Equality of Rights: "Basic to Democracy"

In its report the President's Commission on the Status of Women emphasized its stand that women needed the protection of the Constitution against arbitrary sex discrimination; it did not stress its position on the ERA. The section of the report entitled "Women Under the Law" began with the statement that "equality of rights under the law for all persons, male or female, is so basic to democracy . . . that it must be reflected in the fundamental law of the land." It went on to say that whereas the commission believed that this principle was already incorporated in the Fifth and Fourteenth Amendments to the Constitution, but that some state laws made distinctions between men and women that "do not appear to be reasonable in the light of the multiple activities of women in present-day society." The commission had considered three approaches to dealing with such laws, it said: test litigation looking toward Supreme Court review, the Equal Rights Amendment, and state legislative action. The report continued: "Since the Commission is convinced that the U.S. Consti-

tution now embodies equality of rights for men and women, we conclude that a constitutional amendment need not now be sought in order to establish this principle. But judicial clarification is imperative in order that remaining ambiguities with respect to the constitutional protection of women's rights be eliminated." Interested groups should, the commission said, seek appropriate test cases. In addition, the commission asked all branches of government to "scrutinize" their laws and to remove "archaic" discriminatory standards. With respect to the activity of other groups, the commission "commended" and "encouraged" education and action "to the end that full equality of rights may become a reality." No specific proposals were mentioned.^[81]

On the day the commission report came out, Peterson wrote to Senator Carl Hayden to thank him for his efforts in staving off the Equal Rights Amendment. His rider, she said, had constituted "an indispensable safeguard." She expressed her hope that "active work on the E.R.A. could be deferred to allow a reasonable opportunity for testing the effectiveness of the new approach recommended by the Commission"; she was sure, she told him, that the Supreme Court would uphold protective laws for women under the commission plan. She asked him, however, to be sure to continue appending his rider if the ERA were introduced.^[82]

Predictably, the National Woman's party opposed the commission's conclusion with respect to the ERA. "In our opinion," explained an NWP statement, "the fate of American women should not be left to a possible future change in the attitude of the Supreme Court." The NWP did not object philosophically to the proposed reinterpretation of the Constitution; it avowed only that the possibility was unlikely. "Such a change," the party declared, "might not come for years, or it might never come." In any case, the party expressed the hope that the president's commission would signal the end of the study of women's status, which had been investigated ever since the presentation of the first colonial petition for women's suffrage 315 years before. Adoption of the "simple, clear and comprehensive" Equal Rights Amendment constituted the next logical step, the party maintained.^[83] Privately, Emma Guffey Miller called the out-

come "a contradictory report from a packed committee."^[84] Alice Paul proposed that the NWP simply ignore the commission report and go forward with the ERA, which again awaited action in both the Senate and the House.^[85]

Congressional opponents, however, believed that the proposal of the president's commission eliminated whatever chance the ERA had in Congress. Carl Hayden sent copies of the commission report to correspondents, telling them: "In view of the recommendations . . . , I doubt that it would be possible to obtain two-thirds majority in each branch of the Congress in favor of submitting the Equal Rights Amendment of ratification by three-fourths of the State Legislatures." He suggested that persons who complained of discrimination file federal suits.^[86]

Peterson herself viewed the commission suggestion on constitutional equality as a constructive plan of action, and she called a meeting ten days after the commission presented its report to discuss its implementation. She invited the National Woman's party to attend, and three representatives, including Alice Paul, participated, along with delegates from several other women's groups. Although Paul publicly expressed her hope and support for legal appeals through the courts, she continued to believe that such a strategy would "cripple the movement for the Equal Rights Amendment," which she did not intend to allow.^[87] An expanded meeting of organizations willing to work on the Fourteenth Amendment approach took place two weeks later, with some seventeen groups present, including, again, the National Woman's party, which wanted to monitor the proceedings. The group elected the BPW president to chair a clearinghouse for the dissemination of information, creating much the same structure as the National Committee on Equal Pay. Plans were made for future meetings. Despite the uncertainty of the outcome, and the ambivalence of the NWP, for the first time since the introduction of the ERA in 1923 women's organizations on both sides of the question were uniting to work on an alternative plan for constitutional equality.^[88]

The creation of the President's Commission on the Status of Women thus succeeded in achieving one of the goals of the Women's Bureau coalition. During the commission's life it fore-

stalled action on the ERA in Congress, and it developed an alternative that seemed likely to sap the strength of the amendment's appeal in the future.

But by agreeing that women needed to be considered "equal under law," it broke the long-standing stalemate that had hobbled concerted action on behalf of American women since the end of World War II. The President's Commission on the Status of Women had included the amendment's backers; it had further declined either to make an unacceptable policy statement at its inception or permanently to reject the amendment at the commission's conclusion. In fact, the commission's suggested alternative—"that the principle of equality [for women] become firmly established in constitutional doctrine" by means of an "early and definitive Supreme Court pronouncement"—was acceptable ideologically to the ERA's advocates; most merely thought it impractical.^[89] Moreover, the amendment's opponents had even suggested that constitutional amendment might be required if the judiciary did not vindicate their belief in the Fifth and Fourteenth Amendments. The central argument over the ERA had now been sidestepped in such a way that both proponents and opponents could work together on constitutional equality and other women's issues as well. Although the NWP doubted that the Supreme Court would ever rule in favor of equal rights for women, other ERA advocates contended that a well-organized case had not before been presented, and they were willing, at least for a time, to take on the task.

The outcome of the Commission's work on this issue thus proved salutary; the way in which the commission functioned had an equally useful result. By isolating the discussion of the ERA during its life, the President's Commission on the Status of Women found itself able to embark on what it viewed as its main work: the creation of a program for women that would address the many problems that constitutional equality would not rectify.