The sixties shift to formal equality and the courts: an argument for pragmatism and politics.

• Author: Becker, Mary

Conventional wisdom tells a simple story of feminism during the first seventy years of this century. As the century opened, the women's movement was single-mindedly focused on suffrage, arguing that women should have the vote both because they are men's equals and because they are different from men in that their finer sensibilities will transform and purify politics. When women finally won suffrage in August of 1920, the coalition of women's organizations that had worked so long and so hard to achieve this goal fell apart from sheer exhaustion.(1)

Feminism slept during the next forty-plus years.(2) The depression saw women forced out of a tight labor market that reserved jobs for male breadwinners.(3) The 1940s saw women drawn into and then pushed out of the labor market as men left for and returned from World War II.(4) The 1950s were particularly dismal for middle-class white women, who were once more relegated to the domestic sphere and repeatedly told that any well-adjusted woman finds complete happiness and fulfillment caring for her husband and children.(5)

The second wave of the feminist movement suddenly became visible in 1963 with the publication of Betty Friedan's book, The Feminine Mystique.(6) Sameness feminism and formal equality arguments dominated this wave; specifically, the idea that women and men are similarly situated and, therefore, should have the same rights and opportunities.(7) The second wave lasted until well into the 1980s, when difference feminism suddenly emerged with its emphasis on the differences between women and men and the need to value women's lifestyles as well as men's.(8)

In this essay, I tell a more complicated story about feminism during the twentieth century and about how feminists came to focus so overwhelmingly on formal equality by 1970. Feminism never quite died between suffrage and the second wave, though it did suffer a number of setbacks. From 1920 to 1963, feminists were divided into two hostile camps, one supporting a formal-equality approach--sameness feminism--and the other supporting legislation protecting women in light of their different needs and responsibilities relative to men--difference feminism.(9) By 1970, however, this difference strand had disappeared. Everyone was on the formal equality bandwagon.

In the first section of this essay, I explain this shift. I describe the objections to formal equality at the beginning of the sixties and how those objections disappeared over the next few years. In the second section, I assess the successes and failures of the formal equality approach that has dominated feminism during the second wave. I also consider the extent to which the problems that have appeared were foreseen during the sixties when the crucial shift took place.

In the third section, I consider options for the future. We live in a far different world than did the feminists of 1970. I suggest that in the future, formal equality and constitutional cases in the courts will be less useful and more problematic than they have been in the past. I propose that we use a new Equal Rights Amendment (ERA) to shift to an approach that relies on women's political power to achieve equality rather than on judges enforcing formal equality.

1. THE SIXTIES SHIFT

   After suffrage, one group of activists supported a formal equality approach under an Equal Rights Amendment. These women argued that an ERA was necessary to eliminate the many laws discriminating between women and men. At the time, laws routinely discriminated with respect to regulation of employment and families, obligations of citizenship, competency, and age, as well as crimes and sentences.

   A few examples from each area will give the reader a sense of the breadth of sex-specific regulation. State laws often specified maximum hours or minimum wages for women workers in general or in certain industries, or banned women from bartending or working in factories at night.(10) Family law was almost entirely sex-specific, with the obligation of support imposed only on husbands and fathers, and a preference for mothers as custodians of children of tender years after a divorce.(11) The man's domicile determined the domicile of the family(12) and the man was entitled to the homemaking and caretaking services of his wife.(13) In addition, many states still denied married women full rights to contract and to convey real property.(14)

   As full citizens, only men were subject to the draft(15) and could engage in military combat,(16) limiting to men the avail ability of the powerful preferences veterans often received for state employment.(17) Many states also denied women the ability to serve on juries under the same rules as men for years after the extension of suffrage.(18) The law generally regarded women as competent in various areas at younger ages than men: age of majority tended to be lower for women than men, and women were allowed to marry at younger ages than men.(19)

   Criminal law routinely distinguished between the sexes in rape and statutory rape statutes, which defined rape as something a man did to a woman.(20) Often, prostitution statutes made the activity of the sex worker but not the activity of the sex consumer a crime.(21) Some sentencing statutes imposed harsher penalties on women than men.(22) Laws governing places of public accommodation or entertainment often banned women from bars, wrestling matches, and other events.(23) ERA supporters regarded the ERA as important to eradicate these and other discriminatory laws with a single blow.

   Many women activists opposed the ERA, however. They worried about the consequences of eliminating all sex-specific family law rules and they supported sex-specific protectionist legislation, especially laws purportedly "protecting" women workers because of their special needs and responsibilities.(24) This position seems conservative, even reactionary, today. At the time, though, the anti-ERA position was associated with progressives and the ERA position was supported by economic conservatives opposed to government regulation of employment.(25)

   The progressive position opposing the ERA had its roots in opposition to nineteenth-century labor practices. Appalled by the sweatshop conditions under which many immigrants and other workers labored for low wages in American workplaces, reformers began pushing for minimum wage legislation, maximum hour limitations, and other protectionist legislation during the nineteenth century.(26) Many of these reformers, like Jane Addams, Lillian Wald, and Florence Kelley, were women who worked in settlement houses providing direct services to people in lower income and immigrant neighborhoods.(27) Progressive women coming out of this movement tended to have a strong commitment to legislation that treated women and men differently.(28)

   Indeed, for a few years early in this century, the only constitutional legislation protecting workers applied exclusively to women. In Lochner v. New York,(29) the Supreme Court in 1905 held unconstitutional a state statute limiting the number of hours employees could work in bakeries.(30) Three years later, in Muller v. Oregon,(31) the Supreme Court upheld similar legislation limiting the hours of women working in laundries, stressing the importance of women's role as mothers and their special needs for protection.(32) In 1917, the Supreme Court upheld a maximum hours law applicable to all workers,(33) but progressive reformers continued to see sex-specific protectionist legislation as important because, then as now, women working for wages often worked a second shift at home,(34) because some protections had as yet only been enacted for women,(35) and because some sex-specific legislation was necessary to protect women from work requirements, such as lifting heavy objects.(36) ERA opponents also feared that the ERA indiscriminately would wipe out all sex-specific family laws, such as family support laws.(37) More fundamentally, to progressives and socialists, the ERA was an individualistic approach that was inconsistent with their basic frames of reference and their analysis of social causes for class problems.(38)

   Protectionist legislation was not entirely bad for women, though much of it was. Laws banning women from certain kinds of employment, such as working in factories at night, hurt women by limiting them to lower paying night jobs such as cleaning offices and hospitals.(39) Protectionist laws limiting women's hours in certain industries, however, such as maximum hours limits on women employed in laundries,(40) probably helped many women in situations in which employers nevertheless continued to employ women. Most women did work a second shift and benefited from laws that prohibited employers from requiring that they work more than ten or twelve hours a day in a laundry.(41)

   A majority of the members of the suffrage coalition and a majority of politically active women opposed the ERA in the 1920s.(42) Only "a tiny minority of women activists (primarily from elite backgrounds) were willing to jeopardize what most women saw as essential protections for female workers and for mothers."(43)

   The National Women's Party (NWP) introduced the ERA.(44) Alice Paul had organized the NWP during the final drive for suffrage;(45) it used radical tactics--such as picketing the White House, being arrested, and staging hunger strikes while in prison(46)--borrowed from the English suffragettes.(47) After suffrage, NWP supported a formal equality approach and an ERA.(48) Two other large national organizations of elite women also supported the ERA by 1960: the National Federation of Business and Professional Women's Clubs (BPW) and the General Federation of Women's Clubs.(49) These were sameness feminists, women committed to achieving equality by requiring that laws treat similarly situated women and men the same.(50)

   The language of the original ERA read:

   Men and women shall have equal rights...