Hal Draper & Stephen F. Diamond

The Hidden History of the
Equal Rights Amendment

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4. Wisconsin Demonstrates
the E.R.A.

In 1921–1922, while the split was hardening between the social-feminist majority of the women’s movement and the Paulite offshoot (National Woman’s Party), the first Equal Rights Amendment of any kind was established in the state of Wisconsin. Its history is a brilliantly illuminated comment on the pattern that was going to be acted out during the subsequent history of the national E.R.A. question.

This story may be summarized as follows:

  1. The Wisconsin law was an E.R.A. that could be and was supported by the social-feminists and workingwomen’s advocates, that is, a “workingwomen’s E.R.A.”
  2. Insofar as it was allowed to work out, it showed none of the disastrous effects on women’s independence that the Paulites predicted; on the contrary it was an unquestionably positive measure for all women’s interests.
  3. It was obstructed by the same united front we will see at work in the next chapter, the abstract feminists of the Pure amendment plus the traditionalist right of the Establishment.

The Wisconsin law was not, in origin, the outcome of agitation by the women’s movement. The law (says Lemons)

grew out of a general desire to clarify women’s rights after the Nineteenth Amendment and from politicians’ hopes of capturing the women’s vote. Governor John J. Blair had been elected on a platform promising equality. [1]

Like many other states, Wisconsin in the first part of the twentieth century had adopted a number of labor laws for women workers, passed under the combined pressure of women’s groups, social welfare organizations, and the trade-union movement.

For example, in January 1917 a Petition and Statement of Facts was submitted jointly by the Wisconsin Federation of Labor, the Milwaukee Council of Social Agencies, and the Wisconsin Consumers League, and sent to the Wisconsin Industrial Commission, in support of a proposal for reduced working hours for women. These organizations presented a detailed survey comparing the working hours of men and women, concluding that “It will thus be seen that, in 1915, 17,609 union men worked less time than the hours fixed by law for women, per week, and only 5,533 worked as many or more hours than fixed by law for women.” [2]Any enterprise affecting women workers had to take these forces into account. It must also be remembered that there was a strong socialist movement around Milwaukee: Victor Berger had been elected as the first socialist congressman from that area, first in 1911 and again in 1918 and 1919 (only to be illegally thrown out of Congress in the wartime and postwar anti-Red hysteria) and later served from 1923 on, at a time when Milwaukee also began electing socialist mayors.

The N.W.P.’s state chair, Mabel Putnam, was active in leading the movement, but her organization’s policy was still in flux; and recognizing that the N.W.P. by itself was not strong enough to carry the equal-rights proposal, she sought the support of other groups. The final wording of the Wisconsin E.R.A. stated that its purpose was “to remove discrimination against women and to give them equal rights before the law ... The statutes where the masculine gender is used [are] to include the feminine gender unless such construction will deny to females the special protection and privileges which they now enjoy for the general welfare...” [Emphasis added to original.] [3]

With this provision allowing room for labor legislation applying to women only, the sponsors obtained the support of the important women’s organizations, such as the Women’s Progressive Association of the La Follette movement, part of the League of Women Voters, the State Federation of Women’s Clubs, the Wisconsin Council of Catholic Women, the Wisconsin Consumers League, the Y.W.C.A., the Socialist Party, and others. How heartening this new unity was may be seen from the enthusiastic words of Mabel Putnam herself, published not much later:

Such a different-minded group of women gathered together in common support of one bill; women representing organizations, some of them, which were even working for causes in opposition! But women who all put the emancipation of women above every other cause. Other differences did not count, in the face of the tremendous importance of winning full citizenship for women. [4]

This was the first and last time that such a broad front to expand women’s rights and interests, comprising even the Paulites of the National Woman’s Party, could be achieved. The N.W.P.’s increasingly adamant refusal to allow labor legislation for women in its national E.R.A. would prevent such a concentration of strength ever again.

The situation in Wisconsin, even with an E.R.A. formulation that exempted special women’s gains, showed that there was a certain suspicion of a blanket approach to women’s rights. The League of Women Voters was a case in point.

Initially the state organization of the League had testified in favor of the proposal; but later the Milwaukee branch pulled back from it, in favor of a “specific bills for specific ills” approach only. The Milwaukee people asserted they wanted to support only the right to jury service, since this was closely related to voting rights. The League’s statewide vice-president, however, continued to speak for the full bill. It may well be that, even at this early point, the League people (no radicals they) were fearful of the effect of any blanket statement on “specific bills for specific ills.” Certainly, later on when the League was vigorously opposing the Paulites’ national E.R.A. (the “pure” E.R.A.), their leaders made this point. Esther Dunshee, their spokesperson on the issue, emphasized that the advocates of the “pure” thing wanted to destroy “all protective legislation affecting only women” and held the view that this destruction is a desirable thing. “But statistics show,” Dunshee wrote, “that such protection is warranted ... the best results can only be obtained by a carefully worked-out system of laws, not by hasty, ill-considered blanket legislation.” [5]

But, back in Wisconsin, Mabel Putnam – not yet straightened out by Alice Paul – was “delighted” with the language of the bill, which had been worked on by the state legislature’s own staff; it was “a marvel of simplicity and completeness.” She called on the governor, who, she said, “agreed with the last section of the bill that the law relating to labor, as it affects women, should not be affected by a general act abolishing other discriminations.” [6]

The movement behind the Wisconsin E.R.A. effectively faced only the strong opposition of the traditionalists of the right, such as the state assemblyman Alexander E. Matheson. His argument was the familiar one:

There are three pillars of state – religion, education, and the home, and of these the home is the greatest of all. In the home the mother is the center. Our civilization is tottering and crumbling and I think we should go slow in passing legislation of this kind. This bill will result in coarsening the fiber of woman – it takes her out of her proper sphere. [7]

The new law passed easily in the Legislature, and was signed into law by the governor in July 1921.

Later that year, a “Wisconsin Women’s Committee on Study of [the 1921] ... Women’s Equal Rights Law” was set up as the result of a resolution adopted by the annual convention of the Wisconsin Federation of Women’s Clubs. Because of all of the free-floating predictions about the horrible (or for that matter beneficent) consequences of the new law, the aim was to investigate what its effects had been in fact. A number of women’s organizations added representatives to this committee: the American Association of University Women, the Women’s Progressive Association (La Follette), Consumers League, League of Women Voters, Women’s Trade Union League, and others. The investigation was conducted by Irma Hochstein, of the state’s Legislative Reference Library, through 1922, until September when the committee report was issued.

This report is a unique historical document, the only factual response to the myriad of predictions and guesses and charges that had been flung about, and that were going to be flung about on the national scene, by the proponents of a “pure” E.R.A., against a workingwomen’s version of an E.R.A. This one and only example of a workingwomen’s E.R.A. had been in force for a year and two months when the report came out, and there was never going to be such an opportunity again.

The report offered both general summary statements and specific, detailed accounts of real cases and situations. Here is a summary statement:

During that time [the year and two months] no instance of injustice to women under the law had occurred. Numerous illustrations show that the law has worked for a greater degree of justice and greater equality of women with men than they had before the passage of the law.

The pessimists’ prediction that the new law would cause the courts to be jammed with lawsuits demanding interpretation was not borne out, any more than the traditionalists’ forecasts that the social order and the family would self-destruct in short order. During about a dozen years after the passage of the state E.R.A., the state Supreme Court upheld it in case after case. And subsequent reports by the state Legislative Reference Library upheld the conclusions of the Wisconsin Women’s Committee of September 1922. [10]

We have mentioned that there was an initial period before Alice Paul and her National Woman’s Party hardened their position on the “pure” E.R.A. and suppressed all possibility of compromise with the social-feminists. In this interim the group expressed delight with the passage of the Wisconsin law. Mabel Putnam later quoted Alice Paul as writing in a party news bulletin that “This makes Wisconsin the only spot in the United States where women have, or have ever had since the beginning of our country, full equality with men ...” [11]

But as the Paulites’ national position on a Pure E.R.A. began to harden through 1921 and 1922, what had been hailed as a “Bill of Rights for the women of Wisconsin” was transformed into an example of what not to do. How this flip-flop was achieved provides a good example of how the N.W.P. approached politics. What happened was that the group seized on a bad ruling made by Wisconsin’s attorney general, Herman L. Ekern, in early 1923.

A ruling by one politician was enough to turn two years of experience topsy-turvy? The answer is, of course, that it gave the Paulites the only pretext they had available. It was not even a good pretext, if we examine what happened.

Ekern’s ruling was that a 1905 state law prohibiting the employment of women as clerks and aides in the state Legislature was consistent with the new E.R.A. He based this decision on the argument that such “employees must devote to the service long hours and often be on duty at very unseasonable hours.” He claimed that the ruling “did not spring from any desire to exclude women from employment but from a desire for the protection of women against the conditions and requirements of such employment.” (So he wrote in a letter sent to the N.W.P.) [12]

The attorney general’s ruling was very vulnerable (not many people would consider a legislative clerkship as a position detrimental to morals), and a united movement had a plain road to overthrowing it in the courts. Besides, Ekern himself pointed out that it would be “a simple matter to meet the question if the legislature may find at any time that it is desirable to specifically change this rule.” [13] And so the Legislature itself could invalidate the new ruling – by finding that its own women clerks were not in danger of losing their immortal souls or social innocence. In fact, the attorney general’s ruling was a pretty feeble attempt to sabotage the state E.R.A.

But by this time the N.W.P. did not need a strong pretext; it could not continue to support the Wisconsin E.R.A. and at the same time break nationally with the majority of the women’s movement over the Pure E.R.A. Instead of solidifying the Wisconsin law by campaigning for a rebuke to Ekern by either the courts or the Legislature, it became part of the front to destroy the new law – for its own reasons, of course.

The Paulites now claimed that the clause exempting women’s labor laws was instrumental in excluding women from jobs, for wasn’t this the clause that Ekern had fastened onto? Instead of a “Bill of Rights” for women, the law was now

An example of the working out in practice of laws purporting to give special privileges to women ... Nothing could show more vividly what “privileges” and what “protection” really mean to women. Nothing, moreover, could show more clearly the wisdom of the Woman’s Party ... in opposing the so-called “safeguarding” clauses such as that contained in the Wisconsin law, which assume to give “protection” and “privilege” to women ... [14]

The N.W.P. launched campaigns in other states for a statewide E.R.A. – a Pure E.R.A. – but now this was not only a one-blast amendment, it was a one-group slogan property. No cooperation with the social-feminists was possible; and this in fact meant no cooperation with any other women’s organization of any consequence. The Wisconsin “workingwomen’s E.R.A.” was the only blanket law for equal rights ever adopted during the next several decades.

We can say with a certain amount of confidence that, if the women’s movement had remained united in support of the Wisconsin E.R.A., that experiment could well have been the first step of a national drive for a similar E.R.A. It is quite possible that we could have had an equal rights amendment in this country decades before the fiasco-E.R.A. of the ’70s and ’80s. But it would have had to be a workingwomen’s E.R.A., not the Pure thing, and the National Woman’s Party made sure that it did not happen. By the end of this episode, the N.W.P. policy amounted to rule-or-ruin: either we get the Pure amendment in all its purity, or else we wreck every effort to win an E.R.A. favorable to workingwomen. If the reader believes this is an exaggeration, in a little while we will read Alice Paul’s own description of her wrecking-crew approach.

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1. Lemons, op. cit. (1: n.1), 187.

2. Petition and Statement of Facts for consideration of the Wisconsin Industrial Commission by men and women of the state: who are vitally interested in the welfare of women workers in the industries of Wisconsin. January 1917. Submitted by J.J. Handley, Secretary, Wisconsin Federation of Labor; H.H. Jacobs, President, Executive Committee of Milwaukee Council of Social Agencies; Sophie Gudden, Wisconsin Consumers League; available in State of Wisconsin Legislative Reference Library.

3. Chapter 529, Wisconsin Laws, 1921. See also shorter excerpt in Lemons, op. cit. (1: n.1), 187.

4. Mabel Raef Putnam, The Winning of the First Bill of Rights for American Women (Milwaukee, F. Putnam, 1924), p.

5. Esther Dunshee, Blanket Legislation, in Ohio Woman Voter, May 1926, p. 3.

6. Putnam, op. cit. (4: n.4), 24f., also 15.

7. Ibid., p. 48f.; see also Lemons, op. cit. (1: n.1), 188.

8. The last four paragraphs: Report of Wisconsin Women’s Committee on Study of Chapter 529, Wisconsin Laws 1921, Women’s Equal Rights Law, September 23, 1922. Found in Wisconsin League of Women Voters subject file, Archives and Manuscripts Division of Wisconsin State Historical Society. See also Lemons, op. cit. (1: n.1), 188.

9. Industrial Commission of Wisconsin, Wisconsin Labor Market, June 1923, p. 8; January 1926, p. 17; December 1927, p. 14.

10. (1) Edwin E. Witte, History and Purposes of the Wisconsin Women’s Equal Rights Law (including court decisions construing this law), 1928–1929 (Wisconsin Legislative Reference Library, Madison, December 1929). – (2) Howard F. Ohm, same title (same publisher, July 1938).

11. Putnam, op. cit. (4: n.4), 67f.

12. For another, similar formulation of Ekern’s argument see the source cited by Lemons, op. cit. (1: n.1), 189.

13. Letter, Herman Ekern to Mabel Putnam, January 27, 1923; found in Legislative Reference Library, Madison, portfolio #328.15W75z.

14. Leaflet, Special Privileges for Women, by the National Woman’s Party, 1925; in Legislative Reference Library, ibid. (preceding note).

Last updated on 12 September 2020