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reported by the Commission. We believe the women's status bill to embody the soundest and most workable program yet presented for securing full statutory recognition of the proper legal status of women. Although there may be minor differences among us as to the language of particular provisions of the bill, we are unanimous in endorsing the proposal as a whole. We desire that this statement be presented at the congressional hearings shortly to be held.
Mrs. STONE. May I introduce at this time a young men who has already. been mentioned by Mr. Sifton, Mr. Williams. Roach, who wrote an article in the Connecticut Bar Journal to which Mr. Sifton referred?
STATEMENT OF WILLIAM S. ROACH, MEMBER, LEGAL ADVISORY
COUNCIL, NATIONAL COMMITTEE ON THE STATUS OF WOMEN
Mr. Roach. Mr. Chairman, my name is William S. Roach. I am a member of the legal advisory committee for the National Committee on the Status of Women. I am speaking in opposition to the proposed equal rights amendment and in favor of the women's status bill.
I prepared a rather long statement for presentation to this committee, including many points which have been very thoroughly covered up to this time, and with your permission I will skip some of those points and go on to other points which I think could be underscored at this time.
Mr. CHADWICK. Mr. Roach, would you prefer to have your statement incorporated in the record in full ?
Mr. Roach. I would like to have my statement incorporated in full. If you care to have me read it, I will be glad to do so.
(The full text of the statement is as follows:) Your committee is presently considering the equal rights amendment and the women's status bill.
For several years I have made an extensive research of the subject currently under review before your committee and I have tried to maintain complete objectivity at all times. I began this research quite independently as an individual project, and had no affiliation with committees or organizations on either side of this controversy until after my conclusions were published in an article in the September 1947 issue of Connecticut Bar Journal, at page 358. When I first addressed myself to the thorny legal problems suggested by the proposed amendment I was captivated by the appeal of the phraseology used to express the objectives sought. Its virtues, I thought, could scarcely be denied. Further consideration soon disabused me of my earlier impressions and I was finally forced to conclude that from any point of view the measure was dangerously deceptive and would without doubt work to the serious detriment of women in every level of of society.
As I continued my research, I became increasingly troubled by the lack of a positive integrated program by the opponents of the amendment. Their instincts were sound in resisting the measure, but they could never supply the complete answer because they failed to come up with a constructive proposal for the solution of a problem which we must all admit still exists to some extent; a proposal which would serve to improve the status of women while preserving the features of the law which provide appropriate distinctions between men and women.
You now have before you the ideal proposal in the women's status bill. It makes good sense. It should appeal to everyone concerned: When it was first introduced in Congress on February 17, 1947, it had bipartisan sponsorship and the support of many of the groups which for years had stubbornly opposed the pro. posed amendment.
Briefly, the bill prohibits in Federal law or administration discriminations based on sex, except those reasonably justified by differences in physical structure, biological or social function. A Presidential Commission is created for the purpose of studying and reporting on all phases of the status of women. The Commission is to report its results to the President with recommendations as
to further action, legislative or otherwise. The bill also urges the States to adopt a similar policy and to revise their own laws and policies accordingly. A group of attorneys and instructors of law who have been active in opposition to the adoption of the equal-rights amendment have remarked:
"The women's status bill presents the long awaited alternative which can
* join all women (and men) of good will in a vigorous attack on such unreasonable discriminations as continue to hinder full participation of women in the responsibilities of citizenship. * What is proposed is a basic review and revision of Federal and State codes to assure that laws which treat men and women differently have a rational foundation. To revamp legal codes (as the equal-rights amendment proposes) without painstaking consideration of the rationale of each law attacked, is to act irresponsibly and recklessly.” 1
I would like to affirm my support of the women's status bill as one admirably designed to hasten the attainment of statutory recognition of equality, in its real sense, between the sexes.
I would also like to underscore what I consider to be the real implication and almost certain consequences of the adoption of the equal-rights amendment. The amendment reads:
"Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
"Congress and the several States shall have power, within their respective jurisdictions, to enforce this article by appropriate legislation."
On the fact of it, the present form of the proposed equal-rights amendment appears as innocuous and as plausible as the introductory statement of Mr. George Gordon Battle, New York attorney, in a memorandum urging adoption of the measure:
"It seems strange that there should be any question that all citizens of a republic should have equal rights. Our Supreme Court has repeatedly enunciated this great principle. For example: “The equality of the rights of citizens is a principle of republicanism.
*!" (U. S. v. Cruikshank, 92 U. S. 542, 555.) In discussing the subject with a colleague of mine, whose background and scholarly ability I have always admired, he remarked: "The equal-rights amendment? Don't women have equal rights now?” I briefly cited a few examples of present inequities under the law and his immediate reaction was, “Well, I never thought much about it, but since that's the case, the amendment sounds like a good idea.” I have always and still do respect the intelligence and integrity of both Mr. Battle and my colleague mentioned above and I believe that their beguilement by the attractive wrapping of the proposed amendment points up the very serious possibility of its being accepted unthinkingly by the citizens of this country in general.
Legal limitations on women stem largely from the common law. I would like to review briefly the history of efforts in this country to mitigate these effects of the common law on women and their progress so far. The almost complete submersion of the legal identity of the feme covert at common law is familiar. The feme sole, to be sure, enjoyed more of the rights and privileges accorded by law to her brothers, but her traditionally inferior social and economic status and the feudal custom of early marriage reduced these advantages to the vanishing point. On the whole, women were relegated to the position of chattels of their fathers, guardians, or husbands.
When our Constitution was adopted in 1789, implicit in its terms, though not expressed, was the understanding that it was an expression of the common law ideal of liberty, but it was primarily a masculine liberty. It was "framed in the language of the English common law," ? the "system from which our judicial ideas and legal definitions are derived." 3 Whatever implementation of rights there has been in the chronicle of progress of women on the road to equality with men, whether by constitutional amendment, statute, or judicial decision, has been in derogation of the common law. Since 1789 there have been some lively skirmishes involving attempts to ease women into the dynamic and flexible mold of the Constitution as living conditions and ideas changed, and at one time a liberalizing trend was plainly discernible.*
It was thought, for instance, that the fourteenth amendment might make women as well as Negroes eligible for jury service. This hope was abruptly
1 Letter dated April 14, 1947. signed by Joseph P. Chamberlain, Walter Frank, Paul Freund, Lloyd K. Garrison, Walter Gellhorn, Dorothy Kenyon, Monte Lemann, William Draper Lewis, Douglas B, Maggs, and N. Ruth Wood.
2 Smith v. Alabama (124 U. S. 465, 478 (1888)).
quenched by the pronouncement in Strauder v. West Virginia,' decided in 1879, in which the Supreme Court held that a State statute excluding Negroes from jury panels was unconstitutional as a violation of their rights as citizens to have a trial by a jury made up of their peers. However, the Court's courageous stand for the maintenance of equity, included by way of dictum:
"We do not say that * * a State may not prescribe the qualifications of its jurors, and in so doing make discriminations. It may confine the selection to males. *
We do not believe the fourteenth amendment was ever in. tended to prohibit this.
Its aim was against discrimination because of race or color.”
Two years later, in Neal v. Delaware, the Court considered a State statute, enacted before the adoption of the fifteenth amendment, which excluded Negroes from the franchise and made jury service depend on the voting privilege. It held that the fifteenth amendment had removed the voting discrimination and since the qualifications of jurors depended thereon, the amendment had presumptively removed the jury discrimination. But when, after adoption of the nineteenth amendment, a similar argument was urged in Commonwealth v. Welosky, in which the array was challenged on the ground that women had been excluded, the State court upheld the jury statute and stated that equal protection had not been denied. The United States Supreme Court denied certiorari, thus indicating that no constitutional right had been invaded.
In Cummings v. Missouri, in 1867 10 the Supreme Court had declared with compelling resonance:
“The theory upon which our political institutions rest is, that all men have certain inalienable rights that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions are alike open to everyone, and that in the protection of these rights all are equal before the law." 11
But in 1869, when Myra Bradwell petitioned the State supreme court to compel the State of Illinois to admit her to the practice of law, the court refused, saying that the right to be recognized as an attorney was not one that the Constitution guaranteed to women. The court stated :
"It is also to be remembered that female attorneys at law were unknown in England, and a proposition that a woman should enter the courts of Westminster Hall in that capacity, or as a barrister, would have created hardly less astonishment than one that she should ascend the bench of Bishops, or be elected to a seat in the House of Commons." 12
The decision was affirmed by the United States Supreme Court in 1872,18 though it had previously held that to prevent a man from practicing on insufficient grounds was a breach of his constitutional rights."4
As the years went on, many of the common-law discriminations that survived the Constitution were expunged from our legal system by statute and judicial opinion, but the Constitution itself has remained primarily a masculine one. Yet it is a complete non sequitur that the remedy will be found in the broad and ambiguous terms of the proposed equal-rights amendment. Woman's struggle for equality in the law has been won largely through the elimination of the more important inequities by specific legislation. Adoption of the amendment would either erase the residue of favorable common-law precepts and eliminate existing protective legislation or would have little total effect on her present legal status. În either event, the result could not be determined until after many years of endless and confusing litigation.
The story of the feminist movement since the equal-rights convention held in Seneca Falls in 1848 is primarily a pageant of persistent assault upon State
8100 U. S. 303 (1879).
15 For a comprehensive discussion of the trend away from the early common law position. see Ganna Walska McCormick v. U. 8. (Treasury Decision 117, IV U. S. Daily 3209 (1930)), especially the concurring opinion by Cline, J.
legislatures, culminating in the adoption by every State of the Union of some form of the Married Women's Acts, and the concurrent successful battle for adoption of the nineteenth amendment. The movement was momentarily diverted during the Civil War era, when the feminists marshalled their forces in the struggle for the emancipation of the Negro. After the adoption of the thirteenth, fourteenth, and fifteenth' amendments, which had little practical effect in forwarding their own cause, they again became preoccupied with their original objectives. In 1869, their cause was jeopardized by a split in ranks between one faction which advocated a voluble and theatrical campaign for recognition, and another which believed that a dignified and persistent appeal would produce the quickest results. In spite of this, a major victory was won with the adoption of the nineteenth amendment in 1920. But in 1923, when the equal-rights amendment was first proposed, again a schism developed in the feminists' ranks, which still persists. One informed group bitterly opposed advocacy of the proposal on the grounds that it would inject countless collateral issues into a campaign by now successfully progressing, and might conceivably nullify many of the gains thus far made. The other faction steadfastly refused to compromise for anything short of complete identity of treatment under the law. Although there are some within the latter group who believe that differences in treatment will still be possible under the broad terms of the amendment and that many favorable aspects of the current legal pattern will remain undisturbed, the supporters of the amendment are by and large committed to a sacrifice of present preferences in return for the supposed vastly greater advantages that the amendment would provide.
It is difficult to characterize, even generally, the groups on each side of the issue in terms of their interests. Significant is the division of groups of similar complexion and common aspirations between opposing camps. The common denominator to both sides of the equation is to be found, no doubt, in the sincere desire to improve the lot of womankind. The curious alinement reflects not only a diversity of opinion between the two groups as to the most effective means of achieving this goal, but also considerable confusion of thought within ranks of the proponents of the amendment as to the probable effects of the means adopted. As will be shown below, it will require almost clairvoyant precipience to predict whether the amendement will have the effect desired, and in any event it must necessarily disappoint a large segment of the group endorsing it, since the prodictions within the group cannot be reconciled.
Of the numerous laws that distinguish between the sexes in their application, many classifications suggest themselves. In any of them, labor legislation predominates as the most controversial, and those involving the legal rights of married women occupy an important position because of their impact on the lives of a large segment of the population. The following brief compilation based on statistics of the United States Department of Labor for the year 1947, will suffice for the purposes of this discussion. (1) Laws affecting adult workers
(a) Marimum hours: Forty-three States and the District of Columbia limit women's daily and weekly hours of employment in one or more industries.
(6) Night work.-Thirteen States prohibit for a specified period in one or more industries.
(c) Minimum wages.-Laws exist in 26 States and the District of Columbia. Minimum wage rates have been established for one or more industries in most of them.
(d) Health laws.—Laws in 27 States and the District of Columbia require specified meal periods. Forty-six States and the District of Columbia require seats for women. Short rest periods are required for women working in certain occupations in 4 States. In 9 States, the maximum weights that women may lift are regulated.
(e) Prohibited occupations.-Seventeen States prohibit women from working in mines. Four States ban them as bartenders. They may tend bar in Ohio only under certain restricted circumstances, and in Illinois, the city council or county board is empowered by State law to prohibit women's employment in this occu
18 Proponents of the amendment have submitted a résumé of equality legislation already enacted in statements presented to Subcommittee No. 2, Committee on the Judiciary, House of Representatives, on H. J. Res. 1 et al., 79th Cong., 1st sess. (1945), at 4 et seq. This summary and similar ones which appear throughout the committee reports are apparently meant to signify a growing acceptance of the idea of complete equality in every respect, whereas it would seem to represent more forcibly a testimonial to the efforts of those who subscribe to the policy of remedying specific evils by specific legislation.
pation by a retail license. Other State laws prohibit various occupations such as cab driving, bellhopping, welding, trucking, etc.
(f) Social security laws.-Social security and workmen's compensation laws, both State and Federal, are based on the dependence of the family on the father, Men do not receive generally benefits provided for wives, widows, and children." (2) Protections and disabilities of married women
(a) Property rights.-Generally, by statute, a woman retains title to property owned by her before marriage and her separate property cannot be attached to satisfy her husband's debts. In five States she cannot deed real property without her husband joining. Her control over her property is limited to some extent in several other States.
In eight community-property States, the husband controls most of the community property. In non-community-property States, the husband is sole owner of property acquired by the cooperative efforts of the spouses in the absence of an agreement to the contrary.
(0) Power to contract.-Married women are limited in their power to execute certain types of general contracts in four States. Thirteen States restrict the wife's power of contract to some extent.
(c) Domicile.-In general, a wife has the same domicile as her husband. Several States permit separate domicile for limited purposes, such as jury service, taxes, and voting.
(d) Earnings.-In most States a wife's earnings belong to her. In six of the community-property States her earnings become part of the joint estate, which is controlled by the husband.
(e) Power to conduct business.-Five States retain "free trader" statutes which require married women to get court permission to conduct business, if they wish to hold the profits as separate property.
(f) Liability for family support.--Husbands are primarily liable for support everywhere. The communal estate is liable in community-property States. In 21 States, the wife and her property can be held liable for family necessities if the husband cannot provide for them. Ten States require a married woman to support a disabled husband who owns no property.
(9) Divorce and alimony.--In 21 States, divorces for nonsupport quay be obtained by the wife only. In 16 States only the husband can get a divorce on the grounds of unchasity. The laws of 35 States allow alimony to the wife only.
(h) Guardianship of children.—The father is given preference as to the guardianship, services, and earnings of minor children in 14 States and the District of Columbia. In 9 States he alone has power, with the mother's valid consent, to appoint a guardian by will.
(i) Age of consent to marry.-In 40 States and the District of Columbia, the age of consent to marry with parental approval is lower for women.
This summary includes some laws that operate as unwarranted restrictions on the liberty of women, to be sure, but close analysis reveals that the total score is largely in favor of women.
THE REAL ISSUES DEFINED
A. Confusion in the ranks
For the sake of discussion, complete sincerity of motive on the part of all concerned will be assumed. The confusion and endless litigation over the purpose and meaning of the amendment that must inevitably result from its adoption will be compounded by the perplexity presently existing within the ranks of the proponents. Considerable inconsistency in forecasting the probable effect of the amendment on the existing legal picture is found on both sides, but the conflict in the proponents' ranks is most significant since it must by hypothesis reflect a corresponding divergency as to the effects desired. Analytically, it may therefore be said that there are actually three broad factions involved :
(1) The opponents. They would retain the favorable distinctions now made in the law and remove the remaining unwarranted discriminations by specific legislation.
17 Mr. Jack B. Tate, general counsel, Federal Security Agency, discusses the effect of the proposed amendment on the Social Security Act in a letter written to and published by the National Committee to Defeat the Un-Equal Rights Amendment, Washington, D. C., February 28, 1946. Adopting a realistic approach, he ably justifies the difference in the law based on sex and judges that the equal-rights amendment would sabotage the administration of the act.