Hal Draper & Stephen F. Diamond

The Hidden History of the
Equal Rights Amendment

* * *

12. How They Snatched
Defeat from the
Jaws of Victory

The whole women’s Apparat of the Republican and Democratic Parties had been mobilized to defeat the Bayh substitute amendment. This was the power before which Bayh had collapsed. That power certainly was not N.O.W., which had even been elbowed out of the managing “coordinating council” of the women’s establishment organizations, but which added its voice against the substitute in its own statement. It was not the National Woman’s Party, which was now barely existent as a splinter group.

When Bayh and Cook resumed their management of the E.R.A. in January 1971, Bayh, giving a legislative history of the proposal, pretended that the whole Fourteenth episode had never taken place. In his account to the Senate, that episode was as non-existent as a Khrushchev speech in the then-current Kremlin textbook. It was down the Memory Hole, like so much of E.R.A. history.

From here on, the Pure amendment had clear sailing in Congress. If anyone thinks that this was so because the whole Senate and House of Representatives had been finally converted to women’s equality in its purest form, this person is to be sincerely envied as a believer in miracles. To find out what was involved less miraculously, let us summarize the outcome.

The House took up the Pure amendment again on October 6, 1971. There was a last procedural flurry. The Judiciary Committee reported it out with an addition of its own, the so-called “Wiggins amendment,” which permitted exemption of women from compulsory military service, and also allowed for law “which reasonably promotes the health and safety of the people.” The procedure was established so as to permit a choice only between this Wiggins amendment and the Pure formula. The Wiggins amendment was defeated 265 to 87. On October 12 the Pure E.R.A. was carried 354 to 24.

The Senate acted in March of 1972. A series of amendments by Senator Ervin failed to carry by votes averaging about 75 to 14.

Then, on March 22, 1972, the pristine, unchanged Pure E.R.A. was adopted 84 to 8.

Does this mean that there were only eight Senators who were opposed to (say) compulsory military service for women? If anyone thinks so, we should like to interest this person in some California swampland for sale near a ring of chemical plants ... As Professor Hewlett stresses, one interesting thing about the vote in Congress was its heterogeneity: “E.R.A. opponents were hard to come by. Hubert Humphrey was for it, and so was George Wallace. Bella Abzug rooted for it, but so did Spiro Agnew.” [1]

We suggest that something else happened. It was not a conspiracy or a secret; it happened right on the record, and can be read in the Congressional Record.

We have mentioned what every constitutional lawyer knows: that in interpreting a new law, it is not only the bare words of the law that are illuminating, but what the judges call the “legislative record.” This record is made on the floor of Congress by the proponents of the law. And when the “bare words of the law” are kept as bare and as few as in the Pure formula, the legislative record grows correspondingly in importance.

The debate in the House, where the amendment was taken up first, contributed heavily to the legislative record. The debate was noteworthy in this respect: it provided a powerful basis which would permit the courts to make various “sex classifications,” as Professor Kanowitz and others had explained, in spite of the apparent rigidity of the one-sentence blast.

Representative Griffiths – who was once again the E.R.A. floor manager in the House – was confronted by Wiggins with a loaded question. The question purported to show that, given the E.R.A., laws could still “make rational distinctions between persons on the basis of sex.” Griffiths, not too happily, conceded that such distinctions could still be made “as may be generally related to their physical differences.” She adduced rape laws as her example; but the courts would make their own applications of the principle conceded by the amendment’s floor manager.

Wiggins stressed, with a plethora of evidence, that the supporters of the E.R.A. had great differences among themselves on how they thought it would affect the legal system. Some, following the lead of a school of thought headed by Professor Emerson of Yale, proposed that “equal” must virtually always be interpreted as “identical,” and that sex classifications were virtually outlawed. Others permitted “reasonable” classification, and there were extensive differences on what was considered reasonable. What emerged from the discussion was that the Congressional managers of the E.R.A. belonged to the second school. That means that they were determining how the courts would interpret the amendment’s spare language, and that Professor Emerson’s writings on the subject would be useful only for inspiring N.O.W. activists with illusions.

It should be remarked that Wiggins, in this last attempt to add a codicil to the E.R.A., emphasized that his amendment, unlike Hayden’s, did not have the effect necessarily of safeguarding labor laws for women. This was an effort to narrow still more the distance between pro- and anti-E.R.A., until they merged like the images in a stereopticon.

Toward the end of the debate, floor manager Griffiths came out with an unusually strong statement for the “legislative record.” We cannot reveal what happened behind the scenes because we do not know, and perhaps nothing happened there (outside of the usual informal conversations). But what is evident on the printed pages of the Congressional Record is that this statement must have consolidated support for the amendment. For it told the Congress in perfectly clear language that the E.R.A. would be interpreted by the courts in exactly the same way as the Fourteenth route amendment.

This was not a crystal-ball prediction; this was self-fulfilling. For by making this statement on the floor, and speaking as the spokesperson of the E.R.A. forces, Griffiths was telling the courts of the future how Congress wanted the “bare words” interpreted.

In this statement she stressed: it is not true that the E.R.A. can do anything more than can be done by an implementation of the Fourteenth Amendment.

Oh no, Mr. Chairman, that is not true. The real truth is that the equal rights amendment, even if passed, might still be interpreted as the 14th amendment has been interpreted and give no rights to women. The 14th amendment has been interpreted to permit any classification that the Court deems reasonable ...

Mr. Chairman, what the equal rights amendment seeks to do, and all it seeks to do, is to say to the Supreme Court of the United States, “Wake up! This is the 20th century ...”

With this extraordinary statement by the E.R.A.’s representative in the House, on the verge of the final vote, there is left little doubt how the amendment would be interpreted once on the books. The Pure bloc had demanded all or nothing; they had gotten all and nothing. Nothing except what could have been put into the law decades and decades before this.

In the House debate, one of Wiggins’ supporters, Hutchinson, drew a striking conclusion from the situation. Our summary of his argument would go like this:

The pro-E.R.A. people think they are avoiding a piecemeal approach to equal rights, avoiding the process of removing specific inequalities and abuses by specific measures. But in fact they are simply trading one piecemeal approach for another. They will be able to establish the concrete import of E.R.A. only by one court case after another, and specific inequalities and abuses will be ended only a case at a time.

But there is a big difference between the two piecemeal approaches: the forum in which it is pursued. The Pure E.R.A. means that forum will be in the courts rather than in the legislatures. Moreover, it will be in the federal courts, the one least reachable by the people in the first instance. And the history of the Supreme Court is a history of discovering meanings and powers in constitutional amendments that no one had previously dreamed of. Once the Pure single-sentence is unleashed, its real meaning will become the sole province of the Supreme Court and no one else. Yet it is precisely because they distrusted the courts’ interpretations in this field that Representative Griffiths et al. asked Congress for a constitutional amendment!

Such was Hutchinson’s argument, put a little more directly than Hutchinson had done. Outside the Capitol, women’s organizations were celebrating the passage of the E.R.A. as a famous victory. But as soon as one took a close look at the victory, peculiarities showed up. Unfortunately, since this was a proposed amendment and not merely another law, fifty other legislative bodies had to take a closer look, and hence about a hundred million women (not to speak of men) were further encouraged to do so. The result, as we know, was disastrous for the amendment.

It is no part of this book’s aim to survey and analyze the reasons for the failure of the E.R.A. to get the required approval of two-thirds of the states. There is a comment to be made, however, in terms of the hidden history of the E.R.A., a consideration which emerges from the story told on these pages but which – by its nature – played no overt role.

First a summary of the facts. During the first year or so, 28 states ratified the amendment, but over the next nine years only seven more states added themselves to the list. The original seven-year ratification period expired with only 35 states giving their approval, out of the 38 required. Congress adopted an extension, whose legality was vigorously questioned, but by June 30, 1982, its deadline, it too had failed to save the amendment. Several states even reversed their earlier ratifications, or stated they wanted to do so. In 1975 the E.R.A.’s proponents were stunned (the word is not too strong) when New York and New Jersey voted against the adoption of state E.R.A.’s: for these were two states that had not only ratified the national amendment but were regarded as sure things by their strong feminist organizations.

It is very instructive to read the press productions of the pro-E.R.A. forces after the New York-New Jersey bombshell. No one had the least idea why this terrible development had taken place. It was an utter mystery. Then, in 1980, for the first time in over 35 years, the Republican Party dropped support of the E.R.A. from its platform. The Democratic Party leadership refused to back a convention-supported platform plank that would have ended party financial support to party candidates who refused to support the E.R.A.

If the reader wishes to penetrate this mystery, we have a suggestion: to begin with Professor Sylvia Hewlett’s A Lesser Life and its chapter on The E.R.A.: A Test Case. The least this will do is eliminate the conspiracy theory which was the main product of the E.R.A. thinkers; that is, the claim that it was all due to a right-wing-funded cabal in which the “Moral Majority” and similar troglodyte groups financed Phyllis Schlafly’s campaign to “Stop E.R.A.”

Hewlett gives Schlafly a great deal of credit (perhaps more than we would) for crystallizing the Stop E.R.A. sentiment, but she rightly puts the spotlight on the grass-roots sentiment among American women which was there to be crystallized. The mass of women were ready to believe that the E.R.A. was really a “men’s liberation” measure, because they were brought to realize what they stood to lose. Their trade-union leaders, including most of the women leaders (who were oriented toward establishment-feminism), failed to tell them; Schlafly did, in the midst of her socially reactionary diatribes about “women’s lib” atrocities.

Any explanation of the startling ratification fiasco that focuses solely or mainly on Schlafly misses the point. What hits the point is Hewlett’s account of how and why she stopped working for E.R.A. ratification. It is a relatively short account, and the reader is requested to hold still to read it, remembering that Hewlett herself was utterly innocent of any link with or experience of the life of workingwomen.

Hewlett explains that, attending a meeting of the American Economic Association in Atlanta, in 1979, she and other “liberal economists” were unhappy about holding a convention in a state that had not yet ratified the E.R.A. To make up for this, she decided to put in time canvassing for the amendment. – The following, we maintain, is a brief classic.

I went with two colleagues to take on the shift workers at a small textile plant on the outskirts of the city. Early Friday morning a cab dropped us off in front of the factory. It was a raw December day with freezing drizzle spitting out of an overcast sky. We huddled together, our fashionable winter coats and high-heeled boots seeming both inadequate and incongruous in this bleak landscape.

At last a siren wailed and a few minutes later workers from the night shift came straggling through the factory gates in twos and threes. I stepped briskly forward holding out my leaflets and reciting my set piece. “Please read about the ERA; it will improve conditions of life for all American women.”

The first group of women eyed me suspiciously, then pushed past – roughly. I retreated surprised and intimidated. I was shocked by the appearance of these women: the bulky starch-fed bodies, the careworn faces and bloodshot, exhausted eyes reminded me of the adults who peopled my childhood in South Wales. The minds of these women were clearly on things other than the ERA.

“Can you take little Chrissy today? Ma is laid up; it’s her back again, and I’ve gotta take her in to the clinic,” said one to another as she struggled into her plastic raincoat. Her friend sighed. “I guess I can, but drop her off with some milk and food; my old man’s drinking again and we don’t have much stuff ...” Her voice trailed off. These women might have finished work at the factory, but they were about to start another job – dealing with the demands of needy families.

Eventually I engaged the attention of a black woman. Younger than most of the other workers, she accepted some pro-ERA literature and then looked at me antagonistically.

“You know, I’ve heard of you ’libbers’ and your ERA. I’ve seen that Schlafly person on TV and she says that equal rights for women is a bad deal because we would lose a whole lot. Like us girls get an extra break in the shift, and management can’t force us to work overtime the way they force the men.”

As she warmed to her theme, her voice rose. “You should try working in this lousy factory week in and week out and I bet you would want all the benefits you could get.”

I attempted a comeback. “You know the ERA wouldn’t necessarily take job protection away from women; the ones that mean anything would be extended to men. If women need special benefits, so do men.”

This factory worker was now really angry. “If you think life’s fair, you’re crazy,” she snapped. “I’ve got two kids under five and a husband who doesn’t lift a finger. What’s fair about that? Why shouldn’t I get some breaks on the job?” She flung my pamphlets into the gutter and stalked off to the bus stop to wait in the freezing rain for her bus home.

I felt cowed and uncomfortable. It was the last time I canvassed for the ERA. [2]

This account should not be examined for its explicit argumentation. What reached the good professor in her “fashionable winter coat” was the social situation behind the conversation. She had not been told anything she didn’t know already – why, she was a professor of economics! But what reached her second-hand had, before this, not had to be explained to women who worked, who felt on their own backs the meaning of being liberated from “protective” laws.

But let us leave the rest of the Ratification (or Non-ratification) Mystery to other books, and return to our muttons: a comment to be made on the mystery that is directly related to the history of the question.

It is simply this: by the late 1970s or thereabouts, the original drive behind the E.R.A. alliance was now gone – disappeared – closed out. The forces that had once kept the E.R.A. alive and pushing now had no more need of it.

This does not refer, of course, to the abstract-doctrinaires of the Alice Paul type, but to the forces that had given political meaning to their abstractions. The deal, we saw, had first been made explicit in the 1920s with the alliance of the N.W.P. with the National Association of Manufacturers. While the women’s end was increasingly taken over by the Business and Professional Women’s federation, the other end was established by the top leadership of the Republican Party; and this axis was the central alliance for the E.R.A. through the 1950s. The political picture became more complicated with the entrance of the Democratic leadership, but this need not detain us now (it would require an essay on the decline of American liberalism, anyway).

The central alliance had been based on a quid pro quo: the symbolic sentence in exchange for the destruction of a few billion dollars’ worth of labor laws for workingwomen. That is how the question was posed in (say) the ’50s. But as the ’70s came to an end, women’s protective laws had already been smashed on a large scale and bid fair to be wiped out even more completely. Without the passage of an E.R.A.! To be sure, it was the decades-long campaign for “equal rights” that had made possible the semi-accidental phenomenon of Title VII. The National Association of Manufacturers had not wasted its time and energies, and the pro-E.R.A. work of Republican presidents Eisenhower, Nixon, Gerald Ford, et al. had been worth the elocutionary support to Women’s Rights.

These campaigns by the E.R.A. alliance had paid off not only in the consequences of Title VII but also in the blows against protective legislation through state instruments, including state E.R.A.’s. But they had paid off already; this was in the pluperfect tense. For one of the partners in the alliance, there was no more to be gained by actually placing the E.R.A. in the Constitution now. The ploy had been squeezed dry; the E.R.A. was now a squeezed lemon.

Now it is important to understand that this consideration applies to only one half the mystery. The reasons to which Professor Hewlett points, in her own way, have to do with the revulsion of feeling among American women. Half the alliance did base itself on women’s demands, real or fancied. But we are now pointing to the other half of the alliance. This meant that the hidden drive behind the E.R.A. amendment was no longer there.

“Hidden” merely means out of sight – not conspiratorial. In a congenial gathering, for example, the oil senator from Texas, John Tower, was perfectly willing to refer to such motivations, in the expectation that his reference would not be a mystery to his audience.

Senator Tower’s remarks were made in 1970 before an American Bar Association meeting in St. Louis. He began by noting that the courts could, if they wished, achieve all of the E.R.A.’s objectives through the existing Constitution. This brings us back to the Fourteenth route; indeed Tower thought that “the Fifth and Fourteenth Amendments could easily be construed by the Supreme Court to cover state and federal discrimination on the basis of sex.” But the courts have not been of “assistance in solving the discrimination problems in either labor or education.” This brought him to the difference between the Fourteenth and a new equal rights amendment:

Women’s work rights have generally not been considered to be covered under the “equal protection” clause [of the Fourteenth]. In Muller v. Oregon, a leading 1908 Supreme Court case, the Court upheld a limitation on the number of hours a woman could work in a bakery, declaring that sex was a valid basis of classification.

What this showed was that the Fourteenth route could not, by itself, be relied on to destroy protective legislation.

Unfortunately (Senator Tower pointed out) the E.E.O.C., implementing Title VII, had had a rather poor track record with respect to such laws – at least up to 1970. Title VII did challenge the Muller v. Oregon doctrine –

however, the EEOC ... has not been very successful to date in winning court cases which it has not initiated in response to specific complaints. Only recently has the Supreme Court agreed to hear a Title VII case.

Hence the Pure E.R.A. was still needed:

This Amendment can serve as a source of momentum for the Supreme Court and the lower courts to actually ... extend the Fifth and Fourteenth Amendments [to cover state and federal sex discrimination] should they see fit at a date earlier than the eventual passage and ratification of the Equal Rights Amendment.

Senator Tower hoped for such a development precisely because of its removal of “privileges” for women:

It is true that the Equal Rights Amendment may remove some privileges which women previously enjoyed ... Yet women today seem to be ready to leave behind the special privileges of the past for full economic opportunity in the future ... [3]

That is, women who were demanding equal access to corporate Boards of Directors and vice-presidencies were quite willing to “leave behind the special privileges” enjoyed by the Atlanta textile factory workers to whom Hewlett talked.

By the mid-1970s the E.E.O.C., implementing Title VII, began having the desired impact on the target laws. Guidelines were issued stating that protective labor laws were discriminatory; in state after state, they were destroyed, or mostly so. At the same time that (say) the Atlanta textile factory workers were getting an inkling of what was being done to them in the name of equal rights, Senator Tower was able to look benignly on as the E.E.O.C. did the job it was supposed to do. Tower did not publicly reverse his position on the E.R.A., but in 1978 he fought against the three-year extension of the ratification deadline.

Later Tower, in a letter to one of the authors, explained his vote by saying that seven years was enough for the states’ ratification. “To grant an extension in the emotional aspects of the issue does great harm to the entire constitutional process.” [4] So what was once an important “source of momentum” was now simply an “emotional issue.” What was left after the main goal had been achieved could be dismissed in that way.

If we go back to get the original alliance firmly in mind, if we think back to the rather indecent role of the National Woman’s Party in whitewashing the antilabor machinations of the National Association of Manufacturers for the sake of its abstract amendment, then we must realize what has been the crowning irony of the whole history of the E.R.A. That is: these women, who sold themselves to capital for what they thought was suitable compensation, may not even get paid off.

An equal rights amendment of some sort is still a possibility. In these pages, we have seen four different formulas offered for E.R.A.’s that do not penalize workingwomen: the early Wisconsin law; the Hayden formulation; the Fourteenth route; and the “Labor E.R.A.” that was proposed in California by Anne Draper (see Appendixes A and B). There was a fifth if we count Patsy Mink’s proposal. It may be that such an E.R.A. may still be usefully taken up.

But if a real women’s movement, a workingwomen’s movement or one that subsumes workingwomen, arises in this country, it had better first turn its attention away from the Big Abstraction, which in the end means little because it is infinitely manipulable. A movement should have real, concrete “protective” gains to fight for; it is enough to mention Professor Hewlett’s emphasis on maternity leave, and also the economic demands that focus on the opprobrious differential in pay (64%) between men and women in this country.

In the end the Pure E.R.A. has been a pure disaster. That is a starting point for moving ahead.

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1. Hewlett, op. cit. (Pref., n.2), 198.

2. Ibid., 202f.

3. Senator John Tower, speech before the American Bar Association, August 10, 1970; text released from his Senate office; in N.W.P. Papers, Reel no. 112.

4. Letter, Senator John Tower to S. Diamond, July 14, 1981.

Last updated on 12 September 2020