by ERA.
both Congress and the states, it is
5. If one.believen that ERA will be pained by
imperative to amend It along the broadest wesible excluding the military from its
ourviow. As 1 testified yesterday. ERA will remove any and all gender -based military
110 inctiona. The trnultn will be eatestrtskie her the fighting efficiency of our armed
t
flinmr
Paid. A. Cohen
Aroistant Profemoc of ilfaiutorramt
Allston Burr Sedor Tutor
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363
armor and some artillery units, so it would appear that there exists
now, the capability of filling their ranks with a completely male pool.
That may or may not remain the case into the future, but even assuming
vacuum.
drafting of both males and females with medical skills, should a national
arise.
Q: you also stated that the experience of the lat several years
has shown fears about the sexual integrotion of thr military to be
groundless. You then go on to cite the large numbers of women wile are
now participating in the different branches of the service. What expert-
on-.e are you talking about? Has there been any combat experience on
which to base your conclusion? How can the existence of.large numbers
of women in the military during peacetime show us anything about the
wIssible performance of the military during actual combat?
war -- Borth Africa, the Pacific, Eureee, Korea and Viet Ham. In 61
these war', womer have had to perform their jobs -- as nurses, as combat
371
364
ono in the heat of conhat. There has never been any report that women
1 compco,t to you Jeanne Holm's book Women and the Militani The Unfinished
Revolution for a good summary of the roles women have played under fire.
dict wartime success from the results of peacetime training, studies and
tests is given. Were that hot true, battle strategies, weapons use, and
All tests show women perform well and d' nothing to impair the
behave nthprwise.
Q: Mc. Chayes, some authuritic. suggest that under the ERA some segre-
gition of military living quarter: and facilities might be allowed.
H,rwever, privacy cnnsiderations beLween the sexes may be hard or impossible
to provide in combat situations. Do you think that women serving in combat
JrIt', have a legitimate expectation of personal privacy? If so, what are
fn..se expe,Jations?
under which medical personnel have had to perform wartime duty, by raising
Qi In the now famous Yale Law Journal article on the Equal Rights
Amendment, the authors state that the proposed amendment would allow
no exceptions insofar as the military is concerned and that men and
women must therefore be treated exactly the same with one exception.
They suggest that pregnancy would justify slightly different conditions
of service for women. Could you elaborate on this and tell ill what these
different conditions of service might involve?
, 0.01 n.1,1 I i
1
)A 11 1,1it 11.% }hot ),1
366
for mAny womer to meet, and assuming that criteria could be validated
Ohs the beat examples being the rules preventing women from per-
A: Congress must always take the full Constitution into account when
same thing would he true under the ERA. Explicit exclusionary policies
4:
Itie k Pt nin used here an "importa it governmental object
i, I
1.51 the :,011, sexibd:wd Llassifications are so necessarily
,..(1 and 11,01 Y to tier;wtuote she 9riAt harm of acting on the basis
I
, it (-0,11,, I drif Tho,e trait I ono I
11., I 1',`,111',
t)
1
NA;
show (1) that the law or regulation serves a government interest that
oniy to serve that interest and not to impinge on,the rights, interests,
A
and opportur les of the group possesSing the unique physical character-
e,onuffii( .
social, political, educational needs or opportunities
;Jelin", of course, might fall under the rRA as well if that did not
to tho ',69119' wmy thmt the 14th Amendment would not tolerate
hnde, th(
v .1%o I I m
rt I t uJ 1.11,1
di t,t, litt
1,%d n111,1
I/141
1.1.11
vr I 111;111,)
1!1`111.1 11(ot ,t0 1n ,i):I
I ratio, f 10!riOt d 11,1 I. t and ;
t tt pf f tho 111199 Of till` NI 1 tory
iPt(1 et "Hyr rmrnMimtime," and iI the
thmt the pee.d.u.i. .0 we.--t. Night hmve dfl AdVOt%e
d ,10,1,01 I1V1y, r,nuld he 1.11vAh1e fill it
.1' I'd I11 ?IV' .1' ,,111 1101. 1itY011
369
women in combat and combat support units and have never established
purpnse, and might, well be required. The services are fully capable of
T It has been argued that the right to privacy might exclude women
fr,O) It least Some combat duty if sexually segregated sleeping quarters
Irbor suOi facilities could not be provided or enforced.
Wolild it be your position that such considerations might justify
of one sex from a combat situation in which even minimal
i', not piAsible, but that such considerations would not justify
ionoral relfatmi on exually segregated combat units much less the
exclusioe of WOMM from all combat units?
41, 1,.,t
1
370
functioned professionally.
have dealt with lack of privacy and have
mission, teams of
Ac has been shown with the recent space shuttle
which work.
people working together can design privacy strategies
believe that the services can devise methods
We have every reason to
rights without denying women full oppor-
elf preserving basic privacy
di 10 r tndtdate for
1'0
I Jo ,
111,1,6,01.',
tdrt 1.1i 'Mitt.'
11
101,1, 31
I PA
1,..1 11 t.ft! over t
0.,.01,1 I he.
!.
i. ,
' Al I 1 ',hi Arts 1 he EPA .11 1 own "dt t Irmo ive action" pro-
' a w, h In th, 01 ) ftnry. "pt of or .,71t 1,11 Ii 'anent" programs,
t pf ,!ol I hil owif fir
.cosier,, wonld be com-
o 'II,' ETA.
Wa.mmittee irliorprtAtion:
(1) et i Undor the EPA, all gender -based distinctions in
,t 1 t ar y law and pal icy would have to hu eliminated.
Wird response:
Explicit gender-based exclusions are unnecessary and serve to include
unqualified men while excluding qualified women, Chayes testified, "The
military will not be required to utilize soldiers who are unfit or
untrAinnble, but will not be able to exclude women from positions on
the grounds of assumed lack of qualifications." This would increase,
mot decrease, the government's ability to assure that the most capable
soldiers sere available for any given military job, by enlarging the
peel of qualified applicants for positions requiring Specialized skills.
Vol Ai response:
Today, the Skills and capabilities provided by women are so integral to
the eff!clent operation of all branches of the armed serki, es that, in
any national emergency, it appears that the conscription of women is
inevitable. In fact, plans for a draft of both men and women with Helical
skills are already being made. Chives testified that "In my view, should
we love to a draft, .1 would expect women to be included, even witnout the
tRA, a mutter ue military exigency."
WI AL response:
Again, specific deferments based on gender operate to exclude oen whose
parental obligations shnuld else he coesideren. while , suming that all
*own with children are the principla caretakers. Chaves stated 'hot
ih,ttp would be hardship r4Iet and draft deterrent hosed won the ',ace
tau that mow wevil), Tho focus would be on the nut on the
poeiotni thip. "I think you *weld find that there would be
culJcions. or rater deterrents, based upon child care roryirdlov, of the
P. ut the parent."
Ity II..'
wiAl tq.111,e.
The effo.t of the %c-cAllvd "ronhat jiVIIN15" IS 'A) (ontrflf
01,/i0dtion IN the m.litd while till allQ4i014 1o,.tress anij the
.ory1.0 byAncheS c0.41 fie.ibility to as-.ure !hit warm alit Inc
4304VIr 10111,11 their requi,ud. o%clusioo laws
%hiol plones, Choy do MI' rt..; 1.
.rwn war 3,14
.373
Subcommittee interpretation:
1St WACn-- Sex restricted units such as the former WACs, the Army
Norge C ,pn, and so forth, would be unconstitutional under the
WEAL response:
The Women's Army Corps (WAC) was abolished in 1978 and men now make up 311
of the Any Nurse Corps. There are no plans to return to aie. all female
units. The critical question is: How does the presence of women in previously
all male military units affect unit performance? Empirical re,^arch completed
to date shows basically no effect. For example, Army studies have shown that
the proportion of women in combat support and combat service support units has
no effect on measurable unit performance in field training exercises. Reports
on the Navy's Women in Ships program indicate a high level of performance
on the part of the women and acceptance by male crew members. Add;tional
concerns about !poop cohesion if women are admitted art reminiscent of
arguments used in the past to justify excluding women and minorities from
other w.cupations, such as law, medicine, police work, and fire fighting.
Subcommittee Interpretation:
(fil No gender distinctions could be made by the
nolitar7 nerviCeO with regard to such matters as recruitment, ROTC
enlistment standards, age, parertel convent, educaiton,
anA no forth.
WEAL response:
Currently, the Navy requires all female enlistees to be high school graduates;
Male enlistees do not have to be high scnool graduates. The Army requires
all women to have a high school diploma to enlist. but only 65% of the
male emlistees must have a diploma. The Marine Corps requires all female
applicants to have a high school dirloma or equivalent education to enlist.
(The GEO is not considered equivalent.) Males, however, only need to have
attended school through the 10th rade, and even this standard can be waived
by the Mar' r Corps Commandant tot "exceptionally" qualified applicants.
The Coast ,ard and Air Force havo removed all restrictions based solely
on gender to education and enlistment standards. Under an FRA these standards
would have to be consistent among the sexl's even if it meant raising the
standards for male enlistees.
'ohcommIttee interpretatInn:
' 1) Lregnancy-- The EPA would require that preqnincy of femalos 'n
vice be treated as a "disaht'l Cy".
WIAL re'.punse:
l'o the protection of force readiness, it would not be necessary for the
military to treat pregnancy any differently from other physical .A)ndittons
whith mfyht result in a soldier's inability to perform his or her duties.
PeessIgnmcnt, convalescent leave, and medical care are already in place
for those soldiers who became temporarily disabled. It should be noted
that statistics .how the average wortati soldier loses less time from her
lob, for is,,y reagnn, Including pregnancy, than dolls the averap male
dier. these is thus no evidew.0 that pregnancy is a threat to the
Fogainegs of oor afeied fortes.
',,h,ordttee bdvrwetntfun.
lel ri.adcflie5 The military academies wmnld have to ndmtt mn11
f. a109 :of an ognnl LA115.
to at rf.q.0111*'
Worn lave elvsys and would ((walnut. under a' ERA to be required to meet
the name standards As rates for thiml,ttien to the military academies. ("naves
Wes asked if with an iRA "women muit to elm lted to West Point on a parity
with "" Ile r0,1.0iled. "well. If be mPart by ;:aftty that it would have
n to '0 '0. the me.wer is (lenity no."
374
Intororetation:
ui Ive ActIon-- The ERA allows "atf.rmatIve artIon" ),"
orot co themtIttary. "Preferential treatment" prool
h pt.,mot !onal ntandatds for females, would be cou
; Ir;/o ,rtet. [PA.
w! Al .-espor5e
theyes was asked If she agreed with the following statement: "under the
PRA, neither sex could be preferred above the other." She responded "If
,nu are talking about straight preferential treatment that compensates
for past discrimination and that can be very clearly shown to be that and
has to be subject to very careful scrutiny, I think that is allowable."
Int,pretation:
t t
alai
ploht..,.s among the sexes will have to he dealt with just as
all dI,A,Iploc loobloms are, even those amnno people of the ame sex.
chdyrs osed the aaathqy of race relations to elaborate. She asked "if
itwit., u,A.n.,trated to you that White people beat up Rlack people if they
,.to living the dormitory, would you permit srgregation?" "Would
the Rlark people
,ou 'Ay For di.t ipline, )t would be necessary to eliminate
from the .ici-ttoty, I r, you deal with the
'alt think Ott oo.uld argue that.
,,,t4 ,',Ile .stir the 1.,,i4ple. tin you cannot beat up
U.,. 1.0 11 I .111.1
r111,0 1101'
} it 1410 y
In , tot t.hl? 'e,r
4.,1
of her ,,,
. t
.t ,i
rtaa
;,..I v.... 1-..1 oat ,1
Rabbi N. Neubersar
Jewish Orthodox Coalition egainet tbs ERA
440 Mt. Wilson Lane
Baltimore, Maryland 21208
,010. Pp. . 4:t f, Sill (1472). The owerutive departaent shored the
vt.y that eh. YEA requited gender-neutral draft. On May ?,1471, for
376
Thle history seems to me to make plain that under the EPA women
mold not be exempted from the draft. This is a widely shared elev.
',es, far example, Stow, et al., The Equal Right. Amendment( A
coosticutIonal Sallie for Equal lights for Women, 80 Yale L.J. 871,
9b9-79 (1971). Hale and ItenowIte, Women end the Draft: A Response to
Crttics of the Equal Right, Amendment, 123 Hastings 4. J, 199, 19q-201
(1971); Mote, The Equal Rights Amendment and the Military, 82 Tele L.J.
151i, 1537 (1971).
My only hesitation derives from the fact that the current draft
heron deelgned solely to obtain combat troops. In loather no
neltottotial challenge was made to the exclusion Oilirmio from ,omber
Assignments. end the Court apparently believed that this exclusion is
valid. The preciee impact of ERA on the combat question is somewhat
uncertain. II the ERA doss not bar coaplete xmclusion of women from
.oabst. wisps the current exclusion of women from the draft nights
once spin be justified. While this line of argument is not wholly
Implouelble, I do not think it is persuasive. It is Inconsistent with
t4e ERA'. clear legislative history on the subject, mod the fact
(a d by the dietienting judges In Rostker) that military need far
exceed that of inply securing combist troops. Moreover, the &flaunt
mete no what is to my mind an 'erroneous initial premise, namely that
the ERA would permit whole's's exclusion of woman from all combat
seeleoants. The legislative htstory I have referred to does not
wupport that view.
In sum. Ithink that the ERA would have been interpreted to require
gender-neutral draft registration, and any new PRA will have a elmila,
refers.
Sincerely,
tie, ea 1144.
henry Paul Monaghan
Professor of two
1111/411.
\ 378
Wiihinglan Thou, Juno 2, 1223)
mom dui
cialty calls for laying and clearing to such jobs as plumbers and carpentry
clearing beaches in war. This also applies she cannot
and masonry specialists.
hand, a woman may perform military police duties, but the mission of
On the other because they have
be assigned to MP security compaines in
in the rear
direct combat, as was graphically demonstrat-
small units of the enemy duties at Army corps
engaging during Tet 1968. But a female MP may perform
ed in Saigon theater. 70,000 -
or division level in a combat to enlisted womenmissions as well as an estimated
Currently all jobs are closed normally perform in the brigade and other
80,00O positions in units which medical and supply units.
including communications, and low-
areas, armor, cannon field artillery, combat engineers
forward battlefieldinfantry, have
All Jobs in the battalion or squadron slue or smaller,
Atitude air defense artillery units of 38 job specialties. Following
These fields comprise that it was
n closed to women for years. in January of this year the Army announced
seemingly rear-eche-
.ibat-exclusion policy, including those
, specialties to enlisted women
, 4,4 23 more
jobs mentioned earlier. in the 23 closed specialties will be reclassified
The 1,200 active duty women now soften the blow by providing indi-
into other fields. The and Army is doing for all it can to affected. This policy also applies
the women
retraining
vidual job counseling
the Army National Guard and the Army Reserve.
to women in
err ;
11 I: 4
386
379
But here's the rub. Until now, these hundreds of women have performed well in
their jobs. They lack neither the physical or mental competence, nor the courage to
perform the duties for which the Army has spent large sums to train them. They
are out because The Word has come down. For some it means the end to years of
hard work and struggle and it smells strongly of coddling.
Not all Army women are upset over the combat-exclusion policy. Some, perhaps,
feel more comfortable in the so-called "traditional" jobs. Yet those who think the
policy unfair are not by any means feminist ideologues; they're just working women
who want their jobs back.
The Army would be wise to restore the status quo ante vellum. I am dreadfully
afeared that while trying to cure a problem that doesn't exist, the Army might wind
up shooting itself in the foot instead.
One senior NCO in the Ohio National Guard told me, "I busted my back to get
where I am now. I have the respect and confidence of my peers. I feel like someone
has kicked me in the guts." She is submitting her complaint through chaanels, the
proper course for a good soldier.
Last April, General John A. Wickam, Jr. who will soon be sworn In as. Army
Chief of Staff, promised a defense women's group that the list of units closed to
women would be reviewed, to see if any could be kept open. Good news for good
soldiers everywhere.
As for that Ohio guardswoman, who is still out on a limb, I would remind herOf
an old Army adage: 'In the beginning was the Word, and it was changed."
387
380
and equipment main.
Some of the jobs are support-type, such as light constructionBetween
in forward combat areas. 70,000-80,000
tenance work that require exposure These
positions that require duty in the brigade area are now closed to females. that
closed duty positions include medical, communications and transportation units
normally have missions involved in direct support of brigades, although women may
still perform duties in these specialties in garrison or other environments above bn-
gade level. with this. 1
An Army spokesman told me that unit readiness has nothing to do drive the
think it should have everything to do with it. For example, if women can
don't. And there's no evi-
ammo trucks up to where the troops are, let them; it' not,
dence that the Army's willing to make public that they can do it.
law is precarious. The
Basing an assignment policy on an interpretation of the
Army admits that in wartime some of its women most certainly would become casu-
alties. There's no sure protection against enemy commando attacks or long-range
Saigon during Tet 1968, if the Viet Cong death squads had
weapons. Remembering headquarters, they could have had it, men,
really wanted Gen. Westmoreland's
women and mamasans.
Plenty of Army women are upset by all of this and trouble may be action, brewing.
which is.
So far the American Civil Liberties Union has stayed out of the the combat
probably best for everyone. The ACLU believes that a "direct assault on
exclusion would fail at this time with the current' Supreme Court" and that any suit
would be a "fact intensive" caseit wquld cost them too much inother time and money
"too limited to be easily applied to situations.'
for the results, which would be legal watchdoigs.
Apparently professional soldiers do not come under the aegis of our
Mind this: Contrary to what some feminists say, we do not have the "right" to die
the right to life. Neither is service to country a rightit's
for our country; we have to remind it of that.
a duty. The Army needs neither Congress nor the ACLU
One final thing. Not too many years ago we had young men running away from
America to avoid serving in her Armed Forces. Now a generation of refuse young men is
adults who should know better, some even to
growing up and, egged on by freedoms.
register for the draft in case someday we may need them-to protect our
be proud to
Our women patriots put these young fellows to shame. We men should
soldier with such women.
Army womenand those in the other service., triohave a sense of dutyif that that
shines as a beacon to rally the young people of this country. Woe to all of us
light ever goes out.
388
381
No. 80-251
f
1
389
882
2 ROSTKER v. GOLDBERG
1 The President 'did not emit conscription. Since the Act wns amended
n mein& conscription ns of July 1, 1973, Pub. L. 92-129, 85 Stat. 353, 50
S. C. App. § 487 (e). nny actual conscription would require further eon-
1N,ional 'action. See S. Rep. No. 96-826, 96th Cong., 2d Sem, 155
1980).
39o
ROBTICER v. GOLDBERG
391
884
4 ROBTKER v. GOLDBERG
case below. The Act authorizing three-judge courts to hear claim! such
as this-.as repealed in 1976, Pub. L. 94-381, if 1 and 2, 90 Stat. 1119
(Atte. 12, 1976), but remains applicable to suits filed before repeal, id.,
7, 90 Stat. 1120.
As the Court stated in Schlesinger v. Ballard, 419 U. S. 498, 500, n. 3
11975), "Although it contains no Equal Protection Clause as does the
Fourteenth Amendment, the Fifth Amendment's Due Process Clause
prohibits the federal government from engaging in discrimination that is
unjustifiable as to be violative of due process.' Bolling v. Sharpe, 347
tr. S. 497, 499."
When entering its judgment on July 18, the District Court redefined
the class to include "All male persons who are registered under.50 U. S. C.
App. § 453 or are liable for training and service in the armed farces of
the United Stntes under 50 U. S. C. App. ff 454, 456 (h) and 467 (c);
and who are also either subject to registration under Presidential Procla-
mation No. 4771 (July 2, 1980) or are presently registered with the
-;elective Service System." 509 F. Supp., at 605.
392
ROSTKER v. GOLDBERG 5
393
886
6 ROBTKER v. GOLDBERG
394
ROSTKER v. GOLDBERG 7
395
r .1
388
8 ROSTICEFt v. GOLDBERG
396
389
ROSTKElt v. GOLDBERG 9
397
390
10 ROBTICER v. CIOLDBEICI
398
391
ROSTKER v. GOLDBERG 11
399
892
12 ROBTKER v. GOLDBERG
00
393
11 -006 f Rh 2f)
ROrrICER v. GOLDBERG
402
895
ROSTKER v. GOLDBERG 15
. "The findings were before the conferees because the Senate Armed
Services Committee had added a provision to the 1981 Defense Authorisa-
tion Bill authorising the transfer of funds to register young men as a
stop-gap measure should Joint Resolution 521 fail. See S. Rep. No.
96-895, supra, at 100.
396
16 RO8TKER v. GOLDBERG
4 04
RO$TKER v. GOLDBERG 17
405
18 ROSTKER v. GOLDBERG
401;
ROST/CEA v. GOLDBERG 19
" No major country has women in combat jobs in their standing army.
See J. A. 143.
"See Brief for Appellees 1-2, n. 2 (denying any concession of the
validity of combat restrictions, but submitting restrictions are irrelevant
to the present cue). See also J. A. 256.
407
.4#
ROSTKER v. GOLDBERG
408
401
ROSTKER v. GOLDBERG 21
49
402
n AMUR v. GOLDBERG
military need rather than "equity." " As Senator Nunn of
\ the Senate Armed Services CoMmittee put it:
"0-Jr Committee went into very (Oat detail. We
found that there was no military necessity cited by any
witnesses for the registration of females.
"The main point that those who favored the registra-
tration of females made was that they were in favor of
this because of the equality issue which is, of course, a
legitimate view. But as far as military necessity, and
that is what we are primarily, I hope, considering in the
overall registration bill, there is no military necessity
for this." 126 Cong. Rec. 86544.
Seclair House Hearings, supra, J. A. 230 (Rep. Holt) ("YOu
are taing about equity. I am talking about military.")."
Although the military experts who testified in favor . of
registering women uniformly opposed the actual drafting of
.women. see, e. q., Hearing on S. 109 and S. 226, supra, at 11
(Gen. Rogers), there was testimony that in the event of a
draft of 650,000 the military could absorb some 80,000 female
inductees. Hearings on S. 2294, supra, at 1661, 1828. The
80,000 would be used to fill noncombat positions, freeing men
"The grant of constitutional authority is, after all, to Congress and
not to the Executive or military officials.
"The District Court also focused on what it termed Congress'
"inconsistent positions" in encouraging women to volunteer for military
,erviee and expanding their opportunities in the service, on the one
11:111(1. :Ind exentiting them from registration and the draft on the other.
:d F. Stipp., at 603-80-1. This reasoning fails to appreciate the
different purpose; served by encouraging women volunteers and registra-
tion for the draft. Women volunteers do not occupy combat positions,
so encouraging women to volunteer is not related to concerns about the
availability of combat troops. In the event of a draft, however, the need
would he for combat troops or troops which could be rotated into combat.
See 17-18. supra. Congress' positions are clearly not inconsistent and in
treating them as such the District Court failed to understand Congress'
purpose behind registration as distinguished from its purpose in'encour-
ing women volunteers.
410
403
ROBTKER v. GOLDBERG 23
411
404
24 ROBTKER v. GOLDBERG
ROSTKER v. GOLDBERG 25
413
406
414
407
2 ROBTRER v. GOLDBERG
415
408
ROSTKER v. GOLDBERG 3
416
409
No. 80-251
m
Bernard Rostker, Director of On Appeal from the United
Selective Service, Appellant, States District Court for
V. the Eaitern District of
Robert L. Goldberg et al. Pennsylvania.
[June 25, 1981]
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
dissenting.
The Court today places its imprimatur on one of the most
potent remaining public expressions of "ancient canards about
the proper role of women," Phillips v. Martin Marietta Corp.,
400 U. S. 542, 545 (1971) (Mmtartsm, J., concurring). It
upholds a statute that requires males but not females to reg-
ister for the,.draft, and which thereby categorically excludes
women from a fundamental civic obligation. Because I be-
lieve the Court'd decision is inconsistent with the Constitu-
tion's guarantee of equal protection of the laws, I dissent.
I
A
The background to this litigation is set out in the opinion
of the Court, ante, at 1-6, and I will not repeat that discus-
sion here. It bears emphasis, howevsr, that the only ques-
tion presented by this case is whether the exclusion of women
from registration under the Military Selective Service Act,
50 U. S. C. App. § 451 et seq., (MSSA) contravenes the equal
protection component of the Due Process Clause of the Fifth
Amendment. Although the purpose of registration is to as-
sist preparations for drafting civilians into the military, we
are not asked to rule on the constitutionality of a statute gov-
erning conscription.' With the advent of the All-Volunteer
' Given the Court's lengthy discourse on the background to this litiga-
417
41-4106
, 410
2 ROSTKER v. GOLDBERG
Lion, it is interesting that the Court chooses to bury its sole reference to
this fact in a footnote. See ante, at 2, n. 1.
By statute, female members of the Air Force and the Navy may not
he assigned to vessels or aircraft engaged in combat missions. See 10
U. S. C. §§6015 and 8549. Although there are no statutory restrictions
nn the assignment of women to -"Combat in the Army and the Marine
Corps, both services have established policies that preclude such assign-
ment.
Appellees do not concede the constitutional validity of these restric-
tioni: on women in combat, but they have taken the position that their
validity is irrelevant, for purposes of this case.
,1 ion, the Court, see ante. at 11, in rejecting the Solicitor General's
Aiggesiion that the gender-based classification employed by the MSSA
should be scrutinized under the "rational relationship" test used in review-
See,
Ina rhallenges to certain types of social and economic legislation.
f fi . Sehteciker v. Wilson, U. S. (1931);. United States Railroad
Retirement Bd. v. Frits, U. S. (1980).
4
411
ROSTKER v. GOLDBERG
U. S. ,
classification is substantially related to the achievement of
an important governmental objective. Kirchberg v. Teen-
stra, (1981); Wengler v. Druggist Mutual
Ins. Co., 446 U. S. 142, 150 (1980); Califano v. Westcott, 443
U. S. 76, 84 (1979); Orr v. Orr, 440 U. S. 268, 278 (1979);
Craig v. Boren, supra, at 197. This test applies whether the
classification discriminates against males or females. Caban
v. Mohammed, 441 U.' S. 380, 391 (1979) ; Orr v. Orr, supra,
at 278-279; Craig v. Boren, supra, at 204." The party de-
fending the challenged classification carries the burden of
demonstrating both the importance of the governmental ob-
jective it serves and .the substantial relationship between the
discriminatory means and the asserted end. See Wengler v.
Druggist Mutual Insurance Co., supra, at 151; Caban v.
Mohammed, supra, at 393; Craig v. Boren, supra, at 204.
Consequently, before we can sustain the MSSA, the Govern-
ment must demonstrate that the gender-based classificatirm
it employs bears "a close and substantial relationship to [the
achievement of ] important governmental objectives," Per-
sonnel Administrator of Massachusetts v. Feeney, 442 U. S.
256, 273 (1979).
C
The MSSA states that "an adequate armed strength must
he achieved and maintained to insure the security of this
Nation." 50 U. S. C. App. § 451 (b). I agree with the ma-
(jority. ante, at 12, that "none could deny that . . . the Gov-
ernment's interest in raising and supporting armies, is an
`important governmental interest.' " Consequently. the first
part of the Craig v. Boren, test is satisfied. But the question
remains whether the discriminatory means employed itself
substnntially serves the statutory end. In concluding that
it does, the Court correctly notes that Congress enacted (and
Consegnently. it is of no moment that the
constitutional challenge in
this rase k pressed by men who claim that the N1SSA's gender classifica-
tion discriminates against them.
419
412
4 ROSTKER v. GOLDBERG
42o
413
ROSTKER v. GOLDBERG 5
When, as here, a federal law that classifies on the basis of
gender is challenged as violating this constitutional guaran-
tee, it is ultimately for this Court, not Congress, to decide
whether there exists the constitutionally. required "close and
sus stiantial relationship" betsteen the discriminatory means
employed and the asserted 'governmental objective. See
Powell v. McCormack, 395 U. S. 486, 549 (1969); Baker v.
Carr, 369 U. S. 186, 211 (1982). In my judgment. there sim-
ply is no basis for concluding in this case that excluding
women from registration is substantially related to the
achievement of a concededly important governmental inter-
est in maintaining an effective defense. The Court reaches
a contrary conclusion only by using an "[a]nnounced degre[e]
of 'deference' to legislative judgmen[t]" as a "facile abstrac-
tio[n) . . . to justify a particular result." Ante, at 11.
A
The Government does not defend the exclusion of women
from registration on the ground that preventing women from
serving in the military is substantially yelated to the effec-
tiveness of the Armed Forces. Indeed, the successful experi-
ence of women serving in all branches of the Armed Services
would belie any such claim. Some 150,000 women volunteers
are presently on active service in the military,' and their
number is expected to increase to over 250,000 by 1985. See
419 U. S. 498, 500, n. 3 (1975), quoting Bolling v. Sharpe, 347 U. S.
497, 499 (1954).
With the repeal in 1967 of a statute limiting the number of female
members of the Armed Forces to 2% of total enlisted strength, the number
of women in the military has risen steadily both in absolute terms and as
a percentage of total active military personnel. The percentage has risen
from 0.78% in 1966, to over 5% in 1976, and is expected to rise to
12',;, by 1985. See United States Department of Defense, Use of Women
in the Military (2d ed., 1978), reprinted at J. A. 98, 111-113; M. Binkin
S. Bach, Women and the Military 13-21 (1977).
4°1
414
6 ROBTKER v. GOLDBERG
422
415
ROSTKER v. GOLDBERG 7
423
416
8 ROBTKER v. GOLDBERG
424
417
ROSTKER v. GOLD RC 9
combat, Congress' decision to exclude them from registration
is not unconstitutional discrimination inasmuch as "[m]en
and women, because of the combat restrictions on women, are
simply not similarly situated for purposes of a draft or regis.
tration for a draft." Ante, at 20. There is a certain logic
to this reasoning, but the Court's approach is fundiv \legally
flawed.
In the first place, although the Court purports to apply
the Craig v.,,Roren ,test, the "similarly situated"
analysis the
Court employs is in fact significantly different from the Craig
v. .Boren approach. Compare Kirchberg v. Feenstra,
U. S., at (employing Craig v. Born test) with id.,
at -- (Slimy Aar, J., concurring) (employing "similarly situ-
ated" analysis). The Court essentially reasons that gers
der class:fication employed by the NISSA is
constitutionally
pe:missible because nondiscrimination is not necessary to
achieve she pvpose of registration to
prepare for a draft rf
combat troops. In other words, the major,:ty concludes
that
women may be excluded from registration because they
will
not be needed in the event of a draft."
This analysis, however, focuses 'on the wrong question.
The relevant inquiry under the Craig v. Boren test is not
whether a gender-neutrat classification would
substantially
advance important governmental interests. authAr, the
question is whether the gender-based classification is itself
substantially related to the achievement of the assert43d guy-
ernmental interest. Thus, the Government's task in this
case
is to demonstrate that excluding women from registration
substantially furthers the goal of preparing for a draft of
combat troops. Or to put it another way, the Government
met show that regiatering women would substantially impede
.
10 ROSTICER v. GOLDBERG
426
419
ROSTKER v. GOLDBERG 11
427
420
12 ROMER v. GOLDBp0
tion and conscription. Registration provides "an inventory
of what the available strength is within the military qualified
, pool in this country." Reinstitution o Procedures for Regis-
tration under the Military Selective Serve Act: Hearing
before the Subcommittee on Manpower and Personnel of the
Senate Armed Services Committee, 9th Cong., let Sess., 10 /
(1980) (Selective Service Hearings) ,(statiment of General,/
Rogers). Conscription supplies the military with the person,'
nel needed to respond to a particular (ixigency. The fact that
registration is a first step in the conrription process does/not
mean that a registration law exprestly discriminating between
men and women may be justified/by a valid conscription pro-
gram which would, in retrospect:. make the current discrimina-
tion appear functionally related to the program that emerged.
But even addressing the Cliurt's reasoning on its own terms.
its analysis is flawed because the entire argument rests on,. a
premise that is demonstribly false. As noted, the majority
simply assumes that registration prepares for a draft in which
every draftee must be available for assignment to combat.
But the majority's draft scenario finds no support in either
the testimony before Congress, or more importantly, in the
findings of the Senate Report. Indeed, the scenario appears
to exist only, in the Court's imagination, for even the Gov-
ernment represents only that ."in the event of mobilization,
approximately two-thirds of the demand on the induction
system would be for combat skills." Brief for Appellant, at
29 (emphasis added), For my part. rather than join the
Court in imagining hypothetical drafts, I prefer to examine
the findings in the Senate Report and the testimony presented
to Congress.
C
Nothing in the Senate Report, supports the Court's intima-
tion that women must he excluded from registration because
ronihnt eligibility is a prerequisite for all the positions that
would need to be filled in the event of a draft. The Senate
42
421
ROSTKER v. GOLDBERG 13
423
422
14 ROSTKER v. GOLDBERG
430
472
ROSTKETR v. GOLDBERG 15
431
424
16 ROOMER v. GOLDBERG
432
426
433
41 00 0An
426
18 ROSTICER v. GOLDBERG
4 34
427
ROBTKER v. GOLDBERG 19
415
428
20 ROSTKER v. GOLDBERG
about it, is with the use of the words, 'explicit requirement.' If you said
to me, for example, does the military require people with brown eyes to
serve, I would tell you no, because people with blue eyes, et cetera, could
do the job.
"On the other hand, I wouldn't deny that they could do the job and
that we would find them useful." 1980 Senate Hearings, supra, at 1665;
see id., at 1853-1856.
" Deputy Assistant Attorney General Simms explaibed.as much to Con-
gress in his testimony at the heari*., He stated:
"I the question of military ne essity f 4' drafting women is irrelevant to
the constitutional issue, which is vhet'ler or not there is sufficient justifi-
cation by whatever test the courts batty apply for not registering women."
1950 Senate Hearings, supra, at 1667.
"If we were to assign appellees this burden, then all of the Court's
prior "mid-level" scrutiny equal protection decisions would be drawn into
question. For the Court would be announcing a new approach under
which the party challenging a gender-based classification has the burden
of showing that elimination of the classification substantially furthers an
important governmental interest.
436
429
I 437
430
22 ROSTKER v. GOLDBERG
438
431
ROSTKER v. GOLDBERG 23
f-,(),),
432
24 IIOSTKER v. GOLDBERG
44 0
488
WerKER v. GOLDBERG 25
26 ROSTKER v. GOLDBERG
4I
ROMER v. GOLDBERG 21
4,13
436
28 ROSTKER v. GOLDBERG
U.S. SENATE,
SUBCOMMITTEE ON THE CONSTITUTION,
COMMITTEE ON THE JUDICIARY,
Washington, DC.
The subcommittee met, pursuant to notice, at 914 a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch
(chairman of the subcomnatee) presiding.
Present: Senators Thurmond, Orassley, Metsenbaum, and DeCon-
cini.
Staff present: Stephen Markman, chief counsel; Randall Rader,
general counsel; Diane Franke, clerk; and Bob Feidler, ranking mi-
nority counsel.
OPENING STATEMENT OF SENATOR ORRIN G. HATCH
Senator HATCH. Ladies and gentlemen, this marks the fourth day
of hearings by the Subcommittee on the Constitution on the pro-
posed equal rights constitutional amendment.
From the outset, our objective has been to establish a thorough
and comprehensive legislative history of the meaning of the text of
the amendment. Whatever the ultimate resolution of this issue
during the present Congress or during subsequent Congresses, it is
the goal of these hearings to ensure that Members of Congress,
members of the State legislatures and members of the public are
better informed about the real-world impitct of the ERA. In other
words, what new public policies will emerge from the amendment?
What existing policies will have to be reformed or eliminated? How
will American society be transformed by the 52 words of the pro-
posed measure?
To this end, we have conducted what I believe have been exten-
sive and highly informative hearings on such issues as the 'impact
of the ERA on private education, the impact of the ERA upon the
military, a constitutional overview of the ERA, and so forth.
In this process, we have tried to set aside the cliche* and the
stock phrases on both sides of the ERA issue. Rather, we have at-
tempted to focus closely on judicial decisions, legal trends, state-
ments of academics, and Members of Congress of varying perspec-
tives, and the text of the ERA itself in attempting to predict the
substantive impact of the amendment.
(437)
4115
938
4,1f;
439
This subcommittee has faced the various issues and questions
raised by the proposed equal rights amendment and attempted to
answer those questions, and that is in sharp contrast to the con-
duct of our counterparts in the other body.
Whether the ERA will be used as a legal justification for man-
dating the States and the Federal Government to finance abortions
is a very vital question and one to which the \answer to must be
known before Members of Congress vote on this measure.
As one who disagrees with the holding of the Supreme Court in
Roe v. Wade, I contend that this question must be resolved.
Again, Mr. Chairman, I thank you for this opportunity and com-
mend you for your efforts.
Senator HATCH. Well, thank you so much, Senator Grassley. I see
no other members of the subcommittee here.
Next, I wish to place a statement of Senator Garn in the record.
[The following was received for the record:]
417
440
Mr.Chairmans
I appreciate the opportunity to speak briefly to this committee on the
subject of the Equal Rights Amsndment, and'particularly to address ERA's
the Equal Rights Amendment will mean the end of the Hyde Amendment. Some of
my reasons for this belief are set out below; I will not detail them in
friend from Utah, for the manner in which he has conducted these hearings.
The Senate hearings of this Congress have cast more light on the Equal
probably received more criticism than praise. I want the chairman to ;:now
that this Senator supports his approach to these hearings: Unlike some of
amendment means before we approve it. This proposal will produce very
concrete results. If Its most influential supporters are to be believed,
the Equal Rights Amendment will forbid current Congressional policy in the
areas of military conscription and assignment, veterans' preference, Social
schools- -to name but a few of the more controversial areas. The chairman
duties.
oppose ERA is my conviction that ERA will constitutionally forbid the Hyde
summer, and you will add today's testimony to his Ls. In the House,
we have the testimony of Professor tirceer Rees and Professor Jules Gerard.
448
441
Life. Many, many pro -life House Members are convinced of the ERA-abortion
connection. These Members are from both sides of the aisle. Congressman
James Sensenbrenner and Michael DeMine are to be :specially commended for
their brilliant inquiry into this matter when ERA was pending before the
House Judiciary Committee. All, or nearly all, pro -life political and
educational groups are convinced of the ERA- abortion connection. These
groups are opposed to ERA unless an abortion-neutral amendment is added.
(In the House, the Sensenbrenner Amendment is the abortion-neutral
Congressional Research Service has recognized that ERA will require tax -
funded
/abortion. The civil libertarian litigators,
especially the affiliates of
the American Livil Liberties Union, have recognized the ERA-abortion
to argue in support of tax-funded abor-
connection and they have used it in at least four states/. So far, the tiOo
state courts have not relied on the state ERAS to defeat Hyde
I hope the subcommittee will have printed in its hearing record the
having to use the state Equal Rights Amendment and possibly fuel the
national anti-ERA movement. Out the loss in (Harris v.3 McRae was the
last straw. We now have no recourse but to turn to the State Constitution
for the legal tools to save Medicaid funding far abortions."
419
11-404, 0-116 IS
Republican Policy.Committee and I ask that it be printed in the hearing
Senate floor, he must make every effort to be precise when our actions
fundamental
on issues ae legislators impact on issues as controversial and
courts to define our intent. Its must give our meaning with a greater
Certain friends of the Equal
rather than a lesser degree of specificity.
They
Rights Amendment do not want to say what they mean specifically.
.
to
desire instead a broad "mandate for equality" as they aro pleased
call it. Those of us who have watched in dismay the Supreme Court's
rendering of the Due Process Clause in the abortion cases are reluctant
Equal
indeed to see the Nigh Court turned loose to tell us what the
described in 1947.
compelling. The
The evidence of an ERA-abortion connection is
they can see no connection.
burden of proof should now be on those who say
Fortunately, because of the work of
Let them disprove it if they can.
what
others, we do not need to pass IRA to find out
this subcommittee and
reason to
it means. ERA means abortion, and for me that is an excellent
oppose it.
Thank you.
45()
Usk* iMateg bale
iliftikairs MAI Sellion111
Mae ,L MINK IWO OPOICS saws
..IN.6"17glaa41.7nao 111111111111104
\ A ember of your staff has asked an to provide you with the most
On Jun* 30, 1700, by a vote of 5 -to -4, the Supreme Court of the United
ricRao, 44S U.S. 797 119110). On the same day, the constitutionality of
state abortion funding rwstriction was upheld by the same narrow margin.
NOliems v. ZbaraL, 44B U.S. 358 '1900) (Illinois statute). The 1990
cases dealt with wodlcally-n y abortions. The femme of funding for
non-therapeutic abortions was disposed in 1977 when the High Court
upheld such restrictions by vat's of 6-to-3. Seal v. _km, 423 U.S. 438
451
444
under the First and Fifth Amendment.. The First Amendment arguments are not
ground* owe of two sorts: First, it was alleged that the Hyde Amendment
impinged on the liberty protected by the Due Process Clause of the
amendment which Ace V. Wade, 410 U.S. 113 (19731, had held to include the
was alleged that the Ayde Amendment violated the equal protection component
of the Due Frescoes Clause api the Fifth Amendment. The Court has held that
the laws." See. III., pollSna v. Shortie, 347 U.S.'497, 499 -500 11954).
For equal protection purposes, the Court analyzed the Hyde Amendment
operated to the disadvantage of some suspect class, the Court 1ollumed its
pomitinn in tahers
452
445
4 53
446
fetus.'
scrutiny under the Court's
The Hyde Amendment survived judicial
highly doubtful.
''Amendeent to pass
The Equal Rights Amendment will require the Hyde
judicial scrutiny.
muster under the Court's elevated standard of strict
4 541
447
justified by, and closely and narrowly related to, a compelling state
nterest.
Ann E. Freedman, one of the coauthors of the Yale U. Jn. article, and
nowa professor of law at Rutgers, temple ned the rule of the Equal Rights
45
448
based on see then the Equal Rights. Anandrerot could not rellatre that they be
ldwmr.im twice said it would land lo this aims hn fu in agrvasent with the
lass,l1cation oust 4a11 u/thln the two" of tha amentlimat and be 41 "denial
456
449
Equal Rights Amendment will require the Hyde Amendment to withstsnd strict
judicial scrutiny. hider ERA, the government will have the burden of
showing that the r*strictions of the Hyde Amendment are closely and
are c far, bar cry from the compelling showing that will be required under
In flAguesagt, 410 U.S. 113, 162 117731, the Supreme Court held that
the state has an 'important and legitimate interest in protecting the
of fetal life after viability thus has both logical so.' biological
the woman", age -- relevant to the .01-being of the nation!. All thyme
facture ray relate to health.' even goltfl, 410 U.S. 177, 192 (1973).1
4 57
450
abortion) are transferred to the abortion funding cases of the future, and
become compelling be4ore viability, and could not be compelling even after
viability if the women asserted health need.° In ebort, the ably women
against whom the state could successfully assert its compelling interest in
the protection of 'potential liNO would be those women who either do not
The Equal Nights Amendment will require the Hyde Amendment to pass
y. NWAs 'indite progeny, the Hyde Amendment will be unable to pass the
Amendment i ratified in its present form, and with its current legislative
tee
Lincbln C. Oli t
458
451
459
452-
;0
45.1
4 1")
)
455
4 f;3
456
amendment would mean
But our interest is in what this new it not as serge abstract
going to talk about
and I assume we aresomething
doctrine and not as that was put forward a down years
interpreted by our present judi-
ago, but as something that will be Pederal courts and in the Su-
ciary, the judges we now have in of he
those judges that we are inter-
preme Court, and it is the minds
ested in when we look at precedents. what the ERA means and I
Well, on that basis, I have looked at
have come to the conclusion, first of all, of
that the ERA would man-
abortion. If there are any
date the Federal and State funding States or by the Con-
medical aid programs at all funded by the
mandate that they include abor-
gress, the Supreme Court would
tion funding. amendment passes
Senator HATCH. That is if the equal rights
and is ratified?
Professor NOONAN. That is right.
Senator HAM!. OK. for that, because
Senator METZENBAUM. Give us your reasoning I cannot find how you get
it seems to me that it is a nonsequitur. professor of law, I am sure
to that point and since I know you arehave a
come to that conclusion
you have some legal reason that you
because, frankly, I am not a professor of law, but I practiced law. I
thought I was a pretty good law student and I just cannot follow
your line of reasoning at all, Professor. do that, Senator, but
Professor NOONAN. I would be delighted to I want to give you
could I just give you my five conclusions, then
my reasons? I would LW to put on
the table what I think the con-
clusions are and then I will come to the reasoning. away all exist-
The second conclusion is that the ERA will sweep restrictions that now
ing restrictions on the abortion righttheby the woman patient,
exist in statutes requiring written consent to the parents in the
the statutes requiring consent or and notification
the cases sustaining some re-
case of an immature, minor girl,
striction of late-term abortions.
Third, the ERA will end the conscience clause have
exemption?, which
seen fit to insert on
most States and the Federal Government participate in abortions, doc-
behalf of nurses who do not want to abortions, and hospitals that
tors who do not want to participate in
do not want to have their facilities used for abortions. would be uncon-
Conscience clauses to permit race discrimination clauses about
stitutional. It would be the same with conscience
abortion. ERA would threaten
Fourth, and perhaps most significantly, theschools and colleges of
the tax exemption of most of the religious schools and colleges as
the United States because most religiousJewish or Protestant or
part of their religion, whether theyand are
they discourage abortion
Catholic, do not believe in abortion
among their students on religious grounds. Their tax exemption
would he at stake, in the light of the Bob Jones
of
case.
all, the ERA would
Finally, and perhaps most significantly
provide a new basis in the Constitution itself for the abortion right
of its reliance on
which is now being so heavily criticized because
privacy.
457
465
4 1 00S (1 .81, NU
45g
4 66
459
tIGS
461
1
462
You can see the same reasoning would apply here in the '-ex dis-
crimination field, and it has been made easy for the p*opt. who
would like to take the tax exemptions away to challenge them all
around the country because the Supreme Court in another case,
the Green case, has said all a taxpayer has to do is to go into a
Federal court and claim that the local charity is not in harmony
the public interest. And that single Federal district judge will
have power to remove the tax exemption. And then you have got
an appeal to a court of appeals and maybe to the Supreme Court, if
it will hear it.
I can see, if the ERA is enacted, all around the United States
maybe not Planned Parenthoed itself, but certainly an affiliate
here, an affiliate of the ACLU therewill challenge the tax exemp-
tiens of schools that discourage abortion, and you can see put in
jeopardy a whole heritage of our moral and religious life.
The only recourse those threatened schools and colleges will
have will be to go to Congress and try to renegotiate with Congress
something else in 50hc) of the Internal Revenue Code. Maybe they
will get it; maybe they will not. Maybe the Court will not let Con-
gress give it to thorn because the Court has taken over this area
and laid down its own common law rules as to what a public chili-
is.
So we are inviting. at the very least, serious litigation and, at the
maximum, an absolute barrier. I know some of the people on the
oiler side like to talk about choice, The choice the religious schools
will have is: Give up your tax: exemption or give up your moral and
religious principleE and permit abortion to be a way of life on your
campuses. I think it is a terrible choice to present to the Catholic
and Protestant and Jewish schools of the country.
Senator MPTZENIIAUM. Professor Noonan, I have to say to you
that I think that your five points that you make really do not, as I
see it as this lawyer sees it, I cannot follow your legal reasoning,
including the one that. you just made because I can think of a host
of instances in which the common community conscience varies
from the provisions of the Constitution, and yet we recognize con-
stitutional rights.
That does not mean that in this instance you are going to be able
to take a ctinst amal amendment, when anti if passed, and apply
That to all of these religious schools and cause it to have some ap-
plicability with rc,,pt!t to thy, malts ou make, and the other three
yoa make as well.
I iin,t have difficulty tri tollowing your reasoning i/think some of
these pantsari a red herring that are :aneared over the ERA, ;led
flank that for a roli.;sor to COM(' before its and give us some Of
what I ,:onsider to he really convoluted, lgaliStie reasoning iS ex-
tremly difficult fin this member of the committee to comprehend.
VIA:, I thought 1 was going to hear you give us some logic and
ra,, a for how tho.,,c issues would follow. You talk about the fact
that if viol fa..vate ttiedle;Il iitiVitit.Iiitt's, then yon are going to
he leipored to provide holding W. do not provide a lot of tiiildifig
toy Infthril probloift,
Nobody: towaatit anvil right to lie 'mai fin:
f":111111111 l':ffici/' Or treatment of hepatiti, hut not to he paid for
11,M7,1:1`Y4' 01 1'011 W":1/t111. 11)4 thitlr-; that we 1.XCIntlf.
463
probably ought not to exclude them, but nobody has raised the con-
stitutional issue that Were is a constitutional discrimination
against people who need glasses. ! do not think we provide glasses.
Professes NOONAN. Well, sure, you are right, Senator, because
they are not being discriminated against on the basis of sex. If only
the women we're denied glasses, you would hear a great complaint.
Now here is an operation which is peculiar to women which
would be denied funding. That is sex discrimination under the ERA
by the standards of the Court in title VII.
Senator HATCH. The way to resolve it is to add one simple line to
the equal rights amendment stating that nothing in this article
will affect abortion funding or abortion rights. But, every time we
raise this suggestioi the people who say the equal rights amend -
rnent\will not affect 1 bortion refuse to consider qualifying language
to be a4ded. They s y they will fight it. Senator Packwood is In
example',
I think your reasoning is very, very clear, especially in light of
the narrow merging in cases such as Mcitue. We have never raised
gender to the level of a suspect classification.
Professor NOONAN. That is exactly true, and I would like to
make this comment: of course, Senator Metzenbaum
Senator HATCH. These are difficult constitutional issues.
Professor NOONAN. Of course, all of us studied constitutional law
at an earlier period, but the Constitution, unfortunately, ii-subject
to what the majority of the Supreme Court is saying.
Now, I would pot have been sure how Bob Jones would have
come out, but no* I see how the Chief Justice interprets the Con-
stitution. That .s new law; that is new constitutional law. He got
seven other Justices to agree with the result and six to agree with
the opinion. so Bob lamp, is new.
AU these things you think about, Senatormaybe they are bad,
if vou apply his view of the common community conscience.
enator HATCH. Professor, since we are going to reserve time for
questions, I would like you to be uninterrupted and finish your
statement.
Professor NOONAN. I am essentially at the end. It Is obviously a
dilemma for rersc is who have Supported the ERA in good faith on
the representation that abortion was not involved and who believe
ttemselves that abortion is a serious attack on human life. It is a
dilemma for them to face the ERA without amendment.
As you said, Mr. Chairman, there is a very simple way of remov-
ing this dilemma and removing their fears and removing this argu
meat; it is to amend the ERA to provide that it has nothing to do
with abortion funding or abortion rights. That would solve all these
problems in a sentence.
Thank you.
'The prepared statement of Mr. Noonan and responses to written
questions from Senator Thurmond follow;
464
Constitution in disguise.
-(Toriusionn.
Aian/opt i
!;hif,hullain0
_ .
in 1981 (1,,eJ (live quidence an to how the
4 17
Conclusions
the
2. It is highly probable that the ERA would require
federal and state funding of elective abortions.
rIghva
4
467
RoaOro
'Equal Rights for Men and Women,' the Report of the Senate
K9 j..
e t)
468
were passed?
-lex, the law, the authorn say, could he valid. 3/ out the
at - 8, rift
4 7i;
469
A rf-/
it i
470
brief with the Supreme Court. The brief explained that the
Jointly the authors of the brief stated how the ERA, if it had
47s
471
7 ;,)
472
not abortions tailed the strict scrutiny test under the ERA.
Whether the category employed was reproductive system° or
'unwanted tumor or 'medical operation,* it would not be
away by the ERA along with the White Slave Traffic Act,
Title Int of the Civil Rights Act. But as prelude to that test
dierriellosiorv.
41-008 0-86---111
481
\\ 474
the one that the Court's recent decisions under Title VII make
,contribute more than men on the ground that women live longer
than men. The Court held the plan unlawful. Writing for the
was based 'on'a reality. 'As a class women live longer than
Term that the present Supreme Court would use the "but fore
benefits than men employees. The Court struck down the scheme
,q 4t had struck down the Los Angeles plan and for the same
482
475
both the Los Angeles and Arizona cases, it is the whole class
they did not get the same coverage for their wives that female
484
477
1
unconstitutional discrimination.
485
478
objected that the Abortion Pun6ang Cases show that the Court
ERA ?' and then assuming, contrary to the basis of the question,
would be changed!
sex.' The Court was not prepared to bring its new Title VII
486
479
487
480 a
488
481
489
41.
'482
the basic premise of Roe and its progeny.' 38/ Already the
With the ERA in place, and 'but for' the criterion, any
lit [the discrimination] is based on. 40/ With 'but for the
the Constitution.
criminal 'laws which the ERA would invalidate, was silent about
not yet been attempted by the Supreme Court. The ERA was
prudence?
490
483
49.1
484
NOTES
2. See Brief Ajeici Curiae of the Women's Law Project and the
American Civil Liberties Union, December 23, 1975 in
(1971) at 893.
4. Ibid. at 894.
5. Ibid. at 894.
8. Ibid. at 957.
492
485
Hospital 475 F.2d 701 (1st Cir. 1973) at 7051 Judge Jon 0.
14. General electric Co. v. Gilbert 429 U.S. 125 (1976) at 152
(dissenting opinion). Justice Brennan's examples are
particularly appropriate because his approach 'illustrates
49.3
486
and that has now become the position of the Court, see
494
20. Ibid. at 713.
24. Newport News Shipbuilding and Dry Dock Company v. EEOC 103
S. Ct. 2622 (1983).
11. "%het v. Roe 432 U.S. 464 (1977)1 Harris v. McRae 448 U.S.
495
488
43. See John T. Noonan, Jr., A Private Choice (New York: The
Free Press, 1979) 73-74.
496
489
41.005 O 115
497
490
Court for decision that it would invalidate much a restriction on abortion fending on
the basis of a denial of equal protection of the lawn?
Answer. If the Court follows its Title VII sex discrimination analyses under the
ERA it would invalidate the Hyde Amendment as a denial of a womansm rights "on
account of sex."
Senator HATCH. Let me begin. These are difficult questions and I
hope that both of you can answer them as directly and succinctly
as you can. I will start with you, Ms. Freedman, and then I will as
Mr. Noonan to comment. Either of you can rebut the other. One of
the reasons we are holding these hearings is to get the best possible
legal analysis of these matters from all perspectives.
The issue of the ERA-abortion relationship has been, as we have
seen here this morning, one of the most controversial issues in-
volved in the ERA debate.
There has been a great deal of contradictory evidence on this
matter so my threshold question to both of you witnesses concerns
where the burden ought to be placed. What are the standards that
this committee ought to employ in determining whether or not
there is a problem here? Where does a responsible legislative body
place the burden of proof to establish and clarify what the equal
rights amendment really means?
Let us start with you, Ms. Freedman. Who has the burden of
proof on thix issue of whether or not the ERA is going to result in
mandatory Federal funding of abortion or the other policies that
Mr. Noonan has been 'discussing here this morning?
Professor FREEDMAN. Well, it is odd to talk about burden of proof
as if the choice were outside of Congress. The Senate and the
House of Representatives control the meaning- -
Senator HATCH. Let us talk in terms of speaking to Congress.
Who has the bkirden of proof?
Professor FREEDMAN. Let me explain. The legislative history of a
constitutional amendment is the firmest guide to its meaning. The
power over the legislative history is a power possessed by the
Senate and the Congress.
The Congress is free to adopt whatever reports and whatever
statements it wishes to adopt to give meaning to those words. Now,
obviously, if the words of the amendment said abortion is now a
constitutional right, regardless of any decisions heretofore to the
contrary or whatever, there is a limit to how far Congress could go
in changing that meaning. But that is not what the ERA says.
It does not seem to me there is any question of burden of proof
the Congress
as if it were a legal argument in a court becausedeciding
plays a different role than a judiciary. You are not a case
with a plaintiff and a defendant. You are the legislators.
So my point would be that the legislative history that you in the
Senate and the Congress craft--you are in total control of it and it
is not a question of anybody outside--.
Senator HATCH. Who effectively has to carry the burden of proof
to undecided members on this issue? There are still a number of
them. Do you not believe that those who are proponents of the
amendment have the burden of proof to show what it means?
Professor FREEDMAN. Yes, and what the proponents say it means
will be the most powerful legislative history, where the amendment
is adopted. In other words, if the amendment is adopted, it is what
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491
the proponents may it means and what the majority reports or any
reports supporting the adoption of the amendment in either House
say. And if they are clear about what the amendment means, that
will be controlling.
Senator HATCH. Even though it may be in contradiction with ex-
isting legal trends that Mr. Noonan has been talking about?
Professor FREEDMAN. Well, he is making various predictions
about what the Supreme Court will do, not based on the ERA's leg-
islative history.
Senator HATCH. He is basing it on actual case law that exists,
legal decisions that exist.
Professor FREEDMAN. Right, but if Congress says this is what this
amendment means, that, as' a matter of constitutional law, in my
understanding, controls, peripd. If Congress says we do not agree
that this conclusion should be drawn from such and such a court
case, it is improper for a court to draw such a conclusion.
Senator HATCH. But do you agree that for undecided Senators
the proponents must bear the urden of proof to show what this
means?
Senator METZENBAUM. Mr. C irman, let me ask you a question.
Tell me, on what other legislat ve issue that we have had before
usand you and I have served n the Senate the same number of
yearshave we gone to the question of who has the burden of
proof. I have never heard that raised.
Senator HATCH. Now, Senator, you do not sit on the Subcommit-
tee on the Constitution, but in seeking to amend the Constitution
of the United States I have always argued that the proponents
have had the burden of proof.
On the balanced budget amendment, as the principal proponent I
carried the burden of proof. On electoral college reform, my legisla-
tive adversaries carried it.
We are not talking about a simple statute that you wave in the
wind. We are talking about the basic, organic law of this land.
When you talk about that, it seems to me the proponents have the
strong burden of proof.
Senator DECONCINI. But, Mr. Chairman, I do not think we are
talking about burden of proof in a court case.
Senator HATCH. Well, it is not a matter of law; I agree with that.
Senator DECONCINI. Yes, and that is important. The Senator
from Ohio has a point. We are not talking about a burden of proof
that we have to carry in a court of law.
Senator HATCH. Well, in that Sense, this is not a court of law, but
every time we start asking what the ERA means, we get a lot of
futzy answers from proponents. We have been told that the courts
will have to decide the tough questions. That has been the history
of these hearings. Mr. Noonan, could you comment on that?
Professor NOONAN. Yes, Senator. I did comment in my written
testimony on how puzzled I was at that original Freedman-Emer-
son article that went through all the criminal laws of the United
States, some I never even heard of, with meticulous attention, tell-
ing us which ones would be unconstitutional and quoting laws
againFt some forms of rape, the White Slave Traffic Act, et c tera.
I was just amazed at the laws that would be unconstitut nal
under the ERA, but here was abortion, which was so clear y a
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492
women's right, that was never mentioned. I could not help thinking
that they must have thought about it. I could not imagine that
those astute minds were unaware that a lot of pefple thought abor-
tion should be a constitutional right. I knew it was not at the time.
Why were they silent?
Now, I have not heard anything this morning that is a forthright
repudiation of the abortion problem. Professor Freedman is in an
excellent position to tell you that this has nothing to do with abor-
tion; it is not meant to affect abortion; it will not affect abortion.
She could tell you that and help make the legislative history. She
has not told you. She has just told you what the Court did in a few
other, old cases.
Professor FREEDMAN. First of all, I would like to take this oppor-
tunity to say something about that Yale article. All of the exam-
ples that you just mentioned, Professor Noonan, having to do with
the criminal laws have to do with facial sex classifications; that is,
classifications which sayfor example,' in the rape laws it says in
many States that only a man can be the perpetrator and only a
woman can be the victim.
It is a facial sex classification. It does not say something about a
unique physical characteristic on the face of the law. It says men
are the only people who can commit this crime and women are the
only people who can be victims of this crime.
We went through all of the facial sex classifications we could
think of, trying not to be repetitive of every minor variation, and
talked about how it would be practical to get rid of facial sex classi-
fications because at that time people took it as commonplace that
you had to have sex-based classifications in the law. Now, most
people do not think that anymore, but they used to think that.
Now, unique physical characteristics classificationsthose which
relate to pregnancy, for exampleare not facial sex classifications.
It is clear in the legislative history throughout the whole develop-
ment that they are different from facial sex classifications and
there is a different standard.
So, when we talked about facial sex blassifications, we tried to
talk relatively exhaustively. We saw the unique physical character-
istics doctrine as a subsidiary principle and it has a different stand-
ard of review.
Senator HATCH. But you went far beyond facial classifications.
You brought in the issue, for example, of whether testing in the
military would exclude more women than men. How does that in-
volve a facial classification?
Professor FREEDMAN. I did not say we did not talk about it, Sena-
tor. I did not say we did not talk about it.
Senator HATCH. OK.
Professor FREEDMAN. I am saying the primary emphasisand we
were most exhaustive about facial sex classifications and we were
quite clear, and are still clear, that there is a different standard for
fac4i1 sex classifications than for either neutral rules with a dispar-
ate impact or for unique physical characteristics classifications.
We do not say classifications based on unique physical character-
istics, are the same as facial sex classifications. We do not adopt,
and the legislative history has never adopted, the "but for" test
i93
that Professor Noonan speaks about. Unique physical characteris-
tics classifications are different.
Senator HATCH. Do you agree that the Supreme Court has adopt-
ed that test?
Professor FREEDMAN. No, I do not.
Professor NOONAN. In title VII?
4 Professor FREEDMAN. No, I do not.
Professor NOONAN. Have you read, the case?
Professor FREEDMAN. Yes, I have, and I would be delighted to dis-
cuss the Newport News case because I think you have misseA a key
step. In the Newport News case, the Court says there is a two-step
analysis. The first step is an adoption of the dissenters' position in
Gilbert.
They say Congress, by adopting the Pregnancy Discrimination
Act, adopted the dissent in Gilbert, and I think that was the appro-
`priate thing for Justices to do. They say the second step is the
"but for" test, which they do not apply to the woman's right. They
say but for the mans sex, he would not be married to a woman
and she would not suffer that exclusion.
They do not say that the test for unique physical characteristics
themselves is a "but for" test. So they themselves maintain a dis-
tinction which you have combined into one.
It is one thing to say unique physical characteristics are subject
to strict scrutiny, which is what was said in Geduldig by the dis-
senters and in Gilbert, and which Congress adopted. It is another
thing to say a "but for" test, which is the test that applies to facial
sex classifications. The Court maintained the distinction between
the two in Newport News. That distinction is part of the legislative
history of the ERA.
We know what strict scrutiny, as applied to abortion, means be-
cause that is what the Supreme Court does in the cases following.
Roe. So it is incorrect to try to mix the two parts together. I am not
suggesting you do this in a bad-intentioned way, but reading that
opinion, they say it is two steps and the first step is Gilbert and
Geduldig and the second step is a "but for" test applied to the
male sex. So you are drawing a false analogy there, in my opinion.
Senator HATCH. Professor Noonan?
Professor NOONAN. I do not think there is any analogy to be
drawn. I will be glad to read the language of the majority, which
gives as a hypothetical: "Suppose a private employer were to pro-
vide complete health insurance coverage for the dependants of its
female employees and no coverage at all for the dependants of its
male employees. It would violate title VII. Such a practice would
not pass the simple test of title VII discrimination that we enunci-
ated in Los Angeles Department of Water v. Manhart, for it would
treat a male employee with dependants in a manner which, but for
that person's sex, would be different."
That in the test under title VII, and I really, Professor Freedman,
would have to say in all honesty that you seem to be stuck with
those earlier opinions of the 1970's. You do not realize you have
won; the majority agrees with you. You have got a test that is even
stronger than perhaps you would like, but it is in place there under
title VII.
501
ks,
494
502
495
503
496 ftt
54
497
5 r) 5
498
56
499
would turn around and engraft onto the ERA the same result they
had just rejected.
Why would the Justice.. go to the trouble of backing away from
the privacy anaeysis in order to turn around and adopt it under the
ERA?
The whole picture that Professor Noonan paints is a picture of
the Court on its own figuring out what to do, apart from the intent
of Congress and the American people; that the Court is the arbiter
of the Constitution.
Then he treats the ERA as if, when Congress and the people are
clear that the ZRA should not do this, the Court is going to be com-
pelled to do something the Court does not want to do. I mean, if
the Court wants to use the constitutional right of privacy to reach
abortion funding or anything else, they will do it. If they do not
want to, they will not-do it.
The idea that somehow they are going to step back in privacy
and that the ERA is going to force them to go forwardthose are
two inconsistent views of the operation of the Supreme Court. In
my opinion, if the Supreme Court is going to change its mind, it is
going to change its view of privacy and it is hardly goinr' to turn
around and then rereverse itself under the ERA. It is e:ily
that they would do that.
There are two ways that we would get rid of the right to privacy.
One way is the Court changes its mind, and then you have to
assume they change their mind in one context and then in the
ERA context, they turn around and reinvent that same wheel. I do
not see why the Court would do that.
Or there is a constitutional amendment, the human life amend-
ment or some other amendment, which reverses Roe v. Wade. In
that event, if there were two constitutional amendments, one about
human life and one about the ERA, they would have to be con-
strued consistent with each other, and again the Court would not
have the power under the ERA to reinvent it because their decision
would have to be consistent with both clauses. So I strongly dis-
agree with that last conclusion.
Senator METZENBAUM. Thank you, Professor.
Now, for my very last question, Mr. Chairman, can you give me
some assurance as to when the full committee will have an oppor-
tunity to vote on this constitutional amendment? We know the pro-
jection for this year's legislative calendar. We have had four hear-
ings; I understand there is another one scheduled for February.
When will the full committee have an opportunity to vote on the
ERA amendment?
Senator HATCH. I have made it clear that we will wait until the
House acts on this, but I really cannot say when we will vote on
the ERA. We are holding thorough hearings, and I think we are
holding them expeditiously.
Senator METZENBAUM. Why should the Senate wait for the
House?
Senator HATCH. The House is going to act first on this. When
they act, then we will be happy to act, too, so nobody has any illu-
sions about this.
Senator METZENBAUM. Well, let me say to the chairman that I
believe that we are coequal with the other House.
597
500
5 08
501
rent state of the law on State action in the field of education will
he eeistiect to further development as the goals of the ERA are
pressed upon the courts."
You did not seem nearly as confident that the law on State
action was going to remain the same if the equal rights amend-
ment were passed, or at least you did not back in 1971.
Professor FREEDMAN. There has been a substantial change in
State action doctrine. In fact, when I was in law school my first
law school paper was a paper on State action and I said it was a
conceptual disaster area and the Court did not know where it was
going, and there were developments of all sorts of possibilities at
that time.
Senator HATCH. Are you saying it does know where it is going
now?
Professor FREEDMAN. Yes. There has been a dramatic change in
State action doctrine and the Court has adopted some fairly clear
principles in no uncertain terms.
Senator HATCH. But you do not think the ERA will have any
impact on the present status of the State action doctrine?
Professor FREEDMAN. I happen to think the State action doctrine
is too restrictive and I wish I thought that there was going to be a
little bit of change because I think they have gone too far to one
extreme. But in terms of predicting what they will do, I do not
think so.
I also think that if Congress wants State action to mean any-
thing different than it does mean, then they will have to say so.
Senator HATCH. Then the doctrine of State action applicable to
the 14th amendment would apply under the equal rights amend-
ment if it is passed 9nd ratified'?
Professor FREEDMAN. What? I do not understand.
Senator HATCH. Will the 14th amendment definition of State
action then apply to the definition of State action under the equal
rights amendment?
Professor FREEDMAN. State action, as the Court is currently ap-
plying it, is a fairly consistent doctrine from one constitutional pro-
vision to another.
Senator HATCH. I am sorry to interrupt you, Senator.
STATEMENT OF SENATOR DENNIS DeCONCINI
Senator DECONCINI. Thank you, Mr. chairman. By way of pref-
ace to my questions, I must acknowledge that I find myself in a dif-
ficult position on the issue before us, so I welcome these hearings.
I strongly support and am a cosponsor of the equal rights amend-
ment. I also strongly support prolife legislation, and have done so
throughout my career in the Senate. In my mind, there is no con-
nection whatsoever between the ERA and abortion. I further be-
lieve that no such connection could or should be made here.
Even if the Supreme Court, in its wisdom, reverses itself on the
use of the privacy doctrine to permit abortion, I do not believe the
ERA should or would serve as a substitute rationale.
1, and I suspect a number of other colleagues who are also in the
pro-ERA, prolife categoryand there are close to a dozen of us in
the Senatewould have great difficulty supporting the ERA if we
99
502
felt that it could be interpreted by a future court to give assistance
in any degree to forces that have a prochoice attitude toward life
or death of the unborn.
It has only been recently that I have become aware of some peo-
ple's fears of a possible ERA and abortion connection. I respect
those views, of course.
Certainly, as I arrived at a position of support for the ERA, I had
no inkling that somehow it might be construed. someday to impact
on the abortion issue. I am encouraged that the legislative history
that will be made today by Professor Freedman and Professor
Noonan, particularly Professor. Freedman as the consensus witness
for the pro-ERA women's groups, will also reflect that there is no
connection today, nor is there intended to be any connection in the
future, between the ERA and abortion.
I agree that the legislative history is going to play a most con-
trolling role when and if this passes and when and if the Supreme
Court decides or takes the issue before it.
With that in mind, I would like to ask Professor Freedman a
series of questions, if I might, to have as clear and concise a legisla-
tive history for this Senator and perhaps others.
If you would be so kind, Professor, to answer them. I have read
your statement and some of them are answered there, but I want
to have it clear in my mind.
The first question is, will the adoption of the ERA have any
impact on abortion policy?
Professor FREEDMAN. No, it will not have any practical impact on
abortion policy.
Senator DECONCINI. Thank you. Will the ERA reinforce or sup-
plement the theory of abortion rights established by the Supreme
Court in the abortion cases?
Professor FREEDMAN. No.
Senator DECONCINI. Will the ERA expand abortion rights al-
ready delineated by the abortion cases?
Professor FREEDMAN. In my opinion, no.
Senator DECONCINI. Will the ERA create any new abortion
rights?
Professor FREEDMAN. No.
Senator DECoNcon. Will the ERA have any impact on the Feder-
al, State, or local limitations on public funding of abortions?
Professor FREEDMAN. No.
Senator DECONCINI. Would the ERA overrule the Hyde amend-
ment?
Professor FREEDMAN. No.
Senator DECONCINI. Will the ERA lead to more abortion on
demand?
Professor FREEDMAN. Do you mean in terms of people seeking
abortions?
Senator DECONCINI. No. Just the fact that we had an equal
rights amendmentwould that--
Professor FREEDMAN. Do you mean would it change the stand-
ards for which kinds of abortions were constitutionally permitted?
Senator DECONCINI. That is correct.
Professor FREEDMAN. No.
5.10
503
Senator DicCo Nom. Will the ERA render the right to abortion
absolute during the third trimester of pregnancy?
Professor FREEDMAN. No.
Senator DLCoNciNi. Will the ERA result in people being forced
to perform or assist in abortion operations or else be subject to pen-
alties? I think you have answered that very clearly and distinctly.
Professor FREEDMAN. No.
Senator DECONCINI. Much has been said by parties on both sides
of the ERA and abortion question regarding the legislative history.
I want to reiterate that I do not see, and do not intend any connec-
tion between the issues.
Our witness today has clearly stated that there is no connection.
I think her statement is very distinct. Professor Noonan disagrees
with that, and comes forward with an argument that I respect.
However, I cannot conclude that his argument is. overwhelming.
Professor Freedman, you have so eloquently presented the case
as to why there is no connection and no intended connection be-
tween abortion and the ERA. The prolife forces feel that stating
this explicitly in the equal rights amendment is necessary, and
they ask why should we not do it if there is no intended connec-
tion?
They propose the addition to the ERA of the so-called Sensen-
brenner amendment. Although I am sure you know how it reads, I
will read it here. "Nothing in this article shall be construed to
grant or secure any right to abortion or the funding thereof."
Now, I have reyd your statement about the problems with adding
any kind of additions, including abortion riders or amendments or
clarifications or anything else, to the ERA. But can you support
the Sensenbrenner amendment or any other kind of amendment
that states that the ERA will not grant or secure abortion rights?
Professor FREEDMAN. Would I agree to amending the amendment
and adopting the Sensenbrenner amendment?
Senator DECONCINI. Yes.
Professor FREEDMAN. No, I do not think that is a desirable
course.
Senator Di -.1oNciNi. Could you propose any acceptable amend-
ment?
Professor FREEDMAN. No. First of all, I do not think it is neces-
sary to propose an amendment because I think the legislative histo-
ry controls, and because I think it is clear that the ERA has ,no
practical impact on abortion decibionmaking by the Supreme
Court. It is an extremely convoluted argument to make the connec-
tion, but also the Sensenbrenner amendment is not the only
amendment that is being proposed.
It is not a question of one amendment or another amendment.
There are many subjects within the ERA on which various Mem-
bers of Congress are concerned. I do not agree with any of the sub-
stantive concerns they have, but it is not for me; it is for Congress.
I think once you start amendiril , you start casting negative im-
plications about the legislative history as a guide.
Senator HATCH. I do not mean to cut in on Senator DeConcini,
but I have the same concern he does. To clarify the ambiguity, why
do you not suggest to us what language could be addedit could be
as short a possibleto clarify this so that there is no longer the
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504
512
505
513
41-006 43 St
506
514
507
515
508
51.6
509
Senator HATCH. Well, let me quote Judith Copelon. Judith Cope-
Ion says "the separation of abortion from the campaign for ERA
has jeopardized--
Professor FREEDMAN. Who is this you are speaking of?
Senator HATCH. Judith Cope lon.
Professor FREEDMAN. I. think you mean Rhonda Copelon.
Senator HATCH. Maybe it is Rhonda.
Professor FREEDMAN. I do not know who Judith Cope lon is. I
know ..w ho Rhonda Cope lon is.
Sen,,tor HATCH. Well, maybe it is honda, then. I am sorry.
This was in a Ms. Magazine articl in October 1983: "The separa-
tion of abortion from the campai for the ERA has jeopardized
abortion and produced a truncated version of liberation." Do you
agree or disagree with that statement?
Professor FREEDMAN. No, I do not agree with it.
Senator HATCH. You say legislative history is extremely impor-
tant in determining the meaning of the ERA and that you are
helping to establish the history that there will be no practical
effect on the present state of law on abortion should the equal
rights amendment pass.
Would you support a statement by the leading ERA proponents
in the official reports of each House of Congress to the effect that
the ERA is abortion-neutral?
Professor FREEDMAN. Since I believe the ERA is abortion-neutral,
I could have no objection.
Senator Hfterca. So you could support a statement in the reports
of both Houses of Congress by the proponents that the present
status of abortion would not be affected by the equal rights amend-
ment?
Professor FREEDMAN. Yes. In their judgment, the ERA would
And since I think that is true- -
have no practical effect is the same statement you have just said.
Senator HATCH. Would you support a statement that it would
have no effect, leaving out the word "practical"?
Professor FREEDMAN. I prefer to use the word "practical" effect
because I am concerned about confusing the idea of whether they
mean strict scrutiny about reproductive regulations under the ERA
independently.
Senator HATCH. Let us be very specific and limit it strictly to
abortion and the present law on abortion. Could you surt ppo a
statement that it would not affect the present law on abortion one
way or the other?
Professor FREEDMAN. I think so, yes. I see that as the equivalent
of saying no practical effect, which is what I have been saying is
true. So if they say it is our understanding that the ERA has no
practical effect on abortion, and therefore the ERA is abortion-neu-
tral, that seems to me a correct statement of the prediction of what
the ERA will do and what they intend.
Senator HATCH. So you are saying that your testimony here
today ought to be the governing testimony because you are a propo-
nent of
Professor FREEDMAN. No. When I use the term "proponent," I
am speaking of if my testimony is adopted by a proponent in Con-
gress or the Senate, it becomes governing legislative history. The
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510 -
fact that I support the ERA and a Congress person supports the
%RA does not make me legislatively history.
The reason why the Yale Law Journal article was legislative his-
tory was because it was adopted by proponents in 1971, not because
I also support the ERA.
Senator HATCH. Do you belong to the National Organization for
Women?
Professor FREEDMAN. Yes.
Senator 'HATCH. They passed a resolution on the ERA at the na-
tional NOW conference on October 2 of last year. It said: "There-
fore, be it resolved that the National Organization for Women
serves notice on Congress that we will accept no amendments to
the ERA, and that any sponsor willing to accept amendments
should remove her or his name from the list of sponsors." Do you
agree with that? You have basically testified that way here.
Professor FREEDMAN. Yes. I think it is a bad idea to put amend-
ments on the amendment, and I think that the proponents should
not agree to do that.
Senator HATCH. OK.
Professor FREEDMAN. I am not sure I would *0 so far as to talk
about who should put their name on or take their name off because
I think that is sort of a fine political judgment. But I definitely
oppose amendments to the amendment.
Senator HATCH. Let me proceed step by step.
Professor FREEDMAN. Just a moment, Senator
Se Hatch.
Senator HATCH. Yes, go ahead.
Professor FREEDMAN. I could use a break at this point, if we
could.
Senator HATCH. I am sorry; we should have already had a break.
Professor FREEDMAN. Only 5 minutes, but I really need it.
Senator HATCH. Let us take a 5-minute break and then we will
resume as soon as we can.
Professor FREEDMAN. Thank you.
Senator GRASSLEY. Could I take advantage of the opportunity to
ask Professor Noonan a question? I do not have a question for Pro-
fessor Freedman.
Senator HATCH. You sure can.
Senator DECONCINI. Well, Mr. Chairman, I do not want to inter-
fere with the Senator from Iowa, but it seems to me that it is good
to have the main pro-ERA witness here to listen to the question.
Senator HATCH. Can we take 5 minutes?
Senator GRASSLEY. Just as long as I can get out of here by 11:30.
Senator HATCH. I am sorry; I should have turned to you, also. Let
us take a 5-minute break. We will be back here at about 22 after.
A brief recess was taken.]
Senator Grassley assumed the Chair.]
nator GRAMMY. Senator Hatch asked me, while he is still
having a discussion, if I would commence the meeting after the
recess that he called, and I am happy to do that.
I have an opportunity at this point, I think, based upon Senator
Hatch's indication to me that I could ask a question that I desired
to askI actually had several questions to ask, I would say, for the
record, except staff told me during my absence that most of them
had been addressed.
51
511
5a9
512
520
513
521
514
r..0 0
t.1 4,, ow
Senator HATCH. In Harris, the plaintiffs who wanted to overturn
the Hyde amendment argued that the amendment violated the
woman's right to privacy, as described earlier in Roe v. Wade.
Now, is it correct that the Court rejected that argument? Would
the ERA change this argument in any way? I think you have said
it would not, but let us clarify it.
Professor FREEDMAN. Well, no, because the argument has to do
with the constitutional right to privacy.
Senator HATCH. Then the ERA would not change it, if that were
the sole argument?
Professor FREEDMAN. No, no.
Senator Harm. If I am correct, however, the Court was also con-
fronted in Harris with the argument that the Hyde amendment
violated the equal protection clause of the 14th amendment.
Plaintiffs argued that the provision discriminated against indi-
gent women who could not have otherwise obtained an abortion. Is
it correct that the Court also rejected that argument?
Professor FREEDMAN. Yee.
Senator HAWH. OK. Would the ERA change the argument that
denial of abortion funding is sex discrimination?
Professor' FREEDMAN. Would it change the argument about poor
women, about indigency?
Senator Harm. That is right.
Professor FREEDMAN. No. It i an equal protection argument
about indigency.
Senator HATCH. Would the ERA change the argument that the
Hyde amendment discriminated against women.
Professor FREEDMAN. Let me just say what I understand. The
plaintiffs argued that it was a violation of the equal protection
clause or, the bases of privacy, indigency, and sex.
Those arguments, which are based on the equal protection
clause, could still be made after the ERA. An ERA argument could
also be made. All of those arguments
Senator HATCH. So you are saying it could be made?
Professor FREEDMAN. Yes, an ERA argument can be made.
Senator HATCH. As to sex discrimination in general?
Professor FREEDMAN. Sure. The argument could be made, and
the answer would be all of those lead to strict scrutiny because the
argument based on ERA is a unique physical characteristics argu-
ment. The argument based on sex is an intermediate scrutiny argu-
ment. The argument based on poverty is that it should be a suspect
class. The privacy argument is strict scrutiny and the result
out the same because there is no standard in any of those comes
ments that is higher than strict scrutiny, which le required byargu-
pm
vacy. So you get a new argument, but not a different result.
Senator Harem As I understand it, the Court rejected the equal
protection argument, because they concluded: "It is not predicated
on a constitutionally suspect classification."
Professor FRE /MAN. You are talking about the poverty argu-
ment, because they did not address the sex argument?
Senator HATCH. That is, there is no class of indigent women enti-
tled to special constitutional protection as there is a class of racial
minorities, for example.
Professor FREEDMAN. Yes. They rejected it.
Senator HAercii. Well, is it not the purpose of the equal rights
amendment to raise the sex classification to the same constitution-
al status as race classification?
Professor FREEDMAN. No.
Senator Hamm To go beyond it?
Professor FRIEDMAN. No. It is a different standard; it is not the
same. It is a different standard. It is not permissible to use sex clas-
sifications, but this is not a sex classification. I
529
41 OM 0 -AI- -14
522
530
classifications involving unique physical characteristics. Am I
wrong in that?
Professor FREEDMAN. No. I believe in strict scrutiny for those.
Senator HATCH. Well, the Library of Congress would conclude
that the ERA would promote abortion funding. Do you disagree
with that research?
Professor FREEDMAN. They equated that unique physical charac-
teristics with facial sex classifications, and I do not agree with that
equation.
Senator HATCH. You seem to be the only one who has ever made
this argument.
Professor FREEDMAN. No. The Yale Law Journal article makes
that argument and takes this position. It clearly differentiates be-
tween facial classifications and unique physical characteristics clas-
sifications. It says facial classifications are not permissible; it says
unique physical characteristics classifications have to be closely
scrutinized.
Senator HATCH. The only thing I am pointing out is that the Li-
brary of Congress analysts seem to misunderstand; Congressman
Edwards seems to misunderstand, and Senators Tsongas and Pack-
wood seem to misunderstand.
Professor FREEDMAN. I do not think Representative Edwards mis-
understands.
Senator HATCH. You do not think he misunderstands?
Professor FREEDMAN. No. I agree that there is strict scrutiny of
pregnancy classifications. I think that they are ignoring the effect
of Harris v. McRae on telling us what strict scrutiny requires when
it is applied.
Professor NOONAN. Can I ask the professor one question?
Senator HATCH. Sure.
Professor NOQNAN. Why do you attach such importance to part
one of Harris and ignore what the Court said in part two? They
said we are not applying strict scrutiny, with the plain implication
that it would be different that they were. Why did they say that?
Senator HATCH. That is the quote I read.
Professor FREEDMAN. First of all, they were talking about pover-
ty, not sex.
Professor NOONAN. All right. Whatever they were talking about,
they said they are not doing it by implication.
Professor FREEDMAN. They did not even dignify the sex argument
with a discussion.
Professor NooNAO. Yes.
Professor FREEDMAN. Second, if your argument were persuasive,
I think the dissent, which believes in strict scrutiny for pregnancy
classifications, would have adopted it.
Professor NOONAN. But ERA was not in place. You kept telling
us Harris talked about strict scrutiny. The Court says "we did not
in this part of the case.
Professor FREEDM4N. It is uncontested that strict scrutiny is the
standard of review fdr privacy violations.
Senator DECoNciNi. Mr. Chairman?
Senator HATCH. Yes?
Senator DECONCINI. The witness, Professor reedman, did write
Congressman Edwards in response to the legal analysis of the
531
524
r)r)
tiZ
v ok,
525
gated. I think this country is going to be fighting one way or an-
other about this issue for some time to come.
Senator HATCH. Then I take it you would disagree, then, with the
Connecticut superior court judge in the judicial district of-New
Haven in the Doe v. Maher case, who stated in response to a chal-
lenge to a public funding restriction:
The constitutional arguments that policy paragraph 215 violate a State's equal
right amendment and equal protection clause have substantial merit. Inasmuch as
this is an application for temporary injunction that requires a prompt determina-
tion, the Court finds that it must par on these tempting and very persuasive argu-
ments made by the plaintiffs and limit its discunion to due promos analysis.
Do you agree with that?
Profeosur FREIDMAN. I did not follow the last part about due
process analysis. If you are saying do I think that those are persua-
sive arguments, that is a prediction about whether they are persua-
sive to the Supreme Court.
Senator HATCH. Well, basically, he said that the argument that
the State Hyde amendment violates the State ERA offered a very
tempting and very. persuasive argument..
Professor FREIDMAN. I think it is clear that it is not a very
tempting and very persuasive argument to the U.S. Supreme
Court, which is what I understand to be the subject Of this hearing.
Senator HATCH. OK. In the 1976 Supreme Court decision bf Mis-
souri v. Danforth, the Court ruled that the husband of a pregnant
woman did not have any veto right over the abortion decision of
the spouse.
Now, given that the ERA is designed in so many areas of domes-
tic relations to equalize the roles of husbands and wives, do you
think the equal rights amendment would have any impact upon
the Danforth decision and accord the husband greater rights in
this area?
Indeed, I noted that this precise argument was recently made in
the context of the Maryland State equal rights amendment. Would
the ERA affect Danforth?
Professor FRERDMAN. No, I do not.
Senator HATCH. You do not.
Professor FREIDMAN. My reasons for that are that the reason
why the husband does not have rights, in the Danforth reasoning,
is because it is a constitutional right to privacy of the woman, and
for the State to give the husband a sayif there is a husband and
a wife, they cannot have a majority, vote; either the woman decides
or the husband deCides.
If you give the husband a veto power, the State is delegating to
the husband a power that, under the Supreme Court's interpreta-
tion in Roe, the Supreme Court says the State does not have. So
they cannot give any third party the right to exercise it.
That analysis would continue to govern, so for privacy reasons it
would continue to be the same law. Privacy analysis controls; pri-
vacy analysis says the husband does not have a right.
Senator HATCH. Do you have any comments on that, Professor?
Professor NOONAN. I think there would certainly be a serious ar-
gument and how it would come out, of course, would depend on
how highly the CArirt valued the abortion right against the equal
533'
526
534
527
535
52S
0 I
53t)
e;00
f1L)
111
531
10
STATIMINT Ot
WOVEN= 3, 1983
protect women's basic rights to evelity before the law. Women will
assumptions about women's capacities mad proper roles, as well as from gaps
government to review their own laws and practices with view to bringinv,
them into conformity with equal rights principles, these benefits to worn
I share Professor Emerson's belief that the basic analysis set forth in the
1
1971 Yale Law Journal article which we co-authored remains sound, and that
sexes. Since Professor Emerson has described for the committee both the
parameter of existing Supreme Court doctrine and the basic legal structure
of the equal rights amendment, I will focus ay testimony-on three arias which
prohibited from classifying 0,1 the basis of sex, except In those narrow
511
584
remedied. Since such claseifications are otherwise always too broad or too
birth, the government must instead classify on the basis of the trait or
in some instances, there are still significant areas in which the equal
which the ERA would dictate different results than the equal protection
the military is the single largest employer and provider of education and
training in the nation, and yet it im, for ell practical purposes, exempt
from lows prohibiting sex discrimination. The exclusion of women from the
military has deprived women of that employment and training and of lifelong
benefits derived from military service. More importantly, women have been
decisions about the crucial issues of war and peace, on the erroneous premise
that only men bear the burdens of "protecting" the country and the conclusion
that, therefore, man alone are both entitled and qualified to serve as our
political leaders. Under the ERA, neither sex discrimination in the military
administrative and judicial dr-tsions under our state ERA have together
prestigious all-male public high school, which is nationally known for its
685
from Central did not violate the equal protection clause of the Fourteenth
Amendment.
boys tomes rather than denying individual girls equal opportunity oe the
same time, because of the need for affirmative action to ovcrcome historical
to both mixes. Similarly, under the ERA the government could not exclude all
women from jobs requiring physical strength because some are not strong
enough to perform the work, but would instead be required to specify tha
excluded all women from jobs as police officers and firs fighters on the
grounds of women's smaller aversge sine and more limited upper body
strength. The ERA would require that sex classifications be replaced with
individual strength testing, as is now dons for sale candidate., and also,
that the tests used be demonstrably relevant to skills and teaks actually
perfonsed on the jobs in question. To give another example, the ERA would
4
reverse hen vj Mnshee , in which the Supreme Court ruled that George
could deny a father the right to sus for the wrongful death of his young son
on the basis of average differences between unwed fathers and unwed mothers
despite the fact that Lemuel Perham, the father in question, had supported
his eon and maintained close thus to his during his eon's lifetime. The ERA
513
536
because there are a limited number of circumstances in, which their use is
justiqed, the state would beer the burden of demonstrating that such
classifications are necessary and the ramose for them compelling. The
S
dissent of Justice Brennan in Geduldia Alglig illustrates the approach
contemplated by the ERA. Unlike the Supreme Court, Congress has recognised
by passing the Pregnancy Discrimination Act of 1978. The ERA would provide a
policies, practices or laws that classify on some neutral basis but that have
511
I \
hes a racially disparate impact. Similarly. under the ERA, disparate impact
invalidation of challenged programs. At the same time the BRA would require
neutral rules. Therefore strict judicial scrutiny under the ERA would be
required if neutral rule that has a disparate impact on members of one sex
neutral rules have been recognised and condemned by the Supreme Court in
has long imposed" on on %mien?, particularly the ides that the "female tish
destined solely for the home and rearing of the family" and not "for the
marketplace and the world of ideas nS , and "assumptions that women are the
N11
century presumption that females are inferior to males ; and the
stereotypic and predefined place" and grant men more responsible and
5 15
It ear -Ms
588
on experience., skills and attributes common to men but unusual among women
skills and attributes common to women but unusual for men when making rules
for stereotypically female activities. For example, the idea that women are
physically week gives rise in some contexts to riles excluding women from
certain JONs as normslly male leads to height and weight standards that
exclude most women from consideration for such jobs and that have no
tests that serve to exclude disproportionate numbers of women but that test
both facially discriminatory rules (gg, exempting women from jury duty:
providing alimony for dependent ex -wives bat not for dependent ex- husbands);
end neutrel rules with a disparate impact (taw providing jobs or job
training only for the "primary breadwinner," usually the mile because of
women's lower sverage earnings: or enacting nepotism rules that encourage the
discharge of the lower status member of the couple, usually the woman).
with a proper deference to and respect for the legislative and administrative
diction that has a disparate impact on females or males. As under the equal
against the affected group. Without such evidence, judicial review would be
conducted under the rational hail. test now applied Under the eqUal
fundamental interest. Thus, for example, if the progressive income tax were
than on woe n because of men's higher average incomes, the plaintiff would
539
of the income tax on sea is not the product of habit or stereotypical ways of
thinking about the sexes. Moreover, it does not perpetuate sex based
hierarchies but in fact to some degree ameliorates them. On the other hand,
s permanent and absolute preference in civil service jobs for veterans with a
be subject to strict scrutiny and the government would then bear a heavy
sauteeing women to low echelon traditionally female jobs while reserving high
the impact upon the group adversely affected, the importance of the statutory
This treatment of disparate impact claims under the ERA, while responsive
the equal protection clause. For this reason, in those rare situations in
which the ems neutral rule has a disparate impact both on embers of a
review under the equal protection clause and the equal rights mmendment, the
outcome under both smandments would be the same. Thor, is both an equivalent
need to ovoid discriminatory impact
on minorities and women and at the ems
time the government interests supporting the maintenance of the rule would be
57
440
facially sex antral rules vith a severely detrimental impact on sum= and
which would be subject to heightened scrutiny under the ERA. Thin committee
ostensibly 'neutral" laws and practices which desy depin4eat spouses whose
marriages hove ended in divorce' the means with which to 4...ort themselves
and their children. The ERA would require, an sod to the prevalent practice
dependent spouses and children. Among the laws that that the 32A would
Likewise, the ERA would call into question fault -bleed standards for the
sward of alimony that era used to decrease the amount of slinasy awarded or
her it entirely when the dependent spouse is found at fault but which do not
increase the amount awarded when the provider spouse is found at fault. Lawn
need, for spouses who ere physically or mentally incapacitated, or for very
14
brief periods of Lime would also be subject to review and revision under
the ERA because in cases where the couple has acquired little property such
laws discount the dependent spouse's contributions both to the marriage sad
New Jersey's probate code provides moms perhaps less well-known examples of
laws which are facially sex-- neutral but which can have a devastating effect
Jetail both because they are particularly egregious and also become, the law
equally severe despite their apparently sex-neutral design. The ERA will
C
518
541
review such statutes and eliminate provisions such as these which hare women
I can best explain the operation of New Jerney's probate rules through e
case study of a woman I'll call Nary Smith, who is based on a composite of
Collingswood for twenty-five years and raised four children. In 1980, John
went through a mid-life crisis and fell in love with another women, Barbers
Jones. After a year, he and Nary agreed to-separate but Nary did not file for
divorce becalms her religions principles forbade it. Nary west to work as a
will leaving everything to Barbaro, including John and Mary's hoes, in which
Miry still regides. 7be house, which was purchased during the marrlaga with
mossy saved from John's wages, is titled is John'e name. Lest simmer, Juhn
died. John's executor has refuted to pay Nary her statutory entitlement of
New Jersey, if the spouses are separated at the time of one spouse's death
of the decedent or of the surviving spouse, the forced share need not be
13
paid. Since the grounds for divorce and annulment are quite extensive,
for 18 months, Nary and a significant. number of other surviving spouses are
Even if Mary had continued to live with John until his death, and his
executor did not assert either John's adultery or the couple's separation as
a reason to deny Nary her share, she would still have been denied an elective
share in hire estate. Miry had separate property worth $30,000 which she had
inherited from her mother in 1982, and New Jersey counts one spouse's
519
542
16
in the other spouses estate. Nor di tie Jersey give Miry say legal right
miter John's death to share in the marital residence she abated with John
for twenty-five years bacillar the house wee not jointly titled and New Jersey
has no homestead low, which would permit surviving spouse to stay in the
matrimonial home for the duration of that spouse's life. Finally, New Jersey
exempts life insurance. accident insurance, pensions and joint annuities from
the definition of the augmented estate, on the basis of which the ose -third
17
elective share is calculated. Thus, if John had used some of his money to
of pension benefits. Nary's elective share would to that extent have been
reduced.
Social Security and employment-related pensions are two other areas which
practice, because they fail to respond to the economic reeliti4e of the lives
of the majority of women. The life patterns of most women differ from those
of tho typical man both because of sex discrimination in thp labor market and
for housework end childrearing. As result, women are more likely to have
from coverage employees under 25 years of so, lthough the years between 18
and 25 show the highest rate of labor force participation among women. ERISA
exclude persons who work less than 1000 hours year from coverage. DISH
The failure of the Social Security Act to take account of the life
situations of most women, who coibine homemaking and paid employment over the
5 01./
regard are the lack of recognition of the sconoalc contribution made by
homemakers and the forty quarter threshold. The first lowers beoefits
available to woolen who have spent time as full-time homemakers and the second
prevents many irch women from qualifying for workers' benefits, which are far,
more advantageous than the dependent's benefits for which they smy be
eligible. Becalms of the disparate effect of the Social Security Act and
ERISA on women. and their association with sex discriminatory attitudes and
practices, the ERA will require Congress to review these provisions and
whose time has come. Contrary to the assertions of its opponents. I believe
the evidence shows that the ERA will be s major force for the elimination of
sex discrimination and the improvement of the lives of all women. Therefore
I urge this committee and the Congress to act favorably and promptly upon
H.J. Res. 1.
r-
1).11
544
Pootmotes
Constitutional Basis for Equal Rights for *man,' SO Yale L.J. 571
(1971).
1902
2. Newberg v. Board of Public Education, Mo. 5422, August Term
O. Id. at 14-15.
11. Califon() v. Goldfarb, 430 U.S. 199, 223 (1977) (Stevens, J.,
(1979).
t-- r-
lit)g)
546
J)
548
MISCICLLANKOU8 MATICRIAL
12 -- Title VI/
55
li419
Rates J. Lewis
Legislative Attorney
American Law DIviolos
October 20, 1983
557
550
This meet seelyses the ebonies right is the emotes' of the pro-
posed 104. I. 1,136 the Reposes Cent held that (1) stases ow set
astegorisally gessulle diseeteem by ambles .heir port nesse a seism sad
(2) states soy on wills sinning esseseseenly difficelt it 004410 by
preenildes elaborate pension& *Adeline. Ilds, 410 0.1. 113;
Mt . Rol 410 O.R. lig. A donde Wm Os Coin neffined its
Ladino im
; sad
iixita; .v.
v.
.6 31 11.114;11.59Mbierit36
S1 . .
13
. 4701 (Jen U. 1003).
V10 reopen Is the subtle Indies at ebonies, the Supreme Coen ham
ivied that manliness men it these isvelviss the Mania pewee an
statutorily sod sesentetteeelly permissible loth with reopen to ems-
therepestaa (elective) and theespmetis (sedisally eseessery) Albanian,.
v. Is& 4)2 u.s.,4111 (1077); 432 0.11. 444 (1)77)1
, 432 U.S. 311 (11/7) (my. I mak v. aim 44d U.S.
and Villimee.y. nu& 446 P. MOO).
The sowers sr ;epeeists of abortion aid its palate feedies is that the
1MA will breeds. the already ensiles eseentntlenol right to me shorties
sed/er sense the Impress Coen to referee its public feeding destelmme end
seadato the npeoditure of sovennent ewer for abortion. this ropers
diaereses the tart this Is este theta have Mee it state soon desist's. is
states with state film relies densities': is the setter casseroles whether
the state lie events. bee an Meng on ebonies sod/or shuttles (veins;
however, la the state, et Sewell, Nesembeeette, and Peaneylvenis, le the
precise at litigate, the ebonies public fondles leans, the rutin of
leather the natal of public foreleg far ebertlewm vl'leted the state tie
was raised. the state comets did set deride that Ines mod reedend their
declaims on other steeede.
551
Rahman to the tawdry lets whether the proposed OA would hen as inset
no shorties aed/r brties fondles en three Supremo Court &stoln
isvolvies promisee's Q.11141 v. Meat. 417 V.S. 4$4 (11174), peal
Rleeetc . V.
SI
US 115-01/76), 8110110.Mifilent
U.S.L.V. 44.17 (Jens n. 1187 ).
idiot
limn ere
rust Beth la terms of the saslypis seed by the Coen no well as the
holdlolv. I. v. Atelip, the Comet applied a sentitutinal
seelysis bonne t saes see desided no Pourneeth Isaskass
preteen's groans. diets the 10A is nay Is reposed fere. without
nest
fully developed legislative history sod court desist.. istergretieg it,
the Iteertinetb krelamat end eseteeponneen tent rellege with
totemic
to son dtscrinserien are the beet pleas to Ink for guidon. is hew
the Senor Court sty apply the ERA. Is Igkiiie v. Alglle. the CoMott
food that the Stets of Coliferste's lessemWsourseso e enclowlen
p
of severe' for sweat prognesty did not sweat to on dlonleinatios
Moses showing that It use pretest for levidion dieertneetne.
The Cant's eestitutiessl seelysle Involved the pplicattem of a rational
heels stoiderd. 1.. the Court roomed Own the evaluate. .1 progsesey
was a permissible mine for achieving On legitimists state perms of
uetalng lonnost, employee eapperted !corneas plan. The Court ruled
that there ens as en diserieleation sheen proof of as inset to dieerimiset.
Is abort. proof of latest is sentinel to amities out ease of diecrimiestie
wider the seen preteens. slaves of the Itentseeth Amedeset.
The Court
recession is flu v. Aiello Aiello that proponey wee related to sew. but
it steely ref to go se as to bold that this classification centitutsd
legally prescribed seeder diserieleattem.
Save pronouns of the ERA have contended that the ERA would have so
hapset no shorties ed/or its fondles. They theorise that the ability to
Wove prsgeest stems free a eaten physical characteristic *ad would thus
be exempt free the REA. Only neon ean boons pronoun, i.e. the reproduc-
tive function is adieu. to fiestas. Siete me ere sot similarly situated
in this context. there wend be as an discrimination wader the ERA. This
point of view would be ceeeleteat with 9.4.141 v. Aiello. the only U.S.
Sopron Court precedent seder the equal protection clown with respect to
reguletios bans( is Monroe typist es prosiest vases. Thus. if the
Court vote to apply the same constitutional nolysis wider the ERA es it
did wader the equal protctios claws., et imold appear that there would be
no wont oe abortion sheen proof of anent to discrilevat as the
bens of sen.
in the Centel Electric C.. v. Gilbert con. the Supreme Coot decided
that the enlusin of pregnancy free as ethanol** comprehensive, privately
funded, onion, disability benefits plan did net entitut set discriniestion
prohibited by Title VII of the 1%4 CiAl Rights Aet. The Court spelled the
use coestitutiosel analysis it used is Coluldig v. A ells eves thougb the
challenge was Weed no statute cad sot no the se protection clone of the
Constituting. Coignes subenuntly assedd Title VII to cover pressn, as
fors of sex dieriminatioe sod thus overruled the alkEtt decision however.
Compass specifically provided for as ebonies secants' in this amenotat.
The sesedeent provides is pertinent part that employers ere not required to
r r 11 .
J0,
552
pay fee health lawmen benefits for abortion 'seeps where the life of
the mother would Is animated if the fetes were serried to ISM at
w hen medical complication§ hale ariw Ire as abortive. This
legislative SA pegelarly referred to as the Preposeey Inserialostioo
An et 1918.
The Supreme COSTe itself clarified smother setter which use left la
Liebe by the liAlladmileise ulna it des1:::INIgIlevo imams.
433 9.8. 331, hi 1177.
swivels is San is is lila
Ossamos the 4441,1 t sans amestituteeml
moldy panel of !MN* is 204 sex
sass se ems dieerinianne sent though soon
levelved is alleged
e tatuteoy violates it wee wales eletbsVVW-Ceere wee majesties the
disproportionate 14set seelysie sr Whew.' test that it led eseepeed
marlin is imams v. 8mha font Ce., 401 8.8. 414 (1971), as seffielset
to peeve elieilitnnies mist a status. wee a ease of MO
diserialeatiew. After igaggi, hewer, it slew that the Court
Intended to apply two ditlernie standards (1) 4118 Of Ictost Is sitwatieen
veers the equal preteens, elegise of the Feertemeth Amendment is violated
an (3) see of offsets la lestasees when thelot is s possible violation
of statutory prehibittes. This is use eget teepees to both rase mod
sea classification'.
Dowdy this pest 1981 -8] Term, the Ceert*Isterpreted the matt -pregnesey
discriminants* prevision in Title VII alerifyise this pregeasty discrisleatiee
enestimos leemlly preowned sem dinciedasties us Net Title VII.
. v. III& 4 4837
earieglealletiOrilireamepettel thli-inlisg, Weever, le that the
dispropertiesote !gout sepOsfa may hive limited 1,1001111411 is this program
diserieleaties neatest Masons the Court iedisated in chit the
Title III preeeripcies applies te both eels sad female amp who see
discriminated sealant is emplyneet. The Cann told clot eempemy medical
plass must 40,11e the pregaseties el employees' vine to the gems smut that
they cover all ocher dependants' 'Weal espeasse. Fellows to provide ter
gamble coverage for depeedests' pregame's@ 'Institutes illegal one
diecrielestion agelest eels ompleyees.
BMIESSna
Threeobset the seseies byte wise the weeitiseties et the proposed Sena
Sights ?rebore (IAA), gangelose Mw oriole sesseseles (1) Mather the SSA
emit him as Upset tie substantive rig* ge am *berets* sediet (4) ebether
it vet:1A affect the labile tarter et ebertises. is 1973, the 1.0. Supremo Caere
hold that (1) stets, way on sateserieslly
sweetribe ebectione by ealties their
pertoragase arise eel (3) steles soy one mho liberties)
earecesagrily dittlaalt
to shuts by prossitibles elaborate preestarel ouldsliaes.
agi, 010 U.S.
113: fog v. mu, 4110 0.0. 179. Ten yvere later the Coate resttireed its
With respeet to /be public tued:so el .Mettles, the Suprees Court Mss ruled
that restrictions. seal se these invelvios the Ondiaald prestos, are etatetertly
(1177) (Fey collet)/ arm v. !Mal, 441 U.S. 297 (19110): And
MUM v.
rains, 441 U.S. 3341 (1M).
t) 1
41.908 0-83-1111
The distlactios batman the coastitutiosal requiromat of proof of
sad the statutory rosuirosest of a allowing .1 disproportionas Impact is
taproot is the asalysin of Onethor the proposed CAA woad hats as /upset moo,
&boatel' and/we its public fondlog. if istast is the test that hoe to be sat,
rhos it is stowable that the SPA woad sat affect shorties heroism the sass result
would be reached as is %AIM' v. Alas which the Cart dolled on Faurteasth
aseaggoat otosi prateetleo grogods. ter, if Coolants establishes is the
legislative record that a dispropartioasto tripi4t-isit
is sulfteloat to Eska out
a constitutional vielatios wader the ZIA, so mot *slots with respect to 'fonts@
statutory violations, don-it would appear that the ERA would roach the shorting
*Mottos.
_
555
regarding the quanta' of whither the proposed amendment would have as impact on
the right to shorties itself or whether it would affect the public footing of
rbortioss. In fact, even awes praponsete there are diverse opinions. Os the
one head, eons IRA propomete have asseeted that there is no coonectit between
the CPA sad shortie's. Os the othershand, there are other proponents of the ERA
who have tried to find support in existing stets Ms for protecting a voasa's
right to have her shorties paid for with public funds. Then there are certain
CIA opponents who hove argued similarly the theta is n relationship between the
ERA and abortion, and that, the IRA would in tact broaden oes'e right to abortion,
opening up u well the use of public none, to pay for abortions. Supporters of
SSA who oppose abortion have voiced concerns about whether the CIA would have
In discussing the question of whether the proposed ERA wield have an impact
on abortion, both in the aubotantive sines as well as in the funding context, one
must understand the nature of the @retaliate and the concerns advanced by propo-
nents and opponents of the aRA. It also becoemi essential to understand the po-
sitions held by pro-life and pro-choice advocates. The lines of demarcation ars
not completely clear-cut as these two issues converge. Both ERA and aboitton
evoke notional responses free people with strong opinions respecting each. Com -
binine the issues to ascertain the nature of the interrelationship, if any, com-
The purpose of this report fail to analyse the abortion right in the context
of the proposed ERA. By adereseing the concerns that have been raised in the
5
debt° over the ERA resardift its least w bertisa, a legal diseseetes that is
At the very setae, vs bones the orpeeste that hove Wes made with
respect to the UA and shorties. After this revise of the foamless esyreesed
legislative history baled the enflamed aerobes' sae the vicious sortitetioal
amebas of review. The seelysto is this repeat trusts tab the braless of
well as its possible afoot we the public bebop of this right. The lanes
Cart Ise is the post viewed the bodies beetles se see that fa separate sell
DISCUS lOiworkM),
OPIPTOIS M!1w__
°MIMING
OF 011
The proposed Massachusetts VIA, which was ultimately adopted to herons pert
tional origin' Its phrasing is slightly different from rho federal proposal.
Another FM proponent who hes costended that the E1.11 would not 'eve an im-
pact upon abortion is Thomas I. Emerson, a Professor from Tale Law School.
12$ (111741). by the heose's Lew Praises sad the *Miriade Civil ilbertiee thaw,
wit motel sods teettery argeseaa. Prelseeer Seeress gigged this Nacre brief.
Is this case. the mom tittered e disability isserases severe' 'tepee ref
its employees, end sewerage for progiamy was mot iseleded. The Plea ass Mal-
l/geed se bele, violative If title VII at the LW Civil alibis Act. es soneded
newt. Po Septum Court his that there was as Title VII vielstiost aeverthelese.
Ibe emillosets sods is the MAIM briefs t11.4 with the Cent are relevest for the
Afp0$4 et eetertaieles whet wee said cogard4se the proposed CPA sod 011aft1011.
The sedate brief is Weigh Professor Theses I. actress signed his ogee sods the
fallouts, segment:
r- 4 t
)
559
in Ilse Coastal lectrie v. Gibers, tees, the company was analog that PrsC
messy is a unique yeieal charanterfatie peculiar to only on, "el, and thus, there
Emerson disputed this argummmt end contended misted that pregnancy was like any
Asia craotimue that if O.E. were a stets employer subject to the ERA,
not survive the scrutiny ppropriste under the amranZsent.' Id. They point out
that the necessary asses imetwvas the clausificstioa and the unique feature of
pregnancy le absent here, end state, 'In the coati= of employment, dlooRill
tied related to pregnancy and childbearing are not differeat from other temporary
.40
disabilities.' Id. Is oddities, they segue that consents. interest just!-
interest in maternal health and child health distinct from its !surest in the
the G.I. v. Gilbert case emphasises the poit that there ars sad can-be instances
is which the condition of propriety dose sot flow from the unique physical char-
the ERA. The ergueent developed in this salmis brief raises questions concerning
the opposing view that because pregnancy is unique to the female ass, there can
be no issue of discrimination !Need on nos. This issue does reveal s split among
Two other ERA proponents have made s case for the position that this ERA and
ahorelon ere separate and distinct matters. Citing the ERA', leeislattwe history,
Flireheth Alexander, a lawyer and legal advisor to "Catholics Act for ERA,' and
Maureen Viedler. a nun end the national coordinator for that organisation. quoted
in the abortion TundIRS cadent. ease ERA proponents have uede the argument
in proceeding tarots the courts or status with suite ERA's that to deny a woman
I), Al,(
562
public foods for abortion violated the stets LIA. Is the State of Newell, for
rights to practice emdiclee and (2) the tights of their patients to Oleos* abor-
hays. add swims, Cl.. No. 5351$7. Memorandum Is Support of Motion to Ismer-
some, p. 1. This case begam le January, 11711. when the Newell light to Life.
Inc. filed suit In Koval! circuit court cooking to enjoin the State of Newell
Revell. These opencast. also benefited from state Medicaid reimbursement. They
argued that any ttttt letion es the stete's cerrest Medicaid abortion reimburse-
ment policy would restrict decease in the exercise of their iodependent molitel
Judgments when trestles their 14eividoel patients because they would only be paid
Id. at p. 7
It should be noted .hat the Ct'rutt Court of the First Circuit in Hawaii
never reached the conotteutionsl question. When it issued its prose granting
defendants' cotton tor suemary judement on February 20, 1979. The Rowell
court ruled that the Plaintiff Hewett Fight is life, Inc., had the standing as
oopavetv 'o flia this action; however, the defendant DepaPtuent of Social
568
thee ad Please et at. 'oast Me. 1331, 'stormy, for the planate sae the
the Masesbesetto *Meld pies are emeastiatiessl basses they salads ter-
',Ursa-, the ergusont regardful the stets em: ximmted, it etre,* dove the
zoort wrote:
The Massachusetts court emphasised the prisciple that sees the state
we of state Medicaid feeds 'te reimburse authorised providers for Irafml. med-
a. at p. 39. tie, coot reesaded the case te the massy mutt with specific
lestructimer to ester a Meson (1) Malariag that the members of the plaintiff
fondles of lawful, esdicelly eamsemury shorties *emits, sod (2) esjoining the
Department of Public Welfare, Mo. 2113 C.O. 1961. plaintiffs flied en Minded Pe-
tition for Review in the motor' of Complaint in levity is which they argued uto-
lotion of the stte/MA at p. 24. The plaintiffs were challenging the lost itylveni
restrictions prohibiting the expenditure of state or federal money for the per-
the life of the women would be entlnge.ed if the !Om war, carried to full term,
or where nee 44444 y tr- victim of rape or totem which heft bean ',meetly repotted
11 i Ay
-41
666
pravisis prohibited ems% assis for tbs performeass of abortions 'weeps meets
physicisa has cartitied thee the abestiea is Guesser, is avert death at where
the pressen/1 'welts from rape that has toss persoaslly reported to a law so-
foremast sweep by the 'Letts or hat spot is mimes as guest vitals Imms reported
In Corte, Order that *stew* it receseixed that *as order Is secessary before
certify that a cestrolling :pasties of Lew to which there was substastisl ground
for differsece of °pintos existed and that as immediate appeal tree this order
soy arterially *dolma* the ultimate terminaties of the c4401...* Fischer v. De-
Os Nay 20, 1913, Coegresenss Beery Pyle testified before the Senate Judi-
the 11th Coyness. Ns specifically addreased his remarks to the pretties of the
tele MICIP etch stets Ms. Me retread os Natalie Itevostbusette, avid Peers,' -
vents sod diet:weed Missiles Is these three states isvelvisa state teas and
eborties dusdims. Iht reeessloed that is ash looms, there was is tout cellos
es the usage repairdIss the loess et Os 1Lt beveget. ha polluted gut that his
tessera Imams tires the teat that thesis smogs evideste chat 'the pnrshettles
sevsseet torpedo RSA is valuable test is the tight &aslant *bottles remidlop
Cabdtimmusm 17d0 ebenwooll smote chat the O.S. Septum Catirt's isolates'
the IRA be ratified sod us be accorded the states of balsa a respect glasslike-
la. at p. .
His c stiotiv also reveals a certain distrust of the judiciary with respect
1104, lbolt interpret the infect Of the CNA as abortion and abortive funaingl
i4. at p. 9.
568
Congrsmautn lids recommended inserting clarifying language in the CIA "so the:
but
that without this language set poly tumid the right to aboctioo he expanded,
the sammdast waste ftilliAtO public tuella& of abortion.
r-
,
569
.
Om May 26, I03, Vatter, lams. Maddest Meter at the Americas Seseveries
the haste Judiciary Sebeersittee es the Cseetitntlem otaareleg the curtest ERA
prepasal Is the 'kb Ceogress. Es le ',posed to the IAA sad with resent to
With rupee te du quietism of slather the IAA would here me impact ups@
*betties, I. Sores drew merles LAB a @tamest lade by the C.S. Supreme Court
lee a heebeed see Rey have a 'deep aid proper teeters and interest...to his 'vets
reggaes, and te the grogib add development of the fetus she to estryleg,' bet,
le the avast ef m seetilat, his laterest emit give way te a wife's right to hove
am @Will**. Xt. Segos leaked it Wits pulse le the MIMI ease and remarked!
'Reed literally, the IRA would atvert his isitoreet late a right, a right equal
to the wits's.' at p. 6.
Im his article to the Spring I'll Rama Life Rialato 'QA sod the Abortion
577
41-001 0 -111--rr
570
fig moonrise. the tangelo; disunion. illustrates that while to date there
have bees so state coon designee IsAtates with state OW relies datintively
sad/or ebonies feeding, the loses et possible impact has bees reload. Anemone
have been .Me os both sides. SAMS propionate if the IRA have cesteaded that the
gin would have so Impost is abo.tieseader its tondiss. they theorise that the
thus be genet tree the tn. Daly MOSS CAS WOOS ptassests i.e. the rePrefin-
tire finnan is sales. to finales. elate men are set similarly elevated is this
contest, there meld be se son discrimination ender the ill. this poise of vino
575
571
mead bs ouletest with the well U.S. 'spume Come proudest cedar the awl
ume mess. More are mbar IRA preemies Mousse to ths ostury. ?My
Mist al* thee the effuse of dissrialasties es the hula of pupas's, an sock
lbas is the absrffill baffsi tamest there have bees Ilk prepossess is
cereals seats NIA uses violist. smiled is semplalate sod Wife tiled before
stets moats that is any pale fads far shorties usseitusso ass dissrielas
ties bassoon ally moss eas %WOOS presume aid to steels thus est to des,
' the feeds for this pompoms violates the state IRAs is asessess. opposes.
raised ceaseless VW Mau also somesedod that them is possibility that the
CNA could *used issms's right esas shorties as well as misdate the aspeedi-
579
1
572
mallyingsussene
fetid. sectlea of sir report, we shall first describe the sunset state
of the law with respect is (1) the asestitetiesal right to as abactims awl
tive, ead the U.S. Supreme Coen has treated thee ssparetely. The leollag
uncial, these lees. These challenges net with nixed success in the lower
courts. However. in January, 1973, the Supreme Court issued its rulings in
Roe w. Vale and Doe v. goltos. I. those cases tiro Court found that Texas
The Tessa statute forbade all abortion not necessary for the purpose of
573
wig the life of the mother.' Its Memel& descant peruke'''. sbertimis
life or health, oboe the fetes was very likely to have severs birth
sad @sly after approval by a hospital alesittes se. two remelting physicians.
Ibe Court's desieless mere delivered by Mr. Justice Illaehmme for him-
self awl eta ocher Jostles,. Jestiees White as. Ilebessist diseases.. the
court male. that states any set cateserleally prooderibs Mortises by ..hiss
their perfeemasse a swims, and that state* say sot make alettiOND *Men-
saelt/ difficult to *kale by preseriblas Mahout* peoesieral reidelises.
The cesatitatiosal bests for the Maisie** rests. epee the seneluslom that
whether to carry pregame, is tars. The Coot sated chat its prier desists..
had 'fore. at least the rests of ...(a) gutranta* if pommel privacy' is
attics.' Roe r. Made, 410 0.2. 113, 132, 133 (1313). lesardial the scope of
that rishck the Court state. chat it fooled*. persoal rights that ass
be doomed 'fusdamantal' or 'implicit le the concept of orders. liberty" and
581
574
eatereal health sad the pf0001,00/08 of the titan' aotessial lit.. ,g. at
146.430, sad the esietsece of a rational aseesetlen Mamma theee two intereets
and the state's eatiabertiett law, the Coat bold theeeistereate iseeffielent
',nettled stases of preemie,. The Sigh Caere coacluded that mull the sad of
Only otter the first trimester dens the tate's interest in protecting mammal
'The 'coupe/11W point with respect to the etate'e interest is the poteetial
life of the fetus "to at viability." following viability, the state's lutecium
upper elate medical litigant, for the'proservation of the lite or health of the
sot or. Id. at 163-164. The Court defised viability ao the point at which
th fetus /0 'potentially able to live outside the nother's womb, albeit with
In Dee v. Seleat, 410 0.5. 170 (1073), the Court reiterate! its Wadies
with she pressen weber sad her physielaa, bat exteskflaby gneiss
Court appeared Is nets, buster. that this would nu apply to a statue that
the Court loft else dealt with the enmities whether a fetus is a parses
osier the rostmeeth deetedmeat sad other previslose of tbs Cesetitutioe. The
but added that In surly all the emotions *Mrs the word purses appears,
...the use of clv. word is sub that it bee applicable only Fist-utelly.
Noss tailgates, tr.th asy savorous, that it his my passible pre -natal
583
576
application.' 410 U.S. at 157." The Ceara emphasised that Sivas the fact
that lu the major part of the 19th aleatory prevailing legal abortion
penniless were far freer than today, the Court was persuaded "that the word
'purses,' as need is the twartseeth Ameedmeet, does set leclode the sabots.'
Id. at 15O.
The Court did sot, however, resolve the qiesties of Moe life actually
at which the fetus is peteatially able to live outside the womb, altheesh
Requirements
Is Pleased Feramthood v. Dasforth, 428 U.S. 52 (1074), the Court held that
informed coolest statutes, which require a doctor to obtain the written convent
of a mosso after informing her of the dossers of shorties and 0001b16 slum-
and ars Got overbearing. 428 U.S. 52, 65-66. The fact that the informed
constitutional was later coofiread by the Supremo Court in 1070 when it suer
effect. in Freiman v. Ashcroft, 584 F. 2d 247, 251 (8th Cir. 1978) aff'd
5S,1
51'1
mmer. 426 O.S. 32, 69. It should be sated that se the ems day that
426 U.S. 901 (1976), 'blab hold u eseestitetioes1 a simnel geneses Ise
Subauessatly, is Sellettl v. Milt, 443 O.S. 632 (1979). ibs Cant rated
that WM. state us/ rotates a miser to steals paroatal eeseeet, the state
entitled to some pomading whith allows her to prove her ability to sake
se
Wormed decision lelopeadset of her permits, or that eves it she is isaapable
585
578
since it allowed other mete demesnes presodures while prekihitiog sane that
mere safer, sera effective, mad nine widely aceopted by the medico/ 'tansies.
' piaally, another sigstiloast wallas sods by the Court i .meta mess
as ebonies to use Available mesas aid medical shills to save the tile of the
the Supreme Court held that such fetal protection acetates cooed oily apply
to viable lotuses sod that the etstote meet be 'mt.: is t-:.V.As" fort the
fetal protecttos laws had to dolts whether a doctor paramount duty Mas to
the patient or whether the physician had to Ulna, the possible dam+ to the
palest slimiest the Increased odds of total sanivel. 43, U.S. 37,. $f7 -401.
5,5G
519
bui, 443 V.S. 422 (1171). Mere the Crest held eseastitualseal a
to omen or that the ebonies would be is her beat leterests. The Can
les Read asegatitusisea a stamen, partials* that emitted jedisial
the taut to be mature sad fully aseeetan to ache the desists. *ether es
State wished to wee pareetal motificatiee, it net afford the miser the
able to sake the declaims ladepesdeatly, the desired abertiog is la her best
Os March 23, 1,51, the Can upheld a Stab State law maim it a crime
daughter, (a) whin the girl is living with and dependent upon her
587
580
(c) when she bas Med. so claim or shawls' as to her materity eras to bar
relationship with her pauses. She Upton Court cited the lamest ,s
'bottles, sad emphasised that the statute is qualities did sot sire $ veto
power ever the miser's sheltie. desists.. Chief Justice brier roamed
that the Utah Law, 'as applied to immure sad &speedos' steers ... serves
Ismatuir.' The Court rojectli the aim wemaa's costsatios that *beetles
was Wins singled out flr special trimmest is cestraat to other surgical
Chid Justice resposded that the situatioaNdiffarsd sod 'it the /repast
girl elects to carry her child co ten. the medical decisions to be made
inters..., was narrowly dram to protect only those interests, and did not
558
581
.1
Omit the state interest is reaulatisa the latsgritp of sultal and
imallial lit., together with its dressage is eedurisa that its steer,
(3) ignaiRMILALWIETInittlife,
The depree4 Caere held is noixi.jLegail, 421 0.11. WO (1973),
is the health Gad madam' primates of Mew Tack, the state Is which the
pseferaleg 'boraces. Thu ass lactates sada it clear that a state malt sot
341
interfere with a wow declaim. node is consultaties with and apes
her pressancy. The Mutat Court fooled that 'organ. testae:tie' shor-
ties lows were still salsrcesble 8101141t man-physician. 4130.S. 11, 11.
Ie halter v. Doe, 432 U.S. 319 (1977) (2110 imam), the Supreme
shorties., did set violate the egad psotestios clause of the Constitution.
Nether, however, did set deal with the gaieties of private hospitals sad
No cause have hoes reported challenging state laws which allow doctors
the foot that a looms con always seek out anthr physician who could per-
other beliefs.
To date the Uprose Court has not rendered a decielos 'Giardini the
this issue. See, e.g., Jones v. tasters he. hod. Center. 448 W. Supp. 1156
5:11)%, ,/
(6) rim Defialtios of Viability,
survival. 410 O.S. At 163. The Court elms sated that Mille viability is
mod primarily, a medical decision.* 410 0.11. at 160. Similar themes were
of fetal develepasat whom the life of the sum child say be costiosed
flenibility of the term. 421 0.1. it 64. Moreover, the 9amfertb6 Court bold
that 'It is mot the proper females of the lsialstsre Of the avert. to place
seettios period. The ties whoa viability is achieved may vary with each
591
584
aid suet be, a setter far the leftmost of the atteedisg physielas.'
and the lack of such defisitiesal setheirity is the legielaturee sod courts,
was west rustily reaffirsed by the Coen is slam& v. pash2le, 439 U.S.
375 (1978).
C. U.S. Su resE...Cmbjas
ow 1953
Os Jess 15, 1983, the U.S. Soprano Court decided three Glee isvelving
formed the Mole for the other we deeleless. Those three dacieless
*evolved some of the unanswered questiose that gross otter i.e v. Made
vote declared that five settles' of the *We ordinance reetricting the right
opinion of the Court, and be was Joined by Chief Justice Surges, Justices
5 92
585
bUleg onlattn of the 0.11. Commandos. the Coon at Os warp onset reef
!lend its 1973 Melones jigLe. giflo 410 0.1. 113, aid prosened to amine
sea native of the Shen @Wiseman 'within the trimness framework established
ip that tulles. Darin the first trimester, a were meet he fres in aseseltaw
tise with her doctor to nods a Moisten is berm am ebonite shiest nonsmeatal
J.
interferson. la gjxdMM, the Caen does petit set that stets as
her pregame, sad mot be justified bp tannest state health obj caves. The
at . 4771.
most stated the: day second trimester abortion had to be perfoemed is a full -
r-9 3
41-006 0-46-26
586
surgical services. The result ms thee abortion udder this motile of the
Akron ordimace could set be performed is setpatist ',titles that sere met
pert of 011 acute -cars, fell smite hospital. 'hs Court food this result -
travel to fled facilities could rmalt is both flemelal espouse mid added
ferules WNW trimester abortions niece IV, lot its conclusion that the
The Court also !mandolin the provisies is the Akren indiums which
rinses he got the interned writtes tannest of coo of her permits or her
legal guardian' or melees the miser herself *Weise/ "se order from a court
Id. at p. 4773. The Court relledtem its earlier rullaSo le artforrt. oaf hillot!I
that la minors sodel\the ass of IS are too immature to make this decision or
that is abortion sever say be is the misor's best interests without parental
the alternative judicial procedure required by lellotti II. The Court refined
because it had softies to do with Risers' abortions. Thus, the Akron ordinance's
comsat provision had to fall Mame It foreclosed say possibility for "caso-
Id. at p. 4774, quoting
by -case evaluations of the maturity of pregnant eleors.'
594
587
Is Cite of Arse, the ewers= Caere ales streak Mee the 'atoned
the &medial dotter orally lame the memo 'of the states of her prestos:7e
the devolepeset of her. false, the date ef,posollolo viability, the physical
The etteedies physicist me else required is tell his p=riest if the risks
atertioe. Is Cite it urea, the Court fogad that phe city's IresuletiOs
that parties sf the ordleasee's inbreed comet ?squirmiest which stated that
because of the availability of ematews other averts far obtalelea the neces-
In City of Akron, the Supreme Court also chose to isvalidat the twenty-
four hour males period. Id. The Court foetid chat the City of
Akron had not shown that say Insinuate state interest was halos served by
majority, Justice Powell noted chat there was "so evidence guarantee that the
Virally, the nett ruled that the ponies of the Akroa ordleasie
59
589
meet dunes the third trimester !Bamberg& mes permissible ender the
The Coen sloe upheld the pothole., neon requires's'. This pro/isles
Costae Otto! then! flip Opines at p. 12. The Caen further famed that
the test of the tissue ummlestien *does set sigelliently lanes lie present
mast, unlike the Anse ase, did /rinds se alternative prosedure by which
a pressen !stature alas could ghee is seen that she en suifiel ally
in part sad dissented is pert. Justice O'Coesor emphasised that for the
same reason she dissented in City of Akron rossrdlig the hospital requirr
meet for second trimmest abortions, she le dissenting here. They concurred
with respect to the Courtle upholding the other minnow of the Missouri
597
1.
590
one that did set .tines the trimester tram meek *tile, v. Wade.
Paoli wets the spiels* tot the Ceert. Jostles Staves* disowned. The
' use that the Virginia Ws ceald be laterpreted is either of toe awes
by Justices Rehnquist and Obit'. Nee resuming, however, was not based
believe that the requirement in this case is not an undue burden on the
Si U.S.L.W..475I, at p. 4794.
598
591
remise. 11.: Uprose Court maligned its dmisises is Ise v. Veds and
at the mist of viability. i.e., Mss the fetes sae mist outside of
densities of viability la the mss said by the Camel is its Ise v. Made
("/
desisies la 11173.
the Seeress Comm, (1) these lumbriss lewdly matrietiess ter eel/
thempeutic (elective) abortions red (2) these levolvias !madly, liana-
The Court held that the states bays neither a statutory en cosscitutiosel
32 U.S. 464 (11177); tad pselkee v. Don, 432 0.S. 311 (11177) ()ler curies).
599
592
Is Real v. Doe, the butter Court dealt with the queenos of whether
/ale III of the Semial Security Act required the feeding of sow-therapeutic
by the Act. The Court hold that oxalis is the laming. or legislative
The Court tided that it wee net incemaistest with the Act's goals to
refuse to lead umnecessary medical services. The Court recognised the state's
abortions. layover, the Court did indicate that Title III loft a state
do so.
halm been medically or psychiatrically secessary. The Court hold that the
simply because the state has .ode policy choice to pay exposes locident
birth over abortlos was hold oat to lupines spot the fundamestal right
Court, the state's choice did not Medics, as indigent woman striae se
598
that it held 'tar the moss stated is MK, that the Coestiteties Ms
slag a prefereete ley mewl sialdhirth is St. Lasis tea sees. 432 CS.
at 521.
s.
=7177::l c ."7771 ..4=1"1 777 r17 7117. .
the 1877 supreme Court MMus left epee the 'lowlife whether federal
bro, seat ea the .pie Amemdempleit similar state lass, told validly
Os Joao 30, PION lg I 34 Miele., the V.S. topreme Court sided that
Court's esjurity food that the lyds Means' Neither violated the duo
Establishment Clause of the First Amendment. 21te Court aloe uphold the right
Mao., 448 U.S. 297 (1980). Is measles cases raids. Miler loess, the
Coot held that a State of Illisele statutory folding resteletion com-
parable to the federal Syde Madame also did not consume the /mistiest-
Now. William. v. Mom; miller v. ;bards; U.S. v. Slow, 448 U.S. 2117
594
Yet the pepsins if this eselyele, the tenons' three Supreme Court
417 U.S. 414 (1974), cemsetilleetrie go. v. gimlet, 429 U.S. 125 (1978),
the Civet hes applied seder the florteeeth Amemimsat' egmel pretesties
clause. lists the SSA is only is proposed tan, without a telly developed
ties my provide 'sidearm as is Iwo the 'sprees Court may splay the SSA.
While the fifth remnant, wads blade the federal goveremest, contains co
ezprses equal protection clause, the Supreme Court has held that its pro
Welsher er v. Wiesitatind, 420 U.S. 636, 63I n.2 (1973); Suckle v. Melee,
424.S. 1, 93 (1976).
622
595
whieb offends the Cesetitetise." finesse v. Stress, 372 U.S. 726. 732
(1963).
Necessities of the feet that owl preteetiel Mee set May the
Than are actually tea dif' rest forellatiose of the rational basis
test. Oes is derived fess Usdeley v. Pistil Catbeeic Gas Co., 220 U.S.
classifications. Over the years, des or the other test has bees utilised
596
sladdis'e Ceesis 415 U.S. 202, 294 (1982), swim" 296217 (Justice
will survive se equal pretectise challenge. Masi this test, the Court
See 0se11rt v. C saw', 335 U.S. 664 (1,40) (boa as wanes as berteaders,
' U.S. 57 (1261) (lw required jury service of ass but "eve venom *Stift
to serve or sot). Whoa is 110__v. led, 404 U.S. 71 (1971), the Court
rely 011 the rational basis test, but easy saw is this opiates Bosoms'
less da.retial.
the test explicitly, the Court has developed a strict standard of review
when racial clessiflcatioes ere in issue. Levin v. Vie Isla, 388 U.S.
necessitating the action end that the distiactioes are secessary to reach
694
597
essessare).
test dad sae lose inlet (mod ems less fatal) this dm 'smarm duns -
Cali v. Sexes, 421 0.1. 190. 197 (1974), Nluuioelssl Osiansitv fee
soy swat, they these* the classification at Issue tailed the ennui
her opines for the Court is NIselsolni University tee mess; v. _sag
melee
Judaic* Unquiet sad Chief Jestla helper hive argued that whoa
SE _v.
st dloadvsetseed esly the ratified basis test is appropriate.
2115.2211111mtejlatipyi, 430 041. 1115, 224 (1577).
jggo, net.
classifica-
paver, the standard seed to 'velvets esteesibly ItsIgne
expressly earbseed deeigsed to dempeesete
tion. i.e. classifications
diserieletiee, is is flea. At first, the rational
vane few peat
/ape*.
Male test vas applied to sustain rash eseetmeste, despite the
rationales edvseed by the severs..
able eherattter of the sampeesstery
isttleeleer v. Sellert, 415
meat. She v. Sheila 414 U.S. 331 (1574)i
intereediere teat, !lapin
U.S. 411$ (1075). Later cases have applied the
314, 320 (1577) . Sea Orr v. Orr, Bag. 2504121 !sealer v. Dreaniets
University for
Mutual tea. ce., 444 U.S. 142, 130.452 (110110); Eystesisel
66
599
largely but met **elusively men sad which bei severe West meetly
but mut totally en venue use held sat iseelid eider the equal pretet
' that the eselesias of pregeasey "am a permissible esse for ashAevias the
laminae* plea. The Civet famed that the California plam' sucluelse
did set amen to sae dieetimiestiee deem sheets. that it vs. pretest
for ividises diserinisaties.
ladiceted that the Court recognised that progessey use related to seas
6 ) '7
600
'Mors is so risk fess shish masers protected sad mess are oat. Like-
wise there is us risk free *lab MOMS IVO protected sad mom are not.'
at 406497.
420 QM. 120. In Gliksve, eta Court atfoetively overruled the wasalmoss
prohibited by Title VII of the 1064 Civil althea Act. The sajevity is
Gilbert relied heavily spas the Coort's prior declaims is Aiello, mal.
6)8
601
straight time weekly wogs up t a seximem besalit et $130 par wash for
each week the employee le beset tree mad usable to work om uesiat
44414:ties. The way lisabilitiee set teemed by the p1am are them
Justice Rekagetet wrote the Supreme Court's orioles ter the talker'
' majority is which he was Nisei by the Chloe Jostles sod Justices Stewart,
with the appeals court's basic amnesties chat the equal protection
considering the sans issue is Gilbert, under Title VII. Although implisdly
Justice Rehnquist felt that the came law elaborating the constitutional
619
41-00A CI -88-89
602
4
the mejewity is Gilbert read hatless meeting that "the eulogise of prose
Califersia's disability Misfits plasma sot is
sooty Sr.. coverage wader
Apart from the issue of pregnancy e!r a., it the ties Culbert was
0
603
/mar Co., 4C1 U.S. 424 (19)1). heaver, after the Gott decided
sad weight regalia's's far prises guards, It pet to rut swig eintiee-
tyre@ ad alarified that the Wage teat ems in last still viable
prior to susetmeat of Title VII, bet abseidemed the palsy niter the
' jobs, le strati* dem this policy, the Chief Asetite eased that whites
their effects em protested classes under the Act, helding that requiresente
611
practices." 14. at 423.40. The diplase sad testis* requirements in Slim
were infirm because they mere met shown to be job related and had the effect
mot simply the estivatiem.- 4. at 432. The policy is Criuk could net
by the Act.,
standards which the U.S. Supreme Court applies i situstioes More the
scrutiny -- depandina upon the facts of the tees, the classification involied,
612
605
613
606
stssdards say differ, the Caen telt that the use lee elaborating the
medical coeiitiess."
for prig-
8/ The only esceptiea to the rsquirsssat of equal treateent
nest workers is the provision allowing employers a choice is paying for
health imoureace benefice for abortion in soot situations. The provision
explicitly states that employers ere sot reeuited to pay for health i
benefits for abortion, elm it where the lite of the mother would be endangered
it the fetus were carried to ten or where 'medical complications" have
arisen from en abortion.
611
607
sad thus, clarified that the gam teat nee is fact still viable is
the
coolest of gesder-hesed diserisimetioa.
to 844bord, the Court held that
elpleymest requirement@ for height sad weight dincitimimate illegally
discrieleation.
Wring this past 118283 Term, the Court for the first time loterprated
615
608
contest because the Court indicated is its Noweeit New opinions that
the Title VII proscription applies to both male sad female employees
the Supreme Court held in Sawyer& News that cospany medical plans must
cover the prigs:melee if Ispleytees wives to the some esteet that they
opinion tut the Court sad stet:580:ot is employer who halts pregame,
beaelit package for their depeadSte that is loss inclusive thee the
Court cleared up the cost:mina over whit the Pregnancy Diecrimleation Act
the cospsny with 1111C. The cospeny had a SSOO reluburaement limit for
law, and it was successful In the federal district court which held
that the 1978 Act protected only pregnant workers these:lives. The
circuit court of appeele 4 that ruling and gave the statute more
616
609
pate. The awe decisive basically etude for this prleciple, aid le le
still valid law. Vithweepece to programa dieetteleatlee allosetiole mode
the recent Suomi, Court deelelon In Newport Nevo which appears to make the
61 ;
1
610
nag-SINISENIMINIULV
The proposed %sal Itghts Amendeent. es reistteduced is the 11ch
costeined le the este= settles (Mitch had reed sisal 1143: 'Camerae' mad
the several States shall have power within their respective iutiedictioes,
history the 11th Congress develops through the course of the hearings
record exists with respect to the 12nd (masa, proposal, N.J. les. 209,
6i
611
the curtest measure Messes the 44gloss ef,eme Cameros, de set hied e
f m
Cowes's. Therefore, It is op iithe 940 Costress to devote,
its aim legleiatiws history for 11.21/9Se. 1 sad S.J. 0841. 10.
twarteesth Ameedesei.
chase rise to the level of stets settee; wed test the salt' requirement of
profess torch authority wider their general polite power) and provides that
the Mende shall take effect two years otter the dots of rogigigatioo.
legislatures and the Compass tise to speed their laws to bring thee in
619
612
sad local, crest Oft sad wanes equally ea citizens sod ledividusle
wader the Ira. it world elleleste from the law ens -hued ouselfi -
Somme worn sad use would be !eyelid under the Ilk, and cortaleIrespoadi -
battles end proteatieee which awn ware, or are nrw, sateeded only to
e liminated entirely.
/ the Supreme Court's fourteenth Ameedeest declaims thus Oar in the Seadet-
t
based dietrielnatios costes* are instructive is terse 44 the standard of
type of standard it intends the Court to apply under the IRA, if it wants a
than the rational basis test and oos lees trict or leas fatal than the
613
lasilsolopl 0.1verelts for Segos v. Mw, 102 S. Ct. 3331, 3337 (1942).
abseiln fuedisg, sad other proossacy rotated looses, mss mold have to
'odor the SRA. As we bars already discsased is title topers, it has sot bets
Whether the proposed Ilk would have as 'Aspect is shorties ad /or abortion
funding turas largely upoll the antes. of oso or the other sods of asslYsio.
the most Active form of judicial review, is the standard applied, then the answer
would sees to be affirmative. It would than follow that the SIA\muuld reach
abortion sod abortion funding ituations. it is very difficult for the government
6''1
614
standard than it is for It to 1144t the strict scrolls, standard requiring proof
review is 'crosier than the rational basis test, sad pregnancy claselticettome
the goveroesor Is less weighty, and It only has to show that the classification
standard of review be the one applied under the ERA, it is unlikely that the ERA
Court epplind what most closely ressehlee this less stringent standard of review.
To dote, Aiello is the only Supreme 4ourt precedeot under the equal protection
)24
615
slassifiestiose is the captive, this see moot omit ask if proof of motive
disetieloatlee. !11th respect to the picepeoed ERA, see weld hove to look
discernible that Cowes's vested is latest test to apply under the IRA,
'episode.
'offsets' soalyele is Use of the motive or Meet test. Should an lemma subtitle
carnal under the proposed INA sad the **pact of the classificatlos is an wows
curly. has the tRA would effect liberties sad shorties funding. Only women can
bacons pregnant and, to that 84*.es pregnancy claastfications *cm ass -based
that the fregoency Discrimination Act of 1976 applied to both tousle and sole
employees. The enployer's action of not providing disability benefits for the
9)
6 )
616
depeadeste of feasts workers violated the 1171 Ast which is part of Title till.
affects both maze and ass in a ses-based sense, *ad if each is the Lase ester s
stetate like Title VII, similar remelt could conceivably seder is the celestite-
tinsel cotton. If the latter is the case, thee the Impact asalysie would be
Irrelevant, wad the IRA say sot reach abortion sad /sr its public tuadies.
In the liberties readies context, it wee earlier sated hew sees tRA
briefs filed before state courts that to deep public feeds for ebonies
, constitutes use discrimination because only wows tee Meese pressant and to
single thee out to deny thee funds for this purpose violates the state SRAM
in question. This purities say or say sot have a credible basis dspeadies
discrimination under the IRA. Thus far, so state courts hats ruled on the
merits of the issue. Moreover, to date, the Supreme Court has treated the
\
did 321 wog. es the wipe 1 soy vas.
particular purpose is
had authority t restrict federal money for it, e.g. the Olds Anmwdeata.
ties when t/
the liberties tight itself is directly Uplifted span.
hospital facilities for all abortions except those 'required to save the life
of the eether.° Doctors end staff webers se the hospital sought relief
of virgin!. filed sotto to vacate the lejeactioa me the theory that the
law had changed glace Roe v. wad mad therefore, the prospective application
625
11 09/; 0_ 14/I__ _40
618
of the injusatisa was me leaser equitable. The city wee, of coarse, relyiel,
initially is RN v. 980.
Os November 11, 1881, the 0.8. Court of Appeals for the Eighth Circuit
reled that the 0.8. Supreme Court daisies* **bolding abortion fluidise
regulates& were set controlling is the case before it because use of public
hospital was asecostitutiosel. The Eighth Circuit famed that the City of
(February 2, 1982).
In City of Vireisis, the light Circuit emphasised that there vas a crucial
and its Roe v. Wads &itemisation noting the 'mistime of a right to abortion
626
619
3501 (Jona 20, 1963). ?baseless, the tightb Circuit deelelom is flail.
whether the IRA would have en impost es shorties and/or its loading,
amnia' use drama to the poll% uede by Walter horse is his teatime,
amd noted that the Coon had °Marvel is that case that a Washita may
have a 'deep aid prole, comers aid Istarees' is his rite's pregnancy.
At the time the Court decided CallfertM; It stated that in the event
that if the INA were approved it would alter the situation by converting
the husband's interest into a right, a right equal to the rite's. There
may be some credibility is thin argument given the Supremo Court's decisions
under which two of his natural children were adopted by chair natural
6 2\7
mother and stepfather without hie consist. The Uprose Court held the
',variably ashes between the rights of .married 'others sad the rights
as impertast state isterest.' 441 0.11. 3.0, 2112 (1971). The Court
loved that the Now Tork law treated smservied pereste differently according
to their sea send thus violated the equal protection clause of the
showed that an unwed father could have a relaciesehlp with his children
accorded ths interesc of an unwed father whose identity was known and who
unwed fathers as being inverted, lees qualified and entitled than eothere to
The Court pointed out further that the New York law in question on the
supported am/ rarely IMO is the or years sloes her birth. The father
aballasged the i.e Tech Ise awls{ cbst both the dee presses sad diesel
the Supreme Caert disagreed ail held shot the lather's rights bed set bees
violated elves the tease If the elteatlem. Site the moped tither bed set
Curt stressed that *...the mere silicoses et a blelesleal lick dose etc
to tors such a relatlisable. It held that the New Cork law did do so, aid
with respect to the meal pp/ attics elide, the Coact towed that the
statutes at lease is this ease did set operate to deep appellast equal
that hers is uehr the soother she father were sot slallallp situated. In
Calms, the father had admitted patentee aid had participated is the
6 2 rd
622
that,
These two negates cases say he Important far the easement that
Walter lam was trying to maks is She diaateig 0 the IRA sod shorties In his
°pimento of the IRA ad of abortion have argon that the DA would not
eel, expend the substaative right to as ebonies, but weld also mandate the
because fully developed legislative history for H.J. ass. 1 and S.J.
COMCLUS100
The Wont of the ERA on abortion and abortion funding would depend to
63(3
623
"14u cure cs bo. aka Supreme Court muniers the seeetisa whether
lapel oats*. DetetsivatIon sf the 110244 Of the IBA oa abort!** sad Its
public :mediae twelve' erased ben tits Repress noon would beadle eta
is facially neutral.
Theories sad argummets base bees exploited ea beck sides et chi quanta'
"Wither the IIA would affect rams right to aa abertle sad /or the access
to public Nadine to pay for it. Rovecer, se of the oracles of this paper,
dmIlsooting the 'stoat, it soy, that the state RSA Is easel oil to
roe J
Lapis t s Attorney
Merl Law piwisiou
October 20, 1063
611
624
RUTGERS
siers UPPIVVISWY
OF MI inset
November 7, 1983
C; °I ti
625
Sincerely,
Ann E. E. Freedman
Arscrimte Profrnnor of Law
4; '4 3
626
Lynn D. Wardle
1976 N. 85 W.
Orem, UT 84057
l6 January 1983
lionorable Orrin Hatch
United States Senate
Washington, D.C. 20510
:; 5
628
Thus, I hope that you will do all you can to insist that the
ERA is officially and explicitly clarified by Congress when it
comes up for consideration. For regardless of one's opinion about
advisability of the ERA or its potential effect on abortion and
other important legal issues, the only responsible course is for
congress to squarely and directly face those issues before voting
on the ERA.
Ary Aru)y youfg,
1,
A/P\j .A
n D. Wardle
copy:
Hon. Orrin Hatch
Hon. Howard Nielso
NRLC
AUL.
629
MINKIIC 1.71-----T111111 WWI LON assail arramms am gam Raw Isocacb4..1 ) NAVA Manilla 11111T4 4310711)
February 2, 1954
I am a Professor of Law
at the University of California,
Berkeley, and have been since 19a1. I specialise in
Constitutional Law, although not in the areas of either sex
discrimination or abortion.
Sincerely,
P1;4....t
Michael E. Smith
Professor of 1,aw
637
690
AMERICANS
UNITED 1)R LIFE
Leo Defense Fund
January 5, 1984
Doug Johnoon
National Right to Life Canetittee
419 7th St. NI 1402
Washington DC 20004
Prof. freedmen argues that the Styrene Court hem con- ="1"""D
',latently upheld abortion fending restrictions bawd
entirely on "privacrtemed analysis* and has retuned
t:=1"
to swains such restrictions under equal protection 27.2:47"
analysis. She then asserts that the Court world employ 144/01 I, lAns* MD
the NM font of analysis in the wake of the MA and ...m....A...
that the ERA would therefore rot affect abortion funding larg.
restriction'. Prof. Freedman also cites the failures
of state courts so far to nullify stortico funding
rerfM.."
M Ma? *dunk
restrictions in light of state SRA provisions es
authorities in favor of her ;coition.
Z~ Milibme
. 4 Ina
It is simply rot the case that the abortion funding
decisions of the U.S. Supreme Cburt have been 'inclusively
lamed on the Cburts analysis of thefts process right
to privacy. 1b the contrary, fisher'''. Poe, 432 U.S.
464 (1977), Harris v. Mine, ablEir-2§7-(1980), and ME/IL*
Williams v. Mara:, 448 U.S. 358 (1900), the principal
Supreme Claire abortion funding cases, were far more
ConCerned with eept.11 protection analysis than with fmmisltbmbght0
the right to privacy, as even a casual reader would
observe.
mu=
Is
681
Although it is true that the U.S. Supreme Court has so far avoided any,claba
that such restriction involve unconstitutional mix-discrimination this
has occurred in the context of a state of lag in which gemdel-keeed discrim-
ination is not subject to strict judicial scrutiny, gander is rot regarded
as a suspect class for equal protection purposes, and in which diem-bine-
tion based on corder-specific proostais or conditionsa(such as Abortion
and pregnancy) is rot regarded as inherently suspect. Enactment of the EPA
wadi radically alter this state of leg by' making all gender -based discobn-
ination subject to the moot exacting constitutional scrutiny.
Finally, the failure of state courts to rely on state ERA provisiOns when
striking tam state abortion funding restrictions,proves only that these
state courts had irdepordsnt bases to strike such restrictions and, hens,
were not required to reach the ERA claims. Rtemdecisions repeeseset no
authority whatever foe Prof. Fresisan' proposition.
Americans United for life Legal Defense Find has taken the pasiticm that
the peopomed ERA is facially neutral with respect to abortion funding
restriction. Mower, statments of ERA, prepoonente and claim made under
state ERA provisions by abortion advocates make it obvious that the pptt
ERA will be used as yet another tool to strike down abortion
and funding restrictions. We have consistently asserted that, n ironclad,
unsabiguous Legislative historyoc explicit langioge appended to the procceed
Mils necessary to foredo.* the possibility that the ERA would affect abortion
funding restrictions. Since the proponents of ERA have refused either to
provide such explicit legislative history or to permit any araninent to the
ERA, we east logically condole that they wish to keep open the possibility
that the courts will employ the ERA to further expand permissive abortion,
or to strike down abortion funding restrictions.
Sincerely,
PCc/T,O. :vR
`3 9
632
School of Law
University of Texas
727 East 26th Street
Austin, Texas 78705
December 7, 1983
Douglas Johnson
Legislative Director
National Right to Life Cermittee
419 7th Street, N.W.
Suite 402
Washington, DC 20004
Prof. Freedman seems to be saying that since the Court can always use the
right- to-privacy rationale to reverse itself on abortion funding, the equal
protection rationale that might be afforded by the ERA would be superfluous
and therefore semehow irrelevant. The fact remains, howevur, that the Court, in
Harris v. McRae (1980) decided that governments' failure to pay for abortions
violated neither the Equal Protection Clause nor the "right to privacy." If
a government action violates 2nx constitutionirProvision it is, of course,
unconstitutional. If the Court should hold that the ERA makes sex a "suspect
classification"--and that governments are therefore forbidden to discriminate
againststmespecifie medical procedures such as abortion--it will matter not at
all that the Court could have reached the same result via the right to privacy.
Finally, Prof. Freedman seems to disagree with most other prominent ERA
supporters when she suggests that the Court's holdings under the Equal Protection
Clause are not a useful starting point for analyzing the possible effects of
the ERA. Meat analyses I've seen suggest that the ERA. would make sex at least
a "suspect classification." In any case, the question for no is not «Either
the Court would be bound to declare a constitutional right to abortion funding,
but whether the ERA.-d give rise to a substantial possibility that the
Court would find such a right. In my view, the Carts awn prior holdings in
a closely relates] area are a useful source of hints about the answer to this
question. These holdings, and much of what has been said and written.ehout the
ERA by its academic and political supporters, clearly suggest. a strong possibility
that the ERA would result in the striking down of laws that finance most medical
procedures but exclude abortions.
Sincerely,
Lir
)L .f j\cr.
)
Mies
688
Sincerely,
/7
,1/ -
e
14.4.1/4.1; ftt .4.1 4.4
OUNIITIF F S rrnpinyment l nmmittec Chan man I axes and lax I ors I ransporiation
if Vetchin, Allan I 1.0fItyin 4lctnh r n( Indian Moo Interirthal Board
6,11
Dear Senator:
Thank you for your letter of April 12,
enclosing an excerpt from my statement to your
office on the state ANA.
The statement is accurate, except that in
the next to last line, "other courts' should
read 'the courts.'
Sincerely,
leor.442.4;
Paul Freund
WYcak
enclosure
635
YALE UNIVERSITY LAW SCHOOL,
New Haven, C7 January 15, IOU.
Ms. Cass Anew.,
5810 Itaska Street
St. Louis, Ma
DEAR Mn. Armu.: You are right that the article on the Equal Rights Amendment
in the Yale Law Journal was published prior to the abortion decision of the Su-
preme Court. The main reason we did not discuss the abortion problem in the arti-
cle was that abortion isinsoiencitlioie problem for women and hence does not really raise
any question of equal protection. Rather the question is one that is concerned with
privacy.
I think that the ratification of the Equal Rights Amendment, while it would
affect the abortion situation directly, would indirectly have an important effectnot
in
strengthening abortion rights for women. The passage of the Amendment would re-
flect a concern on the part of the American people with women as human beings
and thus would certainly carry over into the abortion picture.
Thank you for writing.
Sincerely,
THOMAS I. EMIRSuN.
f; 1:i
636
terterwas
BALL 8c SKELLY
ea ...s4 10111
OM MO
ILMsasso.rwarnienu aloe
YAWLS Ulla
n WILIMMCOMOINIFIM
M11140RANDUI4
I; ,j,1
/Lim,
William I. hall
4gza
637
'From the Chimp Catholic, ess 24. 19144)
6 ,1 5
688
13411144
11WHCete SAY THEY WILL OPPOIE ERA WITHOUT APIT144110411TION ALIMIAIENT lent
WASONOTON (NC) the Pieborel Confeence W Chhec UMW* ormarrosol Al p 10 11 wel 'hove no allemenve but
to *Woos" Ole lea NOW Mterfeatard d e Mao le not added woluillnd MAW end abortion fundlne from Ile acme.
In e ANNA Wow We NOM ill Rs Arlattertrhfre Ccewellee M Words wpreved a reeMlem etterog Vie new whew
on EPA 'teemed On Moue trend problem" trot mild %e prowled by en ERA allhout the M inionofenenbabordon
dem
The NOCE 610 roomed aWdeferant of on el too adatescialloort ocolooNlOo to WWI ItoleolOom of We EPA The
cemented le delved by Archdale, JON 1 L MAar at et tense. NOCE viol preeiftd.
doll Oh'. P May., NOCE ponerei woreley. WU We Woriotralles Comdelee at Rs beraft nweetp had Med nowt
developments in *egress oral the mete ionkfthe all Mee makes shad As ImpecalIOne not city for aborboo bid
to owe* oducellonel fr I Maw. die loommet Niue Millebie onwileallche, Woken elowwWws et federal vent
*Mew end povermere nd 441191ms.
in perm& N wee tot to soy VW the potentbi weft of We mendrewre lotokellone le the conduct not eo much
of 411 Own MM. so WOW* uftWootoei by epelhere eel eupperWrs, R la of en entlightio canorwhonol record and
the werwilon among EM, hoplavere heolorante and oth lepel poeflolek" Mug. Holie held is 4 Whemsre
The ad hoc cenowlee studying VW enpiceliores of the ERA eV present to Menge and rsomnsrodetkoe to the Ad.
rramenve C041404,4 M $4444461, the NOES OM.
Primo* Me DOM Me Met no mew on the WIA NMI Last WI. Mout clingIns Ile bola nautesaly.44114440001.
PrAIMIMPi loanahlint SU MA SOcaKeed WSW. 11. Mee Elerrentnmsr,
COntif MC. 01110,01034 again fel
Mach hmodere NW MAI mime ERA "Mien mind "
Ideor wropedent of the MA. such ae Vie Wend Orientation to Whew went Congreee to mien' Oa Meow' to
the Mee for rallfladien taRSSIA emeneme
The NOCS Meow add thel et We IWO labridendveConnehme mesh* a )art report or We leas wee prisonled
by the HCall Cometeo on Pro-0e AdMes. MOM by CVO* Jeeeph lionwel d Chaps, end by WWVed Corm
NOG wheel Comer
The etelhnent aid Pie fankletrellve CaterIttee IMO ellecuseed e WWI V ruling 11 Meltrte Carownewith Cott of
Perneenvie used thet otete413114 to MP* down PerreWerielt mhIldllete on pubbo ftrdnd of Whom Pm** WOODS
Me argued OW a Waal EVA emu* mid OM Merd deepen maktilate.
Vag Hoye WI the Adadtastrattes Comeatee in to dhlowelen reoffbnied We behope' Chrovehrent to vromehe rIptho
The howeron made dear the careeltWore Moen VW Ewe be no dotht dad the centerwoore NNW/owlet CORt
rnitrligne to WS Mtge sod Ws *Oh at pi* Mien, and to mown of powwowed end pArtile efforts to promote far
trethrent d d people and prevent al tome of armful Ilealmlnollen between the sores." he Md.
The Adnehotredve Conwenee le Of of some 40 blehow Molt =duds the business of the NCC4I between annual
mend mettle
The wowed Meryl ERA Metes, "Equally of rItpde maw We two WWI root be denied or alondped by Pi United Mares
at by My Me on account of aw
e opium 11 Me Worst Chhalc WON, Men* t I, Ilkasse VW. U.S. Wm% eecreash for public WM. Reid thel
Colholloo Geoid not support the ERA Whoul en enheborrion Mae becewe courts mid Ireerpret the am there se
omonteeho e 'AIM" to ebornon
END
639
the ,*Ilt In bortinn mu the Ci*IuiI Jolt a.I talrWdet-kqkaiclithnl women to raly '1' Judreld *todle Nd. I
.4 alt-lode. V ut. Senate Alit. (IIItJflI 4th. Court 5151 tlw lwd-won
Phd ob.nWl Reaan ap..nt s1.hIVAiJ Itoh rlØut. Ire. flIidI (It. Jnne t'oti an
I
ritPi. I. urn lit. lourtI power In I'll) lit (II Pifilt? ('SItIWaII'i rn lb.- aar.f, not an .*csi.eorNtt1bp.
1t014u'itrtk'n'i T?wte, ,',td'.uuoruuuiu
PT4 I Oil Ii5çIut tt.sc (hat Iii to PaSt II t'sliC' their ue.',I tu 010 VItal '1
LI5.,n,LII,iryw4OiUmichePt*t1t?
II (thu u'tuit ., uuuu,lhIo-T,l (ii ljii &i '1502 5' 'II ,At,,tlerr .aij'atriwy with U'
I us suet thu i,', ;iit. uhs' ,u Its.,, it
, ,,, (°,,e"41it1W'1iI RI1&
'S'S-sn
1 '
640
Resolutinn on ERA
Peered at National NOW Conference
October 2, 1983
CANA4PWIER. it al., :
copy
IN THE COMmONWEALTR COURT
Petitioners t Or PENNSYLVANIA
v.
6,19
is involved, the classification is not between nen and women but
is not gender-based.
Se'onl, 30 Pa. Commonwealth Ct. 103, 110, 373 A.2d 126, 130
(15711, our Supreme Court held that our law "will not impose
245, 255, 442 A.2d 382, 303 (1962). Thus, while the Pennsylvania
a
644
Petitioners 8
NO. 57 N.D.
v. 8 APPSAL MOIST 1904
s
DEPAIMINT OW PUBLIC num, s No. 50 N.D.
et. al., . I APPRAL DOORS" 1004
Respondents s
mama *OLSEN
SUSAN CANS NICSOLAS
Women's Li, Prop*
112 South .pithtreat, Suite 1012
Philadelphia Pennsylvania 10102
(215) 001-52i0
Sal RUIN=
OnL$arsity of Pennsylvania School
of Law
3400 Chestnut Street
Philadelphia, Pennsylvania 10104
(213) SOS-7447
652
646
singled out for special and adverse treatment (Stip. 68) and
glen into effect, some of the 4,000 female victim' who wall be
sea
S53
646
Even among the women who will be able to raise the funds to
S. Among the 29% of women who are less than 1$ years old (Stip.
their families.
A.2d 362, 365 (1982) anima (No. J-74-1964) Slip Op (1964), the
'great weight which the Supreme Court has ascribed to the
654
Att:
647
y. Butler. 464 Pal 522, 347 A.2d 477, 090.(1973) (quoting the
last sentence of the above passage); rdzisanxiilth w. sutler, 458
Pa. 289, 328 A.2d 851, 855(1974) (court repeated the ban on
,pUrt
655
648
statute at lame has a basis in gander, for only women may choose
analysis similar tot that set forth by the United States Supreme
DvAIAL, 450 Pa. 207, 299 A.2d 277 (1973), this Court construed
resign her iob After five months of pregnancy. 'Tn short, Mrs.
Cerra and other pregnant women are singled out and placed in a
G 5 61
(9
649
212111cisimalallt11128111af. _mineichxcladiediu4221guilkgutu
450 Pa. at
213. 299 1.2d at 289 (emphasis added). SAL Alia WARIMUJULARIA
Sze. School District v. CompgavaLliaLjukaliklitignsC
39 Pa. Cawlth. 58, 62, 394 A.2d 1301, 1304 (1978): alfaaaLLALU
School DI:axis& 1,1.IIAAsnmeAltli_11:RelallAssfaisiAllan, 18
Pa. Cr.:tt.. 400, 407, 335 A.24 873, 877 (2975) walled, 467 Pa.
Slmilarly, I
30 Pa. Cmw]th. 103, 373 A.2d 126, 130 (1977), allocatur refused
In ItItclIDaLASslutalif.81111.iuz, 19 Pe.
Cnwlth. 614, 339 A.2d 850 (1975), the protection aoinst sex
Airlines, 444 P.2d 1194, 1198 (7th Clr. 1971) Cert. dap. 404 U.S.
991.
657
Relations Act are useful in construing the Equal Rights
658
631
65
652
compelling:
}Wei.. Wad, also held that a state's interest in
potential life may never outweigh the superior
interest in the life and health of the mother;
this is true even though the state has two
separate and district interests -- the health of
the moths: and the potentiality of human life.
U.S. 113, !SS (1973) and more recently reaffirmed by the United
(1983). The Court in Bat held that the state has a legitimate
61;
643
and viabllity (Stipt. 01 and 02), and that all abortions at issue
V. Cfar°12110
F.4 the tea ions set forth above the decision of the
Respectfully submitted.
KATHRYN RCRT.
SUSAM CART NICIMAS
Woden'e Law Project
112 South 16th Street, Suite 1012
PhilekaPhis, PenneyIvenia 19102
1215) 564-6280
SETS RREIRER
University of Dennsy)vonie
School of Lev
3400 Chestnut Street
Philadelphia, Pennaylvenia 19104
i215) 398-7447
65b
NO. 19 68 74 dtaemi
.4143-arcr
otorr4ins
ROSIE J. DOE, ET AL. t SUPERIOR COURT
0
a
151
The constitutional arguments that Policy f 215 violates the
court find* that it must pal, on three tempting and very per-
suasive air .ears (rade by thi. ^ plaintiffs and butt its disci seion
16/
IA this case, it is quite obvious the ilaintiffs do not
temporary injunction, the court need only discuss the first groun(
Prnress ',11aune.
657
Mee v YecrMrp of idistalslreflex, 417 N.E. 2u 387 (MAN. 1980)
111. Constitutional claims. The plaintiffs mount a broad attack on the restriction
of Medicaid funding for abortions to cases in which the procedure is necessary to
prevent a woman's death. First, they argue that this form of rests. ction is an imper-
missible burden on the exercise of a fundamental right secured b , the guarantee of
due process implicit in art 10 of our Declaration of Rights. In ition, they argue
that the classification established by this legislation cannot survive the equal pro-
tection analysis articulated in Marcoux v. Attorney Gen.. 375 Mass. 63, 375 N E.2d
S88119781, and that this restriction discriminates on the basis of sex in violation of
the State Equal Rights Amendment. Finally, the plaintiffs argue that this restric-
tion does not meet even the traditional minimum rationality standard of equal pro-
tection.
Because we agree that the challenged restriction impermissibly burdens a right
protected by our constitutional guarantee of due process, we do not reach the alter-
native grouids of invalidity asserted by the plaintiffs. Although the issue involved is
difficult and of extraordinary importance the framework for our analysis is well es-
tablished. We begin by sketching the contours of the right asserted We then inquire
whether the challenged restriction burdens that right. Concluding that it does, we
examine the justification offered by the State in support these enactments.
1
059
X11 os
sr oacmmr
EDWARD C. KEMPER 893-0
KEMPER i WATTS FT11
110r Castle A Cooke Building r:tgN?ril
130 Merchant Street of 3 .2
Honolulu, Hawaii 96813
Tel. Mo. 524-0330
5:71Wilas 1,'
JUDITH LEVIN
AMERICAN CILVII, LIBERTIES
UNION FOUNDATION
Reproductive Freedom Project
22 Cast 40th Street
New York, New York 10011'
Tel. No. (112)725-On
Attorneys io.c Vplicant i.
for Intervention
STATE OF HAWAII
Ov-virtment of Social
Servics L Howitnq, State )
of HAWAii, et al.,
)
tteiendnnt.n. )
MUTTON TO INTERVINv
'P"
660
account of sex.
),1
661
I de Amendment, Eagle 1 arum, the t ourt had already decided that the tuteciestlitatiosel -sea illterrholletloe-
American Life I obtit, and nther "right to privacy did FILM includes right le the peel, lee Court MN eat so dedere
croups to a gostounentlunded abortion owlet ERA. Pon Suposos Conn
That's because& law ts unconstitutional drinlalalo wen bowel on the MOP.
a Rol I wished a Wier has my if it whales even one provision of the Constitution **host ERA
taagraorma, b u$ikb to odd Mel dm iThi,lodutton
'supremo Court boa always desk -idSound confnsing ' Here's an What legal auilwwit In ogres with Me
allorilaw In Wow of IM 'AGM to illustration People hose a eielyalat
prlowy," and never M a mien al `we constitutional right to go to the minim the alum-lion-FR A connection is
discriminates." He odd Rol Ile without gusernmental interference. but resognired by many of the nation's
Somme Cato' ruled In V* dud lbe the gosernment is not obligated to pay leading experts on abortinnrelatrd
Hyde Auweadoewit dam sot dise for the tickets if, houeser, the constitutional law What follows a a
Title to privacy," sod lo said ERA will guscrnnrent decides to establish parnai list of the legal ripen, who are
awn Asap dohs l'as teamed! ticket buying program, then under the on re, lard at believing that ERA. at
Perhaps the congressman is [Anal Protection Clause the program currently worded. would likely
confused as well He may nut yet must be administered in a was that does invalidate nate and federal teitetctioni
onderstand the real legal grounds for not disci mmatr un the basis of race. abortion funding
profile fears regarding IRA On the Higion. or natinnal origin It would Prof Victor Rosenhlum, North
ether hand he for an until was le sittlate the 1 told Protection lause to sacstet n I inisersits I aw School, Prof
.lefihereirly empl. .mg a 'red herring' pas fur mails for whites but not for lohn Sonnan, Jr . Unisersity of
argument hlacks, fur example ahlormadierkelry I a. School, Prof
I it's fe,.CW a few points .11 In Air Rue a dotely divided 14 4) William I- Hassey. Irsdiana University
...Institutional law the C unsututton Supreme Court ruled that the Wale law School (dean, 1911 lit), Prof
a...ranters -due rote s .0 law' the Amendment did nor ululate the equal 'lents harlson, Indiana limsersits I am
I to: Process I lauset In its PO 1 Rite v Proiectidn lause - but only because School. Prof Grover Rees III.
aide .1r4 .anti, the 1 S Supreme( oust the Hyde Amendment Cod not Uniser sit. of I CAIII law School. Prof
pi,N tainted that due pliness ol dist i.minate against any of the 'suspect tnseph Witherspnon. Ilnismity of
or lodes a 'light to prr.at which silos.," currently rectigniced under the Te%aS aw School.
ornains thr "right' o! a woman to hase on. ittutuon t he -suspect Prof Ramie I;ddo. 1 oyola
an abortion free from go,,ernmental stassifications- currently recngnired are I ay. School (New Orleans), Prof I ynn
interference 110Mf4ef in its 100 erne. religion. and national origin I avis Wardle, Brigham Young Ili iscrsity
demon in %f, Roe Haws. the based on these classifications are law School. Prof (hides Rice Notre
Supreme 4 outt laid that this "right" automatically subtected to whet is [Tame I ask School, Prol lutes (mord,
Was It %,1 broad is lir (ciente that the k mown as "to tit judo 'al scrutiny- and Washington 1:nismity I ass chool(St
t
bus ernment pat for an .ntligerit laws solve, led to tent, t milt( sal ;triton' I outs,. Prot Robert
woman s atiortion are vtrtuel:i alwaii invalidated 1 'nil riot!, of Amcnica I aw School,
I le A ,soult1 hase no direct elle,' on Women are not currently regarded 411 Summeser. Delaware
'hit rani of the 14, Rae decision In a 'suspect :lass Mt Rue the aw Si hoot Prot John Raker,
or het words. the right to roar s 'does Supreme iturt did not ins.ike the I o towns State I 'rummy I aw School,
not tryuirr the grim nment to pa., for legally lethal "strait -unions " Hut I R A Prot Findley Allies Amherst allege.
ahortions sh.th tr without IRA would matte women a "suspet.r class Prot tar ilium Valente, Villanova
So nun h for the !hie Process( louse IRA's leading congretional I ni4eflit$ I aw School Prot loveph
How he Supreme ours else, dealt with a proponents and pro I R A legal sc hoic r Dellapenna y illanos Uniersto, I an
tit, N1 pro abortion argument in agree that let's it the promos legal Si hoot
Rat I and snit is where the problems l'1014"e of I Ft A Prot ticald Duone, St I ow:
ern- e.:111 respect to I IR Ai Pio- therefore. toiler f R A laws which I iiisr tsii, I aw M hoot Prot Richatil
ah,.. lion groups mod the ( ourt to rule make distinctions between men and Sion alparaiso I nneniti I aw
,I;ai the 14-,de Amendment sodateo women woukl be subjected to "sari St hoot Prot Das rt. anlield
.1.1 I eteni ..nst it owns' pr to. 'soon ludo. ual .rutiny' and would he almost 1 nisertity of Amer. a I aw
guaranteeing ...rat [mite, tom .it the unpossib't to tit Itsin in the. outts as is School Prot litho Ihmstott1. St I outs
an," tits 10.1 rota the case with nlsrnny I ask School, Pt 111 tohn
t-e. a usr the 11,,d; Amendment denied la" In hi"- "'me
disc 'm'PlI(''s Potts. Valparaiso 1 niversity
,i,, i,iIi
a
lila by (4 believe that under 1 R A the 1 atholic Ilniserso of America t ass
(ii , i. onstounonal prolohorion against School. Prof flavi..! I otte ('leseLand
women) while CI 1, ,h,,, I 1., tMinalain. would he esen more Starr truserliti,
.ithrr rardi -al weak ri rought icy other ah,oiline than the prohibition against Wilham H Ran I so Pall & Skelly
lawn .4 reire rat at 1.1111.(1,111141.011 Ilarrishurg Penn Paige 4 rimirock
II the ( oust had a. i.epted this II simply tarp the qv/mien for unninghant I to . ear% uto.e director,
argument then the 1-hile Amendment anyone fo mews, that because the Ametmana I aired for I tfe I eget
'and al! vmdar irate lawsi would raise Super's* (nra71 bat not del Wed the I h.fenv... I- v.,(1. and laws Hopp. Ir
there msahriatrd lien though 'he 11y& Amendment to be a foam I to general ounce), NR I f
)
663
In addithm. use of the nation', most Mavis, husetti allthatr of Al I I, urged on Nos I. IVMI. at follows
disrieguishos romelbetkreuil scholars, that states supreme saute to rule that the t RA also 'equate
Prof Pesti From/ of Hamard Ian the state lour 'mulcting ehrnirn wruttrit, r 1011(fi, Orlon, hared rnr
`School, laid M Eebreavy, that a funding stolated se%eral provisions of phylval ,harectioanct unique to one
proposed MInerreota IRA -cootie bane the state sonstitution includrng the set to allure that such classification: do
S i' effect on sburtion RNLI by the I-RA 1 he court struck down the anti- not undermine the equality the frees
owe as reinforces' Sr a. Au meesetion fouling taw on the haul al the 'due To treat svuple ctifferenth on account
/Jasmine" span* farsdleig rattrutkas. process- 'colon of the store of s harar: Moor unique to one ass 11 to
thr mum also look to the isperinsce onthlutton and esplii tilt tutted that tt arm them differently on account of
of it .ember of Metes which here eddied had not 'ea: hod the t Ile owe their we
Ii,.. to MAE mete coastleuelnae. A( It 1.11scimil challenges lo sal, . When the Hons. Judielsry
Ahead,. lawyers meoriated tellk the funding law, is Pennsylvanle onualllee took flail salon as ERA
American Civil liberties Union (described shovel and t'osnetikal ail on Nov. t 1111.1. Nip. Dos liAvrardo
At I fibre* greed commis for states edit Is Kowtow. flue ERA-abortion (D('21.).- Ore cheinnan of the sub-
I He esli, Momamiltautte. Consecticue, ism/ is very math alive in those CNN. committee wiekle has jurisectiois over
and Pamsylvanint to rule that the Daring sa early algae of lbe ERA.- coshed on IM retold Mal
As width are la effect la throe tabs owasetiost pi/melodies, Me lodge ERA would mg*, the application of
equire palate fending of &alive Mooed an order la which be eammentsel `strict ecrathey' arm to pregnancy-
' hornier that the ACIT's FRAsbortioe reheat isles. And as already explained,
f vpicei ,it those %att.% . fir, hr. immune had "eabstantial nartt" mu d laws nobjected to -hart scrutiny" by the
-mmon.ealth Penn,. I,ansa. the 11 yin -temptieg end very cowls are sirtualls always invalidated
roan a,vs to t vial in I rtiluatt In that persesalve." The judge temporarily
,df Prot Seth I kfrifiler and Peril ...traded the slate arall-fnedtag pokey In view et MI this milleiact, how
ot114 Kerr of the I nc,erstis tat on otlem pummels. thus postponing Ms
PrilflAN an/ I ar S, tr1
ran groups tack em the Notional
Kat-, N Real Oatmeal on Mt ERA ovestlon Orgaalaatioa for Women (14.0.W.)
'14err th,inen s I a. until a isles dm la the perwerdings claim that ebonies fondle, reetrktions
acrd thoora% Ha( 4r-or/gait 'whale has not yet bete method). will Yu.: km regarded ma s form of
I Plei 1,1 I .ol
true 1$1,0 Wed, lipase state court doerrePti unconalitational Na discrimination
II.- the I RA-shallow argamert, aryl that Nader IRA?
I i1/1,1,1i autrAlth I MO a hi. h arigur.
mean That meek fears shot the federal In claiming that ERA will not affect
hat trr /IO 1111p11.1" n iniquit to
a,. torn the 4,..A tar ERA ere walonaded?
Not at all No interpretation of a Irate
the Hyde Amendment. groups such as
N t) W are implicitly contradicting
by a tune sour, viii consrol the arguments which they made against the
girnerrs aga.nst *omen I 14
,nterpretatIon ill the fecirrell R A by the Hyde Amendment before the Supreme
,11 ilk h., a ii t,r their sra and
trdeal sou' s AI Jiscs.sstd above the Court in years past
11,rI lot .1 I gen.tr, hard
Supreme. t outt's 1010 C(rRe, ruling For sample, in Mae the American
siota' ,t, int AsiocAtion of Univeisoy Women.
ro'a l,ir,al kugals mortify luggetts that the federal I RA
N O W . and other pro- shorben groups
hurt 0,1flivfll ropl msalidate all restrictions on
ahortion lunding -state tar federal filed a brief with the Supreme Court
regaidkms of what happens with the which contended that the Hyde
Hale state r,raels aertptnt the Amendment should be declared
state f- R As
F R A abortion argmewer unconstitutional because it adversely
,I Iv no mist his cf, . vale Set bow can It be "dbarkstuatory," affected a "starkly defined-- ION
14 a irandole ahtirtmn lu.bng e'en model ER A, for the government to female and 100% poor - class of
6,t ,fibers has An) rot Ififo Iftf edam to pay far abortions! Aare. all, II% indiseduals In the same case. the
ihr stunners. sot the goverreamee lielstr Met oily National Womens Political Caucus
In 144; liS,4411 kithl in l de %roil" wows can get pewees( said that the Hyde Amendment
root/ to era w It.tp .141. funding it F It A supporters have argued "overtly impacts nn poor 11611X6,
sh,11.0A I 'at, 411,W111.1111% aided by that FR A simply would not apply to Apprising them of equal protection
At I I attnrness defrosted the sum iws which are tamed on a "unique unTer the Li* "
1nd,rig prilict. arguing that phs sir al rharaeteentic- of one se:.- of In oth: r words, these groups argued
tit hd rssinti funding for abortions shah the flysie Amendment would be that t he Hyde Amendment
stub. rommuing to reimburse other an exam& taut Ma vie* does not unconstitutionally discriminsted
rordr/al pr.xedurcs sought by both square with the amongs and public spinet women men *oboes ERA Yet
vises ot 1 My by own woJtd he riatemcent of some of IRA's print -sal now they claim that FRA-.which Mr the
tintOrroultil a, a denial 01 equal rights proponents in I impress and in the first time would snake laws
14 limint tit tea and viffillitni St2ttefflit community l'Or eaample, "dircrim mating" against women strictly
Moro, I R A fit/reser l'ser_ourt nue 01 the foremost academic impermisohle-- would have no effect co.
trphrtrl ihr tiat,e/noln.y on statutory uppurters 01 IRA Prof Ann abortion funding monotone,
ttr000di sort lbw dirt 111,1 trils.h the 1,-r,aroriin of Rutprre Si.. School. Lincoln C. 011pirie. a Watitlaitsa
f e tau oe t lulls' Mlotr the 14quie Ciao and attorney who has writtsm extramirdy on
In ire S9F,1) stz of 11,, k.ny iA- ,mstitutional Nights Subs:nturtitire the ER A-shortIon emmartlea, ronsely
A
664
wring: "Mu pro-VIIA pour hese Sur the 1(119 In Mr Rae n01 the lett that Congress did not intend F R A to
made one eripmeesst to the Sapiens* want We now have P111 mourn, but ro have pro-111011ton effects Such a
f ours and are now making a turn to the State ( orutltution ha the "kanlative history" would consist of
contradidory argument to Canyon- legal took to save Medicaid fundmg for statements by the House and Senate
and they Nre MINN rearm that Ws silly aborttonc." judiciary cpmmittees and by leading
foe IM polite inept to mike flu ERA sponsors that ERA sti., not
farMaffli IMO sissy themeeime suede to Aside from invalidating intended to affect abortion la*
dm Simmers Court, Them row me rtelektieste an sherds. funding, cabal Rut in fact, ERA cannot be rendered
sof helms bar t with Comm with other aeoeiroetion Wide aright INA -abortion neutral" just through
the pia, at will the Awaken people." hem? legislative history First, the federal
ERA would jeopardirestny law which courts have been known .o ignore very
Clearly, group web is f11,0.W, are
distinguishes between abortion and explicit legislative history in order to
tampontelly anylai 11w VIA -*bellow
comeectlan few you maems. Pre- "see-neutral" or male-only medical achieve a desired policy result and
abortion peep hese played Mb procedures. One important etample many federal judges strongly favor
tioptictions gem bakes. An inetroctive would be the "conscience" lava which bortion funding. Second, count need
have been enacted by Congress and 44 not even commit legislative history
sum* semend fee hhunwebenelfas
states, These laws protect doctors and tiniest they decide that a legislative
where the irgideture was ca teideriai
nurses from bemspenalired for refusing
stele VIA in 1171, Some to cooperate in abortions Currently, enactments ambiguous on its face but
laweselme wen roacerned almost the F R A is a sweeping, unequivocal,
these lases are regarded as absolute comlitutiotud decree which
IF II Ws poesibi impact on abortion law.
het they seen advised by one of dm constitational Rut under ERA, such tecognizes no exceptions
nation's leading eonefitationel laws "would be treated like tans p.m, Third, 41 it already clear that some of
state officials the right to deny tertices
amborilias that *adoption of the E RA's major congressional sponsors do
eammdmest would base so effect to blacks but not to whites," in the not desire a clearly "abortion-neutral"
vamiever on the poem of Ow Wes lo opinion of Congimsman Henry Hyde ERA When chief Senate ERA sponsor
Furthermore, F RA could reinforce Paul 1 tonal ID-Mass ) testified before
mobile elmetiot a M protect Mom
the "right to abortion" itself I hat the Senate Judiciary Committee's
cemietnet ebb Federal easatation
-right" is cuetently bated only on Constitution .subcommittet on May 26.
prooraRy. Tie septet, Prof. Laertnee
majority vote of the Supreme Court. it 1981, Seri Orrin Hatch asked hoops
Trill of Renard law Rebook her
worked ellotely at dam 1rib the has no real foundation in the what effect ERA would have on the
Commotion Three sitting Supreme mem Temps responded
American Civil I thirties I/Nion ('oust justices think that the Court's
(At 1,14, ue would be resulted niche
"right to abortion" doctrine should he
Pertly on the bask of Pr Tribe's
overturned
mrweam, the blemacheaette t Nov I. 19111. Hatch asked the
FRA could buttress the -right to c question of chief Republican E R A
paused by the Mileleiere sad Willed
abortion," howeset. by actually placing tumor Sand pro-abortion leader) Sett
the electorate, A few peen Mtn, within the Constitution an alternative
immediately aftm the U.S. Soprani its Pack wood (R-Or I Packwood said
end lest flimsy basis for 'right to he doubted ERA would compel
Corot upheld the emetihelkmality of
the Hyde Amendment, the Civil abortion- e . the see discrimination abortion funding. but that he could
approach) I his might make a Suprem "guarantee that acme out will be
Liberties liaise of Mare stinesetie
1.114). an ACLU effillete, mot to Court reversal of Roe v Wade lets brought (against the Hyde
likely Amendment( on that basil ." and that
Merl to argot thal Ibe founeselmnitte
In his book A Ea* ler 1 °tilts at the "I'm not sure how a court would come
law berries fondles of elective ERA 09110, Prof Rex I ee now
shalom sloleteri the Mate PIA, out on it Packwood said he would
Solicitor General of the united States fight the abortion-neutralization
lU timothy director of (11.'M wrote that "any chances for correction
emrbissed the awe he a m .manse amendment to ERA
cokes. which appeared he tee Aural. (of the Supreme Court's abortion Clearly, the burden of proof tests
decomnil would surely be destroyed by upon those who deny that ERA would
Irate Imre of ate t 1.1'M neseirster. is
passage of the ERA, which would also have a pro-abortion impact That is a
foams: the fate of the few remaining
seal burden which they cannot begin to
peripheral abortion questions. such as meet Therelore, the pull& movement
Thr oak hood Right, Amendment spousal arid parental notification of the must prevent FR A from becoming sett
pontder a legal argument that nor abortion decision and post-viability
tins arlahle rt, to or anvone at the
of the U S Coostitutton, until sod
abortion regulation unless F R A is amended to he "abortion
redetal eee1 The national Equal Rights
Is them some way Mel PIA and neutral
4mentiment tt in deep trouble
Net nate a wrong waloton tit hemp ebonies can in operated, witiront
potted heinfen the anti I. RA toalttin WW1, enwading the lest of PIA! ecrityt 101 1984 by
and the .1011 ah.nonn 1,,,,r4 if sea, our Ihe only dependable way to prevent thr Rtitht tit 1,1N,
/WO' 10 !to, able to raw Alecto ofd F R A from being used ass pro-abortion I
tool is to attach the abortion-
(Limit , . l'Ubt 1 f3.4.-1
p4tmentr for medtrallc netertart January 12, 1984. Copt e9
abattiont through the federal neutralization amendment to ERA
rtrore elltrout hallYtt II) WTI 11v Pfaff 'some congressmen have auggested availablv for 53 for 10
pita Ruth', 4 MI/R111.1,1f,11 and 'h.' the courts would honor a 55 5111 100 04'19'11;
(is' 111. CM' t ft 4 mtoemttni Icalsieme history" wh,th indicated in v 15 fin 31100 oVICII.
665
DOUGLAS MONSON
PA= COM= CUNNINGHAM.
432
67
41 (106 0 145 11
666
old amiliMmi to the msdkally reedy, it awn' ado& par- June, the U.S. Somme Coot knolideisd glow tequilas a
esto from that pant us the baba of re." tie said the the 34.brem asking priori Pris to an Oohs abeetim sad
hos oho vialsead the Our emseleudooal guemairm of other minor foam of abortion regulatioo. astorally, the
"equal proomdco" tsar law, but that' the opolkillbla lover Federal cams have been even more boodle to ins-
abortion ammo "is mmisodom and mfficiant in and of pedossote to Mortice .11sua courts will sot take lightly ar-
melf to bolikiles the saran Wee to I that those oat-- guments such as those mil by the A.C.L.U. In the ors
ties do uulsofally dimeimieso wean name with respect duceibod.
E.R.A.'s chino impact would be In the ass of abor-
to a Idnalcal sedition sales to women" (Roar v.
Comisowsolth of Pmarylvaala). tion Rodin. Owes*, the Hyde Amend:ow prohibits
The eiguemot had been urged on the court by Planned Federal Medicaid hmdim of gado, sap when the
Parenthood of Southington Pessylvarea, the Women's mother's Ilk Is seloogoed, and about 30 vases inboun-
Law Project. the American Civil Liberals Foundation of d* restrict %oft as wail.
Peontylvaries, law profaners at Rutgers University and the in its 1973 &Moo in Roe v. Wade, she Supreme COWS
yovenity of Possytsula and others. ruled drat the Corstitudat's pusristase of "due process of
Lawyers with the A.C.L.U. had previoudy attacked an- law" casino an implicit "tight to Prises." which in-
tiabortion fund* laws in. Hawaii. Malsochusets and cludes the "right" of a woman to has m 'burden free
Cconotieut on the but of state equal rights amendments. from pommy* insorfensce. Hamer, in its 19$0 wimp
In the Hawed and Messachustu ewe (Hawaii Right to in Harris v. McRae and Vnilisois v. Vedas (both decided
Life v. Clang and Mae v. Kino), the courts ruled In favor by moves moMplos), the Court hold that this "right to
of abortion functiro on other grOunds and expesely stated abortion" woe not so broad as to require that the IOW*
that they had ndt touched the equal-Kyles/ abottion issue. mint pay for an indomt woman's abortion. The E.R.A.
In no way did they reject the armsnent, as sons E.R.A. would have no ammo effect on this holding. In other
proponents have subsequently cheated. In the Connecticut words, the "right to privacy" doss not midi@ tan funding
one (Doe v. Maher). the Superior Cow has already cont of abcmion, with or without E.R.A.
maned that it nob the argument "substantial" and "very However, the Conn aho dealt with a second tom in Mc-
persusive." but hes not yet Seed a final decision, which is Rae, sod at this point E.R.A. beams highly relevant. Tice
procheia plaintiffs urged the Court to rule that Congress
expected by mid-1984.
had violated the constitutional seaman of "equal pota-
tion of the laws" by funding most 'sidlesl procedures
through Medicaid, but denying funding for a specific
If the Federal E. R.A. is erected. will the Federal courts
"medical procedure" sought by a particular class of per-
Accept the argument put (onward by the A .0 L .U. soot-
son, in this cue, Indigent women. By a S-4 vote, the Court
neys in these outs and mooed by the Pennsylvania court?
rejected this argument, but only because the majority Mu
Probably so, in the judgment of many legal experts who
chided that the Hyde Amendment "is no predicated on a
have considered the question. The Pennsylvania statute is
contitutionally suspect domination."
very similar to the proms! Federal E.R.A.: "Equality of AMMO=
rights undo the law shall so be dead or abridged in the
Commonwashh of PenrayNiude became of the sex of tt
individual." Furthermore, U.S. Supreme Court precedents %LA. proponents believe
strongly smelt that the Faders) E.R.A. would be applied that the Court's current standard
in the sine fashion. afford:{ women kiadequate protection'
Even Wins the Pennsylvania mile& the Mimi Right
to Life Coronets', had moiled a bet of 33 law professors
(not counting those weighs with A.C.L.U.) who agree
The term "Aura clemiticulce" lea Meal wren of on
that the Federal courts would probably interpret E.R.A., as
tuna* worded. to Owelidate rearktions at stare and Under the current Corstkution, Mid** *soffit:10m
bleed on race and notional orIgn a e reloaded s "snort."
Federal funding of abortion.
Such chusifkarions are automadally subjected to what is
The Ilse includes suds respected prolife last authorities
tamed "strict Judicial scrutiny," winch mean that they are
as John T Noonan Jr.. of the University of Carotids-
Berkeley, Victor Rosentoom of Northwestern University,. presumed to be uncomtitutiorisi. Under E.R.A., the lame
fissile Uddo of Lark University (New Orissa). Grover would be true of dominations teed on sm.
Nan of the Univosity of Texas and Rotten Destro of The Laws subjected to "strict scrutiny" are, vitae* without
Catholic University of Amens excepdon, Invalidated. The last time the Supreme Court
clearly decided that a legislative 411441111103 discriminated
In considering the Fossil* impart of E. R . A. on abortion
law, it is Onporvint to keep in mind the prevalence of a pro - on the basis of a "suspect dosigatke," but nererthsiess
abortion mindset in the Federal amts. As recently as lit upheld the law. was Li a 1944 ruling allowing the Federal
433
Arnmcv/ June 9, ton
o
667
Oureiuor to -- Nus.
cole L Ausseictias be - abandon ti beuess of tile Sa
, I ....i3M he,I
ded (L.......L.v. U.3).
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tone ulsac-
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di.. W Ibe - dss, the
3.,..e Comi judebitonedibom i.R.A. Fr,,L,.c F,uL..an _ J eke tile Ssçcce Cones
'UidiI$IW could die t ike tile Hyde Ameathiam vicheud the
isopi$vesy,bwIdidsis. IfdieCcuctwlskdsotowh
so be,smus potuaen obj.4 Iluwovor. die Cowl she oppn.jt, iii, 111w, 1 would not need ERA.,
nor diced cdflcus so be "sct" buci I could recie Is '4tNn of the dpht o pfl.
or prenm,iMl, u.ctheomeadthcdi. icy. Huow, I.R.A. would hens cipsacdcol effect on the
Ificeticus bd ci cc or cic
i.R.A. viov.
c,.. Hyde _ -. Owissjli..fth.1ii.by Siowor Hatch,
buktdieCos.t'scwluci. PIufk Plse clnup to the qnndflor "practical,"
dord efforde womus prorsulam - heidi- which usothur law proleusor suimed "a weusi word."
i.ieLuL the iII.ediy
anonly..ndIftheU.5.CauiiINdoiI
di
-so
bused ci ow - etflcs*p - li cc Cisiiiy,kbthequ'dciiousuowtkeE.LA. 1111
dd. bused ci vow. M if ERA. would
san bused laws anseHvWsmy ".iict," th
ysthehlnictgftcusandsrsheHydi
RRA. - a - iceto - abth
affect abortion law merely beorhe the Soprowe Court
4)4
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668
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11111 NUM WASHINGTON. DC 20110
678
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682
675
Lincoln C. 9tiphant,
Counsel
683
THE IMPACT OF THE EQUAL RIGHTS
AMENDMENT: VETERANS PROGRAMS
684
678
685
679
686
680
687
681
41 111 t45 44
688
682
As has been the case in most wars, many people were killed and
maimed. Every member of my 26-member recon platoon was ulti-
mately wounded at least once, and all but 5 of us were either killed
or so badly wounded that medical evacuation to Japan was re-
quired.
In the Feeney case NOW was quoted as complaining that females'
opportunities to enter the military had been restricted by quotas
and higher enlistment requirements.
I am aware that between 1948 and 1967 Congress had limited the
percentage of women in the Armed Forces to no more than 2 per-
cent. However, any inference that women were beating down the
doors of recruiting offices and draft boards demanding to exercise
all the responsibilities of society in truly equal partnership with
men is dispelled by a 1977 Office of the Secretary of Defense report
entitled "Use of Women in the Military." That report observed,
and I quote:
With the advent of the Korean War, an unsuccessful effort was made to recruit
some 100,000 women to meet the rapidly expanding manpower requirements. Young
women just were not interested in serving, perhaps because of the unpopularity of
the war at that time. Between 1998 and 1969, even including nurses, the percentage
of women in the military never exceeded 1.5 percent and averaged 1.2 percent of the
total active strength.
Congress lifted the 2-percent limit in 1967, bug in point of fact,
females did not reach 2 percent of the Armed 'Forces until more
than 5 years later in 1973, after U.S. ground troops were pulled out
of Vietnam.
During the decade of the Vietnam war, mel repeatedly. unsuc-
cessfully pleaded before the courts that the mnle-only draft unfair-
ly denied males the equal protection granted under the fifth
amendment to the Constitution. Most women, of course, were con-
tent to enjoy the privilege of exemption from the draft and NOW
and similar organizations did not join in such suits during the war,
once again failing to bemoan exemption from the draft from either
an equal employment opportunity or equal responsibility stand-
point. Thus, the most blatantly sexist policy in our Nation's histo-
ry, the limitation of the drafting of those who would die and be
maimed in war remained limited exclusively to the male sex. By
1969 to 1970 draftees suffered more than 60 percent of U.S. Army
casualties.
While NOW avoided facing up to those issues in the Vietnam
war, that organization passed a welcome home resolution in 1971
which stated, and I quote, "The National Organization for Women
opposes any State, Federal, county, or municipal employment law
or program giving special preference to veterans." End of quote.
NOW later confirmed in a letter to me dated July 29, 1979, that
the resolution still represented their policy.
I have submitted a copy of that letter and other items for the
record.
Senator HA mi. Without objection, they will go in the record at
this point.
The following was received for the record:]
6S9
683
NATIONAl. ORGANIZATION FOR WOMEN, INC.,
July 29, 1979.
DEAN K. PHILLIPS,
1700 Sherwood Hall Lane,
Alexandria, VA
DEAR MR. PHILLIPS: I have received your letter asking whether the September,
1971 resolution concerning veteran's preference has been rescinded or modified.
The resolution has not been rescinded or modified and still represent's NOW's of-
ficial position.
Sincerely,
Pnvus G. Wrsr, Legislative Aide.
(From the Stara and Stripesthe National Tribune. Mar. 29. 19841
We are aware that 1st September representatives from The League of Women
Voters and the Natioral Organization for Women (NOW) advised Congress that in
effect the ERA was necessary in order to stike down veterans preference which was
upheld by the Supreme urt in Feeney a Massachusetts.
NOW was founded in 1 6 and Article III of their bylaws mandated "direct action
to bring women into full rticipation of society now, execrizing all the privileges
and responsibilities thereo 11truly equal partnership with men.'
However, one area which NOW in particular and women's groups in general, did
not make a sincere effort to execrise "responsibilities in truly equal partnership
with men" was service in the military during the Vietnam War.
Accordingly, their bemoaning of the privileges earned by men and women who did
serve [such as veterans' preference in civil service} has been less sympatheitcally
received in many quarters.
am aware that between 1948 and 1967 Congress had limited the percentage of
women in the Armed Forces to no more than two percent and there were more re-
strictive policies for females.
However, any inference that women were beating down the doors of recruiting
offices and draft boards demanding to exercise all the responsibilities of socity in
truly equal partnership with men is dispelled by a 1977 Office of the Secretary of
Defense "Use of Women in the Military" Report which observed:
With the advent of the Korean War, an unsuccessful effort wa made to recruit
some 100,000 women to meet the rapidly expanding manpower requirements.
Young women just were not interested in serving, perhaps because of the unpopu-
larity of that war at the time.
Between 1948 and 1969, even including nurses, the percentage of women in the
military never exceeded 1.5% and averaged 1.2 percent of the total active strength.
Congress lifted the 2% limit in 1967 but, In point of fact, females did not reach
2% of the Armed Forces until more than 5 years later in 1973, after U.S. ground
troops were pulled out of Vietnam.
During the decade of the'Vietnam War, men repeatedly and unsuccessfully plead-
ed that the male-only draft unfairly denied males the equal protection guaranteed
under the Fifth Amendment to the constitution.
Moot women, of course, were content to enjoy the privilege of exemption from the
draft and NOW and similar organization', did not join men in such suits during the
waronce wit, failing to bemoan exemption from the draft from either an equal
employment opportunity or equal responsibility standpoint.
690
684
Thus, the most blatantly sexist policy in our Nation's historythe limitation of
the drafting of those who would die and be mained in war remained limited exclu-
sively to the male sex.
13y 1969-1970 draftees suffered more than 60% of the U.S. Army casualties.
I4OW passed a welcome home resolution in 1971 which stated: "The National Or-
ganization for Wor ien oppose(s) any state, Federal, county, or municipal employ-
ment law or program giving special preference to veterans."
NOW later confirmed in a letter to kne dated 29 July 1979 that the resolution still
represented their policy.
This, in effect, opposes preferences or programs for even blind and paraplegic vet-
erans.
As a Special Assistant to the Veterans Admini$tration General Counsel in 1978, I
assisted in the preparation of the keel memorandum which persuaded the Solicitor
General to file an amicus brief in support of veterans' preference in Feeney.
We pointed out that the status of female non-veterans did not call into play the
"strict scrutiny" test and that veterans' preference statutes must only demonstrate
a rational basis to survive an equal protection challenge.
Our concern in 1979 was that Federal veterans' preference statutes had a similar
legislative history as the Massachusetts stet to in question and that an adverse de-
cision in Feeney could lead to an avalanche o Constitutional challenges of even less
generous forms of veterans' preference bride the guise that legislative bodies in-
tended to discriminate against female non-ve rens since it was a known fact that
only 2% of veterans were female.
In February 1980, President Carter inadvertently forced NOW's hand on the issue
of the draft by announcing that both young Men and women should be required to
register for the draft.
Heretofore, NOW and most other feminist organizations' policy was to take a
"low profile" on the issue of the draft.
Only after Carter's 1980 announcement did "feminists" in their 30's and 40's who
avoided service during Vietnam publicly state that it was acceptable to them if
younger women of the 1980's faced draft laws and military service.
This inconsistency was not well received by the 20-year-old women who were so
generously, if not abruptly thrust into the role of equality of responsibility by their
once-reluctant older sisters.
Subsequent to the 1980 Carter draft registration announcement, Rostker v. Gold-
berg, tiled by a male challenging the male-only draft during Vietnam was reborn
and found its way to the Supreme Court.
NOW finally came out of the closet-15 years lateand filed an amicus brief in
1981 stating that "the requirement to register . . . for induction into the Armed
Forces . . . if imposed at all . . . must be imposed equitably on all members of so-
ciety who are capable of serving, irrespective of gender."
In a press conference announcing their brief (overdue by more than a decade)
NOW President Eleanor Smeal incredibly stated that past exclusion from the draft
had discriminated against women, rather than in their favor, by robbing women
". . of the psychological knowledge that they can defend themselves."
In June 1981 the Supreme Court voted 6 to 3 to uphold the Constitutionality of
male only draft registration in Rostker.
This ruling turned on Congress's Constitutional authority under Article I, Section
8 (as did Federal Court decisions in similar cases during Vietnam) to raise and
maintain an armed forces.
NOW and its allieo shed crocodile tears over Rostker.
Two years later, NOW began winning additional enemies for the ERA by an-
nouncing that the ERA's enactment is necessary for an attack on veterans' prefer-
ence previously upheld in Feeney.
While the Military Order of the Purple Heart has previously not taken a position
for or against the ERA, we will now be giving serious consideration at our National
Convention this August to seeking an amendment to the ERA to protect veterans'
preference.
Such an amendment would be similar to Title VII of the Civil Rights Act of 1964
which reads in pare "Nothing contained in thin ceibchapter shall be construed to
repeal or modify any Federal. State, territorial or local law creating special rights
or preference for veterans."
Mr. PHIv.LIPs. This policy of NOW, in effect, oppOses preferende
or programs for even blind and paraplegic veterans. I tried for sevl-
eral years to get NOW to modify that position. I Oan prove that
have tried to do that, and I have had no success whatsoever. In\
691
685
692
686
693
687
694
688
U.S. Army paratroopers. Base pay for a PFC was less than
$122 monthly. Although it was not an overriding factor
in any deoisiion to enlist, I was also aware that earlier
that year Congress had enacted O.I. Bill and Veterans'
Preference Legislation and that veterans' preference legis-
lation could not be attacked under the Civil Rights Act
and would extend to my widow if I were killed or 100$ disabled.
an hao been the case in most wars, many people were
killed and maimed. Every member of my 26 member recon
platoon was ultimately wounded at least once and all but
five of us were either killed or so badly wounded that
medical evacuation to Japan was required.
695
689 t.
696
t1
690
697
691
698
692
Joie 1, 1979
1st: CORR 79-160
Sin a Xy,
t'gf 4(
Dirigetor, nestles nfornation
and Security Review
6
693
7o
694
701
695
Mr. SHANOR. I understand that, Senator.
Senator HATCH. On your page 3 of your written testimony, you
say "There is neither any language nor any congressional history
behind the ERA which would support such a construction." Actual-
ly, there is quite a bit of legislative history behind it.
Mr. SHANOR. If I might comment on'that, Senator Hatch, it is my
understanding that this history basically shows that the ERA
would go beyond the 14th amendment with-
Senator HATCH. That is right.
-
Mr. SHANOR [continuing]. With respect to the protection against
gender or sex discrimination, but not that it would go beyond the
14th amendment with respect to--
Senator HATCH. But also on disparate impact as well. Let me just
ve you one illustration. Prof. Barbara Brown, in the leading text-
k on the subject, has said there are a number of reasons why
11111
702
696
7o3
697
704
41 1!415 Cl fib -46
698
my ',Jaime. I support the ERA, more for its symbolic value than
that I do not believe the ERA would overturn even absolute veterans'
sion.
their face between men and women: both male and femalle veterans
705
impact against women, that this impact was readily foreseeable at
the time the preference was legislated, and that a major reason
for the impact wee that women had been precluded by statute and
military regulation from entry into the armed forces. In the
Court's words:
group."
history behind the ERA which would sup art such a construction.
706
700
For example, the Court unanimously held that Title VII embodies
U.S. 424 (1971) while in Washington v. Davis, 426 U.S. 229 (1976),
it held that disparate impact alone does not establish race discri-
men make, on the average, more than women and because the income
tax laws establish higher marginal tax rates for higher income
will have any zeal for facing such questions, nor that many EAA
deleting S 712, which states that "Nothing (in Title VIII shall
707
701
fortiori.
v. U.S., 320 U.S. 81 (1943) and Korematsu v. U.S., 323 U.S. 214
708
702
its 1101 tng have differed if the Court ha? applied "strict scrutiny"
the result surely would have been reversed,aa the Court itself
would come out differently under the ERA. Second, even if the
ERA would not reverse Rostker, veterans' preferences will not likely
receive the deference which the Court gave to the draft registration
process. That is because such pieferencee constitute after-the-
of the ERA and thus are outside the ERA's reach. Only in the
7o
703
Senator IlAmPfhank you so much
We will now turn to Prof. Gary L. McDowell, professor of politi-
cal science at Newcomb College of Tu lane University in New Or le-
an Professor McDowell.
STATEMENT OF GARY L MCDOWELL
Mr. Mc Dowxu.. Thank you, Mr. Chairman.
Some version of an equal rights amendment has been introduced
in every Congress since 1923. Yet it was not until 1972 that a ver-
sion finally passed both houses and headed for the States. Since the
defeat of that proposed amendment on July 30, 1982, and the intro-
duction of the present version on January 26, 1983, the politics sur-
rounding the ERA has reached a fever pitch. The problem is that
the procedure of amending or fundamental lawa procedure de-
scribed by the framers of the Constitution as a most solemn and
authoritative acthas come to be the ob1ect of such popular frenzy
that we have lost sight of taking serious note of the sorts of
changes that such an amendment would bring to our system of gov-
ernance. During an election year when the rhetorical edges of the
ERA debate will inevitably be honed sharper still, this committee
is to be commended for attempting to introduce a bit of sober re-
flection on the practical effects of the proposed ERA.
Too often public debate focuses almost exclusively on the philo-
sophic implications of the ERA; its practical effects on public policy
generally receive, at best, superficial notice. But it is at that level
of policy rather than the level of principle where public attention
needs most to be drawn. While all decent instincts demand in prin-
ciple an equality of treatment of women before the law, the admin-
istration of the institutions of government, in light of that princi-
ple, is what will touch the governed most immediately. Thus .the
most politically relevant question is what the ERA will mean in
practice. What will its .concrete effect be on the way in which we
seek to govern ourselves?
A consideration of the relation of the ERA to veterans programs
at both the Federal and the State levels exposes a fundamental
practical question of administration. Is the standard of equal pro-
tection to be the standard of discriminatory intent or the standard
of discriminatory impact? In brief, would a law contravene the
ERA if, in practice, it led to a disproportionately discriminatory
impact on women regardless of its intent? The answer to these
questions will have a far reaching impact on public policy should
the ERA be ratified.
The veterans programs bring this question of standards into
sharpest focus because traditionally more men than women have
been veterans. Any program intended to benefit veterans over non-
veterans then has, to a degree, the apparent effect of benefiting
men at the expense of women. The issue is whether preferential
programs for veterans would violate the ERA. It seems clear to me
that they would.
The policy of creating preferential programs for the hiring of vet-
erans is neither new nor limited. While the form such programs
may take may vary widely from a point advantage system to an
absolute preference program, the underlying legislative motivation
710
704
711
705
712
706
to hal o women would not he decisive. The mult arising from habitual patterns of
exclusion was there for all to see and feel.
As leading legal authorities on the equal right amendment, the
view of Professors Freedman and Emerson would surely be influen-
tial in shaping the sorts of arguments that would be brought to
bear on the question of intent versus impact in the flood of litiga-
tion that would undoubtedly be released by the ratification of the
ERA.
This view is not one that is- merely whispered in scholarly clos-
ets. The legal profession has been greatly influenced by it. Martha
Barnett of the American Bar Association has argued in favor of
supplanting the standard of discriminatory intent with the st:
ard of discriminatory impact. "The principle of equality," she sug-
gested, "is rendered impotent if it cannot reach laws which effec-
tively exclude women from employment for which they are fully
qualified and competent."
It is these three factors, thenthe r rnbiguity of the proposed
amendment, a judiciary somewhat divided on the question of intent
versus impact; and the rather clear positiod of those most likely to
press for the impact standard in litigation under the ERAthat I
believe would come together and lead to the abandonment of the
standard of intent in favor of the standard of impact, thus lead
to veterans preferebce programs being declared unconstitutional
violation of equality of rights under the law as provided for in the
equal rights am, Ament.
[The following was received for the record:]
713
707
duced in every Congress since 1923. Yet it was not unitl 1972
that a version finally passed both houses and headed for the
January 26, 1993, the politics surrounding the ERA has reached
ment for women before the law, the administration of the insti-
ourselves?
A consideration of the relation of the ERA to veterans'
programs (at both the federal and state levels) exposes a funda-
71 4
708
traditionally more men than women have been veterans; any program
chusetts v. Feeney,. 442 U.S. 256, 265 ( 978).) They have existed
tution now stands, without the ERA). For as James Wilson saw fit
this questiou of whether or not the ERA would render such preferon-
71 5
709
teenth Amendment. The Court held that it did not. The logic
71 6
710
means (if not, why adopt it?) then it must tighten considerably
scheme." (442 U.S. 256, 284). With the ERA rather than the
Fourteenth Amendment serving as the constitutional point of
The t,lird and final. reason such a movement from the standard
717
pill
exclusion was there for all to see and feel. (Cons. Rec.
HSS9 February 7, 19841 emphasis supplied).
which effectively exclude women from employment for which they are
fully qualified and competent." (Com. Ret., 11559)
the ERA -- that h Ilow, would come together and lead to the
71
712
Senator HATCH. Thank you. All four of you have given excellent
statements. Many of the leading proponents of the equal rights
amendment, including the League of Women Voters, the American
Bar Association, and Prof. Thomas Emerson of the Yale Law
School have argued that the ratification of the equal rights amend-
ment would result in the overturning of the Supreme Court's deci-
sion in Massaqhmetts v. Feeney, upholding the constitutionality of
veterans preference programs.
Could each of you, briefly summarize again your view on this
particular issue? Let us start with you, Mr. Meloy. We will go left
to right.
Mr. MELOY. I would agree with Professor Emerson, maybe for dif-
ferent reasons. I am not sure of the basis for his argument, but
mine would be that if the equal rights amendment were to pass,
the kind of standard, whether you call it a disparate impact stand-
ard, an effect standard or an intend standard that has been applied
by the Supreme Court in race cases would also apply in sex cases.
It seems to me that if Feeney were alleging a violation of his
rights on the basis of race, the decision would have been different.
It would have been different because the Court would have focused
and would have placed a higher burden on the State to support the
kind of method it had, the kind of alternatives that might be avail-
able, and I do not think that they would have met that burden in
Feeney.
Senator HATCH. So you are saying that, in your opinion, the ap-
plication of the equal rights amendment would overrule Feeney and
thus disallow veterans preferences?
Mr. MELOY. Absolute veterans preferences. I am not sure that
my conclusion would be the same with respect to a statute like
Montana's is now which is very narrowly tailored.
Senator HATCH. Professor McDowell.
Mr. Mc Dowel& Yes, I do believe that the adoption of the ERA
would overturn Feeney precisely because the amendment itself is
ambiguous to a degree that we have no idea that it would not, and
it would be left to litigation to prove whether it did or not, and the
inclination of those most likely to press litigation would be pressing
the argument that impact should supplant intent as the standard
of discrimination.
Senator HATCH. Mr. Shanor.
Mr. SHANOR. I do not believe that Feeney would be changed
under the equal rights amendment. I have to concede, of course, as
with any constitutional provision, that there is opportunity for
after-the-fact judicial interpretation.
Nevertheless, it does seem to me that the better reading of the
language and of the purposes of the equal rights amendment would
he served by not establishing an effect standard but rather main-
taining the intent standard of Feeney.
Incidentally, in respose to Mr. Meloy's point, Washington v.
Davis was a race case in which the Court said the intent standard,
not an effect standard, governs under the equal protection clause.
I think that would be proof and should be proof under the equal
rights amendment also.
719
713
41 9111, 11 NA .411
720
714
ening the nature of the judicial review, could call veterans prefer-
ence laws into question?
Mr. Meloy.
Mr. MELOY. Sena tor, we are still constrained by the Supreme
Court rulings with respect to interpretation of the analysis in sus-
pect cases, and I see no reason why the Court would feel any differ-
ently with sex-based discriminations as they have with race-based
discriminations, and it seems to me that that is a balancing of in-
terests between intent and impact, and I think that is what the
Court looked at in Washington v. Davis, and the Arlington Heights
case, in fact, has language that says, if the zoning commission had
known the impact that they were having by zoning out minorities,
then, perhaps, the classification would not stand.
In Massachusetts v. Feeney, the Massachusetts court knew the
impact they were having and they still adopted a preference, not-
withstanding the knowledge of that impact, and it seems to me
that if the law of Arlington Heights which is in the same genre as
Washington v. Davis replied in Feeney, the Court would have come
to a different conclusion.
Senator HATCH. Mr. McDowell.
Mr. MCDOWELL. I believe that under the ERA one could fashion
a new theory of discriminatory intent rather than impact insofar
as any veterans preference programs will inevitably benefit more
men than women. I do not feel, as Mr. Meloy does, that the Court
would necessarily feel constrained to abide by the doctrinal kinds
of configurations they fashioned under the 14th amendment. The
ERA opens up a whole new field of constitutional adjudication.
I think that there would probably be new standards that could be
established that would effectively lead to those conclusions.
Senator HATCH. Mr. Shanor.
Mr. SHANOR. I would simply reiterate that I think it does not
adopt and should not be read to adopt an impact standard, and
therefore, with respect to all veterans programs except for those
very few which may not be facially neutral, that you would never
reach the suspect classification question.
Senator HATCH. Let us assume that you do, though. Even if the
intent standard of identifying sex discrimination were maintained,
is it possible that the ERA by establishing a more rigorous stand-
ard of review for classifying disadvan+ ,ged women, could render
veterans preference laws unconstitutional?
Mr. SHANOR. I do not think it is more likely under the ERA than
it was under the equal protection clause language in Feeney that
the courts are going to say there was an intent to disadvantage
women through these statutes.
That is, there are clearly legitimate beneficial purposes to these
statutes benefiting veterann.
Senator HATCH. Mr. Phillips.
Mr. PHILLIPS. Well, sir, I am concerned about the evolvement of
this to make sex a suspect classification. If I remember the &hies-
singer v. Ballard case in 1975, and I am sure my law professor
friends will know that case better than myself and can correct me
on this, did not a plurality of the Court say sex was a suspect clas-
sification?
Mr. SHANott. That was Frontiero v. Richardson.
715
Mr. PHILLIPS. That was primarily the 1973 case? ThUs I am con-
cerned from the standpoint that if sex had been declared a suspect
classification early in the Vietnam war years, I would not be so
irate about what is going on now that the war is over and am all
of a sudden hearing this clamoring about the inference fro some
organizations that during Vietnam, women's groups were ting
down the doors of the recruiting offices and draft boards dem d-
ing equal employment opportunity.
To hear this after the war is over, after the fact, concerns m
and I think it smacks of hypocrisy. There is a concern here if se
becomes a suspect classification only after the dying is over in Viet-
nam, born so disproportionately.by men.
I find that a little bit late especially for the guys that were killed
or maimed. I cannot be positive what the impact of ERA will be,
but I have the concern that the strict scrutiny test would then be
applied in attacks on veterans programs.
Senator HATCH. I think everybody would have to be concerned if
sex were to be raised to the level of a suspect classification. There
is the possibility that that alone, even under an intent standard,
would outlaw veterans preferences.
Are veterans preference laws in unavoidable conflict with affirm-
ative action policies designed to establish hiring preferences for
racial or sexual minorities?
Mr. MELOY. The question is, would there be a conflict between
statutory preference for veterans as opposed to a statutory prefer-
ence for women, for example, to correct a previously low number of
women in the employment force; is that the question?
Senator HATCH. Is there an inherent conflict between the policies
underlying veterans preference and affirmative action?
Mr. MELOY. Well, I would think the question, I think, resolves
itself into the question that the U.S. Supreme Court has considered
in Bakke, and that is whether or not benign discrimination suffers
constitutional infirmities, and I think the Court has been ambiva-
lent about that, and I would guess that it would be possible consti-
tutionally to narrowly tailor a preference for veterans such as the
Montana Legislature has done and at the same time that prefer-
ence could work well with an affirmative action program which is
designed to increase the number of women in employment, in, say,
Government, and neither of those would necessarily have to fall in
constitutional challenge.
Senator HATCH. Mr. McDowell.
Mr. McDowELL. As I recall the question, it was whether the vet-
( rens preference is in tension with affirmative action policies?
Senator HATCH. Yes. Would it be in conflict with affirmative
action policies which are designed to establish hiring preferences
fo: women and minorities?
McDowELL. In principle, I do not think so. I think that sta-
tistically one of the things that has been shown from 1976 on is
that an increase in the number of minorities and women taking ad-
vantage of veterans preference first-hire which would indicate that
it is not undercutting fundamentally the initiatives undertaken for
affirmative action.
Senator HATCH. Mr. Shanor.
722
716
723
717
124
718
72 5
719
ed solely to the female parent of the veteran, that is, the mother,
be constitutional under the ERA?
Mr. SHANOR. Well, I think a preference to a wife or to a mother,
because that is a one-way gender classification, only women, is
probablywell, it would be unconstitutional under the ERA.
Senator HATCH. Does that concern you at all?
Mr. SHAMA. No; it does not because the converse of that is that
at least if an intent standard is adopted, spouses or parents lan-
guage in those statutes would provide absolutely no problem.
Mr. McDowELL. In answer to your first question, my guess would
be that such provisions should undercut the criticism of the consti-
tutionality of veterans' preference; and, second, I think that on the
basis of the ERA, such single-sex preference for the female mem-
bers of the veterans' family would be unconstitutional.
Senator HATCH. There are nearly as many men as women who
are disadvantaged by the veterans preference; that is, there are as
many male nonveterans in the work force as female nonveterans.
How can veterans' preference be viewed as unconstitutional gender
discrimination given this fact?
Mr. SHANOR. Well, part of it depends upon whether you look at
the problem from the direction of who gets the advantage and
therefore who gets the job or whether you look at it from the point
of view of what is the residual pool of all those folks who do not get
the jobs.
It seems to me that not only title VII but basically all of our em-
ployment-related laws look at the question from the perspective of
who gets the job, and in that sense, the veterans' preference does
give a substantial advantage to a predominantly male group.
Mr. Mc Dowsu... I would point out that that logic about the equal
numbers of disadvantaged male and females in the nonveteran
work force was at the heart of Justice Stewart's opinion in Feeney,
but I think also that there would be the tendency, under the ERA,
to go to an impact standard which would be, in effect, that more
men were getting jobs at the expense of women because more vet-
erans were men.
Senator HATCH. I see. Could you briefly summarize for the com-
mittee the type of veterans' preference program that would pass
muster under the ERA and the type which would not? What are
the criteria?
Mr. McDowstx. I would be inclined to say that all veterans' pref-
erence programs would be invalidated.
Mr. SHANOR. Consistent with my earlier testimony, I would think
that only those veterans' programs which make classifications
based upon gender, that is, preferences which run exclusively to
male veterans or which run exclusively to wives or exclusively to
mothers or to fathers or to brothers, that is, a sex-based classfica-
tion veterans' preference programs, and only those sort of program
would be invalid.
Senator HATcH. I might add that my own State of Utah is one of
the six States that has the same type of statute that was interpret-
ed in the Feeney case.
What do you think about these questions that I have been
asking, Mr. Phillips?
4 tD
720
4.4
722
does not include the amendments we want, we will use every
means in our power to defeat ratification in the States.
And just for the record, something came up about veterans' pref-
erence in promotion. Veterans' preference plays no part in promo-
tion in Federal employment, and I will be happy to respond to any
questions you may have sir.
(The following was received for the record:)
t'l)(1
1
a
VETERANS OF FOREIGN WARS OF THE UNITED STATES
STATEMENT OF
BEFORE THE
think you for the privilege of appearing before this distinguished Subcom-
mitte2 to present the views of the Veterans of Foreign Wars of the United State,.
va mi'll'' rren and wmo, ,t the Veterans of Foreign Wars se their Nation,'
leglnlnclvr Dire, r I
Thin f2attu, had 'can leli to rent nine., the Equal Rights Amendment propoend by
(-0orco., or h :2, 19'2, farted ratification by the requisite dfi states for
ti-7rn :n .0r,001 uhory they would he subIected to ,),M0 comber with the
',Al IorI (rnirr-: oo !epterher Ih, 10P1, tLe President of the deAgoo
7,io
724
Mr. Justice Marshall, joined by Mr. Justice Brennan in the Suprema Court of the
could be used se the vehicle to challenge first the Massachusetts law and, then,
U 'House of Reprenentetivett, opined, "If shat Ms. Ridings nays is true, the
employment
game rationale which would overturn veterans preference in public
Clifford G. nison, Jr,, wrote to the Chairman and all members of the House
Iudlcisry Committee end, then, all umbers of the House of Representatives that
unless 1-1 I Nes 1 was amended, it would be wholly unacceptable to the more than
2.6 million men and women of the VFW end our Ladies Auxiliary. Specifically,
Of Peprosentariven. The vote was 278 yeas to 147 nays with one member
11,,,V4,
voting "prevent" Jrld nine not voting. The Speaker of the Nouse brought the measure
Io roar,( 110,1hwativem in 1977, the" hue and cry of women'a sotivlst groups
WW1 It in I.4ov T1181. they ere tlecnnd class citirenv hevanne their
,ppo.tnntf, /.. 1/T1tr vii ,milt preference wan no trotted that they tare sheet
rrnpl,vment . The
st.h. hh. In ',nap' f tog tilt)) veterans for federn1
1110..gr
.011,t ,t ct, tliortt novever. seen did serve dorlog then, pat ludo of
t
, ' , , ;i, pi that tiOU there /Jett enough WorPfl 001 VOVIIIng
, u ' '
7
725
than held by women, 893.5 thousand. Soso 577,000 Women were entitled to veterans
pieterence In thetr own right and 304.4 thowand woman had derivative entitlement
predicated upon death of the servicemen or the fact that the veteran was per-
Mr. Chairman, is a chart prepared by the Office of Personnel Management for the
were 82,944 or 22.6 percent of total hires and 6,636 or sight percent, were women.
2. 1.2 million are man, of whoa 726,272 or 36.5 percent of the total work
force, enjoy veterans preference;
3.
776,000 are women, representing 39.2 percent of federal employees;
Therefore, Mt. Chairman, the thetas women ars, in fact, suffering loss of federal
With respect to no women In combat, we era, of course, very such aware that
soma women, particularly nurse., ,eve been subjected to enemy fire. However, we
must all hope that the United Staten of America never approaches such desperate
straits that we Oust cons der the training ane assignment of women to ground, air
and two jobs which would require them to aggreseively seek out, close with end
Mt. Chairmen, If any proposed Equal Rights Amendment sent to the states
for yatIfILatIon is not amended ea previously stated, I can Assure you that the
Vetetaso of cureign WOWS Will use every resource at our disposal to defeat Ito
io In, ,n.elvohl:, Mt, thairmen, that women activiolts who enjoy freedom
rumored oy the narcItIcoo of veterans would n'w turn on their benefactors end
noel- r.. olIrinite their benefits oo dearly bought. Apparently, too many forget
726
0
too soon the sacrifices that veterans made in giving years from their lives, years
from their families and years from their ter:weal endeavors if not, also, their
passed by the voting delegates to our 14th National Convention held in Nev Orleans.
In conclusion, Mr. Chairman, and on behalf of the more then 2.6 million men
and women vi the Veterans of los:sign Warm of the United States and our Wise
Auxiliary, permit me to again thank you for your courtesy in inviting me to appear
733
727
*0 Percent of Federal
Hires 23%
o Percent of
Veteran Hires 18%
DISABLED VETENS
RA HIRES (10-POINT/
30 PERCENT OR MORE DISABLED VETERANS HIRES
o Total 10,643 o Total 3,369
o Percent of
o Percent of Veteran
Veteran Hires 13% Hires 4%
o Percent of Federal
o Percent of Total
Hires 3% Disabled Veteran
Hires 32%
o Temporary Appointments
into the Competitive Service 1,618
- % of Total 30
Percent Hires 49%
Source: Office of Personnel Mat-Arm-rut
Central P. rsonnel Data File
728
WHLRLAS, the present and projected strength of women in the Armed Forces is ss follows:
ARMY
TOTAL STR1NGTN
780,300 73,963
_
1962 WOMEN (ACTUAL)
1q1102
1984 WOMEN
oponapa
93,000
and
WHERYAS, the following additional factors apply: (1) the number of women in the Armed
forces has more than quadrupled since 1972, fro.: less than 2* of the total force to about
9.11; (2) in 1972, 901 of the women In the Armed Forces were in "women type" jobs, today
this percentage has shrunk to about 501; (3) on December 20, um the Secretory of the
Army approved the assignment of women to "hazardous assignments near combat creme" to
Include approval of some "non-combat" positions to the 82nd Airborne Division (woman
are still not assigned to battalion, or lower unite in Infantry, armor, cannon field
artillery, combat engineers, Special Fortes, by altitude air defense artillery, or
attack helicopter unite); (4) women comprise 261 of the ROTC force at 291 collegel,
while 36,000 women are in Junior ROTC programs; (5) abroad, no other country, except
New Zealand, has brought in many women into their Armed Forces, The Soviet Union has
only 10.000 women in forces totalling over 4.f million; Israel about 8,000 out of
278,000. In short, we are the only notion going this route; end
WHEREAS, (1) the presence of thousand, of women in our Armed Forces and the prospedi
of any more thousands in the future, is a "quiet revolution" with profound implications
fur our national security; (2) the Congress hos, predictably, done the *soy thing
A
to Wit Point, down with the barriers, etc. -- without changing the basic law.
"woman in ,ombst" bill has been stalled since 1974 in the Douse Armed Services Committee;
(1) the root profound -- not narrowly military -- action representative. in government
can do is to cell upon its young citizens to fight and possibly die in defense of the
nation or the nation's foreign policy objectives; (4) se structured today, should our
Armed Forcer be committed to action, women would be killed, wounded and captured in
numbers that have no precedent in the history of the modern world; (5) the "turned on"
young women in today's Armed forces are proficient and admirable by every peacetime
air, sea or ground
measurement. Many would fight bravely and effectively near the
battle tone; a truly heroic few could and would fight well in close combat with the
enemy; but, (6) the Congress should be called upon to feme up to the "no win" positloo
they have placed time Armed Forces in (i.e., equal rights nom, never mind the probable
security and human cost), and codify, under the United 8tetee Cods, the role the peoples'
repte.entstfves desire American woman to play in future combat (to its credit, the
!pagan administration hes sharply questioned the numbers and the jobs of women in the
service it inherited); now, therefore
Convention of the Veterans of foreign Ware of the
BE IT RESOLVED, by the 84th National
United States, that the position of the VFW on this question before the Congress and
sir jobs
the Executive Drench will be: No women will be assigned to ground, see, or
closing with, and destroying the enemy; and
that call for aggressively seeking out,
735
729
VETERANS' PREFERENCE
WHEtEAL, the 18th Congress passe;; the Veterans' Preference Act of 1944 in June,
the month allied ar'ed forces made the Normandy landings at tremendous human cost;
and
WHEREAS, the term "veteran" includes every category of society, sex, age, religion,
ethnic group, race, and creed; and
WHEREAS, Section 712 of the Equal Employment Act of 1972 specifically statue that
nothing in the Act shall be construed to repeal or modify any Federal, State,
Territorial or Local laws creating special rights or preference for veterane; and
WHEREAS, uu.ing the pest three generations, the United States has become involved
in World War II, Korea, and Vietnam; those who served on active duty during these
three armed conflicts at the very least experienced a disruption'in life style,
generally from two to tour years at very low pay and at worst were disabled or
killed; and
BE IT FURTHER RESOLVED, that the President and the Congress of the United Statue
reject any and all proposed legislation or regulatory change that would reduce
employment opportunities for veterans in the federal and public workforce.
Adopted by the 84th National Convention of the Veterans 01 Foreign Ware of the
United States held in New Orlenne, Louisiana, August 12-19, 1983.
dl 101c, t) HT,
736
47
730
Statement of
by
wnt its views before you today. At issue are several ques-
,.ctlt
inierk)d r, a,,atnni
! , 1 .1/1:1 ."I of ,
'10
733
.voinds ar likness.
inti! World oir 11, noww:er, that the meat Or miallc chinge
in votetins prei renee came ibcut.
,, (11 ;
I 4 H I
I t , (I (I.,
1 'T"I ',((71,
e
734
fact, since the Civil Service ;eform Act of 1978 (5 USC 2108), no
eharged after October 14, 1976 and no veteran discharged from mil-
ans preference.
US 256 (19791.
The American Legion since its inception has not only permitted but
7I
735
;;,;;;,,n, 11101,1, 1
:1`
ViI
It I. ( ,t1. , 11V.V1 / II thl -
;: .:otc,rAng wri:; ;11: f,nind
,',; 1 ly 1 t 71: .1;v_il!1!;1 '401-nen 1
iv I 1, 111( r0 1 10 ) he !- t t: n
htvo h,h v111,1 ,11;n in 111 t
ur pin! worn. In Vlot-
n,m 11 1.0L n,m ;',0,o;) mloJ 11,d.
Any nx,;:C; 11;o:r1TinitIon hit
toLtultu trom vottq-an5 !.rvforonc in r,!;;Ilt
.1
,Df this long hifltnry
litIrL,Ic In the military.
Senator HATCH. Let me ask you the same two questions. Do you
need an explicit exception in the ERA to protect the veterans' pref-
erence? Further, are you opposed, as a general proposition. to
women being forced into combat on an equal basis with men?
Mr. RIGGIN. There is no reference in this particular statement
regarding women in combat.
Senator HATCH. Where would the American Legion stand on that
question?
Mr. RIGGIN. We would probably be against women in combat
from a military managerial standpoint.
Senator HATCH. What about the veterans' preference? Would we
have to amend the equal rights amendment on the floor in order to
protect the preference?
Mr. RIGGIN. We believe so. We obviously were sitting in the room
awhile ago when the discussion of this was taking place earlier,
and we believe that there will probably be some language neces-
sary in the equal rights amendment, in any equal rights amend-
ment that passed the Congress, to protect existing veterans' prefer-
ence statutes or any other veterans' benefits programs which may
he considered discriminatory.
Senator HATCH. Thank you.
Let us go to the American Veterans' Committee, and Ms. June
tary and as veterans, and the different directions in which the vet-
erans preference laws and the ERA are foctwcd, we believe that
the ERA would not invalidate veterans' preference laws generally.
AV(' strongly favors the adoption of ERA. We see no basis for
suggesting that ERA would invalidat? the general-principle of vet-
erans' preference laws. We also believe t.triat an initial appointment
veterans' preference is justified and is part of the Nation's obliga-
tion to its veterans. It is a disservice to both the veterans and the
women of this country to suggest that there is a conflict between
ERA and veterans' preference when there is none.
Thank you for the opportunity of presenting the American Vet-
erans' Committee views.
The f011owing was received for the record:(
138
The American Veterans' Committee thanks you for the oprortunity to present
our views on whother ERA would have any impact on veterans preference.
Veterans Committee and have served in that capacity for over 18 years. I am also a
Heroines, which summarizes the role of women in the military and os veterans.
Before turning to the subeIct before this Subcommittee I would like to acquaint
yo. with ti.. American Veterans Commntree's positiom en the FlA and on the issue of
Cirst. AVC strongly supports the adoption of the ERA os part of the United
Stott.: Constitution We believe that sex discrimination ought not to be the bmis for
Second. tVC does not approve the kind of veterans preference embodied in
442 U.S. 256 (ITN), That statute provided o total, lifetime, across-the-board
Feeference in public employment for veterans over all non-veterans. Our position
(1) Comprniatinr,
For many years, Ayr' hog, pointed out Ole need for a thorough review and
reappraisal of this Nation's policies n's veterans as follows!
745
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AVC believes that veterans point preference in the civil service for
non-disabled veterans should be limited to the initial appointment only,
and that no persun should receive a position unless fully qualified to
perform the duties involved.
Third. It should be noted that there ore 1,150,000 living worsen veterans
who ore eligible for veterans preference. They represent 4.1% of all living veterans.
Furthermore, more and more women are participating in the military services, almost
tortes, is expect Ad to continue to increase. The fastest growing part of the veterans
( No .rember 1983) pointed out that the increase in the female veterans population
Therefore. we con expect on even greater number of women veterans will become
that saTn ten V veterans IJIV.1 Well, eligible for veterans p., ference.---wldbws,
an3 in some r asnthersoll woman- -under the current Veterans Preference Low
are oisn riirihIr f veterans preference. A substantial and growing number of women,
We let nr, .)141ir f hph.VVI.ri the FPt rind the type of veterans preference
readjustment from military service to civilian life with o minimum of econbmic lots
decent ;tare-lord of living for the veteron and/ r the veteran's Tamil Of survivon.
Even though more males then females become veterans, the objective of the benefits
granted to them is ta benefit veterans al either we, rather than to benefit males in a
manner superior to, or to the ex lusion of, females. The distinction drawn is between
veterans of either sex as compared to nenveterunt of either sex, not between males and
females oHich.
Prq"
/would forbid Federol and state governments from denying or abridging
the ERA ond a veterans preference statute that rests on the distinction between veterans
and nonveterans ond is not intended principally ta discriminate in favor of one sex as
The question as to whether the ERA would involidote o statute like the Massa-
chusotts stotute involved in the Feeney case requires further analysis. That statute
gave every honorably discharged veteran, "mole or female, including a nurse," who
had of !cost 90 days active military service of which at least anu day was in "wartime,"
and who quolified for o store civil service position, o preference ahead of ail qualify-
ing nonveterom. Since mast veterons ore mole, the resul of that total, across-the-
board, prefe ence war that most of the store civil service senior positions were occup:ed
by moles. Ms. Feeney, u female nonveteron with 12 years civil service tenure who
attained high grades in open competitive civil service examinations for higher positions,
wes unable t., nhtoin them because veterans with lower, but qualifying, civil service
test grades were given preference ahead of her. She chollenged the stotute os denying
her equol protection of laws under the Fourteenth Amendment of the United States
Cort.tttution because the stotutnry preference resulted in the better civil service positions
being filled principally by men ond excluding most won m from those positions.
The Supreme Court's opinion, starting from the premise thot "any state law
overtly nr covertly desioned to prefer moles .ver femoles in public employment would
under the Equal Protection Cla use of the Fourteenth Amendment," reoffirmed "the
settled rule that the Fourteenth Amendment goorenteer equal laws, not egad results."
717
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(2'S U.S., at p. 273). The Court's opinion, noting that the statute was neutral on its
fo.e as to gender, ruled risco its principal distinction was between veterans of either
sex and nonveterons of either sex, not between moles and females as such, and that
its purpose was to benefit veterans rather than to discriminate agaimt women, and
It is clee, that the Ceurt was influe iced by the long history of veterans prefer-
organizations, and stated (p. 10, slip copy), citing the Feeney opinion:
The Feeney decision follows the pattern of Washington v. t avis, 426 U .5 . 229 (1976)
which held that "a neutral low does not vklote the Equal Protection Clause solely
AVC has particularly worked diligentls, to help expand the numbers and role
are serving in the military and ore becoming veterans, entitled equally with male
veterans to the benefits of veterans preference. That should be the focus for those
who, like AVC, seek to eliminate sex discrimination in all aspects of doily life, rather
than b, invalidate laws, which, like the Federal and certainly most state veterans
preference laws, are directed, not toward discriminating against women 05 such, but
The FRA is directed against governm nt action that denies et uolity of rights
"nn account of sc ." The veterans preferee, e lows, as the Supreme Court stated in
the Fecnet cur. (at p. 275), are not based art o distinction "that can plausibly be
military and ,r,tyrom, tivi the different ,onions i r whir-11 the eterans preference
lows and the IRA -'re fo,-./ssed, we believe that the ERA would no invalidate veterans
748
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preference lows generally. This does not mean that it would rot invalidate a law
as against men through the guise of a "veterans preference" low that is not properly
related to the purpose of aiding veterans in relation to their military service and their
veterans status.
As stated above, AVC strongly favors the adoption of the ERA. We see no basis
for suggesting that ERA would invalidate the general principle of veterans preference
and is part of the obligation this notion owes it veterans. It is a disservice to both
the veterans and women of this country to suggest that there is any conflict between
Thank you for the opportunity to present the views of the American Veterans
Committee.
7,19
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%%110%11 HOMAVsPA11111.
April 4, 1984
June A. Willenz
Executive Director
American Veterans Committee
1346 Connecticut Avenue, NW
Suite 930
Washington, D.C. 29036
Thank you.
Sincerely,
Elizabe\h t. Chittick
President
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Senator HATCH. So you are willing to risk the loss of all veterans'
preft-Tence rights in your determination to have the equal rights
amendment passed?
Mr. WEIL. No, Senator, because I do not believe there is a risk of
losing all rehabilitative veterans' preferences and veterans' prefer-
ences tied to disability.
Senator HATCH, But you admit them is a possibility that that
will occur?
Mr. WEIL. We do not believe it will.
Senator HATCH. You do not believe.
Ms. WILLENZ. Mr. Chairman, we heard two constitutional law-
yers who suggest that this may not be the case at all.
Senator HATCH. Among the ERA proponents who testified earli-
er, one of them said that a diminution of veterans' preferences will
likely occur and that he welcomes it. The other one said there is a
real possibility it will occur depending upon the legal standards
employed by the courts.
Ms. WILLENZ. Under certsin circumstances, but- -
.Senator HATCH. That is what I am saying, too.
Ms. WILLENZ. If a veterans preference law were specifically in-
tended to discriminate against women because no women at all
were included in that class, then ERA would probably pull down
that kind of law.
But I am sure you would not be in favor of any kind of law that
would discriminate against all women as a class so that is the only
pine where ERA would absolutely invalidate a veterans' prefer-
ence law, unless things change considerably.
Senator HATCH. You are assuming that the intent standard will
be maintained, and the overwhelming number of witnesses have in-
dicated that there is a good possibility it may not be maintained.
Mr. Wm.. Senator, I think what would be applied is roughly the
same standard as now is applied, let us say, uncle.. title VI. First,
you ask whether there is a differential adverse impact. If there is,
you ask whether there was discriminatory intent, and if so, it falls.
If there was no discriminatory intent, you look and find out what
was the purpose. Was there legitimate purpose? If there was a le-
gitimate purpose, you look to see whet lier that same purpose can
be achieved in a nondiscriminatory or significantly less discrimina-
tory manner. If it can be, then it is only the a .hieving of this legiti-
mate objective in a nondiscriminatory manner which can stand.
Let us say you find a disproportionate number of minorities
being served by some HI-IS program. You then look, to see whether
there discriminatory intent. If there is, you strike down the distinc-
t ion. If there is no such intent, you ask why is this program carried
out in such a manner.
If we are told a legitimate mason why, then the analysis, is: is
there a less discriminatory or nondiscriminatory way of carrying
out this intent in this program. If there is, it stands. E there is not,
it hills.
I think the same analysis would he applied tt snuations that
inirct differentially on either sex.
Senator IIATen. 'You state that "There would he no conflict he-
tween the ERA and a veterans' preference statute that rests upon
the distinction between veterans and tionveterans and is not in-
717
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749
STATEMENT OF DENNIS K. RHOADES
Mr. RHOADES. Thank you, Mr. Chairman.
I am Dennis K. Rhoades, executive director of Vietnam Veterans
of America. I am going to briefly summarize my statement since it
appears that we are running a little short on time.
Vietnam Veterans of America held their first national conven-
tion last November, and as a result of a resolution voted out of our
economic committee, we came out in full support of all Federal,
State, and local veterans' preference systems.
At the same convention, introduced from the floor, was a resolu-
tion in support of ERA that was also passed by the convention.
VVA believes that veterans' preference and ERA can exist side-
by-side provided certain things happen in the process of passage.
We are affirmatively in favor of veterans' preference. We believe
that above all there is a social contract between the Federal Gov-
ernment, State, and local governments if they so choose, and the
veteran which should not be abrogated, and that includes not only
veterans' preference but the whole system of rights and benefits to
which the veteran is entitled.
We believe that in no case should veterans who went into mili-
tary service and got out find that somehow the Government is not
going to keep its promise.
We do not necessarily believe that there is a natural conflict be-
tween ERA and veterans' preference. It has been suggested, for ex-
ample, that the 1979 Supreme Court decision in Feeney v. Massa-
chusetts might have been resolved differently, and I think that was
pretty much what we heard here today.
We are concerned about statements from, for example, the presi-
dent of the League of Women Voters about the Feeney case, and we
are also concerned about the resolution of the National Organiza-
tion of Women calling for the elimination of all veterans' prefer-
ence.
We believe that veterans' preference and entitlements are an
earned right. We believe that the ERA should not become a vehicle
14 undermining those rights that men and women who served in
the military earned as a result of their service.
Nor, would I add, wouki we recommend that the integrity of the
ERA he encroached because of misperception that ERA and veter-
ans' preference are necessarily mutually exclusive.
Now, we have had discussions with many of our members con
corning recznIciling ERA and veterans' preference. Some of our
members have suggested, as has been suggested here, that ERA
should be amended, and they will probably seek to introduce that
issue' at our next convention,
Our legal counsel ha:, advised us that there may be another way.
In constitutional issues the courts examine the legislative history
for the intent of Congress much as they do the star::
We therefore believe that an unequivocal expression of emigres-
afitial intent that ERA should in no way interfere with the rights,
benefils, and preferences established for veterans by Federal, State,
and local governments would be sufficiet to protect the system of
compensatory programs established in recognition of military, spry
I)
750
(AXNUerOn
STATEMENT OF
DENNIS K. RHOADES
EXECUTIVE DIRECTOR
OF
759
753
and women who fought for this Nation -- is probably less famil-
iar. First, it should be understood that Vietnam veterans enter-
benefits which would follow but because they felt a sense of duty
anti obligation as citizens. The Nation, in its wisdom, however,
has entablished a social contract with its citizen-soldiers which
71 ;O
754
son was an all male draft. This is not to denigrate the honor-
ERA as a vehicle for undermining those rights that men and women
sive.
ThAti
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755
Pi 2
756
Senator Myren We will now hear from the AMVETS, and David
Passamaneck.
STATEMENT OF DAVID .1. PASSAMANECK
Mr. PASSAMANECK. Thank you, Mr. Chairman, for the privilege
of appearing before this distinguished subcommittee to present the
views of the approximately 200,000 members of AMVETS.
I am Col. David J. Passamaneck, national legislative` director of
AMVETS.
AMVETS believes, without reservatica, that preference in hiring
and retention in the civil service is a right for life of war veterans,
a right which they have earned through the unparalleled sacrifices
which military servie-, dc,mands. The preference in favor of the
hiring of veterans i;4 one affirmative action program which is based
on performance and achievement and not racial or sexual accident
of birth.
The tenaciotei efforts of various interePt groups antithetical to
the natioeal defense and military service, to curtail, or completely
MOW' VPtCrVIE; prefe:ence is consistent with the quasi-treasonous
.)V0UCt 0 F40 many inhabitants of this country during the Vietnam
ennduct which contributed in no small way to the tragic result
of that war.
l!nterruption.,
S'nator HATCH. 1,e..1 me interrupt you. I agree with that. We will
have no further outbursts in the room.
Mr. flASSAMANECK Sir'?
Senator HATCH. I agree with what you just said. 1.et us have na
.ur,her outbreaks in this room. I want all witnesses treated with
respect.
Please go ahead.
PAssAmANF:ex. One of those efforts, of course, has been to
question all veterans' programs as violations of the concept of
gendt'r equality by applying the radical socialist philosophy of
of numerical result rather than equality of opportunity.
The Supreme Court in Feeney officially recognized that veterans,
men and women, are special people and entitled to special benefits
administered by the lovernment they served.
AMVETS takes no specific position on ERA. Indeed, our last na-
tiona! convention voted down a resolution opposing it flov,vver, if
there is to he an ERA, then we would imas :. that clear and specific
imiguage he included therein defining equality as equality of oppor-
tunity and not numerical equality of result arid specific:Ay, exclud
kit; all veterans' preference tend entitlement pregrat-s, State or
Fedoral. 71(1 manning and training criteria of our Arled Forces
from the MIN., if the effects of the amendment.
Without such mandatory language t! ..e courts, contrary in sitrp!,,
common SI '11!:1, :Ann inspired by the fraternity of ter!.wing law sato', t
proffli,ier;, will assuredly interpre' ERA so as to ..itiously attac
veter.0 vrogr an is as well as the standards of tactical manage-
rnt ra of our .Armed Force:1 consistent with the porverted logical of
::; MI. Fogif ;d court in connection with so-alted comparabil-
ity of wort
to
757
It. is quite clear that. ERA will be used by many of its most. vigor-
ous supporters as another tool against veterans and the national
defense establishment in general, not necessarily because of their
belief in equality but because of their deeper hostility to the legiti-
mate security interests of this country and the noncommunist
West.
AMVETS opposes all efforts to curtail or abandon preference for
veterans in Federal or State hiring and retention regardless of any
racial or sexual considerations which may form elements of other
legislative programs including ERA. Preference in hiring and re-
tention of all war veterans, regardless of race of sex, has been an
honored keystone of our national policy since the close of World
War 11. Let us keep it that way and strengthen the policy where
necessary.
This concludes, my testimony, Mr. Chairman. I will be happy to
answer any questions.
Senator HATCH. Thank you, Mr. Passamaneck. I take it then that
you do not want to deny any of the existing veterans preference
laws, either by the judiciary or by the legislation. You want to keep
the veterans preference laws in tact.
Mr. PASSAMANECK. Yes, sir, if necessary strengthen them.
Senator HATCH. The testimony before our committee has suggest-
ed that, if the ERA passes women will have to go into combat on
an equal basis with men. Do you agree with that particular point?
Mr. PASSAMANECK. Let. me say the very key legal phrase 'com-
pelling governmental interest" has been used previously in this ses-
sion, this hearing, to explain that certain compelling governmental
interests could override requiremev is even of the ERA.
We believe that our national defense, the management of the de-
fense establishment, the armed services, and the administration of
veterans programs Which derive their justification from the war
powers clause just as the administration of the active Armed
Forces do, all fall within the purview of compelling governmental
interest.
So that even if you did pass an ERA, and we !-ad to go up and
argue that veterans' preferences and programs were omitted from
its purview and we had to argue that women being put into combat
send so forth, that that sort of thing is omitted from its purview, we
would LISP that compelling governmental interest arguin--nt.
cylrse, we would prefer not to have to do that by including
specific language in the amendment.
Senator HATCH. There is much evidence and much testimony
that you would fail if you used that argument.
Mr VASSAMANECIi. I think so. I think we probably would Ind.
Senator HATCH. Would your organization advocate an amend.
went to the equal ri. .hts amendment to protect. vetcreas' prefer-
ence rights?
Mr. PASSAMANECK. AINOilltely, sir.
Senator HATe H. me tisk a t;nesi.ion cf the whole piny In
vour view, what are the principal jAstificio.ions fur the veterans'
pretirence progranm As I understood it Ms. Willenz, you indicated
Beat rehabilitation would be the principal justification for the pro-
grams and not much eke. Ain I wrong on that'
758
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Senator I IATCH. Thank you.
Mr. Schwab.
Mr. SCHWAB. Mr. Chairman, I would associate myself with the
remarks of my colleague Phil Riggin here. While I have the micro-
phone, sir, if 'I may, I like to know with whom I am dealing. Now,
the bona tide veterans organizations at the witness table represent
over 5 million people, with their auxiliaries perhaps 7 million. I do
not know who the American Veterans Commission represents, how
many. I would like that made a matter of record, sir.
Senator HATCH, You mean the American Veterans Committee?
Mr. SCHWAB. Yes, sir. How many people they represent? Who
they are?
Ms. WILLENZ. We represent approximately 25,000 veterans male
and female of four wars.
Senator HATCH. Mr. Rhoades.
Mr. RHOADES. Mr. Chairman, I think in our statement we indi-
cated that the Bradley Commissiori, set the tone for the whole
system of veterans' benefits that has been established over the
years when they talked about giving the disabled and the war
wounded the kind of assistance they need to carry on productive
lives, to provide all men and women who went into uniform the op-
portunity for readjustment.
I think there are also a lot of other reasons that Congress has
created the system of veterans benefits. One that comes to mind is
the idea that somehow a veteran who served his country should
end up indigent. Congress has, in the past, found that to be intoler-
able.
So I think there are many reasons for the veterans' benefits
system. I think most of them that I have heard are all very valid.
Senator HATCH. Thank you. I just want to thank all witnesses
who have appeared here today.
This is an interesting issue. It is one that I think involves deep-
seated feelings on both sides, and without passing judgment, I be-
lieve that the more we discuss the equal rights amendment, the
more we ask questions about it, the more we are finding that it is a
very ill-defined set of words. As wonderful as these words may
sound, they may have wide raaging constitutional implications that
.411 affect evervhody in our society.
My personal belief is that we should work as hard as we can to
resoive the problems with the ERA; we should all fight to promote
equal rights for women. In that context, I would point to S. 501 re-
cently approved by this subcommittee.
If' Congress would spend one-tenth the time resolving the con-
flicts that presently ezist in the law, as on the ERA we could re-
solve many of these conflicts within a relatively short period of
time compared to the 5(1 years we have spent haggling about what
these particular words written in the Constitution will or will not
do.
I am concerned about it because I be Iieve that helbre we amend
the Constitution, We ought to he very. very sure about the implica-
tions of what we are doing.
The noire I listen to witnesses, the more I find that even the pro-
ponents in tact, primarily the proponents --admit that it is going
lo come down to colth decisioris.
76e
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767
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11 111{, 11
762
M18CRLLANE01.113 MATFR1AL
nehmen/ -11Anocieliees 4
STATE DIRECTORS OF VETERANS AFFAIRS, INC.
Sinnerely,
A. Leo Anderson
Ilashington, DC Liaison officer
769
768
31311MAMB
VICKIMILVISS
&Me .4so .1111Wde 44 adne, cmwod, dimpkial
mod beeetailp Jn.horre1 milywohnt ill she
MINIM FIMIO of the 1400i :441.
OF THE UNITED STATES
IISTASUISIED In ION ao she U. S. MINIM SOLDIERS LEAGUE)
bi To work for increase compensation and penibms (after the Civil War the
dit;abled vet received 6$ or $14 a earth for his disabilities) and osdical benefits
tar the Regulars who retire due to length of service or for disability
9 To work for continued employment of all embers of our veterans oann-
unity and to maintain the Federal Veterans preference.
Please be assured that the RVA will notify all Posts and all elected officials to
"uteri fast" on veterans Preference.
We shall, of course, take any other action
el retain the Veterans Preference.
main. (Ada thanks to yoyl fog 'you tf>Rly notice of this action.
Vat tonal twijukant
770
764
the proposed
I appreciate this opportunity to present testimony on
dispels.
of the
At the outset, it is important to recognise the scope
been
government activities embraced by the question that has
the pub', trearlory and do not impose any direct costs on individuals.
in
The civil service job preferences, however, are structured
they are not funded from tax
a significantly different ways
revenues. and their burden
falls directly on those individuals
771
765
who are denied lobe. ot promotions hecause they do not have veteran
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766
women. "2
The same views and process inevitably has also deformed government
the military. The issue here is not, as some claim, whether sex
grade )obs.
that result are alwayi. too broad or too narrow. Instead of gender
BEST ,cqpy
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773
its actions more sharply and accurately. Thus, it the aim of
to assure that such conduct does not deny sex equality under
law. When government treats individuals differently in terms
does not maintain sex inequality, the EPA will not prohibit all
such classifications, as it would Classifications in terms of
4
vex per se. The Amendment would require, however, that classifications
they are nicessary and the reasons for them are compelling.
the saint. "habitual" ways of thinking about the sexes and operate
to maintain similtdr destructive patterns of sox inequality.
number of women in the group that does not receive Such benefits.
most are), the cost is distributed broadly and the impact spread
those competing against veterans for such jobs. With few women
When the Supreme Court was faced with this question under the
to th, Advantage of males" and the impact upon the public empioyment
n,rrruttnnnl.
."1+ I
775
769
that cause ,ex-based harm since such intent can rarely (if ever)
1..ix-teased hark.
777
.
771
FOOTNOTES
at 286.
779 !!,
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Y*1
773
ftirbara
and the Law ;n,
the %ational tr-lanizatton for Women (NOW) opposes any state, federal,
ny runicioal emr.loyment law giving special preference to
vi.terans.
781
775
Thin -foes not mean that 'the ERA/ would not invalidate a law
which is directed to the discriminatory purpose of harming or
disadvantaging women as against men through the auise of a "vete-
rans preference" that is not properly related to the purpose of.
aiding veterans in relation to their military service and their
veterans status.
. 782
776
Syllabus
783
777
256 Syllabus
41 11115 11 Mt, 7 8 11
778
Syllabus 442 U. S.
that they were not volitional or in the sense that they were not fore-
: seeable, nevertheless "discriminatory purpose" implies more thap intent
as volition or intent as awareness of consequences; it implies that the
decisionmaker selected or reaffirmed a particular course of action at
least in part "because of" not merely "in spite of," its adverse effects
upon an identifiable group. When the totality of legislative actions
establishing and extending the Massachusetts veterans' preference are
considered, the law remains what it purports to be: a preference for
veterans of either sex over nonveterans. of either sex, not for men or
women. Pp. 278-280.
(f) Although absolute and permanent preferences have always been
subject to the objection that they give the veteran more than a square
deal, the Fourteenth Amendment "cannot be made a refuge from ill-
advised . . . laws." District of Columbia v. Brooke, 214 U. S. 138,
150. The substantial edge granted to veterans by the Massachusetts
statute may reflect unwise policy, but appellee has simply failed to
demonstrate that the law in any way reflects a purpose to discriminate
on the basis of sex. Pp. 280-281.
451 F. Supp. 143, reversed and remanded.
Srewawr, J., delivered the opinion of the Court, in which Burton, C. J.,
and WHITE, Powm, BLACICHUN, REHNQUIST, and STEVENS, 33., joined.
Srevexs, J., filed a concurring opinion, in which Mime, J., joined, post,
p. 281. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined, post, p. 281.
75
779
786
780
The District Court, entered a stay pending appeal, but the stay was
rendered moot by the passage of an interim statute suspending ch. 31,
§ 23, pending final judgment and replacing it with an interim provision
granting a modified point preference to veterans. 1976 Mass. Acts, ch.
200, now codified at Masa. Gen. Laws Ann., ch. 31, § 26 (West. 1979).
s The Attorney General appealed the judgment over the objection of
other state officers named as defendants. In response to our certification
of the question whether Massachusetts law permits this, see Afauachusetts
v. Feeney, 429 U, S. 86, the Supreme Judicial Court answered in the
affirmative. Feeney v. Commonwealth, Mass. , 368 N. E., 2d 1262
(1977).
787
4P
781.
7
788
782
789
788
790
784
791
785
r.
792
786
22 1896 Mass. Acts, ch. 517, §2. The statute provided that veterans
who passed examinations should "be preferred in appointment to all per-
sons not veterans . . . ." A proviso stated: "But nothing herein con-
tained shall be construed to prevent the certification and employment of
women."
24 1919 Mass. Acts, ch. 150, § 2. The amended statute provided that
"the names of veterans who pens examinations . . . shall be placed upon
the . . . eligible lists in the order of their respective standing, above the
names of all other applicants," and further provided that "upon receipt
of a requisition not especially calling for women, names shall be certified
from such lists . . . ." The exemption for "women's requisitions" was
retained in substantially this form in subsequent revisions, see, e. !g., 1954
Mass. Acts, ch. 627, § 5. It was eliminated in 1971, 1971 Mas4. Acts,
ch. 219, when the State made all single-sex examinations subject to the
prior approval of the Massachusetts Commission Against DiscriMination,
1971 Mass. Acts, ch. 221.
787
undeclared. See 1943 Mass. Acts, ch. 194; 1949 Mass. Acts,
ch. 642, # 2 (World War II); 1954 Mass. Acts, ch. 627
(Korea); 1968-Mass.-Acts, ch. 531, # 1 (Vietnam)." The
current preference formula in ch. 31, # 23, is substantially the
same as that settled upon in 1919. This absolute preference
even as modified in 1919has never been universally popular.
Over the years it has been subjected to repeated legal chal-
lenges, see Hutcheson v. Director of Civil Service, supra (col-
lecting cases), to criticism by civil service reform groups, see,
e. g., Report of the Massae.husetta Committee on Public Serv-
ice on Initiative Bill RelatiVe to Veterans' Preference, S. No.
279 (1926) ; Report of Massachusetts Special Commission
on Civil Service and Public Personnel Administration 37-43
(June 15, 1967) (hereinafter 1967 Report), and, in 1926
to a referendum in which it was reaffirmed by a majority of
51.9%. See id., at 38. The present case is apparently the
first to challenge the Massachusetts veterans' preferenceion
the simple ground that it discriminates on the basis of sex."
D
The first Massachusetts veterans' preference statute de-
fined the term "veterans" in gender-neutral language. See
" A provision requiring public agencies to hire disabled veterans certi-
fied as eligible was added in 1922. 1922 Mass. Acts, ch. 463. It was
invalidated as applied in Hutcheson v. Director of Civil Service, 361 Mass.
4S0, 281 N. E. 2d 53 (1972) (suit by veteran arguing that absolute pref-
erence for disabled veterans was arbitrary on facts). It has since been
eliminated and replaced with a provision giving disabled veterans an abso-
lute preference in retention. See Mass. Gen. Laws Ann., ch. 31, 126
(West 1979). See n. 10, supra.
" For cases presenting similar challenges to the veterans' preference laws
f,f other States, see Ballow v. State Department of Civil Service, 75 N. J.
.165, 382 A. 2d 1118 (1978) (sustaining New Jersey absolute preference);
Fthsennan v. Jones, 356 F. Supp. 252 (MD Pa. 1973) (sustaining Pennsyl-
%ania point preference); Branch v. Du Bois, 418 F. Supp. 1128 (ND RI.
1976) (sustaining Illinois modified point preference); Wisconsin Nat.
Organisation for Women v. Wisconsin, 417 F. Supp. 978 (WD Wis. 1976)
(sustaining Wisconsin point preference).
j794
788
1896 Mass. Acts, ch. 517 § 1 ("a person" who served in the
United States Army or Navy), and subsequent amendments
have followed this pattern, see, e. g., 1919 Mass. Acts, ch.
150, § 1 ("any person who has served . ."); 1954 Mass Acts,
ch. 627, § 1 ("any person, male or female. including a nurse").
Women who have served in official United States military
units during wartime, then, have always been entitled to the
benefit of the preference. In addition, Massachusetts,
through a 1943 amendment to the definition of "wartime
service," extended the preference to women who served in
unofficial auxiliary women's units. 1943 Mass. Acts, ch. 194."
When the first general veterans' preference statute wt."!
adopted in 1896, there were no women veterans." The stat-
Most of them
ute, however, covered only Civil War veterans.
were beyond middle age, and relatively few were actively
competing for public employment." Thus, the impact of
17 The provision, re sled shortly after the creation of the Women's Army
Auxiliary Corps (WAAC), see n. '4i, infra, is currently found at Mass.
Gen. Laws Ann., ch. 4, § 7, el. 43 (West 1976), see n. 8, supra. "Wartime
service" is defined as service performed by a member of the "WAAC."
A "WAAC" is "any woman who was discharged and so served in any corps
or unit of the United States established for the purpose of enabling women
to serve with, or as auxiliary to, the armed forces of the United States and
such woman shall be deemed to be a veteran." Ibid.
1° Small numbers of women nerved in combat roles in every war before the
20th century in which the United States was involved, but, usually unofficially
or disguised as men. See M. Binkin S Bach, Women and the Military 5
(1977) (hereinafter Binkin and Bach). Among the better known are Molly
Pitcher (Revolutionary War), Deborah Sampson (Revolutionary War).
and Lucy Brewer (War of 1812). Passing as one "George Baker," Brewer
served for three years as a gunner on the U. S. S. Constitution ("Old
Ironsides") and distinguished herself in several major naval battles in the
War of 1812. See 3. Laffin, Women in Battle 116-122 (1967).
By 147, the average age of Civil War veterans in Massachusetts
was already over O. Massachusetts Civil Service Commissioners, Third
Annual Report 22 (1887). The tie-breaking preference which had been
established under the 1884 statute had apparently been difficult to enforce,
since many appointing 'officers "prefer younger men." Ibid. The 1896
785
'789
796
.1!
790
797
791
79
792
799
793.
At*: tom
A
The question whether ch. 31, § 23, establishes a classifica-
tion that is overtly or covertly based upon gender must first
be considered. The appellee has conceded that ch. 31, § 23, is
neutral on its fake. She has also acknowledged that state
hiring preferences for veterans are not per se invalid, for she
has limited her challenge to the absolute lifetime preference
that Massachusetts provides to veterans. The District Court
made two central findings that are relevant here: first, that
ch. 31, § 23, serves legitimate and worthy purposes; second,
that the absolute preference was not established for the pur-
pose of discriminating against women. The appellee has
thus acknowledged and the District Court has thus found
6 9.1
795
802
796
B
The dispositive question, then, is whether the appellee has
shown that a gender-based discriminatory purpose has, at
least in some measure, shaped the Massachusetts veterans'
preference legislation. As did the District Court, she points
to two basic factors which in her view distinguish ch. 31, 123,
from the neutral rules at issue in the Washington v. Davis
and Arlington Heights-cases. The first is the nature of the
preference, which is said to be demonstrably gender-biased
in thedsense that it 'favors a status reserved under federal
military policy primarily to men. The second concerns the
impact of the absolute lifetime preference upon the employ-
ment opportunities of women, an impact claimed to be too
inevitable to have been unintended. The appellee contends
that these factors, coupled. with the fact that the preference
itself has little if any relevance to actual job performance,
more than suffice to prove the discriminatory intent required
to establish a constitutional violation.
1
The contention that this veterans' preference is "inherently
nonneutral" or "gender-b;ased" presumes that the State, by
favoring veterans, intentionally incorporated into its public
employment policies the panoply of sex-based and assertedly
discriminatory federal laws that have prevented all but a
handful of women from becoming veterans. There are two
serious difficulties with this argument. First, it is wholly at
odds with the District Court's central finding that Massa-
chusetts has not offered a preference to veterans for the
purpose of discriminating against women. Second, it can-
not be reconciled with the assumption made by both the
appellee and the District Court that a more limited hiring
preference for veterans could be sustained. Taken together,
these difficulties are fatal.
To the extent that the status of veteran is one that few
803
797
804
798
805
4
799
806
800
897
801
808
802
8
808
8101
804
811
805
812
806
81.3
807.
814
808
815
THE IMPACT OF THE EQUAL RIGHTS
AMENDMENT: SOCIAL SECURITY
U.S. SENATE,
SUBCOMMITTU ON THE CONSTITUTION,
COMMITTEE ON THE JUDICIARY,
Washington, DC.
The subcommittee met, pursuant to notice, in room SD-430,
Dirksen Building, commencing at 9:42 a.m., Hon. Orrin G. Hatch
(chairman of the subcommittee) presiding.
Present: Senators Thurmond (chairman of the full committee),
and DeConcini.
Staff present: Stephen Markman, chief counsel and Carol Epps,
chief clerk.
OPENING STATEMENT OF SENATOR ORRIN G. HATCH
Senator HATCH. Ladies and gentlemen, this marks the sixth day
of hearings by the Subcommittee on the Constitution on the mean-
ing of the proposed equal rights constitutional amendment.
As with our earlier hearings, the objective of this hearing is to
establish some form of legislative history on the intentions of the
Congress in proposing this measure as the 27th amendment to the
U.S. Constitution.
The subject of today's hearing is not one to which a great deal of
attention has previously been focused. Our two witnesses this
morning will address the impact of the equal rights amendment
upon the Social Security Program in this country.
This hearing is prompted by the statements of a number of lead-
ing proponents of the ERA to the effect that the amendment will
have a substantial impact on the operation of Social Security policy
in the United States.
As with our earlier hearings, we will limit ourselves to two wit-
news, one whom I have selected and one who has been selected by
the proponents of the equal rights amendment on this committee.
In this way, I believe the committee can continue to explore in
detail and thoroughness the issues before us. Only by such a proc-
ess can the Members of this body obtain a clearer idea rf what
changes will be required in public policy should the 52 words of the
ERA become art of the Constitution.
Before we 'n today's hearing I would simply like to observe
for the record t at an important decision has recently been handed
down in the State of Pennsylvania that touches upon the matter of
one of our recent hearings, the impact of the equal rights amend-
(809)
41 1105 VI -52
816
810
8.1.7
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814
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7
outlays for social security are estimated at
:1-3.L billion. Budget for the United States Government Fiscal
.21.?.4 at 5-11S.
822
816
designed for couples in which the woman woul0 never work for
acquire, and so did not provide her with, access to the pro-
823
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t--) men. A closer look at how the program operates and how ben-
efits ale comruted shows why the present program produces this
res1A.t.
benefits for him or her self and family. If the worker is over
age 29, however, he or she gains disability protection only
woman and her family upon her own death, disability or retire-
.:alue and that :.ts loss need not be compensated. This percep-
ti-Al contradi.:7ts what 13 today the widely held view that mar-
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820
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a maximum of thre:!. years during which the worker was caring for
100 percent cf his or ter PIA. The worker's spouse and chil-
worker's PIA."
woiker's PIA.
- 9 -
women forego -wage increases which would have led to higher ben-
ket may have to accept lower entry level wages that translate
cally based on low wages and zero-earning years that pull down
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tIon that the system was designed to provide for spouses who
Even when the marriage lasts more than ten years, the
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vide for her as well or by going to work for pay that will
penalty our system imposes upon women for labor force partici-
felt even more acutely by women who become widowed before the
age of sixty, the age at which they may begin receiving widow's
- 12 -
one spouse spend time out of the paid labor force. But the
program, as presently structured, is not neutral. Rather, it
encourages labor force participation of both spouses because
the family suffers a penalty when one spouse forgoes
wags-earning years.
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The President's
security than it spent on any other issue."
portion of its
Commission on Pension Policy devoted a major
A major share of the
report to exploring reform Options."
Department's Task Force on Sex Discrimina-
work of the Justice
reform alternatives."
tion has been devoted to developing
bipartisan National.Commis-
Just last year, President Reagan's
considered reform of the pro
sion on Social Security Reform
gram's treatment of women high on its
agenda." In response. to
the
the National
Commission's report, the Congress indluded in
statutory mandate that the
Social Security Amendments of 1983 a
undertake a study that
Department of Health end Human.Services
complex area." Further,
would guide decision makers in this
agenda item of numerous
reform of social 'security is d major
subject of a variety
women's groups and has recently become the
833
827
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and that the momentum has been created to begin the difficult
834
828
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Because of the disparate off of the Social Security Act on women, and their
association with sex discriminate attitudes and practices, the ERA will require
Congress to review these provisions and substitute others that treat women more
837
831
838
832
I werked for sevorel years doing public policy research and teaching
reop,nse to the fluent for sex neutrnlity have benefited men, not
women. For example, until 1972, women could drop three more years
than men from the averaging period for figuring retirement hanatits.
Thin pravinlon had been de,ligned to rompencete women for their more
the ler neutrality of rmrinl leeorityr the number of yenra tiwt both
men nod will e,old drop wall net et five. Women in the eggregate thou
For better or worne women Are now treated the same es men under
ority law. 14, men who ehouse to have a career or who twat
w,,rk for n ,"o!;ideenble rail. of their liver have the name Socinl
:sprority vrote,tion tin{ eomparahlo men have, and their benefits are
ern nett wimcn in the lahar force have dinability Insurance And
found in further sex neutrality. The fact it; that mar, of the
women are treated the same RS men, at the same time that their labor
Sonority is sex neutral. They now argue that Sochi/ Security has a
that treat *oxen more fairly."(d) Tish Sommers testified that Social
f'rcurity was an example of how a Sex neutral law can have disparate
dependency" and that women receive lower average benefits than men.
whether women ne Fl group get as favorable a return for the taxes they
oy into ner,oty RR men do. When measured this way, women get
women tend to live longer and retire earlier than men and therefore
811
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885
or intermittent work record. These two factors outweigh the fart that
ever the next 75 year'', women will pay 33 percent nf the taxes end
`.tuft this is the only reason women receive higher total benefits than
:10c1141 rerurity taxes that Are about 9 percent higher then men wnuld
have to p,y.[o] ninon women pay the elm Sncial necurity tlx rate nn
nen, thin la,frin that waren 1,1 the labor force get n higher return for
their taxen then men do. Therefore, it cannot he raid that the
ortty Jld_EHR
842
836
against women in Social Security should mean Social Security would not
is
he affected by the proposed ERA. Howevetr, if ERA were ratified, i
refority for os.o.r A ,lerwin would brine. n roart rano &sending their
reforms. -he tart thet these charges are erroneous will not prevent
such law suits. The point continurlly made by opponents of tdi in the
ten-year. debate has been that ERA is sufficiently vague and our Courts
"efficiently activist that nn one ran any for uure what the effort of
The Civil Rights Commission has said that "full-time homemakers have
never 'been accorded any independent social security coverage" and that
under the ERA Social Security laws would require homemaker's work to
i-ortf,r him annerted that the ERA when finally passed will require some
.yer.114
()(]Ni
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837
hluis of legal status and sre not based on prooT of depends ^Y.(15]
Their new-found concern for the plight of the hommaker under Social
We can be co. lain that if the ERA were vilified and the Court
revise the program in thin manner. Either there will be persons with
large benefit 1ases, as well as those with large gains, or else the
oot. in feet, under earnings sharing, moony women will receive leas
retArn to the taxes paid between these two types of familter. Since
each family obviously includeea man and women, this concern about
';yore says, 'if individual equity were the overriding aim of /social
private sector could just AA readily handle it." (20] It could even
would not use the ERA to declare that there can be no such "disparate
they?
845
BE
839
1
t ro, it. Ii; ry
1,1,111m.,11 1 h trivet; in .. oat l'tnctirl
'4'. 11
trTrilt to iit;- YPA to 11.1),.v thett
conceivable that the Courts might use ERA to restrict these political
Footnotes
Security, The
1. Finn, Judith, The Treatment of Women Under Social
Free Congress Research and Education Foundation,. Washington, D.C.,
1981.
op.cit., p. 92.
7. 1979 Advisory Council on Social Security,
op.cit., p.92.
9, 1979 Advisory Council on Stwiel Security,
for Women,
lo. Goldsmith, Judy. Testimony of the National Organization
Heerings on the ERA before the Subcommittee on Civil and
3
Constitutional Rights of the House Coeeittee on the Judiciary,
Political. Caucus,
September 14, 1983, p. 61 Congressional Women's
"Analysts of the Penning of the CPA," unpublished, November 1,
1983.
847 r
13FgT entr'8(
841
17. Myers, Robert, Testimony bef) e the Task Force on Women and Social
Security, op.cit., September 22, 1963, P. 139.
18. 'bid ., and Judith Finn, The Treatment of Women Under Social
Security, op.cit., pp. 24-26.
;71.1171ore, Raymond and Dorothy, et.al, School Can Wait , Provo, Utah:
Drigham Young University Tress, 1979; Treiber., Sebes, Every
Child's Birthrighti In Defense of Motherin , New York: Basic
Books, 1977; Hill, Russell and Fronk Ste fiord, 'Parental Care of
Chilldren: Time Diary Estimates of Quantity Prediciiiiiiity and
Variety Ann AT6,1r, Michigan: Institute for Social Research,
Survey Deseerch Center, University of Miehiren, (TSR 1B004),
Nove7ot.r 1970, (published in the Journal of Human Resources,
1965)t Fleisher. Belton, "Mother's Home Time and the Production
of chiLu wuallitv." May 1977, pp. 197-212; end Milne,
Ann M., Single Parents, Working Mothers, and the Educational
Achievement of llteentary School , and Myii.177iiivtd
et.ml., Single Parents,. lorking Mothers, and tilTducational
Achievement of Secondary School Age Children , (draft , Reports
1repared under Contract #300-60-0778 with the U.S. Department of
Elucation, Washington, D.C., 1983.
845
843
85o
844
52
846
helping us this morning to make that very history. That is the pur-
pose of having you here on Social Security. But thus far most of
what you are saying is that you hope it will be this way but you
are not sure.
Ms. SHERBURNE. The equal rights amendment would not man-
date any particular reform. The equal rights amendment would
mandate fairness and however the Congress decided to implement
that mandate would be a political judgment. There are many dif-
ferent ways one could approach that reform.
Senator HATCH. Well, then, Congress could do whatever it wants
or whatever it thinks is fair.
Ms. SHERBURNE. As long as the result met a mandate of fairness.
Senator HATCH. Well, who is going to determine that mandate of
fairness? Will Congress determine what is fair and what is not fair
with regard to Social Security issues as impacted by the equal
rights amendment or are the courts going to decide?
MM. SHERBURNE. The Congress will be designing and evaluating
programs with the equal, rights amendment as a tool to take that
kind of a look and certainly that will be the guiding principle for
any kind of reform. But the task of creating that reform is certain-
ly with the Congress.
Senator HATCH. But what does that mean? 'If the equal rights
amendment passes, just what kind of reform will be required or
what kind of fairness will be mandated? .
Ms. SHERBURNE. That is without the ERA, and I think the Con-
gress is to be commended in this area to not need that extra push
to unOertake this effort. I think the ERA would provide a further
push in this area. Many Members of the Congress and people in
different areas of our country have looked at this and have come to
the conclusion that the system is unfair and it needs to be changed
and that pro,.._es-.4 of reform is being undertaken.
Senator HATCH. Will the ERA force that change? And if so, how
will it do it?
Ms. SHERBURNE. I think the ERA .7ill require that the unfairness
in the system be redressed.
Senator HATCH. The unfairness that you have been addressing?
Ms. SHERBURNE. That is right.
Senator HATCH. Mrs. Finn, what is your point of view on those
questions? It is very interesting.
Mrs. FINN. I think this argument about fairness illustrates that
ERA is just a symbolic statement. I have been unable to find, and I
do not hear It from Ms. Sherburne this morning, any detailed anal-
ysis of how ERA would impact on Social Security or how ERA
would force Congress to do anything that they are not doing now. I
think because these feminist critics of Social Security cannot show
discrimination, and haVe brought forth no evidence that there is a
disparate impact against women makes this not a constitutional
question, not a question of rex discrimination which would be im-
pactO by the proposed constitutional amendment. The choices
here are essentially political, and properly belong in the Congress
not the courts.
There are legislative questions abou., Social Security to be decid-
ed by this body with their differing unlierstandings of fairness. But
I do not think there are constitutional issues here.
Senator Htercii. Let me ask you both this question:
Would the ERA require some form of Social Security credit for
the estimated economic contribution of homemaker services?
Mrs. FINN. I think not, because homemakers are not disadvan-
taged by Social Security. However, this surely will be sought by
critics of Social Security.
Ms. SHERBURNE. The equal rights amendment would not require
any particular kind of reform. The refarm should acknowledge that
there is a value to women's work performed in the home. From Cie
work that I have done in this area, I think the homemaker credit
notion is very difficult kind of reform to construct. That is my per-
sonal view.
The ERA might provoke a more intense look at, homemaker cred-
its hilt the ERA would not require that. particular---
Senator I.IArc ii, Would you be kind enough to share with us
some of the reforms V at you think the ERA would require?
Ms. SHERBURNE. I do not, think ERA will require a particular
reforin. The ERA would require that the system be redesigned so
that it treats won.en fairly. There are a number c' different re-
hirivis that could do this. A homemaker credit is one idea that has
h.. in advanced that would deal with a certain aspect of the system.
Tilt rform that. I spent most of my time taking a look at, which
again would not he required by the equal rights amendment, but. I
would sligvest would he a good :Alice to start, is an earnings mhar-
$48
I55 _
849
under the Social Security program for disability and survivor pro-
tection and then she leavfs the work force for a period of years, say
7 years, she has lost the protection that she once acquired and, if
she became disabled or if she died her family would not get bene-
fits. She has to reenter the work force and work to regain that
recent work status.
Senator HATCH. How does ERA help?
Senator DECoNciNi. Yes, I just want to pursue that. I will be glad
to. yield.
Senetor HATCH. Why would the equal rights amendment passage
help that problem?
Senator DECoNciNi. That is my question also.
Ms. SHERBURNE. Because he has said it more often.
Senator HATCH. Yes.
I am concerned about the impact of the ERA. If all it does is say
the Congress has to continue to be fair, then it does not do very
much.
Senator D1CoNeiNi. Well, if the chairman would yield.
Let U14 assume that is all it says, is that the Congress should be
fair--- -
Senator HATCH. But we have that obligation now.
Senator DECONCINI. Yes, but isn't that obligation stronger Mr.
Chairman, if it is in the Constitution?
It seems to me the ERA would only require us to equalize the
Social Security System, I am not the witness today, but that is my
opinion.
Senator HATCH. Well, the Senator believes that if we do not
amend the Constitution, the status quo remains. If we do amend it,
it has got to add something. Under the redundancy theory, we do
not amend it just to say that the Congress has to 1:w fair.
Frankly, I think we already have the obligation to be fair and
the constitutional amendment is not going to change that obliga-
tion. But the question is: What will happen if the equal rights
amendment is passed? If nothing will change, then maybe we do
not need the equal rights amendment. If it will correct all of these
problems that some claim exist, or force one set of policy changes,
then we ought to at least be told what kind of Social Security
System will be mandated. And if that mandating becomes the pre-
rogative of the judges and the courts in this country, then that
even bOtht`rS me more. But if it is Congress' job to resolve these
problems. then wt. should be working within the legislative author-
ity of the Congress to resolve these problems now, and we do not
need the equal rights amendment to do that?
Senator DECimeiNt. In response, Mr. Chairman, I think the
MISWer is clearly that you do need something because Congress has
not corrected these particular things that Ms. Sherburne has point-
ed out and Mrs. Finn also said about the inequities. If the Congress
was doing its jot) and treating the sexes equally under the Social
Security System, maybo we would not even be having this hearing;
would you agree?
Ms SIIESSURNE, I think that is absolutely right, Senator.
Mrs. Fit f think that till' sexes are being treated equally under
Modal Svciirity Similarly situated nun and women are treated ex-
actly he same seems to me that the proponents of reform are
1,1 0.1
P t) sa,
F 51
playing it both ways, they on the one hand suggest that women are
treated as dependents when they are really independent and
should be treated like all other workers.
On the other hand, they are saying women are treated like all
other workers instead of receiving special treatment because the
secondary earner in a family is almost always the woman and
women have lower salaries and continue to contribute only, around
25 percent to total family income in two-income famine!,. It seems
to me that it makes the most sense to do what the current Social
Security System does, that is, to entitle women in different ways,
depending on which role they play. I think the Social Security
System does recognize that there should be a guaranteed minimum
benefit to a wife whether she works inside or outside the home.
And this is what the wife's benefit was added to the Social Security
in 1939 to do, and it still performs that function.
This does not mean that women are treated differently from men
if they have jobs in the labor force and earn benefits in their own
right. They can only increase their benefits by going to work. But
the wife's benefit defines a minimum benefit for all secondary
earners.
Senator DECONCINI. Would you agree, Mrs. Finn, if there is a dis-
parity here perhaps there should be credit given to the home-
maker role and maybe that is one alternative.
Mrs. FINN. I think there is credit given to the homemaker role.
The wife's benefit is the credit given.
Senator DECONCINI. I agree with you but maybe the debate
ought to he our whether that should be increased.
Mrs. FINN, Well, I guess we could debate that but I do not think
it is the subiect
Senator ATCH. We do not need the equal rights amen!ment to
do that.
Senator DECONCINI, To me it teems it is quite the contrary. If
Congress agrees with my theory that we should increase those ben-
efits to make them fair, because the raising of the family and the
homemaker is just as important as being on the sideline or a
lawyer downtown and I think probably you wooll agree that the
profession of raising a family is indeed so e3sential to our society,
why shouldn't a person be able to receive all the benefits, whether
he or she goes to work or stays home?
Mrs. FINN. The reforms sought by feminist critics of Social Secu-
rity would eliminate the wife's benefit and cut the retirement bene-
fits for her one-income family.
Senator 11.:CoNciNt. And I appreciate your point of view that the
Systeto now is set tip where women have been considered, indeed
they have.
It just seems to me that it is unfair that they do not receive
equal benefits.
Mrs. FINN.. On the one hand people say the wife's benefit is too
high percent. of the husband's primary benefitand i;ri The
other hand, they say it is not enough.
,Senator DF.CoNemt. I agree with you, Mrs. Finn. You would have
to address the financing of it, no question about it.
Senator HATCH. Would the Senator yield on that point
Senator Did 'OMANI. I will be glad to yield,
852
s !)
853
Senator DISO/NCINI. I believe you touched on it a little bit. But
would you comment?
iVIS. SHERBURNE. The earning sharing reform is based on the
notion that marriage is an economic partnership and that work in
the home has value. The major impetus for this reform came from
homemakers. Earning sharing would not eliminate homemaker
benefits. Rather, it would replace homemaker benefits with a route
of access to benefits that a woman would have in her own right,
based on her own contribution to the marriage. Under earnings
sharing, spotises would pool earnings during the years of marriage;
each spouse would be credited with half of the total amount of
earnings for Social Security purposes. This would mean that a
homemaker who is out of the paid labor force for 7 years of the
marriage would be credited with half of the wages of her husband
on her own Social Security record. This not only would give her
access to the retirement benefits which she would have as a de-
pendent spouse under current law, but it would also build her pro-
tection for survivor benefits and disability protection for herself
and her family. The current spouse benefit, while provided for
spouses who are staying home, does not recognize the contribution
that those women make because it does not provide any opportuni-
ty for disability and survivor protection.
If the woman were to die, where is the recognition from the
Social Security Program that her contribution is ,missed? There is
nothing. There is no ability for that family to get survivor benefits
if she dies. If she becomes disabled, where is the recognition that
the Social Security Program gives to her status as a valued and
contributing member to the family? There is nothing. It provides
no benefit for the family if she becomes disabled
Earning sharing is one way to recognize that contribution. By
pooling earnings with the spouse, both spouses share the benefits
and the burdens of a choice that the family makes to have one
spouse stay home and one spouse work for pay.
Senator DECoNerm. To followup on this hypothetical situation, if
after 7 years the woman elects to go to work wouldn't income that
she earns outside the home be added to the husband's fu, is and
then divided accordingly?
Ms. SHERHURNE. That is correct.
Senator DECONCINI. As a partnership, even though one might
make more than the other regardless of who it is.
Ms. SHERBURNE. That is correct.
So the penalty that she may have suffered for having stayed out
of the paid work force, low-entry level wages, will then be again
shared by both siMuses She is not going to be unduly penalized by
their choice to oni: person operate in the family as an unpaid
worker.
Mrs. FINN. Married women who are primarily homemakers do
not new' earnings cred4s in their own name if they hate an intact
marriage at the time they retire. It is a farce to create fict,tious
warnings recoil and attribute each spouse the earnings. But
1 he economic consequence of earnings sharing is that one-income
will have their benefits cut front 11,42 benefits hack to orw
benefit and it would he shared equally between the husband and
%de, Because their benefits would he cut hack to one benefit, this
()
854
41 10 6 .1 Rh
864
858
865
R59
86C
860
MB. SHERBURNE. Senator, I am not an expert in that area, and I
would hope that you could get some advice on that from someone
who has studied the marriage penalty and the income tax system.
Senator HATCH. It is certainly an analogy.
Ms. SHIERBURN12. It is an analogy in the sense that the Social Se-
curity Program, as a social program, has chosen to favor families
over single people. That is a political choice and that is one, as you
suggested earlier, that the Congress has the prerogative to make.
Senator HATCH. Mrs. Finn?
Mrs. FINN. I think the lack of horizontal equity Within the
income tax structure which was introduced by the marriage tax
reform is an example of the problems with evaluating the outcomes
of a social program like Social Security. Social programs cannot be
expeted to produce equal outcomes for different groups like the
two-income family versus the one-income family. Nor can they be
required to be neutral in some sense. The wife's benefit ii Social
Security is needed to offset the advantage given to two-income fam-
ilies in the marriage tax reform and also in the substantial child
care deductions. It is a different way of encouraging or subsidizing
different families. I do not think you could look at each social pro-
gram and demand that the outcome to whatever different groups
should be the same, especially when you are not talking about vio-
/ lations of rights or questions of sex neutrality or sex discrimina-
tion.
Senator HATCH. Ms. Sherburne, several State court decisions in a
few western community property States have held that Social Secu-
rity benefits are not divisible community assets.
Would the equal rights amendment require that such decisions
be overturned?
Ms. SHIMBURNE. I think the equal rights amendment would re-
quire, as I have stated earlier, a look at the fairness of those kinds
of decisions. Those decisions were based on the supremacy clause,
which means that because the Social Security Act is a Federal pro-
gram, States do not have the power to alter its benefits. I am not
familiar with the basis of those decisions beyond that, but doubt
the equal rights amendment would affect them because it would
not interfere with the supremacy clause.
Senator HATCH. Would the ERA mandate that all States adopt a
community property type approach?
Ms. SHERBURNE. Would the ERA.mandate that?
Senator HATCH. Yes.
Ms. SHERBURNE. The ERA would mandate fairness
Senator HATCH. That seems to me to be no different than what
we have today. We have a mandate for fairness in everything that
we do, and if the ERA does not do anything more than that, then
why have it? Either it does something or it does not. Maybe we
differ on what is fair, but we all have the obligation to be fairthe
Congress, the courts and the President.
MS. SHERBURNE. Senator, I think that the structure of the Social
Security Program is an unfortunate example of how we have not
done that. ,
867
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stitutional and which are not. I am asking you what kind of pro-
grams will be allowed if the ERA is passed? What will be deemed
to be fair.
Mrs. Finn?
Mrs. FINN. Well, I agree with you. I do not see what this mandat-
ing fairness means. It just does not communicate judicial standards
for Congress to follow, or to tell them what definition of faiiness is
going to be required by this new addition to the Ccnstitution. This
is what is lacking in the argument.
Ms. Smastiatrx. In the Social 'Security area, we are fortunate
that so many people have recognized that these unfairnesses exist
and have taken the steps that, I agree, must be taken, or that we
would hope the Congress would take, to rectify
Senator HATCH. But a majority of Congress decided that the cur-
rent system is fair.
Now, is the-court going to overrule the decisions of Congress in
favor of the judges' own concepts of fairness, or is the court just
going to say to Congress, well you have to be fair in these issues?
Either the ERA mandates something or it does not. Will it man-
date legislative options that the Congress has considered and re-
jected?
Under the ERA, would Social Security have to be amended to re-
flect neutrality as between those workers whose participation in
the work force is continuous and those whose participation is inter-
mittent, or subject to interruption? You mentioned women have
that problem; at least it seems to be one of their major problems
with regard to Social Security.
Would ERA require a neutrality in that area?
Ms. SHERBURNE. The ERA would not require any particular
reform in this area. As long as women were not disadvantaged by
the program, the equal rights amendment would be satisfied. To
the extent that the program operates to disadvantage women be-
cause it treats workers with continuous attachments to the work
force more favorably than workers who spend periods of their lives
as unpaid workers and then periods of their livea as paid workers,
the program should be reformed in order to make it fair.
Mrs. FINN. Well, I think if the court did answer that question for
us, it would be legislating. How Congress wants to design a pro-
gram is their prerogative, since you cannot demonstrate that
women are disadvaptaged by Social Security.
Senator HATCH. In your Georgetown Law Journal article, you
concede that the Social Security Program was not adopted because
of its discriminatory impact on women. Since you have suggested
that the ERA would necessitate avariety of changes in Social Secu-
rity, you are operating under the premise here, are you not, that
the ERA will incorporate a disparate impact model of discrimina-
tion.
Am I correct in deducing that from your argument?
Ms. SHERBURTIE. I believe that the equal rights amendment
should reach beyond facial discrimination to take a look at the
effect of the social programs on women, yes.
Senator HATCH. OK. Would this require that benefits 'currently
payable to survivors of short Marriages be reduced?
888
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863
things that we are hopeful that this HHS study will help us under-
stand better.
Senator HA'rCH. Mrs. Finn, do you agree with that?
Mrs. FINN. Well, to date, no one has been able to work out the
bugs in earnings sharing. It has been debated and analyzed by all
kinds of groups, by the advisory council end the National Commis-
sion on Social .Security, and none of them are willing to endorse it
because it introduces as many inequities as it solves. And this is
one illustration of it. You can either add dramatically to the cost
by increasing the disability and survivor protection for both indi-
viduals in a family, one of whom pays taxes, or you can split it
equally, but then you have this problem that if you have a disabled
primary earner, the total income for the family might be lost and
yet the family would only have one-half the disability insurance
they have under present law. That is a severe disadvantage which
most reformers of Social Security are unwilling to introduce into
the system. Social Security is enormously complex, and these prob-
lems of looking at little groups within Social Security are always
problematic, and you just cannot undertake this kind of wholesale
reform without introducing more of these problems.
Senator HATCH. Maxine Foreman of the Women's Equity Action
League has suggested that the Social Security System discrimi-
nates against minority women in particular. Among the illustra-
tions of such discrimination that she raises are the prospective
elimination of the minimum benefit, delays in the COLA adjust-
ments, and the gradual raising of the full benefits age from 65 to
67.
Do you agree with Ms. Foreman in her observations?
Ms. SHERBURNE. There have been analyses prepared by the
Social Security Administration about the program's effect on mi-
norities and I believe the data have been broken down by sex. I am
not familiar with the data but I am sure it could be made available
to you.
Senator HA H. OK.
Mrs. Finn?
Mrs. FINN. I do not see that there would be any impact because
no discrimin tion can be shown and I think it is inappropriate to
look at disparate impact on particular groups, minority women.
Senator HAirdt-Well, would the ERA require any legislative
changes along the lines suggested by Ms. Foreman in order to
eliminate discrimination against minority women?
Ms. SHERBURNE. I am unfamiliar with the changes that she is
recommending so I am not in a position to answer your question,
Senator.
Senator HATCH. OK.
Mrs. FINN. It seems to me in order for ERA to impact on Social
Security, it would have to be shown that one sex or the other is
disadvantaged in the aggregate by the system. It would not impact
on particular aspects of Social Security which might have what
some consider unfair effects or inadequacies.
Senator HATCH. Given that the clear effect of the earnings shar-
ing proposal is to transfer dollars from single-earner families to
double-earner families, is it not pretty clear that the impact of this
proposal would be to redistribute moneys from the relatively less
$7o
864
well off to the relatively well off? Could your proposal have any
other'impact really?
Ma. SHERBURNE. It is not an accurate characterization to say that
earnings sharing would transfer dollars from single-earner families
to double-earner families. Earnings sharing wo.ead entitle both
spouses of a sihgle earner couple to survivor and disability protec-
tion, adding protectionnot losing it.
Second, I dc not think it is clear that single earners are necessar-
ily worse off than two-earner families in the sense that they are
getting the contribution of someone working in the home and that
in itself has a lot of value.
Mrs. FINN. I think the one-income family would clearly be worse
off ceder earning sharing unless you have a hold harmless prnvi-
sion, or voluntary earnings sharing, where families would only
choose earnings sharing if it were to their greatest advantage
which would be hopelessly expensive. Mandatory earnings sharing,
as proposed by most reformers, would redistribute income from the
one income to the two-income family by the elimination of the
wife's benefit. Cutting the benefits for the one-income family by
one-third, in that the family would share one benefit instead of one
and one-half benefits in retirement.
Homenvikers would then, as I said before, also share half of the
survivor benefits and half of the disability benefits with their
spouses. But speaking as a homemaker I would not be better off
and I would not want to do that because all of our income comes
from my husband, the primary earner in my family. And if he
were disabled, it would not give me any comfort that we would
have only half of the insurance that we now have under the
present system. And I do not want to see the Social Security taxes
raised to pay for full disability for homemakers for several reasons.
I think disability under Social Security is the most problematic
part of the program, this is where the costs have been increasing at
the greatest rate, and it would be difficult to administer, given that
there are no lost earnings to replace. I think it is unwise to extend
disability coverage to homemakers and I think that even under
ERA, such an expansion of the system would not be required. I do
not want individuals to pay higher taxes to pay for disability insur-
ance or survivor insurance for homemakers, but splitting them
within the one-income family certainly makes no sense given the
original purpose of Social Security. And that was to replace lost
earnings to the family.
Senator HATCH. Let me just ask one other question.
The congressionally mandated Commission on Social Security
back in 1981, which had the advantages of studies made by the Ad-
visory Council on Social Security in 1979, and earlier HEW task
forces, stated "It is difficult to support the charge that the Social
Security System is on the whole unfair to women.'
Are you both aware of that?
Mrs. FINN. Yes, I am aware of it and I fully agree.
Ms. SHERBURNE. I am not aware of it and I do not agree.
Senator HATCH. Well, that was the conclusion that they made. I
thought that I would simply introduce it for the record. This has
been a technical discussion and both of you I think deserve a lot of
871
865
credit for being here and being as well prepared as you both have
been.
Senator Kennedy may have some questions to submit, and we
wll keep the record open for a reasonable period of time for any
member of the Judiciary Committee to ask any questions that he
would care to ask.
Ms. SHERBURNE. That would be fine.
Senator HATCH. In summation, it seems that earnings sharing
and the hotnemaker tax proposal are two ways by which Congress
can satisfy this "fairness' mandate under the ERA. These may not
be the only possible proposals, however, but they are illustrative of
what I think will be required by the equal rights amendment.
Now, would that be a correct statement or am I overstating it?
Mrs. FINN. I think it will be argued that fairness under ERA
would require these reforms. And I would not sit here and tell you
that the courts would not take account of the reform literature and
feminist organizations and make some interference in this ',basically
legislative question along the lines you are suggesting. y
I would hope that the sex neutrality and the lack of disparate
impact against women would keep the ERA from impacting on
Social Security at all, but I do not want to let the courts decide and
thus I oppose ERA.
Senator HATCH. Ms. Sherburne?
Ms. SHERBURNE. I believe that any proposal that is before the
Congress, in the wake of the passage of t4e equal rights amend-
ment, would have to be carefully scrutinized: I think the earnings
sharing proposal is a promising reform. Whither or not it would
fill the bill, would certainly have to be looked at with the kind of
care that this reform proposal is receiving now.
Senator HATCH. When you say it has to be looked at, who is
going to look at it?
Ms. SHERBURNE. HHS, with their expertise, the Urban Institute,
various commissions, the Congress and committee staffs. An order-
ly process of careful reform will ensure that the reform does do the
job that we want it to do.
Senator HATCH. I see.
Mrs. FINN. I do not know about you but I just do not see what it
means to mandate fairness.
What does it say to the Congress? Ms. Sherburne says that it is
inappropriate to use the kind of analysis that I am suggesting, the
rate of return to taxes paid that clearly shows that women are not
disadvantaged by Social Security. But then what kind of analysis is
appropriate? Do we just say, well, women--or homemakers do not
have disability insurance in their own right? Is this really a consti-
tutional question? Is it even a sex discrimination question? It
seems to me it is a legislative question of whether or not we want
to increase or expand Social Security to include such coverage and
therefore pay the cost of it and also who is going to pay the cost of
such an expansion.
But I have not seen in all of the things I have read about how
ERA would mandate fairness with respect to how Social Security is
reformed, anything substantive or with much content. I can not
find what the judicial principles are, or what the evaluation crite-
872
866
873
867
1874
MI9CILLANEOU8 MAIVRIAL
years. I Sold various actuarial positions with the Social Security Adminis-
tration ono its predacessor agencies from 1934 to 1970, and was Chief Actuary
during the last 23 years of that period. In 1981-82, I was Deputy Commissioner
of Social Security. In .1982 -83, I was Executive Director of the National Com-
Security field.
not result in any change whatsoever in the structure and operations 'Of the
OASDI program, because, with one minor exceptIln, all gender differe4es
in the program have been eliminated. I shall discuss these views in more
\
detail after describing how equal treatment by sex was not always present,
and how it has now been achieved. I shall also take up the allegatIonhat
also favor the principle that employee benefits should, with all other
rtmumstances being the same, provide equal benefits for men and women
even though the plan's cost is higher for men than for women (e.g.. for
survivor beuafits) or. on the contrary, Is Higher for women then for men
875
869
tables should not be used. For some forms of insurance (e.g., life or
automobile), they produce inequitably high rates for women, while for
In setting premium rates for IndlyIdual policies when this element makes
a women aged 60 should not be charged the same rate as a woman aged 65. This
the same differentlel in the rates as exist between rates determined for sex-
Now, turning back to the °ASO, program, it is true that, In the past,
there were a number of unfair discriminations by sex. Some were against amen,
and others were against mean. Probably thi most unfair was with regard to
they were available in all casex1wIth respect to male workers, but with severe
restrictions in the case of female workers. Over the years, these restrictions
were lessened. Finally, the 1967 Amendments provided for completely equal
treatment. This desirable result 'Os largely due to the efforts of Congress.r
wopan Martha Griffiths. I am proud that I was able tolurntsh her technical
retirement benefi,f. for men who attained age 62 after 1954 and before 1975.
With all other elements, such as date of birth and the earnings record
being identical, the benefit for a woman in that range of years of birth
my Social Security benefit Is about $14 per month less than that of a woman
the law on which the OASDI program is based, with one minor exception, which
Is
I will discuss later. This elimination we proposed In the 1977 Republican
time that the 1977 Amendments were being legislated. These provisions were
incorporated in the House version of the Bill, although not included in the
Senate version and were dropped in conference. The elimination of all gender
differences in the law was long overdue, although in practice many of these
differences had been eliminated by ccurt decisions, so that the law merely
87 8
870
The 1983 Amendments also included several benefit changes which pri-
divorced spouse after the other spouse is elig;ble for benefits even though
ment). I believe that all of these incremental changes were highly desirable.
the case, although certain incremental changes might well be made. Let me
because they are paid spousal benefits on the grounds of dependency. Actu-
ally, this Is not the case, because the law provides that spouse's and
widowier)'s benefits will be paid on the basis of legal status. The fact
are paid. Moreover, 1 fall to see any more stigma being attached to re-
do.
women Is in the case of those working in the paid labur market. It is alleged
thht the result Is inequitable because the female worker will often, at retire-
her own record, because the former i, larger than the letter. Therefore, it
is argued that the female worker has paid OASD1 taxes and has received nothing
from them. In the first place, this is not true, because she had disability
and young-survivor benefit protection. Also, in some cases she could have
877
871
But even so, this is not a valid objection, because DASDI is not
in relatively large benefits as compared with taxes paid for many .groups
as against those without children; and older workers when the system began
favor female workers, who often are not in covered employment for all of
the period possible. Persons who have longer periods of coverage than that
over which average earnings are computed (eventually 35 years) will fre-
quently have no advantage from such longer coverage, and will have higher
taxes than perstas who have exactly the maximum number of years required.
All in all, the DASD) program Involves a broad social pooling of the
risks insured against -- and not Individual equity, under which principle
everybody gets their exact money's worth, no more and no less. Lower benefit
rates are, for example, not payable'to categories who have longer- than - average
A related criticism frequently made is that, for two families with the
same total earnings record, the two-person, two-worker one receives substantially
lower benefits than the two-person, one-worker one. Actually, other than for
total earnings income, these two families are substantially different from a
social and economic standpoint. Thus, there is no reason why their Social
benefit protection, while the two-person, one-worker family has more retire-
ment and more aged-survivor benefit protection. In any event, those who criti-
cize this situation adversely are not taking Into account that DASDI is on a
fur thew to cons, I calmot at all agree with those who allege that
878
872
ably make out better under OASDI from an actuarial and financial standpoint
Although the average benefit Is lower for female workers than for male
workers, this Is not really meaningful -- as Is often the case for any blind
of working -- and thus paying OASDI taxes, In aty event, the question of
ment of equal treatment by sex under the Social Security program Is contained
Equal and Fair Treatment of Men and Women" In R.'V. Ilurkhauser and K. C.\
Holden, "A Challenge to Social Security -- The Changing Roles of Man and
earnings of a married couple are pooled as they are earned, and are them
the program In this manner. Either there will be persons with large benefit
losses -- as well as those with large gains -- or else the cost of the pro-
provide equitable treatment for this category. Among the unsolvable dilemmas
and the problems are whether the procedure should be based on payroll taxes
879
873
by far the best approach is that In the 1977 Republican Alternative 8111
--
will be Increased greatly. This means that either higher payroll taxes
will be needed, or else the rate of growth of other benefits will have to
Now, turning back to the matter of the effect of the Equal Rights Amend-
ment, If enacted and put Into operation, on the OASD1 program, I can see no
reason at all why any changes In the benefit structure would be necessary.
With one very minor eXception, all gender differences have now been removed
from the program as to prospective benefits. The statute Itself has a few
the law in such cases under court decisions which require equal treatment
by sex.
being remedied. This is being done by Section 402(c) of H.R. 3805, Intro-
duced by Mr. Rostonkowski, and now pending before the House of Representatives,
The difficulty with remedying the unequal treatment by sex was that no agreement
rinally, let me take up the allegation, by some tbat the ERA will
41 10115 0 68 880
874
under the OASDI program. These have always been implicitly and completely
provided through the spousal benefits that are payable as a legal right,
to the family through her or his work In the home. If this presumption is
not correct in the actual situation, then the matter is rectified by the
anti- duplication provision, which reduces the spousal benefit by the benefit
paid to the individual on the basis of employment In the paid labor market.
gram would have to be made if the Equal Rights Amendment were to be the law
of the land.
831
875
STATEMENT
At the March 20th, 1984 Hearing of the Senate Judiciary Subcommittee on the
Security Programa", the statement was made several times that we did not need
"making a good faith effort" to rimove the inequities which exist. The recent
vote on the bill to provide equal pensions for women casts doubt upon the
"good faith effort". However. many senators and representatives have indeed
worked herd in a good faith effort to pass the ERA in this country to provide
equity for women and to make sure women are equal before the law, but it is
clear that the good faith of these members has not been sufficient to
overcome the reluctance of those who have voted egainat equality. Precisely
because the efforts for aqua y rest on the "good faith" of the present and
changes which have to be made\ Rather it sots the goal and makes efforts to
This reason for passage of the Equal Rights Amendment was not made to the
Professor, Retired
882
THE IMPACT OF THE EQUAL RIGHTS
AMENDMENT: DEFINING DISCRIMINATION
U.a, &MATZ,
SUBCOMMTITIM ON THZ NRITTUTION,
. COMMITTEE 0 THZ JUDICIARY,
Washington, DC
The subcommittee met, pursuant to notice, t 9:33 a.m., in room
SD-226, Dirksen Senate Office Building, H n. Orrin G. Hatch
(chairman of the subcommittee) presiding.
Present: Senator Thurmond.
Staff present: Stephen J. Markman, chief co nsel and staff direc-
tor; Dick Bowman, couiiiiel; Randall R. Ra er, general counsel;
Carol Epps, chief clerk, and Leslie Leap, clerk.
OPENING STATEMENT OF SENATOR ORRIN G. HATCH
Senator Ewalt Ladies and gentlemen, today's hearing marks
the seventh day of hearings by the Subcommittee on the Constitu-
tion on the meaning of the proposed equal rights amendment to
the Constitution. In the process, I believe that we are creating the
most thorough and comprehensive legislative history ever created
on the real world impact of the ERA.
As I have consistently observed during these hearings, I believe
that such a record will enable Members of Congress and State leg-
islators, if the ERA progresses that far, to cast a more intelligent
and better-informed vote on the proposed 27th amendment to the
U.S. Constitution.
Today's hearing will focus on one of the most substantial issues
involved with the ERA: How is discrimination 'going to be defined
under the proposed amendment? Will it be defined in the tradition-
al constitutional manner, by an ingairy into the intent or purpose
or motivation of an alleged sex discriminator, or will it be defined
through a statistical analysis of the disparate impact upon men
and women of an allegedly discriminatory activity?
Although this may seem a dryly academic issue to many, in re-
ality it is perhaps the most significant constitutional issue sur-
rounding the proposed amendment. Indeed, it is perhaps the most
significant issue extant in civil rights law generally today and was
at the center of recent controversy in both the debate over amend-
ments to the Fair Housing Act and the Voting Rights Act.
In addition to pursuing the proper standard of defining discrimi-
nation under the equal rights amendment, we also hope today to
(877)
883
878
884
879
885
880
Although the equal protection clause has been found by the Court
to require a discriminatory intent standard, there nevertheless is
some basis for thinking that the Court could adopt a broader view
with respect to the equal rights amendment.
I think this for several reasons. Although the language of the
amendment is in many respects similar to the equal protection
clause of the 14th amendment, we have distinct legislative history
with respect to the ERA. I think that the Court could interpret the
ERA, as designed to reach a broader clasS of situations, including
those involving disparate impact, and to overrule cases, such as
Feeney, which had failed to afford reef under the 14th amendment
to disadvantaged gender-based classes in the absence of acceptable
proof of discrimination intent.
I think, in addition, thEit there is some evidence in the legislative
history, in particular, in view of the heavy reliance on the Emerson,
and other Yale Law Journal articles, with which I suspect the
Senator is familiar, which indicates that Congress had envisioned
use of a discriminatory impact standard under the ERA. I, there-
fore, think that it is very important, and I commend the committee
for having special hearings on this subject to clarify the issue in
the event that the question would arise in later litigation under
the equal rights amendment.
Senator HATCH. Thank you.
Professor WEGNER. Now, I think that perhaps the best way to un-
derstand how this question should be resolved--and as I say, I
strongly endorse the use of a discriminatory impact standard
would be to look at four examples of situations in which this issue
might come up and then talk about what seems to be an appropri-
ate resolution. Because I favor the resolutions in these cases, I,
therefore, endorse the broad position that a disparate impact stand-
ard should be adopted.
I would suggest that an initial question which arises in each of
these examples is what standard of scrutiny the courts would gen-
erally apply in analyzing classifications which result in disparate
gender-based effects. As I have described to you, there are several
choices under the existing equal protection analysis.
I have stated in my written testimony that I believe that the in-
termediate level of scrutinythat is the Craig v. Boren, important
State interest substantial relationship to the means adopted stand-
ardwould very likely. or could possibly be adopted by the courts
in reviewing cases involving facially neutral classifications which
result in disparate, adverse gender-based effects. I think this is an
appropriate standard for several reasons. I think it is warranted
because it honors the Government's interest in using facially neu-
tral classifications, and indeed, it seems to me appropriate that a
lesser level of justification would be applied when we are talking
about facially neutral standards which are not purposefully dis-
criminatory, under current 14th amendment analysis, than if we
were talking about classifications that discriminate on their face.
I think, in addition, that this middle level of scrutiny allows us
to get to the heart of the matter. Facially neutral classifications
are most often problematic in that they may be overly broad or
overly narrow means of achieving governmental objections in a
way that severely disadvantages women. The middle level Craig v.
t 86
881
Boren test allows careful inquiry concerning the fit between impor-
tant governmental interests and the means employed to achieve
those interests, precisely the difficulty with many facially neutral
classifications having disproportionate adverse gender-based effect.
This standard could assist reviewing courts to get to the crux of the
problem caused by such classifications without causing great fear
about striking down every such classification, as might be the case
if a compelling State interest test were employed. As the Senator
may know, even such people as Solicitor General Lee has endorsed
this standard in his book on the ERA, and has suggested that this
is a wholly appropriate standard. It is one that we are living with
now under the -4-ual protection clause as it applies to intentional
gender-based discrimination.
Let me, then, turn to four hypotheticals. The first one involves
veterans' preference, the second, employee height and weight re-
quirements,, the third, prostitution, and the fourth, social benefits
schemes such as disability insurance or AFDC benefits.
First, as to veterans' preferenceI will not touch on this in too
much detail, since I understand you have already had, or contem-
plate, hearings on this pointthe initial question for analysis
would be whether there is a substantial adverse impact upon
women in an instance in which a State or Federal Government had
adopted one or another veterans' preference scheme.
I think that this is probably so at the moment, or was, at the
time of the Feeney decision. As we all know, however, there are
changes going on in the military at this point, and if this question
were litigated at some future time, it might be that the degree of
disparity would have been substantially reduced, and that is a
point that I would raise initially.
Assuming, however, that there could be shown to be a substan-
tial disparate impact, our next question would be whether there is
an adequate justification for the scheme nevertheless.
The Court in Feeney recognized that there are several State in-
terests served by a veterans preference scheme, including a desire
to reward persons who have served in the military, a need to try to
ease their transition back into civilian life, and a need to ensure
disciplined and capable persons in the State civil service. I think
all those purposes are likely to be found to be important State pur-
poses. I think the problem arises hen we get to the fit, the ques-
tion of whether the means adopter' would in fact serve those ends
no more broadly than necessary, I suspect that an absolute prefer-
ence such as was litigated in Feeney would raise questions in that
regard, but as even the dissent in that case acknowledged, a more
temporary limited-term sort of preference that would be geared
very narrowly and specifically to easing people's transition back
into civilian life might well be sustained.
Second, as to the height and weight question, this area has been
addressed in substantial degree under title VII of the Civil Rights
Act of 1964. I think that, nevertheless, it is important to have this
question addressed under the Constitution as well, to ensure that
there be permanence of protection in this respect.
The Supreme Court has indicated, for example, in the Dothard v.
Rawlinson case involving prison guards and height and weight re-
strictions applicable to those employees, that there could in fact be
887
882
858
883
initial matter, would have to be surmounted. Beyond that, howev-
er, we get to the question of justification. In the situation in which
a disability insurance scheme might be attacked, the Court in Ge-
duldig, for example, has said that it was appropriate for the State
of California to maintain a scheme which was geared to the capac-
ity of employees in the State to pay a mandatory fee. I think that if
the need for similarly limited fees could continue to be shown,
there might be some question whether there would be any change
in results from that in Geduldig. Assuming, however that it could
be shown that there was more capacity to, perhaps, enlarge the
services provided in some way, I think the question then would be
whether there were some neutral standards being applied in select-
ing which of several types of disability would, in fact, be covered.
If, for example, cost, number of persons served, degree of severity
of disability, things like that, were in fact being used across the
board as means for selecting which types of disability were covered
by the scheme, I think that conceivably a scheme might still be
sustained in which that pregnancies would not be covered. But I
suspect that since pregnancy is !mmething that affects so very
many women, resulting in a great !need for coverage, it well might
be that a situation such as Geduldig would come to another result
under a disparate impact standard.
Lastly, as far as AFDC benefits are concerned or something of
that sort, which may severely affect women in light of the increas-
ing feminization of poverty, I suspect that a court would be very
wary to set aside ally legislative judgment determining which of
several possible groups was most needy in light of the scarce and
limited public resources entailed. I have cited in my written testi-
mony examples under title VI of the Civil Rights Act and under
section 504 of the Rehabilitation Act, which makes me feel quite
clearly that a court would hesitate to second-guess the congression-
al or State legislative judgment concerning the allocation of bene-
fits out of a limited public purse.
Those are the four hypotheticals, Senator. I would conclude that
these results that I have described would occur in the event a dis-
parate impact standard were applied would in fact provide impor-
tant additional protection for women. I think that disparate impact
is as much a problem as discriminatory intent, in that the result is
the same and the injury to the protected class is the same. It is
very important to assure that governmental actions that would se-
verely affect a protected class 'ender some scheme of equal protec-
tion and equal rights, such as that that we are talking about here,
be truly evenhanded, reflecting careful tailoring of the class chosen
to meet these proper governmental ends. I think that if that care-
ful tailoring were done, legislative schemes or other classifications
would be upheld, but that it would be fair and reasonable to expect
that such classifications would be given a careful look in situations
in which a substantial disparate impact is created.
Thank you again for allowing me to appear here.
Senator HATCH. Thank you, Professor Wegner.
[The following was received for the record:I
889
884
the Equal Rights Amendment. I camsend the Subcommittee for its efforts to
develop a legislative history that will aid the courts, in the future, in
assistance.
Among the specific questions I addressed were whether section 504 incorporated
I will touch on four basic points. First, I will explain why I believe
Svccnd, I will explore the reasons why I believe the Equal Rights Amendment
into the ERA, I will discuss how that standard may be interpreted. Finally, I
wirrantP0.
890
885
because of its critical bearing allthe breadth of application of the ERA. The
Equal Protection Clause is currently interpreted to require that states
relationahip to important state ends. See, e.g., Craig v. Boren, 429 U.S.
190, 197 (1976). This standatd thus falls mid-way between the "rational
those based on race. In practice, the intermediate level teflt that is applied
requires a state to ensure a reasonably close fit between ita objectives and
the Means chosen for their impleMentation. If it does so, the governmental
action will be sustained. See, e.g., Heekler.v. Mathews, 104 S.Ct. 1387
Security Act).
burdens). See, e.g., Personnel Administrator v. Feeney, 442 U.S. 256, 279
warren, the high Court has concluded that no discriminatory intent has been
shown and hta accordingly required no more than a minimal justification under
the rational basis test. See, e.g., Personnel Administrator v. Feeney, 442
state deil service system); Geduldig v. Aiello, 417 U.S. 484 (1974 (upholding
69.1
886
between the language of the ERA and that of the Equal Protection Clause; and
intended to ensure that gender -based classifications are precluded to the same
extent an are racial classifications under the Equal Protection Clause (thus,
legislative history. See, e.g., Brown v. Board of Education, 347 U.S. 483
durin:, the 1970-72 debates on the ERA. members of Congress placed heavy
Falk and Freedman in their leading article on the ERA, "The Equal Rights
L.J. 871 (1971). That article specifically discussed and contemplated the
expressed the vifw that the new constitutional text could be interpreted an
presented. Let me torch on four hypothetical cower to sketch how this broader
492
887
First, the veterans' preference policy at issue in the Feeney case might
an absolute lifetime preference for veterans. The Supreme Court upheld that
veterans for the sacrifices *licit in military service, the desire to ease
their transition to civilian life, and the state's need to attract loyal and
notwithstanding its admittedly severe impact on women who had been accorded
A contrary result would likely be reached under the ERA if that Amendment
substantially higher proportion of women than men fell within the class of
wan gender-based, however. 442 U.S. at 281. A greater nurber might reach such
v. itot,n standard would have such instead to ccemend it. It uxuld function in
thin rntittxt much as it has, when currently employci under the Equal
8'93
888
tailored to those ends. On the other hand, it would limit the use of
that it unnecessary and moldable. The courts would very likely be drawn to
the Amendment's legislative history, could indicate its intent that the ERA be
preference policy at issue in Feeney would very likely fall. Although the
cited state interests in rewarding veterans, aiding reentry into the civilian
population, and ensuring an effective civil service may he important ones, the
ends. See 442 U.S. at 282-89 (Marshall and Brennan, 33, dissenting). 'A mdse
impact would be required. Once again, that stewing could very likely be made,
at least where certain height and weight requirements are concerned. See,
e.g., Dothard v. Rnwlinson, 433 U.S. 321, 329-30 (1977) (5'2" height
limitation excludes 33.29% of women but only 1.28% of men). For reasons noted
interest" standard closely resembles the requirenent under Title VII of the
Civil Rights At of 1964 that facially r"utral employment criteria which hrie
Duke Power Co., 401 U.S. 424, 431 (1971). Applying this standard, the Supreme
8.9 ,1
889
upheld. 433 U.S. at 332. Evenif a more stringent strict scrutiny standard
Criminal codes in many states penalize prostitution by both men and women, yet
have been women. The class of patrons who are not penalized is therefore
prostitutes are women and Most customers men. 372 N.E.?d at 204 n.10.
Keaton, the North Carolina Supreme Court rejected the argument that municipal
view of the fact that the 11114 was uniformly applied to male and female
providers of massage services. 285 Va. 53.), 206 S.E. 2d 203 (1974). The
United States Supreme. Court dismissed for want of a substantial federal
Neither King nor Smith fully addressed the application of the disparate
impact theory to the facts at hand. A court applying that theory in a careful
!whame which penalizes providers, but not patrons, bears more heavily on women
than men. Turning to the second step of analysis, the court would have to
consider whether the scheme is justified under at least the intermediate level
interest in the state's asserted concern for the health c d safety of its
citizenr. A problem would more likely arise, however, as result of the poor
fit between that objective and the ireans employed. Penalizing providers but
II005 0 P5 ---57
895
890
only a male perpetrator and not his female partner. 450 U.S. 464 (1981). In
that case, the statute's underinclusiveness was justified by the fact that
women hear the risk of pregnancy, a deterring factor in and of itself, and by
the possibility that penalizing the female partner could deter female victims
considerations would aprear to justify penalizing the patron rather than the
provider.
issue in Geduldig v. Aiello, 417 U.S. 484, necessarily had a severe adverse
Jefferson v. Hackney, 406 U.S. 535 (1972), might similarly be seen to affect
8 §6
891
questions are posed, however, when the challenged Action is justified by the
of wham receive at Wet some benefits, rather than by the limited marginal
allocation cases of the latter type cur be dram iron analogous decisions
Under federalrcivil rights law. Such cases have generally accepted government
of the prot red class, after some effort to evaluate the availability of less
NAACP v. MediCri Center, Inc., 657 F.2d 1322 (3d Cir. 1981), the court
rejected a challenge under Title VI of the 1964 Civil Rights Act-and upheld a
Moreover, tnigemilms v. Alexander, 715 F.2d 1036 (6th Cir. 1983), cert.
granted, 52)0.S.L.W. 3610 (Feb. 21, 1984), a Tennessee decision to limit the
duration op coverage for inpatient hospital care was upheld in the fact of a
the dis oportionately severe impact of that decision upon handicapped users
sugge4 that the courts will continue, under a disparate impact stcndard, to
the PRA, the state disability insurance system might well again be upheld if
it could be shown that the system's very viability was at stake in the event
from the coverage of an employee insurance program might well fall. A court
could be expected to, note the particularly severe impact such an exclusion has
'state efforts to maintain a balanced program of coverage which best meet's the
discrimination under the Equal Protection Clause, I believe that this added
correct.
for its efforts to ensure speedy passage of this highly significant and
lag-awaited amendment.
X98
893
899
894
was the Korematsu case in 1944, which approved the Japanese ex-
clusion orders.
Advocates of ERA would thus establish a more exacting test of
gender classification than the one that would be required for racial
classification.
Under the 14th amendment, the necessity of tracing an allegedly
discriminatory law to a discriminatory purpose on the part of the
lawmaker would remain, whereas it would not be required under
ERA. This would indeed be ironic, since it can h rdly be said that
women have such ined the same assaults upon th it rights as have
certain racial grol,ps. Women have had no affro t to their rights
and dignity equivalent to the Dred Scott decision the decision that
held that blacks could never be citizens of the United States, nor
were there any rights belonging to blacks that the whites were
bound to respect. .
Women as a class have never been chattel slaves, nor have they
been subjected to the same hostile legislation as blacks. The court
decisions that the proponents of ERA complained most vociferously
about were ones that, by and large, were intendedhowever mis-
placed the intentions might have beento benefit and protect
-women. I find it impossible to imagine any racial classification that
could serve a legitimate purpose in constitutional government, al-
though I can think of many gender classifications that could. Race
is simply not analagous to gender from the point of view of deter-
mining what is required for the protection of equal rights.
I believe the proponents of ERA admit the inapposite comparison
..between race and gender when they argue that there will be cer-
tain exceptions to the strict scrutiny rule. The exceptions would be
those based upon unique physical characteristics, and those involv-
ing benign quotas benefiting the class interests of women. 'I think
that this indicates that the argument about ERA is no longer an
argument about' equal rights, but an argument about equal results.
Under ERA, proportionality will necessarily be the test of gender
discrimination.
The California Commission on the Status of Women, for exam-
ple, remarked in its repqrt that, "The touchstone of the ERA will
be totally 50-50 sharing qf every occupation."
I do not think that prdportionality can effectively be a test of in-
dividual rights, and it will not indeed be a test of individual rights,
but a test of how an individual fares as a member of a class. It is
not a standard that looks forward to the protection of equal rights,
but one which is determined to guarantee equal results, and as I
think everyone knows, the two are not the same.
I do not think that the citizens of America relish the idea of a
proportional society where one's rights are conditioned by the class
that one inhabits, whether it be a racial class, a religious class, or a
gender class. I believe the disproportionate impact standard resur-
rects the old "separate but equal' doctrine under a new guise.
For these reasons, Senator, and others that are no less impor-
tant, I believe the ERA should be rejected by this committee.
Thank you.
Senator HATCH. Thank you, Professor Erler.
90.1
897
IMPA,T STANDARD
`Testimony
of
Edward J. trier
before the
SUBCOMMITTEE 01: THE CONSTITUTION
903
898
result clearly at odds with the plain language of the. Act as well
speculate about what the Court 1,ight do with the vague and
indeterminate language of the ,'propel ed Equal Rights Amendment.
paramount law of the nation" which was intended to be "a rule for
9 it
899
li:krtually all its supporters agree that the ERA will require the
119791, __
Certain classifications. . in themselves supply a
.
9 Ot
900
While the Court has never agreed that gender classifications are
996
901
9017
902
women than men." This view has been echoed by many proponents of
its 1978 report stated that "(elven laws neutral on their face,
but that affect one sex more harshly than the other, would have
to be reexamined. "6 In a similar vain, it was stated in testimony
Davis, "our cases have not embraced the proposition that a law or
other official act, without regard to whether it reflects a
9 08 ,
908
impact on women, but which was held not to have "been enacted for
the purpose of discriminating against women.' Personnel
Administrator of Mass. v. Feeney. 442 U.S. 256, 260 (1979). As
the Court noted "fmlost laws classify, and many affect certain
groups unevenly, even though the law itself treats them' no
differently from all other members of the class described by the
law." Id., at 272. And as the decision noted, "the settled rule
(is) that the Fourteenth Amendment guarantees equal laws, not
equal results." Id., at 273. Since the Massachusetts 1,w
explicitly included women in the class of veterans who were
accorded preference, the classification--despite its
soa
904
2841. Thus, once disproportionate impact had been shown, the law
ERA, noting that the dissent in Feeney would provide the point of
910
9015
911
4I-006 0 -Ali- -M
the standard of discrimination established by ERA would be more
that women have sustained the same assaults upon their rights as
have never been chattel slaves, nor have they been subjected to
the same hostile legislation as blacks. The laws and court
decisions that feminists complain most,vociferously about were
ones that, by and large, were intended--however misplaced the
was not the case with blacks, who were subjected to a variety of
91.2
upholding Congress' atrchorization of male only draft
registration, "Mid' is n t a case of Congress arbitrarily
choosing to burden one of two imilarly situated groups, such as
would be the case with an "all -black or all-white. . .
91 3
908
91
909
915
910
3. Supra, note 1.
9 16
911
917
912
for men to be paid
right then, and I do not think it is right now
any more for the same work. But most people I talk to seem to
think that is the main thing that ought to basisbe corrected, that is,
as men for the
that women ought to be paid on the same
same type work. that they should be,
Professor WEGNER. Well, I certainly agree
action under, for example,
that we have had
and I am very glad under title VII and so on, that are designed to
the Equal Pay Act, protection,
get at that issue. I think we need the kind of permanent
and in addition, that
however, that the ERA gives in that arena,
we need protection in other areas, as well.
Professor EIMER. Senator,. if I could just speak to that question, I
equal worth should be a princi-
agree with you that equal pay for think that is precisely the
ple that we should abide by, but I do not
addresses. If that were the
question the equal rights amendment would simply be superfluous.
case, the equal rights amendment under the Equal
Unequal pay for equal work is disallowed now,
Pay Act and under the 14th amendment. worth but equal pay for com-
The issue is not equal pay for equal in the State of Washing-
parable worth. A Federal district court
.
ton-- word.
The CHAIRMAN. Maybe I used the wrong under the equal rights amend-
Professor ERLER. I think the issue
ment is not equal pay but comparable pay. If it were merely a
to hav
would simply be no reason
issue of equal pay, I think there
an equal rights amendment. explain for a second wh
Senator HATCH. Why don't you just
you mean by "comparable pay."
Professor ERLER. There must be equal pay, indeed, for equal
designated as compara-
work, but work which has been deemed ormight be deemed compa-
blefor example, the work of a secretary
long-haul truck driver, and although it is not
rable to 'the work of a
equal wotek, if they are deemed to be comparable jobs, then of
That is the issue of compara-
course, they should receive equal pay.
ble worth. at is the issue, I think, of the equal rights amend-
ment, not the issue of equal pay for equal work.
statutes now, that is required,
The CHAIRMAN. In fact, under the
isn't it? required now, yes.
Professor ERLER. That certainly is work.
The CHAIRMAN. Equal pay for comparable
Well, under the statutes now, of course, it is
Professor ERLER. Federal courts are interpret-
equal pay for equal work. Some of the worth. I think that
ing title VII to mean equal pay for comparable
I think if the equal rights
that happens to be a mistake. But almost be
amendment were passed, the Federal courts would
equal pay for comparable
obliged to rule that equal rights requires
worknot equal work, comparable work. Would you yield for one
Senator HATCH. Excuse me, Senator.
question?
The CHAIRMAN. Yes. Wegner, that
Senator HATCH. Do you agree with that, Professor
conclusion? at the specifics of the
Professor WEGNER. I think, without looking
perhaps do not have a full
nature of the job classification, that we
91:8
913
picture here. I think there is a critical evidentiary issue about the
comparability of the jobs. I think if indeed the jobs are comparable,
that if there were not adequate justification, that yes, there would
need to be equal pay.
Senator HATCH. -You are saying if we could divine economic,
social, or other analysis that allowed that a secretary's job is com-
parable to a long-haul truck driver's job, then they should be paid
on an equal basis?
Professor Wao Nita. Yes, I do, Senator. I should point out, howev-
er, that that equation is a fairly complicated one to make.
Senator HATCH. I agree with that.
Professor WEGNER. I think, if I remember correctly, there is at
least one case under a State equal rights amendment which looked
at the jobs of two classes of police officer, cue of whom basically
handed out parking tickets and another of whom had duties in
other respectsarrests, I think, and things of that sortand found
that those were not equivalent, and that they therefore could be
sustained as independent classes.
Senator HATCH. Well, there are difficult evidentiary _problems,
but the principle is one that you agree with, the prnciple of com-
parable worth'?
Professor Wr.oriza. Yes.
Senator HATCH. And you would agree with Professor Erler that
the principle of comparable worth is a distinctly separate principle
from the principle of equal pay for equal work.
Professor Wxamni. Yes. I think it is an expansion of the notion
of equal pay for equal work.
. Senator }Dam Generally, the law is equal pay for equal work
today. There are only a few isolated decisionsGunther, for exam-
plewhere the comparable worth issue has been isened?
Professor WEGNER. Weli, as he said, that is a breaking area
which is now being litigated. The Supreme Court case in Gunther
in 1971 had touched on that, and I think the ongoing litigation will
bring further light on that question.
Professor ERLER. Excuse me. If I could just say a word here, Sen-
ator.
Senator HATCH. Yes.
Professor ERLER. I think that equal pay for comparable worth is
an extension of equal pay for equal work, only insofar as we allow
the ingredient of disparate impact to come into play. As the matter
is being currently regarded, any job classifications where women
predominate is simply assumed to be predominantly women be-
cause of discrimination. It almost establishes a prima fade case of
discrimination.
Senator HATCH. You are saying that is not necessarily the case.
Professor ERLER. That is not necessarily the case, and compara-
ble pay is being widely touted as a remedy for gender discrimina-
tion based upon a disparate impact analysis.
Senator HATCH. For something that may not involve intentional
discri m nation.
Professor ERLER. nat is truecertainly, may not involve pur-
poseful and intentional discrimination.
Senator HATCH. I see.
Thank you, Senator.
9.19
914
1 am not familiar with the particular Senate bill that you have
alluded to, so I am not sure whether you indicated that it would be
applied so that either a man or a woman could be involved in the
rae of a younger individual, or whether you are saying that both,
asp n the Michael "M" case, the woman who was under age, as well
as the man, would be penalized for that act. Could you clarify that
point?
The CHAIRMAN. We take the position that the perpetrator could
be of either gender.
Professor 1VEGNER. The perpetrator could be of either gender.
think that many State statutes have been expanded in that
fashion and that that is wholly consistent with the approach being
urged in connection with the ERA, that where conduct could be
perpetrated either by a man or a woman, that they should equally
be liable to criminal punishment for it. I think that that would be
the case under not simply a disparate impact standard, but that
would be the case where you had a statute that was facially, appli-
cable only to one sex. So I think that is not changed by what we
are talking about today.
The CHAIRMAN. Professor Erler, do you want to comment on
that'?
Professor EMIR. Yes, if I could, please, Senator.
I think that the general issue that is involved here is simply that
a law which is gender-neutral on its face is rot enough, because
when we confront the issue of disparate impact, we have to see
how the law affects one gender or the other gender.
Now, I know that Professor Wegner differs a little bit from other
advocates of the equal rights amendment, but if a law has a dispar-
ate impact, a disproportionate impact, upon one gender, I think
that the courts are going to have to treat that law as if it had a
facial classification, that is to say, as if it classified on its face on
the basis of gender.
Now, we can argue about which test the court is likely to adopt
once it is faced with a disparate impact situation. I happen to
think, and I think most proponents of the ERA think, that the
court should and would require the strict scrutiny test. Professor
Wegner believes that it will require only the intermediate test,
under which it suffices to show that there is an important govern-
mental interest and that the classification is substantially related
to the effectuation of that purpose.
Hut even this intermediate test is a very stringent test. As the
court recently said, there have to be "exceedingly persuasive argu-
ments" put forth ir. order to sustain any kind of gender classifica-
tion, and I take that to mean any kind of gender classificatior that
is inferred from a disparate impact.
Si, the issue here is not whether the law merely classifies on its
face. but whether the disparate impact, or the effect of the law, is
such as to infer a classification.
The CHAIRMAN. Now, Professor Erler, assume for a moment that
you are a Member of Congress, strongly opposed to the practice of
abort iiin Taking into c,irimideration the additional factop_=, of an
917
923
918
92,1
919
The CHAIRMAN. Professor Wegner, I just have a few more ques-
tions, and then I will have to windup. T do not want to take too
much time.
According to the 1971 Yale Law Journal article on the Equal
Rights Amendment, under a ratified ERA there could still exist
valid laws which treat one sex differently from another. Supposed-
ly, if a law took into account physical characteristics unique to one
sex, it could still withstand constitutional analysis. In adopting the
"but for" test in the cases brought under title VII of the Civil
Rights Act, has the Supreme Court eliminated all such "unique
characteristic" exceptions as were once contemplated by the au-
thors of the Yale Law Journal article?
Professor WEGNER. I do not believe so, Senator. I think the
theory behind that unique characteristic exception is that if there
is a unique characteristic of one or the other sex, that one simply
needs to recognize that there needs to be some modification in how
the equality principle is applied, and that would be the case.
Now, you are referring to the Newport Beach case which in-
volved title am not sure if I heard sou correctly.
The CHAIRMAN. The 1971 Yale Law Journal article.
Professor WEGNER. I am not sure that I caught the reference to
the Supreme Court case you were referring to, but I think that,
very clearly, the unique characteristics aspect that was contended
to exist in that Yale Law Journal article and was seemingly very
well-discussed at the last round of hearings, and when the ERA
was discussed back in the early seventies, would continue to be ob-
served.
The CHAIRMAN. I just have one more question of each.
Professor Erler, under the effects test, would a statute having a
conscience clause allowing physicians and nurses to refuse to par-
ticipate in abortions on the basis of religious conviction be allowed
to stand? .
92
920
One of the places that it said that the right of, privacy may be
inferred is from the right to freedom of association contained in
the first amendment. But we know that the right to associate
cannot be a pretext for racial discrimination, that the 14th amend-
ment certainly takes precedent over any associational rights that
involve racial discrimination. The Equal Protection Clause of the
14th amendment certainly takes precedent over any freedom to as-
sociate which is merely a pretext for racial discrimination.
I do not believe that the right to privacy after the passage of
ERA will have any limitation upon what will be required by the
equal rights amendment.
The CHAIRMAN. Now I want to ask you a very practical question,
and you both can answer it.
My State has dower rights for women. If the equal rights amend-
ment is passed, would dower rights be destroyed for women?
Professor WEGNER. Senator, I think many States have changed
their existing statutes so that there would be equivalent rights for
men and women. Whether that is seen literally by amending the
Dower Act itself, or whether that is found by seeing some sort of
forced share or other equivalent rights for men and women, that
has generally been the movement in legislative action to date.
I am not specifically familiar with the South Carolina provisions,
but there have been cases under State ERA's i 1 which courts have
found where there is an equivalent or comparable right for men
and for women, even though one might be called dower and the
other called curtesy or other use of forced share language of some
sort, that that would be upheld if there is equivalent rights for
both sexes.
The CHAIRMAN. Now, we have no similar provision that gives a
man such a right; it is for woman only. Dower rights for women
amount to a one-third interest in their husband's kind for life.
Professor WEGNER. t;enator, that might well be ,,ubject to attack
under the existing interpretation of thk.: 14th amendment. I think
there has been litigation in various States on matters such as that.
The CHAIRMAN. Repeating the luestion, if the ERA passes, are
the ,!,,wer rights affiirded women in my State going to be de-
stroyed? What it; your answer.
Professor ERLER. My answer, Senator, would be yes, definitely.
Professor WEGNER. Senator, mine would be yes, and it probably
would he subject to challenge whether or not the ERA were passeci.
921
The CHAIRMAN. Thank you both very much for your presence
here and for your contributions.
Thank you very much, Mr. Chairman.
Senator HATCH. Thank you, Senator.
Now, let me start with you, Professor Wegner.
Just for the record, let me ask each of you if you could very
briefly summarize your own understanding of what is meant by the
concept of an intent test for identifying discrimination, and what is
meant by the effects or disparate impact test.
i will start with you, Professor Wegner.
Professor WEGNER. An intent test would require some demon-
stration of purposeful discrimination. It could be found either by a
demonstration of facial discrimination based on gender, or indica-
tion such as in the Yick W. v. Hopkins case, that a statute is being
applied in a discriminatory fashion.
In addition, the Supreme Court has recognized that intent can be
shown by a variety of other factors, including impact. In most of
the sex discrimination cases, though, there has not been an accept-
ance of impact, at least, impact alone, as grrdunds for showing
intent.
Senator HATCH. But it would not have to be facial or overt dis-
crimination to be identified as discrimination?
Professor WEGNER. That is correct, but as it has been applied to
date, we do not have much precedent suggesting that the Court is
willing to go as far as they have, for example, in the race context,
in which they have looked to the fabric of circumstances in recog-
nizing the evidence of intent.
As far as an impact standard, I believe I spoke of that earlier,
that adverse impact could entail either a disproportionate portion
of the class affected under a neutral. classification scheme, so that
perhags you would have 80 percent of that class being men and 20-
permit women. For example, with the height or weight standards
that I have referred to, it might be something like 30-to-1, the pro-
portion of men who could satisfy a 6-foot height requirement as op-
posed to women. Disparate impact could also arise where a classifi-
cation might be more severely burdensome upon women in some
fashion.
Senator HATCH. It could be 55-45, or 49-51? The principle is the
same, isn't it?
Professor WEGNER. I think I indicated that the Court has recog-
nized, in talking about substantial impact, even in the title VII
context, that it is not every marginal impact any more than 47 and
53 or something like that, that would satisfy a disparate impact
test. But I think something like 80-20 percent clearly would.
Senator HATCH. Professor Eder?
Professor ERLER. I think that that is an accurate statement of
the difference. Let me just say that the intent standard requires
some showing of intention to discriminate on the part of the law-
maker.
Senator HATCH. Before somebody will be found guilty of discrimi-
nation.
Professor ERLER. Yes, of course, that there has to be some show-
ing of an intention or purpose to discriminate. This is the standard
u4) sr r.
927
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93
925
9
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9 3'
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.9 3
5
9:d
Professor WEGNER. Yes, they would be subject to the same analy-
sis. I would have to say that that is such a broad question, without
looking at the specific aspects of pension or other provisions that
you are alluding to, that it is difficult to answer as far as precise
outcome's. We have seen a series of cases litigated already, concern-
ing situations in which there are requirements of dependency to be
demonstrated by one sex or the other, things like that, that have
already been struck down, so I think that is an ongoing process in
any event.
Professor ERLER. It is indeed an ongoing process, but I think that
the passage of ERA, would radicalize that to an unbearable ex-
treme.
Again, if we use impact analysis, whatever laws or governmental
actions that have a disproportionate impact upon one gender would
be subject to a heightened level of judicial scrutiny.
Senator HATCH. And to being stricken as unconstitutional.
Professor EIMER. And being stricken as unconstitutional, that is
true.
Whatever test you choose, whether it is the strict scrutiny test or
the intermediate scrutiny test, many laws will. have to give way
under the ERA.
Professor WEGNER. Again, I would simply cite the recent Heckler
case which in fact upheld what Congress had done to try to remedy
something precisely in the area of pensions.
Senator HATCH. But actually, wasn't that a transitional law?
Professor WEGNER. It was, but to say that if something is indeed
carefully tailored that it would be sustained seems to me that that
demonstrates that to be the case.
Senator HATCH. Now, when we talk a )(tut the concept of dispar-
ate impact, are we referring to the concept in the context of men
as a whole or women as a whole, or is it permissible to think of
this concept as applied to subgroups of men or women?
To whom is it proper to apply the concept of disparate impact?
Professor WEGNER. I think again, the notion is that disparate
impact could be evidence of the use of a facially neutral classifica-
tion which is, in fact, linked to gender, and that in my mind, that
is referring to the overall class of women or men as a whole. I am
not sure, again, if there is something behind your question more
specifically -I might be more responsive.
Senator HATCH. Would you agree or disagree with Judith Sher-
burne, who recently testified on the relationship between the ERA
and Social Security, and who appeared to argue that the amend-
ment would be triggered by the fact that a particular subclass of
women, homemaking; women in this case, were disadvantaged by
the ERA. Is this a proper approach in ERA analysis?
Professor WEGNER. Again, I am not sure, without a specific con-
text to put that in. I could imagine the application of a law that
would severely affect women who happen to be homemakers, but I
am not sure
Senator HATCH. I think what I am saying is do you have to look
to women as a clz.is14 in order to trigger effects analysis, or can you
look to subclasses of womenhomemakers, for example?
Prolesyer WEGNER. 1 guess wi;!iout the context to put that in, I
think you would look to women as a whole, but if there is a severe
eiv
931
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932
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decide. You seem to he saying the same thing: that if the plaintiff
can meet the initial burden of proof of showing a significant statis-
tical disparate impact, then that burden of proof shifts to the Gov-
ernment, and the Government is going to have to de end itself
against constitutional violations. What I conclude from that is the
courts are going to be in a position, if the equal rights amendment
is passed, to be able to second-guess the judgment of the other two
branches of Government as well as the States.
Professor WEGNER. Senator, I think the courts in many instances
have displayed their concern for separation of powers and that
they still would be informed in their decisions by such fundamental
principles.
Senator HATCH. But you agree that a tremendous amount of liti-
gation would result.
Professor WEGNER. I suspect that litigation could be brought, and
I think that the courts would handle it in a reasonable fashion, is
they attempt to do.
Senator HATCH. Well, depending upon whose point of view.
Go ahead.
Professor ERLER. Well, Senator,
Senator HATCH. I personally have a great deal of difficulties with
the courts deciding all these social and economic issues. That is not
their proper role.
Now, that does not mean that everything that elected represent-
atives of the people do is right, because the courts are always em-
powered to find acts of Congress unconstitutional. But, if the dis-
parate impact test, or the results test, or the effects testwhatever
you want to call itbecomes law because of the equal rights
amendment, it would represent a radical change, in not only our
legislative processes in this country, but in our judicial processes as
well; it would open the door to massive amounts of litigation
throughout society involving these very sensitive and difficult
areas.
Professor i:IRLER. Senator, I agree with you that the primary re-
sponsibility in constitutional government for making policy belongs
with the legislative branch, the most representative branch of Gov-
ernment, and I think I share your concerns about courts ti day
taking over more and more of the policymaking functions from the
legislature, and I believe that the disparate impact standard that
will be established by the ERA will force more of these policy
issues into the courts, and it is not so much the volume of litigation
that I worry about, but the fact that the ERA will establish prima
facie cases regarding many of these laws you mentioned, and that
many of the laws, if not a majority of those laws, will have to give
way under the equal rights amendment.
Senator HATCH. I have a lot of respect for the Federal judiciary,
but I also know that it becomes politicized from time to time. Con-
gress granted almost 300 judges for President Carter to appoint
several years ago. A lot of conservatives feel that those judges by
and large are basically liberal, activist judges who would love to be
able to employ the disparate impact test in "innovative" and "cre-
ative" ways. We now have a bankruptcy bill before both Houses of
Congress. In that bill are 85 more judges. It is no secret that some
do not want to create those judgeships because they do not want
939
934
911
MISCELLANEOUS MATERIAL
By Carol Tyler)
I am a wife, the mother of two and consider myself a feminist. 1 have consistently
supported the Equal Rights Amendment. In recent months, however, I have begun
to wonder whether the ERA, which many in the women's movement endorse, would
grant women constitutional rights that do not exist for blacks and other "protected
classes."
To my mind, equality is achieved through the absence of discrimination. How we
define discrimination therefore becomes critically imnortant. The Supreme Court
has always defined it under the equal protection clause of the 14th Amendment as a
federal or state action that intentionally creates classifications based upon race, reli-
gion, color or national origin. What feminist leaders seem to want is a constitutional
amendment that would reach far beyond the 14th Amendment by erasing laws that
have the effect of treating women differently from men.
Last November, the House of Representatives failed in its rather hasty attempt to
bring the ERA up for a vote and send it to the Senate in time for the 1984 elections.
Neither the hearing record nor the committee report has been released, so we are
left only with the words of the amendment's chief advocates to explain its otherwise
simple language.
Rep. Geraldine Ferraro ID., N.Y.) was unequivocal. The ERA, she said, not only
would strike laws that intentionally discriminate against women, but would also
lead to challenges of "sex-neutral" laws that "disproportionately impact" on women.
Similarly, Judy Goldsmith, president of the National Organization for Women, has
tried to justify a constitutional effects test by saying an intent test: which has
formed the basis for every successful equal protection claim brought under the 14th
Amendment, is "often impossible" to prove. Rep. Patricia Schroeder (D., Colo.), one
of the principal sponsors of the amendment, has played down the efforts to define
the ERA by saying simply that its adoption would establish "equal rights" and that
"everybody in America knows what that means."
It has been only within the past 25 years that blacks have begun to receive the
kind of equality that was envis ioned for them when the 14th Amendment was rati-
fied in 1868. They, along with religious and ethnic minorities, have since become
clothed in an interpretation of the equal protection clause that places all intentional
classifications against them under strict scrutiny by a reviewing court.
Since intent dearly can be established by indirect proof, as it has often been in
school busing cases in the North, any such classification is, then, subject to a two-
stage analysis: It must make a deliberate distinction on the basis of race, religion,
color or national origin, and there must be no "compelling and overriding state in-
terest" to justify its retention. Today, despite great strides brought abobt in part
through the national debate over ERA 12 years ago, gerder-based distinctions still
hove not acquired this same level of constitutional protection.
When the ERA posed the Senate Judiciary Committee in 1972, Sen. Birch Bayh
JD., Ind I suggested that if the court upgraded the constitutional status of women
then "p rt of the reason for the amendment would disappear." At that time, distinc-
tions that laws made between men and women were not subject to the. "compelling
and overriding state-interest" test, and inequities were therefore far more wide
spread nod obvious. But over the years, the constitutional status of women under
the equal protection clause has gradually improved.
The mos! recent test was advanced in 1982 by the first woe" In to sit on the Su-
preme Court. In Missitaippi University for Women vs. Hogan. Justice Sandra Day
O'Connor wrote that distinctions hired on gender may be approved only by estab-
(935)
941
936
linhing "an exceedingly persinalive justification" for their use. This sounds a great
deal like a requirement for a "compelling and overriding state interest," but the se-
mantic difference seems designed to enable the courts to continue certain unidenti-
fied distinctions based on sex that it cannot maintain with regard to race, religion,
color or national origin.
Earlier, in 1976, the court reiterated its longstanding view that intent is a prereq-
uisite for relief under a 14th Amendment claim of discrimination. In Washington vs.
Davis, an employment test of the District of Columbia Police Department was chal-
lenged as unconstitutional because a greater proportion of blacks failed than did
whites. The court responded by once more holding that disproportionate impact, or
"effects," is not a violation of the equal protection clause. What Rep. Ferraro and
Ms. Goldsmith have made clear is that they want the ERA to reverse Washington
vs. Davis when women are Involved.
I have always considered legislation as remedial in nature. It is created by Con-
gress to meet a specific need and, when it meets that need, it will he ripe for repeal.
By contrast, the Constitution is written in indelible ink and, while it grows with us
through judicial interpretation, it forever serves to underscore our democratic devo-
tion to broad rights and privileges.
When necessary, Congress has stepped in and expanded the role of the federal
government through legislation aimed at specific problems; it has, ft-fm time to
time, also created an effects test as part of that legislation. An effects test, for exam-
ple, has been incorporated into the fair housing provisions of Title VIII of the Civil
Rights Acts, and the language of Title VII has been broadened to set tap affirmative
action procedures based on "goals and timetables." In 1982, Congrew dopted a new
effects test as part of the Voting Rights Act. What is important is that the effects
test has always been part of legislative remedies. Neither Congress nor the Supreme
Court has ever endorsed an effects test as protection from discrimination under the
14th Amendment. NOW's interpretation of the ERA would set that precedent, but
for women only.
The issue may be revived in this session of the House. Any ERA that passes Con-
gress should grant rights that are no lessand no morepervasive than those
available to others victimized by discrimination. The Constitution and the ERA are
too important to be abused on behalf of individuals who wish to prosper from the
politics of group, as opposed to individual, rights. There is no justification for provid-
i
ot1 women with a level of permanent protection underthe Constitution that does
. and never has, existed for anyone else.
4
* ti
937
JAN 20.19 /h
prepared for
by
Anne K. Singel:on
94 3
41 ow, ll 145 ill
938
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THE IMPACT OF THE EQUAL. RIGHTS
AMENDMENT: HOMOSEXUAL RIGHTS
94 6
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943
view for some time has been that Ifolmes' philsophy of realism is
perhaps the best approach to assigning meaning to constitutional
provisions. There are two modern and contemporary scholars,
whom I regard as special proponents of Holmes' American realism
with regard to constitutional interpretation. One is Alexander
Bickel, late professor at Yale Law School; the other being John
Hart Ely, professor, formerly at Harvard, now dean at Stanford.
One is tempted to simplify the matter by focusing on one central
question connected with this topic of the impact of the ERA on the
rights of homosexual citizens. One is tempted to ask a simple ques-
tion like: Does the proposed amendment render unconstitutional
all statutory prohibitions against same-sex marriages? It is a
simple question.
But one is mindful of the late Alexander BicktA's cryptic warning
about inquiring into the meaning of constitutional provisions. He
said:
`No answer is what the wrong question begets."
Asking whether the ERA mandates recognition of same-sex mar-
riages is indeed the wrong question. And so it beget no answer. But
in these remarks, I am going to ask that question and I am going
to try to answer it knowing full well that it is the wrong question.
And consequently my efforts will lead to no answer. I am going to
do this not because of caprice or vagary, but because it is some-
times necessary to think .through the wrong question in order to
arrive at the right question
John Hart Ely once made an observation about Alexander Bick-
el's career that seemed almost disparaging. He wrote that Bickel's
career testifies to the 'inevitable futility of trying to answer the
wrong question. He did not mean any disparagement, however. In
the same paragraph he also declared that Bickel was probably the
most creative constitutional theorist of the past 20 years. And so
there is a paradox.
The futility of trying to answer the wrong question' begets both
creative constitutional theory and no answer. Let us look at the
paradox.
Does the proposed ERA render unconstitutional all statutory pro-
hibitions against same-sex marriages" If approved, the ERA be-
comes of course a constitutional provision. and a constitutional pro-
vision is legislation in the wide sense. There is more than one way
to find a meaning of legislative language
First, one is tempted to look at the language itself. the meanings
of the words used. It is easy to look at the words themselves and to
conclude that a man who wishes to marry a man or a WOO1:111 who
wishes to marry a woman but cannot do so because : a statute
prohibiting smile-sex marriages is deprived of equality of right,, he
cause of his or ;ler sex. The simple truth is that were he or she of
the opposite .4,7< the prohibition would not apply. This literal inter-
pretation is cai,..v and attractive arid may be thought of as a focal
point of %vim would Hsu the celebrated precedent of tocurn v.
arr;11111I'llt Ire OW ['Wing caw, the Stimne Conri
held that .t Ida( k 1.vonion and 0 while 10111 WiT1' deprived of et #u :all
tt of Ulf ;Wr011Of irrirtiO'q `qt:01111"
Intrrrowil tir)r-rtory;
944
19
94!)
ample, the old Reynolds v. United States decision, upheld the tradi-
tional definition of marriage, i.e., the monogamous marriage, in the
face of a ch illenge based on the claimer; constitutional right to
freely exercise one's religion when that religion demanded polyga-
my. But one would be tempted to regard the Reynolds case as at
best shaky evidence of this constitutional background understand-
ing of marriage. It is an old case, over 100 years old.
That temptation, however, has to take into account more recent
pronouncements, especial:y of Justite Douglas writing in the Gris-
wold case scarcely 20 years ago. Douglas said:
We deal wi'h a right of .rivacy older than the Bill of Rights, older thou our politi-
cal parties, older than our school system. Marriage is a coming together for better
or for worse, hopefully enduring and intimate to the degree of being sacked. The
association promises a way of life, not causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial or H. cial projects. Yet it is an association
for as noble a purpose as any invbtved in our pi or decisions.
Both Re,vnolds and Oriswiild seem Lo uphold the argument that
conqitutional provi.iions impificting on the institution of marriage
arts understood as impacting On the traditionally defined concept of
marriage.
But there is always a butjust as our scientific understandings
of the universe and the atom have evolved at a dizzying pace
within the last 20 years, so too has a similar phenomenon occurred
with respect to our social and constitutional understandings of in-
stitution:4. The Griswold stress on the privacy rights of the married
couple lasted but 7 years. Justice Brennan, writing for the majority
in the 1972 Eisenstadt case said of the Giswold stress on the tradi
i,,onal-couple understanding of marriiige and of the idea of how
fundamental constitutional rights impact on that couple's under-
4tanding of marriage
It is true that in Grisao/i/ the right of privacy in question inhered in the marital
rellitionAlip Yet the marital imply is not an independent entity with a mind and
heart of its own, but an association of two irittviduals each with a separate inteliec
to it and emotional mal<eup ft the right to privacy means anything, it is the right of
Ow individual, loamy to Is' free from unwarranted governmental intro
fa farm. :ill the EtservIcult case did wril exteed the (irisret)/d
privacy to lionmarrieil persons. But in ',alpha. z it signaled a
to tti unilerstundur of marriaw. in the background of constitutional
rhh. The ertiphri,ris 'snits 'i'routi that couple understanding, the
t mord uniierarinding in /i'cytarids and (irimuri/(/ to the individ-
HotkrAriniling in both Eisetistridt rind nel,ver curitetriporary
It i:, ll.e tvhit halve tile
'jH,raritia 1f,Itt 111 I tlllnk that 1:-; ;11 ver interestint; interpretation
I to haviiig rem) I did not eon
(Audi, that but I c:t.t) Cql-t:111111V fiiihrw yn line of reasiitill4!,. 'Very,
i. ItitvreAuw,
1 run .,iN 1001)11)o you
Nit ,MAlti IN 1 hank volt. ii;Oot Mitch
The i....t.co'r,:tufi? tiff' indiviettud cord 1111i'll in l (le
;1..s.Wilcio ill thy 11:11 tmirrrirry hod topii cotnAtiorsli the Rind;
in t hi. 19 Pr'', 111,1 itloge
rli.ht silo old SI,.inni.t
(ow ,I( h:1 t, 11.11 TOO!. 1,1 twin, hindioni.till trr ow. vet v
7.."///171'1:i C1,1' 11)111,1'11 rod ',f) THI1111 slrr the
947
fundamental right of nun haw; but on the fundamental right to
marry and hence we have a thesis developing: the right belongs to
the individual and the right is no longer a right in marriage as a
status, it is a right to marry.
Planned P.irenthood v. Danibrth got us further away from that
couple understanding, that h4, the states understanding of mar-
riage when it prohibited States from permitting husbands to have
an equal say in the abortion decision The right is that of an indi-
vidua., even in the marriage contexteven against the marriage
context.
My point is to suggest that the Supreme Court's understanding
of marriage has changed. It is no longer exclusively the old, tradi-
tional definition of a status, a covenant upon which the survival of
the human race is grounded. It seems more VA an important con-
tract right. It is this understanding that is goiag to provide the
background against which the ERA is going to be superimposed.
Another part of the Liakground onto which the proposed ERA
will he superimposed is the Supreme Court's understanding of
what it is that is at the heart of what is wrong about discrimina-
tion on account of sex. In case after casewe need not recite
themthe Supreme Court's focus hits been not simply on a techni-
cal act of discrimination but on a deeper, root concept: ancient ca-
nards, stereotypes, outmoded ways of thinking about the roles of
men and women. In dealing with sex-discrimination problems those
concepts have again and again been the focal point of the Supreme
Court. And certainly the ERA focus is not going to be different.
Failure to recognize this is, I believe the flaw in the Singer deci-
sion. The Court in Singer mentioned its belief that. at the heart of
Washington's ERA is the slogan: Equal pay for equal work. That is
of course an important equal-rights concept in sex-discrimination
situations But I hope it does not take an extensive brief to justify
the suggestion that what. lies at the heart of the proposed Federal
ERA is something much more complex, far deeper than the notion
of bringing the wages of women up to par. There is a great social
movement going on and it is geographically more extensive and it
is demographically more pervasive eve than the movement for
racial equality. It affects every human being and it involves the
roles of men and women in society. It involves changing tradition:3,
routing out and rejecting ancient generalizations.
I suggested that the proper question might he Professor Bickel's
questions: What policies are the framers of the ERA not Itireclo1/4:
What policies are they inviting'? My own conclusion fig:1111
he haelreund of contemporir, social and constitutional under
iandingn of and sex oiscrimination is that the ERA in.
kates the new, less traditional, individuated concept of marriage,
the right to marry, not so much the rights in marriage.
Moreover, the ERA invites not. a simple reexamimititai but
rathei si rejection or ancient generalizations about sex, sex roles
anti 1011.4 in general in the context of !WIC. If marriage in its consti
andcritanding is hi,l'Othillg 11'Wi tittlt11,4 Mid more toividual
contrae! anti e thus separating front Ow traditions that are the
la rldeet'iranir,l! it the Nt atie'4 concept of marriage, and if ancient ea-
n:,rik about ,y rule' or'' at the what :hi' EVA
then it rtifirwt bv ;nit' orilftwt he itH!,,l't led that the framenk ot
5
948
the ERA are foreclosing a policy of mandated recognition of same-
sex marriages.
Thank you. Mr. Chairman.
[The following was received /or the record:]
Or- ,)
1
THE IMPACT OF THE E.R.A. UPON
HOMOSEXUAL RIGHTS
Statement of
before the
I'm going to try to answer it. knowing full well that ft's the W01111
Ark'1VO at the right question, .ohn Wart Ely, whose rcspect for Alexender
Hy, °
t"Iff4"' to the i'lew(tab141 fotllitY nt irvIng to Ins,!1'
950
approved, becomes tegistation, and t,i9re is more than one way to find the
the words themsev.q and a conclude that a man who wishes to marry a
man, or c. WOMPA %.: wishes to marry a women, but who cannot do so bICAUS6
because of his or her sex. Were he or she of the opposite sex the
att'actilv aid may be thought of as the focal point of those who could
helu gia: a black woman and c white man ware deprived of equality of
the names god the category of discrimination and viola' We hive what we
have every rscn to believe will be the very opinion the Supreme Court
w ill write on the matter in question. This is, I believe, the gist of
tree poSilion taken by two student authors of a 1973 Yale :.aw Journai
analylis wa mire thirouh and more varied, but their has wmItIon was
that lovtor; ruvides the fnr.work fur the decision on the quostinn.
f:orillitent. We rust look not only at the literal meaning of the weds
o ',ed In the E.R.A., hit alto at the tIteral r!tentog of th) WOr;:i urod In
;11 rhp wet.; ?'Sir'lo'in" ever 111811f other 4 u' thy, 5eq41 uwlon of WIt
mad tare unmeni parr 1.111e, tty ;ttcral defI.dtIon, IF. I hnterosevull
951
with a chicken -or -egg type of quandry. Does the heretofore accepted
language of the E.R.A. Inform the meaning of 'marriage'? I'd submit that
Ho. the literal approach is: "no answer t%, the wrong question.'
One Is next tempted to look beyond literal words, and one is immediately
t.P.A, t:.1 particular point in question? What Is, or will he, the
living thought each 0 the state legislatures which vote to latify. the
I 1 I
952
among Canadian lawyers that Americans don't look at the text of a statute
It was Alexander Bickel who pointed out that if legislative intent Is the
our 8111 of Rights' decisions. Perhaps what I' saying seems too
And so it is that we've been asking the wrong question. The question
getting no answer at all. Bickel may have hinted at the proper way to
Rickel potited towards. What policies are the Framers of the E.R.A. not
foreclosing What policies are the Framers tivIt.:1122? The answers depend
largely upon what policies with "aspect to marrioge and rights have been
answers to the questions of what policies the Framers of the E.R.A. are
one woman were strongly upheld in the old Reynolds v. United StatesYS
Case in 1878, and most importantly in Reynolds the Supreme Court upheld
exercise one's religion when that religion demands polygamy. One would
case--over a hundred years old. But that temptation has to take into
the majority in the Griswold case, 11/ scarcely twenty years ago:
atom have evolved at a dirtying pace within the last twenty years, so too
Al no% uf. UI
f)58
954
the privacy rights of the married couple lasted but seven years. Justice
13 /
Baird, said of the Griswold stress on the traditional 'couple'
In form, all Elsenstandt did was to extend the Griswold privacy right,
the background of constitutional rights. It's the individual who has the
rights, noL the couple, not the status entity. And it did more.
9 ro
955
the suggestion that what lies at the heart of the proposed federal
E.R.A.
is something far acre complex and far
deeper than the notion of bringing
women's wages up to par. There is a great social movement going on,
policies are the Framers of the E.R.A. not foreclosing? What policies
Are the Framers of the F.R.A, invitin2? My gen conclusion, Against the
r3rrlage and sex discrimination Is that the (A .A. invites the new, less
loOviduAl *4:On%.rfit't," and thud separated from the traditions Heel trr
tho .1n.tocninn,ng of the .;tain; -0m-opt of 1-irridlic --Ind if nnOvni
956
canards about sex roles are at the heart of what the E.R.A. rejects--then
it cannot by any fair account be asserted that the Framers of the E.R.A.
FOOTNOTES
p. 71.
3. Id.
7. Id., p. 1192.
750.
';1
957
12. Id.
14. Id. [Emphasis added, except for the word "individual" which Justice
19. Singer v. Hera, 11 Wash. App. 247, '22 P.2d 1187 (1974).
20. See, e.g., Orr v. Orr, 440 U.S. 268 (1979); Califano v. Webster, 430
U.S. 313 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); and
962
958
Senator Awn. Thank you. That was a very thoughtful set of re-
marks.
I will have some questions for you in a few minutes but let us
now turn to Professor Hickok, and we will take your testimony at
this time, sir.
STATEMENT OF EMENE W. HICKOK, JR.
Mr. HICKOK. Thank you, Mr. Chairman.
Perhaps the most unique thing about this Nation's ongoing
debate over the equal rights amendment, it seems to me, is that it
is a debate concerning what the proposed amendment means.
Because of this, considerable disagreement about what exactly
the ERA might accomplish remains. It is sobering to realize that
for more than a decade a national dialog on the ERA has produced
neither a consensus concerning its meaning nor the measure of
support warranted to amend the Constitution.
My purpose today is not to take sides in this debate but to offer
some reflections regarding what the effect of the equal rights
amendment might have upon homosexual rights, should the
amendment ever become a part of the Constitution. Both propo-
nents and opponents of the ERA have expressed differing views on
this issue.
It is my belief that the ERA may have a considerable impact in
this area, at least calling into question, and probably overturning
existing laws which place sanctions upon homosexual conduct and
laws which limit certain actions by homosexuals, such as marriage.
At the outset it should be noted that it is my understanding that
the ERA would set up a constitutional yardstick of absolute equali-
ty between men and women in all legal relationships.
I refer to the arguments of Prof. Thomas Emerson at the Yale
University School of Law, when he argues that:
ERA means that differentiation on account of sex is totally precluded regardless
of whether a legislative or administrative agency may consider such a classification
to be "reasonable", to be "beneficial" rather than "invidious", or to be justified by
"compelling" re ens.
This i. absolutist interpretation of the ERA. I use it not only
because chink the words have meaning, that words make a differ-
ence. But also because I think that is the interpretation endorsed
by most of the proponents of the amendment itself.
Howe. r, this interpretation is at odds somewhat with the view
held by some that the amendment does not establish strict stand-
ards and that a body of exceptions to the general rule of prohibit-
ing sex classification.' will be produced as courts apply a common-
sense interpretation to the amendment.
There are severe problems, in my opinion, with this approach to
the ERA, not the least of which is the fact that it means that those
exceptions will be written by Federal judges rather than State and
national elected officials. I am reminded of Chancellor Kent's com-
ments that you will find judges roaming the trackless fields of
their imaginations.
Nevertheless, I think the ERA will have the effect of calling into
questions laws limiting any punishing homosexual conduct.
963
959
Under the ERA, a law which made illegal some relationship be-
tween two men or two women which would be permissible if en-
tered into by a man and a woman would be brought into question.
The issue of homosexual marriage provides an 'illustration of the
possible impact of the ERA in this area.
At the present time, laws against homosexual marriage have
been consistently upheld in the courts. According to Prof. Charles
Rice:
"All the cases which have considered the question have held that
there may be no valid marriage contract between persons of the
same sex."
The courts have found that denial of a marriage license to homo-
sexuals does not abridge existing equal protection laws.
Under existing law, the dispute over denying a marriage license
to homosexuals revolves around three factors: Are homosexuals a
suspect classification; is obtaining a marriage license considered
important to homosexuals as a class; does the Government have a
compelling interest in denying a license to same-sex couples?
It seems to me that by almost any measure, homosexuals merit
serious consideration as a suspect class under the 14th amendment.
As a group, homosexuals have experienced a history of discrimina-
tion, are held suspect due to a condition that is beyond their con-
trol, and have historically been the subject of derogatory myth.
The Supreme Court has never explicated its grounds for declar-
ing certain classifications inherently suspect.
However, it seems to me that under the ERA homosexuals could
be ccnsidered a suspect class. Should this be the case, I think it
would be argued that the ERA would prohibit sex discrimination to
the same degree that the 14th amendment currently prohibits race
discrimination.
With regard to the importance of obtaining a marriage license to
homosexuals as a class, while the "courts have never held that
marriage, standing alone, is a sufficiently fundamental right to
elicit use of any strict scrutiny standard,' evidence suggests that
we may see a revision of jurisprudence in this area.
Ii you look at "Black's Law Dictionary," marriage is defined as:
The ci il status, condition, or relation of one man and one woman united in law
for life ' and traditionally courts have iefined marriage almost exclusively as a
"union of man and woman, uniquely involving procreation and rearing of children
within a Wilily."
But more recently marriage has been viewed by the courts as a
legal right, "one of the 'basic civil rights of man' fundamental to
our very existence and survival."
In Loving v. Virginia, the Court recognized marriage to be:
"' one of the vital personal rights essential to the orderly pur-
suit of happiness."
In Griswold v. Connecticut, the Court related marriage to the in-
dividual "right to association" protected through the 14th amend-
ment.
As Perkins and Silverstein point out in the Yale Law Journal:
It is unlikely, in light of these decisions and of the evolving attitudes toward mar-
riage in our society, that constitutional protections surrounding the institution of
marriage would he made dependent on the ability or willingness to hear children.
a64
960
The argument can be made and has been accepted by the courts
that marriage is an important legal right. The importance of mar-
riage to homosexuals as a class has not been addressed by the
Court. However, sanctioning of the marriage relationship carries
various legal, social, and psychic benefits that would seem as im-
portant to homosexuals as to heterosexuals.
Moreover:
Marriage ought reasonably be viewed as enhancing the stability, respectability,
and emotional depth of any relationship between two individuals, regardless wheth-
er the relationship is homosexual or heterosexual.
Studies have demonstrated that "the belief that two persons
having the same primary sexual characteristics cannot benefit
from many of the emotional, social, and legal consequences of mar-
riage" is untrue.
Traditionally the Government has supported its interest in uni-
formly denying marriage licenses to same-sex couples by arguing,
among other things, that legalizing homosexual marriage would
run counter to existing laws against homosexual acts. It would
place the States therefore in a rather awkward position.
But I think it is fair to consider that some of these statutes may
be unconstitutional anyway.
Since Griswold v. Connecticut, the courts have generally held
that the constitutional right to privacy "prevents the application of
sodomy statutes to the private, consensual acts of married cou-
ples."
Indeed, a Federal district court in Texas held in 1982, that: "Ho-
mosexual conduct in private between consenting adults is protected
by a fundamental right to privacy."
Moreover, not only are such statutes at least questionable consti-
tutionally, they are rarely enforced, bringing into question the seri-
ousness with which the Government pursues its interests.
While the balancing of competing interests under the equal pro-
tection laws has so far upheld State laws limiting homosexual con-
duct such as marriage, the equal rights amendment would seem to
present a different and stronger challenge.
A statute of administrative policy would permit a man to marry a woman, subject
to certain regulatory provisions, but categorically denies him the right to marry an-
.,t her man clearly entails a classification along sexual lines.
Under an absolutist interpretation of the ERA, such a statute I
think would be unconstitutional. The applicable analogy is Loving
v. Virginia, in which the Court ruled that Virginia's antimiscegna-
tion statutes violated the 14th amendment. Here the Court stated
that marriage is a legal right that cannot be denied to any individ-
ual on account of his race. According to the Court:
"Under our Constitution, the freedom to marry a person of an-
other race resides with the individual and cannot be infringed by
the State."
Under the equal rights amendment, one could substitute the
words "same sex" for the words "another race" in the Court's opin-
ions.
The legislative history of the ERA also supports the contention
that differentiation on account of sex is totally precluded.
965
961
966
14;2
967
963
Constitution.
marriage.
968
964
to Professor Emerson
odds somewhat with the views held by some that the Amendment
ERA, not the least of which is the fact that it means that
969
965
9 70
966
971
967
its interests.
972
968
9 73
969
of children." 23
the court know what was in the mind of the voters of Washington
4 1 OW 0 66 62
.9 7 4
970
with them.
ment not only calls into question the necessity of the ERA
975
971
Notes
2.
4.
From "legalizing Homosexual Conduct" to be published by The Center for
Judicial Studies, Washington, D.C.
5.
6.
Ibid., page 578.
7.
Black, Law Dictionary, (4 ed.), page 1123.
P.
9.
See Loving v Virginia 388 U.S. 1, 12 (1967). See also Skinner v Oklahoma
316 U.S. 535, 541 (1942) and Maynard v Hill, 125 U.S. 190 (1888).
10.
Loving v VirLinfa 388 U.S. I, 12 (1967).
12.
ma., page 582.
13.
See E. Griffith, Marriage and the Unconscious (1957), page 12, cited
in Perkins and Silverstein, op...cit., page 580.
976
972
14.
Ibid., page 588.
15.
Prom Rice, op...cit.
16.
Ibid.
18,
Virginia 388 U.S. 1, 12 (1967).
See Loving v
Amendment" 6 Harvard
20. "In Support of the Equal Rights
See Emerson, Liberties Law Review 225,231 (1971).
Civil Rights-Civil
23.
Ibid.
24.
See Rice, op...cit.
25.
Ibid.
977
973
Senator 'lATCH. Thank you so much. I think both of your state-
ments hay e been very, very good.
I do have some questions that I would like to ask you.
Could each of you share with rae your perspectives not on the
logical understanding of the text of the ERA, but on what you be-
lieve to be the intent of the framers of the amendment?
Do either of you believe that significant consideration has ever
been given by such individuals to the issue of homosexual rights?
In other words, has this issue been raised inadvertently by the
words of the ERA or has it been a conscious part of the intent of
the framers of the equal rights amendment?
Let us start with you, Dr. Marcin.
Mr. MARCIN. What I've suggested in my remarks is that neither
a literal nor an intent interpretation is going to be productive, but
if one were to use either of those methods, one would not be amiss
in concluding that the ERA. raises a problem in that area and
therefore it is incumbent upon the framers of the ERA to resolve
that question. I do not think they have resolved it.
Senator HATCH. Professor Hickok?
Mr. HICKOK. My impression, and I am afraid it is merely an im-
pression, is that the framers and the supporters of it initially prob-
ably did not consider this issue. And I think the best argument we
have to support that impression is the fact that the wording of the
amendment opens up all kinds of questions such as homosexual
rights.
Senator HATCH. They did not anticipate many of the issues
which could arise from the equal rights amendment?
Mr. HICKOK. Exactly. I think if they had thought of these issues
coming up, perhaps the wording would be different.
Senator HATCH. I see.
The Yale Law Journal article on ERA and homosexual rights
seems to adopt the fairly straightforward syllogism as follows:
First, individual A, a male, can legally marry individual B, a
female.
Second, individual A, a male, cannot legally marry individual C,
also a male.
Third, hence, individual C, a male, is being discriminated against
solely on the basis of his sex in violation of the clear language of
the equal rights amendment.
Do you believe that is a fair statement of their proposition; and
how would you respond to this on legal grounds?
Let us start again with you, Professor.
Mr. MARCIN. I think it is a fair statement.
Senator HATCH. Is it a fair statement of what they meant in
their article?
Mr. MARCIN. I believe it is a fair statement of what they meant
in their article, but it is not the only possible viewpoint. Senator
Bayh once indicated that since a statute prohibiting same-sex mar-
riages would apply equally to both sexes, there cannot be any dis-
crimination. The tenor of my remarks, however, has been that the
focus of the Supreme Court is now on the individual, not on the
group. It is only individuals who have rights. And so I think that
the statement made by the authors of the Yale Law Journal article
978
974
97a
9Th
980
976
the event of separation, even though they might not recognize the
marriage itself as a full legal marriage.
Senator HATCH. Do you agree?
Mr. HicKoK. I do, not only because of action such as in San Fran-
cisco but if you look at the decisions by the courts since Griswold
on the whole idea of homosexual activity and conduct and limita-
tions and constraints, you see a general liberalization in this area.
So I would anticipate that along the same lines you will see more
of this activity, certainly under the 27th amendment.
Senator HATCH. Given the virtually unanimous opinion of ERA
advocates that ERA would equate the judicial treatment of race
and sex classifications. would it be wrong to assume that the Su-
preme Court's decision in Loving v. Virginia declaring laws as you
stated against interracial marriage to be unconstitutional, would be
controlling in understanding the meaning of the equal rights
amendment?
Mr. HICKOK. I think the argument that they bring in opposition
to the argument that I made in Loving v. Virginic is that you are
talking about an individual who is a member of a group being
treated differently than other individuals and that is why Loving v.
Virginia is different from say an ERA case of a similar typea ho-
mosexual case of a similar type is that all men are denied the right
and all women are denied the right to marry someone of the same
sex, so they are not being singled out.
But the argument I think fails in that the Constitution does not
grant group rights. I think it is one of the common problems that
we have had with this whole area of jurisprudence in recent years,
the notion of group rights as opposed to individual rights.
For that reason, I think Loving v. Virginia does hold a lot of
weight.
Senator HATCH. But for the fact that the individual is a man or a
woman, they would be entitled to be married. That tends to back
up what both of you are saying.
Professor, if you have any comment on that?
Mr. MARCIN. In the Loving precedent it is not all that easy to
change the names and change the category and come up with the
automatic precedent. The law involved in Loving v. Virginia
merely prohibited interracial marriages in which a white person
was one of the parties. So there was a definite stigma attached to
the mixing of white blood, that is a definite disparagement of the
other races.
Professor Hickok has mentioned the issue of group constitutional
rights. It is true, constitutional rights inure only in the individual.
But someone who would argue that Loving is inopposite would take
the position that in a sense there are group constitutional rights
and group constitutional restrictions. In some context, one must
admit, there seem to be We tolerate benign racial preference
schemes; when they are seen as necessary to remedy past discrimi-
nation. In a sense that is a recognition of a group, of races' rights
under the Constitution.
Senator HATCH. Let us assume that a maiority of the Members of
Congress do not want to allow legal sanction of homosexual mar-
riages.
9S
977
982
9Th
I would like to hear your comments. Let us start with you, Pro-
fessor Marcin.
Mr. MARCIN. It might be relevant but its relevance might be lim-
ited by the fact that EEOC determinations are entitled to great
weight before the Supreme Court because EEOC is the Government
agency charged with the implementation of certain portions of the
14th amendment. EEOC is not yet charged with the implementa-
tion of :.;le ERA, of course, and its positions might be considered
speculative. But to the extent that they might be relevant, I think
the case that you mentioned goes to the issue of discrimination on
account of sexual preference. One has preferred a different sexual
identity and then has taken steps to achieve that sexual identity
and one cannot be discriminated against on account of it.
If EEOC and the U.S. district courts are coming down against
that form of sexual-preference discrimination on the basis of the
protection given sex under the 14th amendment, which is not as
great as the protection given sex classifications under the ERA,
then I think it is an a fortiori argument that the courts are going
to be extending the ERA to the coverage of sexual preference.
Senator HATCH. Professor.
Mr. HICKOK. I would tend to agree. I think the most interesting
thing about that issue is the reliance upon a strict interpretation.
And I think that at least gives me the impression that we can
expect to see the ERA as far as implementation and administrative
decisions along the same lines, which points out that although
some might argue that you want to have relatively brief and open-
ended kinds of amendments, you also want to have amendments
that are pretty carefully crafted. And I think that is one of the
problems with this one.
Senator HATCH. Thank you.
In the 1980 New York case, People v. Onofre, the high court in
that case in the State of New York ruled that consensual sodomy
may not be deemed criminal.
Would either of you believe that a similar decision might be
mandated by either Fed( ral or State courts under the equal rights
amendment?
Let us start with you, Professor.
Mr. HICKOK. Yes, I do. I think so.
Senator HATCH. Professor Marcin.
Mr. MARCIN. Of course the Supreme Court has avoided that ques-
tion---
Senator HATCH. But they would not be able to avoid it under
ERA, would they?
Mr. MARCIN. They could not avoid it under ERA.
Senator HATCH. They could not avoid it under ERA?
Mr. MARCIN. The question would become, can the State prohibit
sexual relations between unmarried homosexuals to the same
extent that it can prohibit sexual relations between unmarried he-
terosexuals? Laws prohibiting fornication have not yet been au-
thoritatively stricken as unconstitutional.
Senator HATCH. So this might have a tendency to outlaw sodomy
and fornication laws generally?
Mr. MARCIN. Sodomy laws, insofar as they apply to homosexual
activity, would have to be treated the same way as fornication laws
9s3
979
984
980
ways of thinking about women and about the roles of women in so-
ciety. A State can no longer take the Victorian viewpoint as to the
roles of husband and wife. A State is now, under Supreme Court
interpretation of the equal protection clause, prohibited from
adopting that viewpoint of a marriage relationship and certainly,
with the ERA, it will move forward from there. There may not be
much of a radical change in society, but only because the Court has
gone quite a bit in that direction already under the equal protec-
tion clause.
Senator HATCH. Professor Hickok, what is the law today and
what has traditionally been the state of the law in this country
with respect to the recognition of homosexual marriages?
Mr. HICKOK. As far as I know, consistently the courts have not
recognized it.
Senator HATCH. Consistently the courts have not recognized ho-
mosexual marriages?
Mr. HICKOK. Have not recognized homosexual marriage and have
relied primarily upon the notion that marriage is by definition a
relationship between a man and a woman. However, it seems to me
that the whole point of the ERAnot the whole pointthe effect
of the ERA is to have us rethink those kinds of definitions to the
same extent that the effect of the 14th amendment on race forced
people to rethink the definition of things such as the right to vote,
what a voter is.
Senator HATCH. Could you please elaborate for the committee on
your suggestion that homosexuals, per se, might represent a pro-
tected group or suspect class under the ERA?
Mr. HIcxorr. Well, I think I was trying to draw the argument out
that under the 14th amendment equal protection laws, for exam-
ple, the reasoning behind the courts not granting homosexuals or
same-sex couples the right to marry has been based upon this bal-
ancing of competing interests and that they have not recognized so
far homosexuals to be a suspect class the same way that they have
recognized other minorities
I think the ERA at least brings into question whether they would
not be a suspect class to the extent that it makes sex a suspect
classification.
So I do not think it is necessary to argue that they would auto-
matically be a suspect class but I think it opens up that consider-
ation.
Senator HATCH. Would you say that the greater concern with the
equal rights amendment is that the enhancement of homosexual
rights logically and naturally flows from its text or rather that it is
sufficiently unclear and unfocused so that Federal judges are likely
to read into its terms anything that they care to? What precisely
would be your own perspective?
Mr. HICKOK. Well, my perspective is that the ERA, the text of
the ERA itself I think leads logically to the conclusions that I have
reached. But I also think that those that argue it does not because
of a commonsense approach to it sort of have to face the fact that
the way the courts are acting at this time, and the ability of a
judge to exercise his discretion in putting together these excep-
tions, it seems to me that you still end up with the same kind of
conclusions.
955
9131
Mr. MARCIN. You asked whether the lower Federal judges might
read anything that they want to into the general wording of the
ERA. To some extent that is certainly true and it becomes then the
responsibility of the U.S. Supreme Court to define the meaning of
the ERA. But that just focuses on an issue that we should be focus-
ing on here today. In the first instance it should be Congress and
the framers of the ERA that clarify its meaning.
Senator HATCH. Are you saying that this really ought to be a leg-
islative function?
Mr. MARCIN. In the first instance, yes.
Senator HATCH. It is one of the contentions that if we ratify the
ERA that Congress would be abdicating a tremendous amount of
constitutional responsibility to unelected judges.
I do not believe that it is in the best interests of this Nation to
take all of this decisionmaking authority from officials who are ac-
countable and responsive and turn over that power to unelected
judges who are not, and ought not be, responsive and accountable.
Mr. HICKOK. I would only add that I think one of the great prob-
lems with this whole issue is that too many people believe that it is
up to the courts to make these kinds of definitions. I think Con-
gress has a real constitutional responsibility, that the Supreme
Court is not the sole arbiter of what the Constitution says, that the
Congress, the President have an opportunity and an obligation to
have some understanding of what the Constitution mandates or
what an amemdment means, and so forth. That is the purpose for
hearings like this, I would think.
Senator HATCH. Congress has an increasingly great tendency to
abdicate its responsibilities in some areas. For example, in the area
of economics we can say it has to be the Federal Reserve Board's
fault that we have such high interest rates. And in so much of the
legislation that we write we abdicate the responsibility to the bu-
reaucracy and allow them to make all th3 important determina-
tions.
One point that Professor Emerson has made is that the issue
under the ERA cannot be reasonable or unreasonable classifica-
tion. The constitutional mandate must be absoluteequality of
rights means that sex is not a factor at all. Do we take proponents
at their word or don't we?
Do you believe that the ERA opens up the issue of homosexual
rights in a variety of other contexts? If so, what might some of
these be?
Mr. MARCIN. Well, certainly, were I a lawyer for someone con-
cerned with homosexual rights, I would rejoice at the approval of
the ERA and would look to it as a provision that guarantees-
Senator HATCH. If you were an advocate for homosexual rights?
-
Mr. MARCIN. Yes. In the context of other rights of homosexual
citizens, the enactment of the ERA would have direct meaning in
what everybody admits is involved in the ERA, the equal pay for
equal work idea, and the employment discrimination area in gener-
al.
Beyond that, one must look I think to those categories-
Senator HATCH. Excuse me. Could you hold for just a second?
-
I Pause.]
986
982
Senator Ilivrcti. Go ahead, Professor. I am sorry to interrupt you
like that,
Mr. MARCIN. Beyond the employment context, which is certainly
involved, I think one has to look at those categories to which the
equal protection clause has been applied. One looks to State col-
leges and universities and the rights of the individuals in those in-
stitutions, one looks at public schools and the rights of individuals
in those schools.
Senator HATCH. You mean to teach?
Mr. MARCIN. To teach, to not be discriminated against as a stu-
dent in any way.
Senator HATCH. To counsel students?
Mr. MARCIN. To counsel students.
Senator HATCH. To render medical care and treatment to stu-
dents?
Mr. MARCIN. I would certainly feel comfortable as an advocnte
arguing that the ERA guarantees the right of homosexual in.'1 .1-
uals to equal consideration for a job as a counselor in a public high
school or a college.
Senator HATCH. So what you seem to be saying is that shoeld the
equal rights amendment pass, homosexual would be invested with
new constitutional rights qua homosexuals?
Mr. MARCIN. Yes.
Senator HATCH. As a class, they should be strong supporters of
the equal rights amendment?
Mr. MARCIN. I would say ,o.
Senator HATCH. Because it will accord them rights that presently
are nonexistent? Is that correct?
Mr. MARCIN. Yes.
Senator HATCH. Do you agree with that, Professor Hickok?
Mr. HICKOK. Yes, I do.
There is a legal trend in this area to at least overturn or bring
into question a lot of these statutes or constraints on homosexual
behavior already, so the ERA should it become a part of the Consti-
tution, at least I think will accelerate that trend as more and more
individuals seek decisions from the courts, if not completely over-
turn existing laws anyway.
So yes.
Senator HATCH. From a standpoint of homosexual rights, the
ERA would definitely accord them an array of new constitutional
rights as homosexuals?
Is that a fair statement?
Mr. HICKOK. Yes.
Mr. MArICIN. Yes; one who is concerned with the tone of society
might not want to see the ERA broadly interpreted and yet that
same person might care about certain rights for homosexual citi-
zens.
Senator HATCH. There may be people who would like to see
greater rights and freedoms given to homosexuals but still may not
want these to be mandated by the Federal courts.
On the other hand, if gaining greater rights and privileges is
their main concern then they may be for the ERA without ques-
tion, because it would apparently provide strong legal ammunition
for these rights and privileges?
9S7
9S3
988
984
9S
985
MISCELLANEOUS MATERIAL
1. Baker v. Nelson. 291 Minn. 310, 191 N.W.2d 165 (Minn. Sup. Ct., 1971,. a
di:mimed, 41 U.S.L.W. 3167 (US. Oct. 10, 1972). Petitioners had applied for a
license under Mt't. STAT. ANN. )j 517.01 (1969). which does not specify the seat of
applicants:
Marriage, so far as its validity in law is concerned, is a civil contract, to which
the consent of the parties. capable ig law of contracting. is ease:vial. Lawful mar
riage hereafter may be contracted only when a license has been ,obtained therefor
as provided by law and when such marriage is contracted in the presence of two
witnesses and solemnized by one authorized, or whom the patties in good faith
believe to be authorised, so to do.
The clerk of the court declined to issue the license on the sole ground 'hat petitioners
were of the same sex.
Raker v. Nelson, 41 U.S.LW. 3167 (U.S. Oct. 10. 1972).
2.
In addition to their Fourteenth Amendment argument. petitioners in Raker v.
3.
Nelson also based their claim on a variety of other constitutional provisions, including
the FiTfl. Eighth, and Ninth Amendments. Although the arguments under them pro-
visions raise some interesting legal issues, they probably cannot be sustained under
existing court precedent.
The First Amendment right to tree speech and tree assembly, as construed by the
Supreme Court. includes a number of other rights, among them the right to engage In
free and private associations. Williams v. Rhodes. 393 U.S. 23 (1968); Elfbrandt v, R -wen,
3M U.S. 11 (1966); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 599
(1963): NAACP v. Alabama, 357 U.S. 449 (1958).
Justice Douglas, writing for the Court in Griswold v. Connecticut, 381 U.S. 479 (19113),
referred to the right of association as one of the "penumbras fanned by emanations
from those guarantees [specified in the Dill of Rights] that help give them life and
substance." Id. at 484. Douglas' discussion of marriage is particularly significant:
Marriage is a coming together for better or for worse, hopefully enduring and In-
timate to the degree of being sacred. It is an association that promotes a way at
life, not ratites; a harmony in living, not political faiths; a bilateral loyalty, not
commercial or social projects. Yet it is an association for as noble a purpose as
any involved in our prior decisions.
M. at 466.
However, the Supreme Court has never specifically declare! the marriage unit to be
an association within the terms of the First Amendment. Most right of association cams
to date have dealt with associations 3rpnized for political purposes, and moreover, with
existing anociations rather than the formation of new ones.
Petitioners' Eighth Amendment claim was premised on the assertion that the dada*
of their right to marriage constituted punishment for a status or condition which
they were powerless to ch:mge. They based their argument chiefly on the Supreme
Court', decision in Robinson v. California, $70 U.S. 660 (196 in which the Coup
struck down a state law under which a narcotics addict was senenced to ninety days`
imprisonment on the ground that to condemn a person for "an illness, which may be
contracted innocently or insoluntarily" constituted cruel and unusual punishment. Id.
at 667. But Robinson concerned punishment for a "crime "; even Justice longs' liberal
interpretation of Robinson. set forth in his dissent in Powell v. Texas, 392 U.S. 514,
!,37 (1968), does not extend the holding beyond the context of criminal sanctions.
Petitioners' Ninth sine ninient claim was apparently based upon justice Goldberg's
573
41 Onh
990
986
concurring opinion in Griswold v. Connecticut, 381 US. 479. 488.97 (1963). justice
Goldberg there contended that the Ninth Amendment was inserted into the Bill of
Rights to protect from federal infringement certain fundamental rights not otherwise
mentioned (e.g.. in Griswold, the right to marital privacy). He argued that at least
some of these fundamental rights. like some of the rights protected by the fins eight
amendments. were made applicable to the states by the Due Process Clause of the
Fourteenth Amendment.
With this interpretation in mind, it might be argued that the Ninth Amendment
shields the right to marry from governmental interference. Tangential support for
this contention ould be derived from Loving v. Virginia, 388 US. I 11987). in which
the Court held that the right to marry was fundamental and that denial of that right
on racial grounds violated the Due Process Clause. Id. at 12. However, it is doubtful
that the Ninth Amendment significantly contributes to the resolution of this consti
tutional problem. If the right to marry persons of the same sex is Ititulamental and
is not courterbalanced by important state interests, then an argument based on the
Fourteenth Amendment, infra pp. 574.83. should carry Baker and McConnell's cue.
If not, the Ninth Amendment case can hardly stand on its own.
4. See, e g.. Kant, invidious Discrimination: Justice DvnIglas and the Return of the
"Natural LawDue Process Formula." 16 U.C.L.A.L. Rev, 716, 739.46 (1969); Michelman.
Foreword: Ott Protecting the Poor Through the Fourteenth Amendment, IS HARI,, L.
Rtv 7 (1%91; Note, Developments in the LawEqual Protection, 82 HAIM L. Rev. 1063
(1969), Note, The Supreme Court, 1969 Term, 84 HA /v. L. Rtv. I, 60.71 (1970).
3. Evers classification. other than racial, which has been found to be suspect by
the Court has been considered in the contest of an Important constitutional right.
In the cases in which wealth /poverty distinctions were overturned, the rights infringed
Included toting (Harper v. Virginia Board of Elections. 383 U.S. 663 (1966)), the right
to adequate appellate review (Griffin v. Illinois. 331 U.S. 12 11956)). and the right to
representation during such te.it. (Doililst v. Calt(^t.ttif, 1'71 1,S 133 (1963)), Carrington
v. Rash. 380 U.S. 89 (1%3) in which the imperm isible classification was busses% mill
Lary and cullian members of a community, dea., with the right to sow; Shapiro v.
Thompson, 394 US. 618 (1969), outlawing discrininiation on the basis of residency for
welfare recipients, centered on the right to travel. thin, while the inherently unfair
nature of a classification against a group is important and may be sufficient inde
57,1
991
987
There are thus three basic factors to be balanced: the degree to which
legislative classilirations disfavoring homosexuals should be "suspect,"
because of legislative motivation; the importance of obtaining mar-
riage licenses to homosexuals as a class; and the interests of the govern-
ment in denying such licenses to all same-sex couples.
A. Suspect Classification
The Supreme Court has never explicated its grounds for declaring
certain classifications to be inherently suspect. However, examination
of the classifications thus far held to be suspect does reveal certain com-
mon denominators which may have motivated the Court in so desig-
nating them.
Judge J. Skelly Wright expressly articulated one relevant criterion
when he observed that classifications disfavoring "a politically voice-
575
992
988
less and ins isible minority" should be subjected to "closer judicial sur-
%eillance and review."' Homosexuals as a group would appear to have
no more political influence than the black and poor minorities with
which Judge Wright was dealing.**
Classifications have also been found suspect when they are based on
attributes which are inherent in the individual and wholly, or largely,
beyond his control." Whatever the causes of homosexuality, the orien-
tation itself does not appear to be one that is freely chosen, nor in most
instances can it be changed." Groups which are the subjects of deroga-
tory myths of stereotypes are among those which have been accorded
the protection of the strict scrutiny standard, perhaps in part to insure
that such stereotypes do not become the bases for legislative classifica-
o Hobson v. Hansen, 269 F. Supp. 401, 508 (D.D.C. 1967), remanded on other grounds
,cab nom. Smuck Hobson. 402 F2d 175 (D.C. Cir. 1969). Judge Wright's comments,
made in the context of de facto school segregation. read in full:
Judicial deference to these (legislative and administrative] judgments is predicated
in the confidente courts have that they are just resolutions of conflicting interests.
Phis confidence is often misplaced when the vital interests of the poor and racial
minorities are insolved. For these [lumps are not always assured of a full and fair
heating through the ordinary political Forams, not so much because of the chance
of outright bias, but because of the abiding danger that the power structurea
irrni which need carry no disparaging or abusive overtonesmay incline to pay
little heed to even the deserving interests of a politically voiceless and insisible
minority. Those considerations impel a closer judicial surveillance and resiew of
administrative judgments adversely affecting racial minorities, and the poor, than
would otherwise be necessary.
Id. at 507.06.
While Judge Wright mentioned specifically only two groupsthe poor and racial
minoritiesshut out by the power structure, he did not preclude the existence of
others similarly disadvantaged. Professor Karst has explicated the decision in ls'illianuon
v. Lee Optical Co., 348 U.S. 483 (1935), in which a statute requiring opticians to re.
rune written presctiptions from ophthalmologists or optometrists before duplicating or
,.placing lenses was upheld, in terns that buttress this notion:
In Williamson, the losen in the legislature were not permanently disadvantaged
minorities. The opticians might well have anticipated new legislative alliances
that would soften the Impact of this Ikgialationt by amendment.
karst, invidiatu Discrimination: Justice Douglas and the Return of the "Natural Law
Due Process Formula,' 16 U.C.L.A.L. key. 716, 724 (1969).
10. No publicly declared homosexual has been elected to any significant position
of power in the United States. In fact, hostility is manifest even to the expression of
stews espousing civil liberties for homosexuals. See, e.g., the comments of Judge
Stesenson in McConnell v. Anderson, 451 F.2d 193, 198 (8th Cir. 1971), cert. denied.
105 U.S. 1046 (1972).
II. See, e.g., Koremanu v. United States, 323 US. 214, 216 (1944) (classification dis-
favoring Japanese). See also Levy v. Louisiana, 391 U.S. 68 (1968) (classification dis-
fasoreng illegitimate children); Takahashi v. Fish k Came Comm'n, 334 U.S. 410 (1948)
(classification disfavoring persons "ineligible to dthersship").
While it is true that some classifications found to be suspect, such as poverty or military
maws, ate not wholly immutable or beyond the plaintiffs' control, they still represent
statuses which ate not always freely chosen or easily discarded.
12. See I. BallEll ANY AIWdAru, Howoactuaurr: A PSYCHOANALVTIC STUDY 301, 310.19
(19b2). For a recent discussion of the sociological and psychiatric debate centered on
the cuncept of homosexuality as a disease which can be cured, see A. KA111/11, SuivAurt
5.11 HOMOSEXUALITY 572.606 (1971).
576
993
989
13. It is arguable that special fears born of racial prejudice encouraged the jxrcep-
lion of JapaneseAmericans as a potential threat dining the Second World War, leading
to the internment camps and Aorensatos, while Caucasians of German or Italian descent
were left relatively undisturbed. See Rostow, The Japanese-American Cases--A Disaster,
54 YALE L.J. 489. 496 (1945). Stereotypes also played a role in the controsenv over the
poll tax. which was ruled .unconstitutional in Harper v. Virginia State Board of Elec-
tions. 383 US. 663 (1966). over the dissent of Justice Black:
The Court gists no reason at all to discredit the longstanding beliefs that making
the payment of a tax prerequisite to swing is an effective was of collecting revenue
and that people who pay their taxes are likely to have a far greater interest in
their government .
Id. at 677. The Court majority, in (aiding suspect the wealthpoerty classification
in Harper, may well have been expressing its belief that the poor had suffered too
long frunt the "long-standing be 4s" mentioned by Justice Black.
14. See generally Taylor. Historical and Mythological Aspects of Homosexuality, in
St %UAL IN mtgos 11064 U Marmor ed. 1965). Common misconce.tions abound: one is
that homosexuals are disputed to pedophilia. see SCNOFIELD, SOCIoLOGICAL ASPECTS
Homosexustirs. 149 (1965); D. Wm, Hostostxuatrre 114.20 (1967). and sources
therein cited; another is that they predominate in certain social classes or professions.
see ilrruor or int Grimm's-Kt ON HOMOSEXUAL °WEENIES AND PaOrtill/TION 17 (1957)
(Iteremalicr cited as WOI IRIAN REPORT), a third is that most male 1101110SEIVAMS are
illeminate. see M. HOIF m 1%, Tilt GAY %Vous 18046 (1968), and that most female
homosexuals are over-masculine, see Martin It Lyon. The Realities of Lesbianism, in
Tut Nrw WOMEN (J. Cooke. C. BunchWeeks & R. Morgan eds. 1970). 7940.
IS. See, et, Strauder v. West Virginia, 100 US. 303 (1879) (state denial to Negro
diner's of right to serve on juries held to violate the Fourteenth Amendment):
This is one of a series oconstitutional provisions having a common purpose;
namely, securing to a lace recently emancipated, a race that through many gen-
erations had been held in slavery, all the civil rights that the superior race enjoy.
Id. at 306.
16. One of the moat serious areas of discrimination has been in the area of federal
employment. See generally Note, Dismissal of Homosexuals from Government Employ-
meta: The Developing Hole of Due Process Os Administrative Adjudications, 58 Giro.
1.). 632 (1970); Note, GovernnientCreated Employment Disabilities of the Homosexual,
82 HARP. L. Rev. 1738 (1969); Note, Is Gouenimental.Policy Affecting the Employment
of Homosexuals Rational?, 48 N.C.L. Rev. 912 (1970).
The Civil Service Commission, while tolerating other instance of "sexual misconduct"
such as adultery. once applied strict standards to homosexual behavior because of what
it perceived to be widespread public repugnance to homosexuality. See Note, Govern.
most ,Created Employment Disabilities of the Homosexual, supra, at 174143. Such
overt discrimination ha. since been modified as a result of Norton v. Macy, 417 Fad
1161 (D.C. Cir. 1969). in which the District of Columbia Court of Appeals held that
there must be a specific connection between an employee's conduct and the efhdency
of the civil sersice before such an employee could be dismissed.
17. Lady aversion to homosexuality is seen in the Torah. See Leviticus 111:22. 20:13.
'the Talmudic law codes, relying on Biblical references, further elaborated the laws of
sodomy. See. e.g., klusur:sn, SANHEDIIIN VII, 4.
1 hese codes were transmitted to the Christian church by its early leaders, particularly
SI. l'aul. A. Kissrv, W. l'ouraor, C. Marna & GERHARD, SEXUAL BEHAVIOR IN ME
HI: M AN FEMALE 482 (1953). Set generally 1). BAILEY, Homosaxt:aust AND Tin Wtrrtset
1 *Arnow. (1955). By the late Middle Ages, homosexuality was identified with heresy
and often punishable by death, Modern views have modified but not erased this hostile
attitude, See A. KAMAN, supra note 12, at 1-39. 4462, 66-81. 85.99; T. Simi, THE MANL.
I AC1 Val. or MADNLIA ch. 10 (1970); Taylor. supra noi 14, passim.
994
990
995
991
Wig
996
992
997
993
37. See Woutatien Reenter. supra note 14. at 25.30. For a more recent examination
of this continuing controversy and a discussion of the literature. see A. Kamm, supra
note 12. at 572.01. Even the most optimistic psychotherapists rarely pat the "sure"
rate at above one-third of the willing patienu. A. KAMM, supra WEE 12. at 572.
38. Blain AND ANOCIATES, supra note 12. at 310-11
39. H. Huse, THE Love THAT DAUS NOT &MAI In Nara 2Ni (1970). THE WOLVEN1101
Romer, supra not 14. at 24. noted that in Sweden where reforms of laws dealing with
homosexual acts had been instituted some time before, there had been no notimble
increase in homosexual activity over a ten-year period. In fact. it has been suggested
that, to the extent that legalization may lessen some of the problems of homosexual
lik and make for more stable, long-term relationships, the amount of homosexual
proselytizing of minors may well decrease in the wake of such reforms. See E. Sawa,
Camas Wrrnoor Victims Ill (1965). For the same reason, a similar decrease might
follow the legalization of homosexual marriage.
40. A similar argument was accepted in New Jersey Welfare Rights Orpnintion
v. Cahill. 41 U.S.L.W. 1039 (U.S. Oct. 4, 1972). in which the Court justified the r
arktion of "Aid to Families of the Working Poor" to ceremonially married coup!
on the ground inter alio that the state has a proper and compeWng interest in refusia.g
to subsidise a living unit that encourages the violation of laws against fornication and
adultery.
41. Such an argument might be based on the right to privacy as developed in such
awes as Eisenstadt v. laird, 405 U.S. 438 (1972) Stanley V. CAor , 994 U.S. 557 (1989):
and Griswold v. Connecticut. 381 U.S. 479 (1985). See Note, omosexuality and the
Law, 17 N.Y.L.F. 273. 29596 (1971).
42. It is estimated that there are twenty convictions for every six million homo-
sexu cal Fisher. The Sex Offender: Provisions for the Proposed New Maryland
Criminal Code: Should Private, Consenting Adult Homosexual Behavior Be Excluded?,
K511
998
994
III Alm L Rts. 91. 93 (1970). See generally Project: The Consenting Adult Homosexual
,ld the Lau. An Empirical Study cs I. Enforcement and Administration in Los Angeles
IS C.LA.L. key. 643, 649, 75442 (1966).
99
995
the Court would not be justified in falling back upon the simple "ra-
tionality" test which it developed primarily for the protection of eco-.
nomic interests." Rather, in accordance with Justice Marshall's articu-
lation, the Court should balance the conflicting interests of the state
and homosexuals, taking into consideration the danger that legislative
classifications disfavoring homosexuals may in fact be based upon
prejudice and misinformation about the nature of that condition.
43. For Ma applying the rationality test, see Royster Guano Co. v. Virginia, 253
US. 412 (1920); Linds ley v. National Carbonic Gas Co., 220 US. 61 (1911).
46. The Equal Rights Amendment was passed by Congress on March 23, 1972. 118
Co Nu. Rec. H. 2;23 (daily ed. March 23, 1972). Less than two hours after the Senate
acted, Hawaii became the first state to ratify the amendment. Congreulonal Quarterly
692 March 25, 1972. It will become effective two years after its ratification by a
minimum of thirty.eight states.
47. H.R.J. Iles. 208, S.R.J. 8 92d Cong., lst Sess. (1971).
The first atte.npt at an equal rights amendment was the 1923 version: "Men and
women shall have equal rights throughout dm United States and in every place subject
to its jurisdiction. Congress shall have power to enforce this article by appropriate
legislation." H.R.J. Res. 7o. 68th Cont.. lu Sets. (1923).
48. See, e.g., 118 CONC. Rec. 45411 (daily ed. tlarch 22. 1972) (remarks of Senator
Stevenson. cospuitsur of the amendment);
'there is but one principle involved . . . sex, by and of itself cannot be used as a
classificatiun to deity or abridge any person of his or her equal rights under the law.
49. See 118 Cost:. Rte. 1 4372 (daily ed. March 21. 1972) (remarics of Senator Ervin):
sow, Mr President, the tdea that this law would legalize sexual activities between
persons of the same sex Of the marriage of persons of the same sex did not originate
u011 Me. I do not know what effect the amendment will hase on laws which make
homosexuality a crime or on laws which restrict the right of a man to marry
another nun or the right of a woman to marry a woman or which restricts the
583
1000
996
right of a woman to marry a man. But there are some very knowledgeable persons
in the field of constitutional law . . . wino take the position that if the equal
rights amendment becomes a law. it will invalidate laws prohibiting homosexuality
and laws which permit marriages between men and women.
See aim 118 Corm. Res.. gg 4373 (daily ed. March 21, 1972) (remarks of Senator Ervin,
quoting the testimony of Profane: Paul Freund before the judiciary Committee during
hnrinp on the Amendment):
Indeed. if the law must be as undiscriminating concerning sex as it is toward
race. it would follow that laws outlawing wedlock between members of the same sex
would be as invalid as laws forbidding miscegenation. Whether the proponents of
the amendment shrink from these implications i^ not clear.
SO. 1111 Costa. Rec. jy 4389 (daily ed. March 21, 1972):
'the equal rights amendment would not prohibit a State from saying that the in-
stitution of marriage would be prohibited to men partners. it would not prohibit
a State from saying the institution of marriage would be prohibited from two
women partners. All it says is that if a ittte legislature makes a judgment that it
is wrong for a man to marry a man, then it must say it is wrong for a woman
to marry a womanor if a State says it is wrong for a woman to marry a woman.
then it must say that it is wrong for a man to marry a man.
%wither of the .kmendment's principrl supporters. Professor Thomas Emerson of Yale
law School. has also expressed his belief that the Equal Rights Amendment was not
intended to force the states to grant marriage licenses to homosexual couples and
would not be so construed by the courts. Letter on file with the Yale Lou Journal.
31. Ii should be noted, however, that various legislators dispute the importance of
lepilative history as a guide to interpretation of the Equal Righu Amendment. See, e.g.,
Hewing; on H.J. Res. 35, 208 Beiore Subconorn. no. 4 of the Howe Comm. on the
fudiciary, 92d Cong.. 1st Seas. 75 (1971) (remarks of Representative Wiggins, para-
phrasing the position of Senator Ervin):
The Senator just made the point that the Court at some future time will look
at the words of the statute itself or the amendment itself and will not look to the
legislative history, one of the reasons being that the States are not ratifying legislailve
history. They are ratifying the language itself.
32 Ste note 49 supra.
31. 3N Li I (19C).
yi Itt. at IL
1S4
3001
997
The legislative history supports this proposition that the new Amend-
ment represents an unqualified prohibitionan absolute guarantee."
53. See. e.g., 118 Conc. Rec. 4 4394 (daily ed. March 21, 1972) (remarks
of Senator
Gurney) in which the Senator maintained that passage of the Amendment was Intended
to compensate for the fact that the Supreme Court in Reed v. Reed, 404 U.S. 71 (1971).
had failed to subject a sex classification to the strict scrutiny routinely afforded demi.
(imams based on race.
56. Compare the language of the Equal Rights Amendment, p. 583 supra, with
the corresponding prohibition in the Fourteenth Amendment: "No State shall . . . deny
to any person within its jurisdiction the equal protection of the laws." U.S. Caner.
amend. XIV, 1 I.
31. See authorities listed in note 4 supra.
58. Emerson, In Support of the Equal Rights Amendment, 6 Ham Csv.
RocursCiv.
Lis. L. Ray. 223, 231 (1971). Professor Freund has agreed that "the proposal evidently
contempls..es no flexibility in construction but rather a rule of rigid equality.- Hearing,
supra note 51, at 72, quoted by Senator Levin.
59. The Howe judiciary Committee Report on the proposed amendment contained
an additional section proposed by Congressman Wiggins. See p. 588 infra. Fourteen
inemhers of the Committee recorded their views separately, supporting the Amendment
but opposing the additional section. H.R. Rm.. No. 339. 92d Cong., 2d Sea. 5 (1971).
!Isis separate statement specifically cited Frokstor ?meson for the view that the
tmendment establishes "the fundamental proposition that sett shall not be a factor in
determining the legal rights of women or of men." Id. at 0. The House c- a whole
,sidentl adopted this separate statement when it rejected the Wiggins addition. Fur.
awrintitt.. the Senate Report on that body's etsion of the Equal Rights Amendment
FQ%
100
998
This article shall not impair the validity of any law of the United
States which exempts a person from compulsory military service or
any other law of the United States or of any State which reasonably
promotes the health and safety of the people."
The purpose of the adchtion was to make it clear "that Congress and
she Sine legislatures can take differences between the sexes into ac-
count in enacting laws which reasonably promote the health and safety
of the people."" The proposed addition was rejected in the House by
a vote of 87-265."
While even an absolutist interpretation would not prevent the courts
how balancing the Equal Rights Amendment against other constitu-
tional provisions which conflict with its commands," no such consid-
erations were raised in defense of the anti-miscegenation laws and none
would appear to be relevant to homosexual marriage. In discussing the
Equal Rights Amendment, the only constitutional conflict envisioned
by the commentators and legislators concerned the right to privacy,"
and it can 1 irdly be argued that the denial of a marriage license to a
same-sex couple would in any way serve the interest of the individual
in being protected from government intrusion into his private life.
The "absolute" prohibition contained in the Equal Rights Amend.
ment is subject to only one exception, or what Professor Emerson and
his associates have termed a "subsidiary principle":" the Amendment
-would not prohibit reasonable classifications based on [physical] char-
m mimics that are unique to one sex."" This exception was designed
to shield laws, such as many of those applying to pregnancy or sperm
dimation, which affect only one sex but which cannot realistically be
%wird that "the separate views of [the fourteen Committee members] in thr House
Itrport state concisely and accurately the understanding of the Amenthrent . . . ."
.
3
999
587
1004
1000
the necessary close relationship between these activities and the insti-
tution of legal marriage as it is now permitted. As shown above, the
ability or willingness to procreate is not a prerequisite of legal marriage
in this country," nor is the legality of an existing marriage in any way
affected by the decision of both partners to forego heterosexual inter-
course. More generally, the belief that two persons having the same
primary sexual characteristics cannot benefit (.am many of the emo-
tional, social and legal consequences of the legal status of marriage is
factually untrue:" the belief that they should not so benefit is a sub-
jective conclusion beyond the scope of the unique physical characteris-
tics principle.
iVith no relevant or countervailing interests to place against the rule
of "absolute" equality of treatment, the proposed Equal Rights Amend-
ment should be interpreted as prohibiting the uniform denial of mar-
ria3e licenses to same-sex couples. If such a denial were to be permitted,
it would have to be on the basis of an analysis which was consistent
with the strict interpretation described above, and in addition, as Pro-
fessor Emerson has pointed out, in matters as important as marriage
the burden of persuaiion is on those who would impose different
treatment on the basis of sex."' In the case of laws prohibiting homo-
sexual marriage. such a burden cannot be carried.
338
1 0 05
1001
IV. Conclusion
In the final analysis, the Court should not avoid granting full relief
from discriminatory legislation simply because that legislation is based
on deeply held beliefs. A quasi-marital status might satisfy many of the
interests of homosexuals- in gaining marriage licenses, but it would
inevitably fall short of fully normalizing their relationships. A legis-
lative stigma of deviance would remain. The stringent requirements
of the proposed Equal Rights Amendment argue strongly for removal
of this stigma by granting marriage licenses to homosexual couples who
satisfy reasonable and non-discriminatory qualifications.
589
Washington. D C 20540
Karen J. Lewis
Legislative Attorney
American Law Division
October 12, 1983
1007
1003
INTRODUCTION
would be affected by the ERA. Both proponents and opponents of the ERA
have expressed differing views regarding this issue. In fact, even among
proponents there are diverse opinions. Those who believe that restrictive
homosexual statut.ii would not be affected argue that the ERA pertains to
sex discrimination, not to sexual preference. There are others who have
argued that the ERA will require the granting of marriage licenses to homo
sexual couples.
homosexuals, one must understand the nature of the arguments and concerns
in the context of the proposed ERA. At the very outlet, we will describe the
arguments that have been made. After this discussion, there will follow an
the earlier legislative record for the 1972 version can only be instruc
tive and not controlling since the actions of one Congress do not bind a future
Congress.
VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. 2000e et In., will
sex, race, color, religion, and national orin. While not controlling
in the ERA context, these Title VII cases pro .ide some insight into
o
1004
EXECUTIVE SUMMARY
During the ongoing debate surrounding the proposed Equal Rights Amendment
(ERA), considerable interest has focused on laws restricting homosexuals, such u
thous barring homosexual marriages, and how they would he affected by the ERA.
This report describes the varying opinions that have been expressed regarding
this issue. For example, on the one hand, some people have argued that the ERA
will have no impact because discrimination on the basis of sexual preference is
different from discrimination based on sex. While on the other hand, there are
people who have contended that there would be an impact because the ERA incor-
porates an "absolute" standard of sex discrimination, discrimination against
homosexuals is sex-based, and no distinctions based on sex are constitutionally.
permissible.
After discussing the conflicting arguments on the question of whether the
proposed ERA will affect laws restricting homosexuals, this report goes on to ex-
amine the legislative history of the earlier 1972 proposed constitutional amend-
ment and contemporaneous court decisions. This earlier legislative record is
only instructive and not controlling since the action of one Congress cannot
bind future Congresses.
This report also describes relevant state court rulings in states with
state ERA's where the question of the impact of the state ERA on laws restricting
homosexuals has -risen. In addition, case law involving homosexuals' protectehle
interests under Title VII of the 1964 Civil Right. Act, as amended, is analyzed.
This paper concludes that, in the final analysis, the impact of the cur-
rently proposed ERA will be determined by the legislative history that is es-
tablished by the Congress considering it as well as by contemporaneous court
decisions. The legislative record developed for the earlier 1972 proposal, state
court decisions involving state ERA'. and homosexuals, and the body of case Law
that has evolved under Title VII can provide guidance.
1Ofl')
1005
argue that the ERA would not necessarily affect homosexuals because the
argued that language of the proposed ERA would require same sex marriage,
this result would be unlikely given the legislative history and the concept
1010
1006
101 1
1007
In a 1973 NOTE in the Yale Law Journal, the two authors maintained that
upon sex could survive judicial review in their minds. They wrote:
scrutiny under the ERA, same sex marriages alloyed between men would
1012
1008
would in fact compel recognition of the same sex marriage. These include
4/
Professors Paul Freund of Harvard and James White of Michigan.
the United Natioda Human Rights Commission, at the American Bar Association
ERA would affect laws restricting homosexuals, e.g. those barring homosexual
4/ See S. Rep. Ho. 92-689, 92d Cong., 2d Seas. 47 (1972); and Houser,
"The Equal Rights Amendment, "1 Hum. Rights 54, 62 (1971). See also,
Freund, "The Equal Rights Amendment is Not the Way," 6 Hari. Civ. Rights-
Civ. Lib. L. Rev. 234, 238 (1971).
1013
1009
base their position primarily on the ground that the ERA prohibits
of the amendment. Others argue that the ERA would affect homosexuals
say that the ERA would require that men be allowed to marry men and mien
to marry women.
1014
1010
The proposed ERA, as reintroduced in H.J. Res. 1 and S.J. Res. 10, provides
that--
This wording of the amendment is identical .v that passed by the 92nd Con-
gress in 1972. In 1971, in response to objections from Senator Ervin and several
second secti3n (which had read since 1943: "Congress and the several States
shall have power within their respective jurisdictions, to enforce this article
The ongoing debate concerning the proposal has tended to center on the
meaning of this language. The answer depends, of course, to a great extent upon
the legislativu history the 98th Congress develops through the course of the
records exists with respect to the 92nd Congress proposal, H.J. Res. 208; however,
that history is only instructive and not controlling with respect to the current
measure because the actions of one Congress do not bind a future Congress. There-
fore, it is up to the 98th Congress to develop its own legidlative history for
1015
1011
posed ERA means, one can also look to contemporaneous court decisions, the ra-
tionales used, and the standard Or review applied to sex -based classifications
Earlier Congresses have found little disagreement with the general intent of
the proposed amendment. A Senate Judiciary Committee report In 1972 (S. Rep. No.
92-689, 924 Congress, 2d Sees.) Interpreted the statement "Equality of rights un-
der the law shall not be denied or abridged by the United States or by any State
on account of sex" to mean that sex should not be a factor in determining the
legal rights of men and women; that the amendment would affect only governmental
action, with the private actions and private relationships of men and women left
unaffected unless these rise to the level of state action; and that the only re-
The proposed Amendment also gives Congress power to enforce these provisions
(the States already possess such authority under their general police power) and
provide, that the Amendment shall take effect two years after the date of ratifi-
cation, i.e. after three-fourths or 38 states have approved the proposal. The two
year period is provided presumaAy to give stare legislatures and the Congress
time to amend their laws to bring them into conformity with the intent of the
Proposed
The effect of the ERA, according to the 1972 Senate Report, would be to re-
quire that government at all levels, federal, state and local, treat men and
women equally as citizens and individuals under the law. It would eliminate from
the law sex-based classifications that specifically deny equality of rights or vio-
late the principle of nondiscrimination with regard to sex. Thus, federal or state
`1016
1012
women and men would presumably be invalid under the ERA. In addition, certain
responsibilities and protections which once were, or are now, extended by the
states or federal government only to members of one sex would have to be either
identical to the "equality of rights" language in the proposed ERA, the Supreme
tion context are instructive in terms of the standard of review used by the Court
can express in the legislative history whatever standard it intends the Court to
apply under the ERA, especially if it wants a more stringent level of review
than that which is currently applied to sex-based classifications under the equal
protection clause. There are basically three standards of equal protection re-
view traditional. rational basis; intermediate (one less deferential than the
rational basis test and one less restrictive than the strict scrutiny test); sus-
ard has been used by the Supreme Court to evaluate sex classifications. There-
achievement of those objectives," Cella v. Boren, 429 U.S. 190, 197; Mississippi
The impact, if env, of the proposed ERA on homosexuals may depend to a large
I.e. the I972 version, can only be instructive and not controlling. Senator
1017
1013
Birch Bayh, the amendment's chief sponsor in the Senate, remarked in 1972 that a
Marriage," 82 Yale L.J. 573, 584 (1973). Authors of this NOTE contend that the
legislative history of the 1972 version of the ERA supports the interpretation
not to be abridged on the heels of sex. With such an absolute standard, these
authors argue that same sex marriages would have to be allowed. They cite com-
mence on the floor by Senator Sam Ervin to support their interpretation. For
5/ see also S. Rep. No. 92-689, 92d Cong., 2d Sess. 47 (1972); 118 Cong. Rec..
9523, 9516 (1972).
6/ See also Senator Ervin's comments quoting Professor Paul Preund's state-
ment in hearings before the Senate Judiciary Committee, 118 Cong. Rec. 9315
(1972):
(continued)
1018
1014
Professor Paul Freund took issue with Senator Sayh's position and argued
that his reasoning was in...onsistent with the Supreme Court's rulings concerning
7/
the anti-miscsgenation statutes under the Fourteenth Amendment. The Court held
in Loving v. Virginia, 338 U.S. 1 (1967), that a marriage license cannot be de-
vied merely because applicants are of different races. This denial was regarded
The authors of a 1973 Yale Law Journal NOTE, developed this example of race
f)
1015
The author of an article for the University of California, Davis, Law Re-
view argued to the contrary. He looked at the legislative history of the 1972
proposed ERA and concluded that the Congress did not intend to compel recogni-
tion of same sex marriages. See 6 University of California, Davis. L.R. 275,
at 292-293 (1973).
i.e. marriage licenses were denied to applicants of different races beCause the
white and black races were not considered to be equal in stature. In the Con-
the prohibition of same-sex marriages seems to derive from the adherence to tea4Ar
Furthermore, the Supreme Court has already held that the right.to marry
38H U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S. 479, 486 (1965);
Cleveland Board of Education v. Lafleur. 414 U.S. 632, 639-640 (1974); Zablocki
v. Redhail, 434 U.S. 374, 383-387 (1978). In Zablocki v. What', supra, the
majority of the Court invalidated a state statute that denied the right to marry
that obligation. The Court's holding in Redhatl was based on the ground that the
law in question did not serve any legitimate interest which the State could assert
to be compelling enough to justify it. Under this strict standard, courts to date
have not struck down statutes barring homosexual marriages. Thus, unless a more
11)20
1016
heightened standard of review is utilised by the courts under Che ERA, it would
seem that laws restricting homosexuals, such as the marriage laws, would be un-
8/
effected by the ERA.
There has been at least one state court decision interpreting a state ERA
VA not requiring same sex marriages. Singer v. Kara, 11 Wash. App. 247, 522
P. 2d 1187 (1974). The equal rights provision in the State of Washington's Con-
stitution provides: "Equality of rights and responsibility under the law shall
marriage license was denied to two people of the same sex, pursuant to a state
law prohibiting same-sex marriages. The state court of appeals hold that the
law yam not violative of the state equal rights amendment because: (I) all
same-sex marriages, both male and female, were prohibited; (2) no sex-based
classification was involved since the denial was based on the 'recognized defi-
nition" of marriage as between two persons of the opposite sex ',522 P.2d at
1192); and (3) the state ERA protected only those persons who were able to
show that they had been denied an existing right or responsibility solely on
the basis of sax. The court found that the state ERA did not create any new
8/ Recently a body of case law approving homosexual behavior has been de-
veloping. See People v. °notes, 51 NY2d 476, 415 NE2d 936, 434 NYS2d 947
(1980) (consensual sodomy may not be deemed criminal); People v. Uplinger,
58 NY2d 936 (1983) (Since conduct ultimately contemplated by anti-loitering
itatuts, consensual sodomy, may not be regarded as criminal, then the State has
no basis upon which to continue punishing loitering for that purpose).
A petition for certiorari was granted by the U.S. Supreme Court on Oct. 3,
1987 in the U lin er case. N.Y. v. Uplinger, No. 82-1724. The case presents two
questions: (1 whether the New York anti-loitering statute (barring loitering
for the purpose of engaging in deviate sexual intercourse) is a valid exercise
of the state's power to control order; and (2) whether this provision in the
N.Y. Penal Law violates any rights protected by the U.S. Constitution.
1017
rights, e.g. same-sex marriages, which had previously been prohibited; rather, it
guaranteed that existing and future rights would be equally available to all per-
The holding or rationale in the Singer v. Rare case may be persdasive but
is not determinative with respect to how the Supreme Court might in the future
Similarly, a body of case law has developed under Title vii of the 1964
Civil Rights Act, as amended, which also adheres to the principle that thore
former being a basis for Title VII coverage, while the latter is not.
41 OK 0 146 tifi 1 22
1018
Title VII of the 1964 Civil Rights Act, as amended, contains broad language
color, religion, sex, or national origin. 42 U.S.C. 20001 et !Iv The courts
and the Equal Employment Opportunity Commission (EEOC) have uniformly relected
VII. Smith v. Liberty Mutual Insurance Co., 395 F. Supp. 1098 (N.D. Ca. 1975),
aff'd. 596 F.2d 325 (5th Cir. 1978); DeSantis v. Pacific Telephone and Telegraph
Co., 608 F.2d 327 (9th Cir. 1979). Nor is discrimination against homosexuals in
tact, the exclusive avenue of redress for individuals denied federal jobs not
covered by the civil service rules and regulations may be a court action to en
reference to sexual preference protection in any of the floor debates. See 110
9/
Cong. Rec. 2577 (1964). Thus, there is no evidence that Congress even consid
ered whether the inclusion of sex as a protected category under Title VII was
9/ See also, Miller, "Sex Discrimination and Title VII of the Civil Rights
Act of 1964," 51 Minn. L. Rev. 877, 880-82 (1967). The amendment adding sex as
a proscribed classification was offered on the floor of the House one day before
final passage by the House of the entire bill. It was introduced by Congressman
Howard Smith of Virginia, a staunch opponent of the 1964 Civil Rights measure.
This factor has led to the conclusion that sex was added as a last minute effort
to defeat the bill. See 20 Hastings L.J. 305, 311 (1968); 84 Marv. L. Rev. 1109,
1167 (1971).
t023
1019
CONCLUSION
whether the proposed ERA will affect discrimination against homosexuals. Some
argue that the ERA will have no impact because discrimination on the basis of
theory, as long as all homosexuals are treated alike, regardless of whether they
state interest in procreation, family relationships and the like. It has been
argued also that the "physical uniquenese" exception to the ERA encompass.. homo-
sexuals and thus allows heterosexual marriages and prohibits same sex marriages.
Contrary views have been advanced. For example, there are those who contend
1024
1020
established for the 1972 proposal can be referred to for guidance, but it is in
DO way controlling since the action of one Congress cannot bind future Con-
g .
Similarly, any state court rulings in states with state ERA's can be
instructive in terms of the holdings and rationales, e.g., the Singer v. Hera
case, supra, decided by the State of Washington appeals court stating that the
Another place to look for guidance concerning how courts have interpreted
law that has evolved under Title VII of the 1964 Civil Rights Act. Title VII,
against sex discrimination. Also, Title VII only applies in the employment con
text. Nevertheless, the courts interpreting Title VII have uniformly held that
the legislative history of the law, the courts have found no evidence that
Congress ever intended the ban on sex discrimination to include a ban against
The most that can be said in conclusion is that the nature of the impact of
the proposed ERA on laws restricting homosexuals, if any, will depend on the come-
pleted legislative history that evolves and the contemporaneous court decisions.
Kars awls
Legi ve Attorney
American Law Division
Sir6tk October 12, 1983
2
1021
Irrttm the New York Time, Dec 10, 19821
The ordinance she vetoed was introduced by Harry Britt, the only publicly homo-
sexual member of the Board of Supervisors. Mr. Britt was traveling in the East
today, but his office released a statement in which he said that "by vetoing this law,
Mayor Feinstein has shown it is our nation's institutions that lack civility. She has
done serious harm to the efforts of gay men and lesbians to gain acceptance and
understanding of our life styles."
Dana van Gorder, a member of Mr. Britt's staff, said the Mayor "does not believe
in the spirit of this legislation whatsoever." The spokesman said that the homosex-
ual community "has had a sense for some time that she has viewed us with a cer-
tain moral judgment."
At dusk about 200 people, many identifying themselves as homosexuals, gathered
at the City Hall steps in response to a call for a protest. They cheered speakers who
criticized Mayor Feinstein, and they chanted "Dump Dianne."
Roman Catholic Archbishop John R. Quinn had urged the Mayor to veto the
measure, which was passed on an 1-to-3 vote last month. In a letter to the Mayor,
which his office released Tuesday, Archbishop Quinn argued that "to reduce the
sacred covenant of marriage and family by inference or analogy to a 'domestic part-
nership' is offensive to reasonable persons and injurious to our legal, cultural, moral
and societal heritage."
The ordinance provided for a system of registering domestic partnership involving
unmarried couples and a means to dissolve them, and it set fees for both services. It
would have cost $23 to register a couple and $5 to terminate the relationship's legal
standing
OVERRIDE PROSPECTS UNCLEAR
Had Mayor Feinstein not vetoed the ordinance, it would have become law without
her signature on Friday. The original margin of passage would be enough to ovEr-
ride her veto. However, Supervisor Louise Renne, who voted for the ordinance, is a
longtime supporter of Mayor Feinstein, who appointed her to the board. A member
of her staff said that Mrs. Renne, who was not available for comment, had not an-
ounced a position.
Mayor Feinstein has made it plain, without a formal announcement, that she in-
tends to campaign fur a second term next year. No formidable opposition has sur-
faced thus far. In 1979, when she defeated Supervisor Quentin Kopp, who voted
against the "domestic partner" ordinance, Mrs. Feinstein won precincts in areas
where many homose.uals live.
It was Mayor Feinstein who appointed Mr. Britt to the Board of Supervisors. He
filled the seat vacated by the murder in 1977 of Supervisor Harvey Milk, the first
declared homosexual elected to public office here. Mrs. Feinstein, who had been
president of the Board of Supervisors, had been chosen by the board to fill the term
of Mayor George Moscone, who was killed in the same shooting incident at City
Hall.
1026
1022
I Vrfini the New York Time., Sept 5, 1%141
o 2 .7
1023
Into the theological fray stepped Bishop Whitaker, who issued a statement that
was read at some Episcopal churches.
"I see the action of Grace Church," the Bishop's statement read, "as an effort to
provide space for a ministry to homosexual persons, a ministry which the Episcopal
Church, by and large, is not seeking to offer itself."
NOT A "MARRIAGE"
Then, Bishop Whitaker addressed two specific issues raised by i ather Haskell's
letter.
"From our perspective, there is no such thing as a 'homosexual marriage.' " But,
he added, "it is my understanding that the Metropolitan Community Church does
not actually speak of 'marriages' between homosexual persons of the same gender
but rather of 'unions.' " Thus, he wrote, it was "technically incorrect" to character-
ize the ceremony as a marriage.
As to the broader irsue of Siliptural sanctions of homosexuality, Bishop Whitaker
cautioned against selective readings of the Bible.
"From time to time, isolated verses of the Bible are used by Christians to justify
condemnation of homosexual activity and ostracism of homosexual persons," he
wrote. "such use of scripture is very dangerous. If one person is going to justify a
position, another person is equally entitled to do the same for quite different posi-
tions."
GREATER DIALOG
Mr. Royce said he was heartened by the Bishop's statement.
"In the New Twitament, Jesus never once mentioned homosexuality," he said.
"We don't consider homosexuality a sin. Remember, Christ was a man who taught
love and lived with the outcasts, the thieves, the prostitutes. The mainstream
churches have pushed us, the outcasts out. They have the basic belief that we are
not allowed to worship because we are sinners."
Mr. Ewald, the Metropolitan founder, said he hoped the religious contretemps
would lead to greater dialogue among churches. "Some churches are slowly begin-
ning to reanalyze their stand on homosexuality," he said "I think it's going to lead
to more discussions."
Both Father Waken and Bishop Whitaker declined to discuss the dispute.
Meanwhile, Mi438 Upham said she intended to keep Grace Episcopal Church open
to the MetropoEtan parishioners.
"We need a place where virtues like fidelity and commitment are promoted," she
said. "I think what we're doing is Christian. I think what we're doing is providing a
place for people who have nowhere else to go."
1028
1024
PAUL M. KURTZ
* *
Sehemedve Issues
A. Homosexual Marriage
In the context of equal rights amendments a question often dis-
cussed but not often litigated is the possible effect on the legitimacy
of marriage between members of the same sex. One of the more
emotional issues raised in connection with the initiation of state
ERAS is whether enactment of the amendment will automatically
authorize marriage between homosexuals.
On its =face. the question of same-sex marriages seems outside
the realm of sex discrimination problems. Presumably the state
would argue that the discrimination is not between males and
females, but rather between heterosexuals and homosexuals.
Regardless of the success or failure of a challenge to such a classifi-
cation under the Fourteenth Amendment's Equal Protection Clause,
the argument would continue, because both men and women mien
be either homosexual or heterosexual the *sanitation is not being
based on sex discrimination. Therefore the ERA is simply not
relevant to the issue.
The problem, however, is not so easily resolved. The state which
forbids two homosexual males. A and B. to many is certainly dis-
criminating against A on the basis of his sex. Clearly, if be were a
female (and possessed all other pret-Aphites for marriage), he
would be permitted to marry B. The question is whether this
discrimination can survive enactment of an equal tights
amendment.
1 2
1025
46 11 Wash. Apy. 247. 322 P.2d 1187 11974/ Two maws with ERA' haw tabu can to
treat the quorum of healdletiel SillM8111111ighliatively. "Only a num. botwoos nun sad
woman it wad in this Stan." 62 My. Coon Aim S 1 11976 Stipp.). Soo Woo VA. Conn I
213-43.2.
47. II Womb. App. at 322 P.21I at 1192.
46. lams. lidahas. 501 S.W .26 SIMI (Ky. 1973). Se* elmMerv. . Moos. 291 Mina. 310.
191 N.W 2d 185 119711. arc fitaiod. e39 U.S. 111011972).
49 386 U.S. 1 119671.
1 3O
1026
S2. Pa amwspis. ties dadwdaws is Griawid 4. Casa:WM. 311 U.S. 411 (1145). was
isaldeg elm rialn to as otwerswpdvas I dm whew of tidy "wink bedratan" widlaw
isausiam at dm nine. TM daluadsat is Vaal,. Oneness. 391 U S. 557 (11691, was weldag
the data to Wiwi* parr olowswe maw Its suss kiwi a/ ualylis I I appligabis se ears.
Wads, 410 U.S. 113 119731.
SI Die 4. Cawmasesslo's Amory Ow GO of Rhehmed. 423 U.S. 101. Wm/ft
&WA 425 U.S. 16311!761.
54. I. dwasixasi whisa ,tabs are tasdawawal. Wdass an sot 1st
at law to dada
eras is ilebt ell *sir word sad pima aseices. Rabat. tiny maw Wok as tie leadleksas
sad (collsedw) waselssas d we mph' as dsmeadwo stadia a prbasIple is 'se rowel
Idwr) . as as be naiad w kaisammord'" Ckipraid v. Cwwwdaw. 3111 U.S. 471.493
(Goldbwa, 1.. oranowie OW).
M. 316 U.S. MS 119121.
)32
1028
1 33
1029
Se. Sot at. Raoul bras Assam New York. 336 U.S. 106 (1999).
59 The Torah reacts a tualeametal objection to homosexuality. Ste LI:witless 15:22. By
the tam Maeda Aphis the Ovarieshur Cr*. honesessuality was "ilsatthed with henry and
Age palatal. by death." Note. septa Goes 56. at 577, e. 17.
60. P. Dana. Tex larmathannt ox Mutual 30 119591.
61. Parr. itia Moteaurr as mu COMtat, Law (190: Han. Inawanalry aid Trastaa.
62 Lamas 15.3119!91.
IL Tie SINOP coma elm oe yam Wpm w deceraet the tam dre neopmets al the
1 34
1030
Washinaton ERA oossietently denied that tnatacuneat world haws say lagitnnating dint on
homosexual inartiagte. 522 P.2d is 119491. n. S.
63. Boddie r. Connecticut. 401 U.S. 371. X74 119711.
64. -(1)a 1976 there wore old, dune stew (Mimic Peunrerania. and South Dakota) which
did sot have some so-fault rend rot dhow and thaw appeared Window ern in these
three states." NJ:move. Poem Fuss. Fawn Law CASS. arm Manuuau 12d ed.
1975) (1977 Supplement) at 6.
6S. 136 Ga. 633. 225 S.E.Id 652 99761.
1035
1031
reconciliation and that she still loved her husband. The Georgia
Supreme Court held that the lower court erred in denying this
divorce. "Just as it takes two consenting parties to make a
contract." the court wrote. "it takes two consenting parties to make
a reconciliation."" The same court took this Wk.- one step further
in Manning v. Manning. The divorce petitioner had filed an
affidavit along with his petition asserting that "The separation
between us is complete and permanent. . . . There is no possibility
whatever of a reconciliation ever taking place between us. The
marriage . . . is irretrievably broken." The divorce was granted as
a matter of law, citing McCoy."
The relevance of such statutes and interpretative decisions to the
law of marriage is striking. To the er.ent that the states move
Iowan, administrative divorce. they are forfeiting their right to hold
the marital relationship out as something special, sacred and
important to sociny. To the extent that parties are permitted to opt
oat of marriage. it becomes much less an impo:tat institution and
much more a contract. To the extent that it becomes easier to pt
out of marriage, the state lases its claim that marriage should be
difficult to get into.
An even more explicit move toward marriage as a contract and
an erosion in the state interest of protecting the institution of
marriage can be seen in the recent California case, Marvin v.
Marvin." Here the Supreme Court of California held that the
woman at the conclusion of an "illicit" relationship would have a
claim in quantum merutt for the difference between the reasonable
value of household services rendered and the reasonable value of
support received. This quantum meruit action may be the fore-
runner of broad treatment of parties to a marriage as parties to a
purely civil contract." If the unmarried woman is entitled to such
1037