Hal Draper & Stephen F. Diamond

The Hidden History of the
Equal Rights Amendment

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10. How the Pure E.R.A.
Won – and Lost

Title VII constituted an unexpected flank attack on the body of women’s labor legislation, coming at a point when labor’s opposition to the Pure E.R.A. was at a low ebb.

The whole political climate had changed drastically. Self-consciously liberal tendencies (Americans for Democratic Action, for example) had faded away into mere letterhead organizations or less. Even the simulacrum of a socialist left dimmed out as radical sects stagnated and split themselves into cinders. The “silent generation” of youth and students offered little footing for feminist ideas.

Even the progressive side of the labor movement’s hostility to the E.R.A. was diluted when the C.I.O. dissolved itself into the A.F.L. in the mid-fifties. The united AFL-CIO continued to oppose the E.R.A., to be sure, but typically with a greater infusion of the traditionalist motivation (which was the “safest” and most respectable stance). This traditionalist motivation sometimes entailed Male Supremacy notions (in the specific primitive-laborite form of the necessity for jobs for the Head of the Family) and objections to economic equality for women on job-trust grounds (since opening up trades to women disrupted the existing job-trust pattern).

The political clout of the AFL-CIO had started dwindling to where it is today, that is, to the lowest point in modern history. In this country it is rarely realized that its labor movement is one of the weakest and most impotent of any in the advanced industrial countries. The leaders of the A.F.L., and latterly of the AFL-CIO, liked to boast that they were “hardheaded pragmatists” interested only in immediate results, hence anti-revolutionary on principle, but in no comparable country was there such an astronomical gap between its objective strength in numbers and its political influence over the ruling parties even for bread-and-butter goals. Even its objective strength, in terms of percentage of unionized labor, has now dropped to only 19 percent.

In short, at no other time in this century has Congress been able with such impunity to disregard noises made by organized labor. At the same time, by the end of the 1960s and the beginning of the ’70s, whatever still remained of a self-styled radical movement had fragmented into splinters consisting of sectarians or crackpots, all of them alien to the interests of workingmen and workingwomen. The neo-feminist movement that emerged as the dust rose from this wreckage had virtually no memory of, and no living connection with, the social-feminism of the past or (still less) with the older socialist feminism. This neo-feminist movement industriously repeated the false claim that women’s labor legislation was no longer an issue.

Now that labor had made itself a political nonentity under George Meany and his successors, now that radicalism existed mainly in discredited shards, and now that social-feminism was down the Memory Hole, the conditions were all set for the passage of the Pure E.R.A. by Congress in the 1970s.

In 1970 the strategists of the Pure E.R.A. decided to veer from the 1950–1953 pattern – by attacking first in the House of Representatives, not the Senate. The great new advantage was that the House debate would take place under rules that did not permit making amendments to the E.R.A. resolution. The proposal was now cast in the form of a parliamentary ultimatum: Pure or nothing.

The new floor manager in the House, successor to Katherine St. George of Tuxedo Park, was Representative Martha Griffiths of Michigan. She was a member of the Detroit Business Women’s Club, and a favorite keynote speaker at gatherings of the Business and Professional Women’s federation. When in 1971 she gave the keynote address at the B.P.W.’s national convention, she gave complete credit to the businesswomen for getting the E.R.A. passed in the House in 1970. The B.P.W. president introduced her with the organization’s seal of approval: “Martha Griffiths is one of our own, a career woman and long-time B.P.W. member.” It is unlikely that Stephanie Prociuk would have considered Griffiths as one of her own.

The Democratic machine men who controlled the Judiciary Committee, chaired by Celler of New York, followed the strong-arm tactic of simply bottling the E.R.A. resolution up in committee, without holding hearings. Griffiths bypassed this maneuver with another: a discharge petition to get the measure out on the floor. This move was successful because it not only had the support of the Republican leadership but also got a benevolent nod from the Democratic Party command in the House, who were not allied with Celler.

When the debate started on August 10, the Republican Party leader in the House was as strong a proponent of the Pure E.R.A. as William F. Knowland had been. He was Gerald R. Ford, who was destined for greater things, but was already well known as a rockribbed and rockheaded conservative. As such, Ford not only made an enthusiastic speech in favor of the Pure E.R.A., but attempted to put the sign of the Republican Party on the measure: he boasted of his mobilization of Republican stalwarts to sign the discharge petition. The Pure E.R.A. was still the protégé of the Republican Party’s top leadership.

Gerald Ford particularly expressed his gratification that the House was acting on an E.R.A. “free and clear of anything like the Senate’s Hayden rider.” A South Carolina congressman took the occasion to needle those who thought that civil rights for blacks were more important than Justice for Women (meaning the E.R.A.); he chortled that “The day of capitulating to the like of the Black Panthers is over; the time for rewarding loyal Americans is at hand.” (One wonders what he had been told about just who was being rewarded by the new constitutional amendment.) A congressman from Delaware, which is sometimes confused with the state of DuPont, openly rested the case for the E.R.A. on improving the possibilities for “career businesswomen” to get ahead.

The House illustrated why it had the reputation of being more unbuttoned than the august Senate. But there was no difference when it came to bureaucratic procedures, on both sides. As mentioned, Celler had tried to head the E.R.A. off at the pass by ambushing it in committee. Once it was out in the open, the pro-E.R.A. forces not only outlawed amendments, but jammed it through in a scant hour or so of alleged debate. It was more like a brawl between opposing gangs of strong-arm men.

Even so, despite this blinding speed seldom seen in the capital, there were at least two alternatives suggested as against the Pure E.R.A. Their rejection serves to shed more light on just what was motivating the majority.

(1) The liberal pro-labor wing in the House, such as it was, counterposed the aim of implementing the recommendations submitted at the end of 1969 by the Presidential Task Force on Women’s Rights and Responsibilities. The ease with which this serious report got lost in Washington, while the Pure E.R.A. was adopted in a scramble, testifies to the real concerns of the majority. The Task Force’s recommendations listed a series of long-advocated aims of the women’s movement. President Nixon – who, remember, lost no opportunity to boast of his support of the E.R.A. – submitted no legislative proposals to implement any of its recommendations.

Representative Mikva (Dem., Illinois), who was one of the House sponsors of the E.R.A., had in June introduced a Women’s Equality Act. It was not at all counterposed to the E.R.A. It was necessary, he argued quite unanswerably, even if the E.R.A. were voted in. But this only presents us the pattern we have seen throughout: few of the House orators who demanded the instant adoption of the Pure E.R.A. showed any interest in anything so damnably concrete as the provisions of the Mikva bill.

(2) There was another futile attempt to combine good points of the E.R.A. with the interests of workingwomen, and it deserves special notice here because it points ahead. Representative Patsy Mink (Dem., Hawaii) had been a sponsor of the Mikva bill and knew what was involved. During the House scramble to adopt the E.R.A. resolution, she stood up to remind that there was a problem of good labor legislation for women, legislation that the E.R.A. should not be allowed to destroy. [1]

Therefore she suggested that the E.R.A. should have the following codicil added:

Provided, That any State or Federal law which confers rights, benefits and privileges on one sex only shall be construed to apply to both sexes equally.

The Pure E.R.A. advocates had no basis for opposing this codicil, because it merely made explicit what they sometimes claimed (falsely) was implicit in the amendment. Patsy Mink pointed out that this language avoided all possible objections to the Hayden addition; it would extend women’s protection to men also, on equal terms.

For those whose agenda was women’s rights, the proposal was unanswerable. For those whose agenda looked more in the direction of destroying existing protective legislation, this proposal was a veritable horror – it not only did not destroy, it multiplied the existing legislation!

No one in the House picked it up. Patsy Mink herself did not push it. She told the House that floor manager Griffiths had assured her the amendment was not needed. (This was the hidden falsehood, passed around mostly orally, that the effect of the E.R.A. would be to extend protective legislation to men. It was believed, despite constant evidence to the contrary, mainly by people who wanted to believe it very much.) So Patsy Mink said she would vote for the E.R.A. resolution anyway. And anyway – all amendments were formally out of order, remember!

The House of Representatives passed the E.R.A. resolution by the vote of 352 to 15, with 62 not voting. The Washington Star called it “the amazing one-hour feat of putting across an amendment pending for 47 years ...” The New York Times called it “an exercise in political opportunism,” and conjectured that the reason many Congressmen voted for it was that they knew it did not have a chance in the Senate.

The Senate took the E.R.A. up on October 7, in an extended debate that was going to have a peculiar denouement. This was not a replay of 1953.

By now there was a distinct shift in the line-up. Missing was the sort of liberal pro-labor bloc of Senators that had been so prominent in the 1950s and before. The role that had been played in 1946 by Senator Robert Wagner and in 1950–1953 by Senator Herbert Lehman was now played by no one, symbolizing the political nullity of the AFL-CIO in the era of George Meany.

Accordingly, the dominant tone of the anti-E.R.A. forces shifted. We have pointed out that there were two allied, but quite different, currents opposing the Pure E.R.A. from two different sides: the liberal-labor objections to the Pure thing, and the traditionalists’ objections. Now it was the second of these that became dominant, not only in men’s minds but in overt discussion. The change was marked above all by this fact: it was not the Hayden addition that was now the spearhead of the opposition, but rather a significantly different amendment devised by Senator Sam Ervin, a conservative and racist Democrat from North Carolina. [H]

The fact that labor pressure on the Democratic Party was now weak made it easier for Democrats to take a more prominent role in the Pure E.R.A. drive. Unlike previous years, the alliance of businesswomen and corporate influence was able to put together a front that was more publicly bipartisan, not so much dominated by the Republicans as before. The feminist aura provided by organizations like N.O.W. helped too. The floor manager for the E.R.A. resolution was now Birch Bayh, a Democrat and a liberal by repute. The Democrats’ majority leader, Mike Mansfield, cooperated with the Republicans in facilitating Senate action.

Perhaps out of self-confidence, Republican leader Hugh Scott allowed himself the unusually candid statement that the purpose of adopting the E.R.A. was to destroy the existing state laws protecting women:

These State laws are the reason the equal rights amendment has been introduced in Congress after Congress. These State laws are the reason it must be adopted during this Congress.

The shift of the opposition toward the traditionalist approach was expressed in the debate both in content and procedure.

In the first place, Senator Ervin’s main amendment went as follows:

This article shall not impair, however, the validity of any law ... which exempts women from compulsory military service or which is reasonably designed to promote the health, safety, privacy, education, or economic welfare of women, or to enable them to perform their duties as homemakers or mothers.

The main shift from the Hayden addition was represented by the first and last clauses. Just as the Hayden formula had been designed to keep some traditionalist support, so also the Ervin version included phrases to appeal to the labor motivation. But it was clear from Ervin’s speeches that traditionalist sexism was his main thrust.

Ervin stressed in a warning to his colleagues that “it is inconceivable” that three-quarters of the state legislatures would ratify an amendment as sweeping and unmeasurable in its effect on sex roles as the Pure E.R.A. It is easy to see in hindsight that his foresight on this point had been well-founded. In effect, he was pointing to the dead weight of conservative and sexist feelings on the subject that would have to be overcome.

It is probable that a considerable number of the Senators who were going to vote yea knew this just as positively as Ervin. We have already mentioned the belief (which the New York Times had even put down in print) that it was possible for some to vote for the E.R.A. in Congress because of their secure knowledge that it was bound to fail in the states; hence they could tap the “women’s vote” with impunity. (By this “women’s vote” they meant the Pure E.R.A. faction, at this juncture.) Available to them, or to others, was also the constitutional theory, pushed by the E.R.A. proponents, that a vote for the amendment in Congress did not entail supporting it in the states.

The tactics of the opposition fragmented into piecemeal potshots. To begin with, Ervin abstracted the ban on compulsory military service for women which led off his amendment, and this issue became the focus of a separate debate and a separate vote. On October 13 this part of the Ervin formula was carried by a close vote, 36 to 33, with 31 not voting. Later that day, the Senate adopted a real rider, that is, a provision on a different subject (voluntary prayer in schools) that was tacked onto the E.R.A. resolution.

These unwelcome developments broke the nerve of the E.R.A. Senatorial managers. They now decided, and told the Senate, that the Pure E.R.A. had no chance.

The next day, the floor manager, Senator Birch Bayh, rose on the floor to make a new proposal on how to achieve equal rights for women. The story of this proposal, its content and its fate, deserves our closest scrutiny. It sheds a bright light on the whole issue, especially because the very existence of this alternative route was soon to be dropped down the Memory Hole like so many other aspects of our story.

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H. A few years later Ervin became a national celebrity as chairman of the Senate’s Watergate investigation. Ervin’s effectiveness in the anti-Nixon process rested on his known conservatism as well as on his reputation as a constitutional-law expert.

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1. A useful survey of state-by-state labor legislation for women as of 1969, that is, at that time not yet destroyed through Title VII, may be found in the Congressional Record for August 10, 1970, pages 28007–11.

Last updated on 12 September 2020