7
The PCSW Versus the ERA
If the Equal Pay Act represented a "specific bill for a specific ill," the President's Commission on the Status of Women served as the Kennedy Administration's omnibus approach to matters affecting women's lives. Since 1946 the Women's Bureau coalition had sought such a commission, but before 1961 every attempt in Congress to create a commission to examine the status of women had been derailed by the debate over the ERA. Esther Peterson, secretary of labor Arthur Goldberg, and their associates in the Department of Labor determined that such a fate would not befall the commission they proposed. Confident of the resources at their command, they contemplated instead a commission that, by taking a fresh approach to the problems confronting women, would do in the ERA.
One of the resources they possessed was the support of the president. All the previous efforts to establish a commission had looked to Congress to enact legislation, but that strategy had allowed ERA supporters to marshal their partisans to oppose the commission. When Peterson came to Goldberg with her idea for a commission, the secretary of labor offered a different idea: that the president establish the commission by executive order. With the Labor Department running this particular show, ERA supporters would not even know about the commission until it was a fait accompli.[1]
The idea of an executive commission was not entirely new either. Several times since World War II, organizations had proposed presidential commissions to study ways to advance opportunities for women, though without success. In 1948 the American Association of University Women had asked President Truman to name a commission of outstanding men and
women to recommend measures to integrate women into every phase of the preparedness program.[2] The National Security Resources Board rejected the proposal, saying: "It is recognized that there are no basic personnel techniques of unique applicability to women workers." The board insisted that the idea that women must be distinguished from other workers "represents one of the more potent obstacles to the general use of women workers."[3] After the Korean conflict began, the AAUW reiterated its request, telling the president that a commission was needed to establish policy concerning the use of women in such emergencies, and that women should be integrated in the planning for the long-range defense effort. Again administration advisers concluded that "there is no special problem of 'women power.' Problems in utilizing women are part and parcel of the total problem of utilizing human resources."[4]
The most important recommendation had come from the National Manpower Council (NMC) at Columbia University. In the 1957 study Womanpower , the council staff pointed out that, although the federal government had not taken a stand on the desirability of women's employment, many statutes concerning, for example, taxation and licensing, had an impact on women workers. The NMC therefore recommended that the secretary of labor establish a committee to review "the consequences and adequacy of existing federal and state laws which have a direct bearing on the employment of women."[5]
Eisenhower's Department of Labor, however, seemed loath to admit, by appointment of a commission, that it was not equal itself to the task the NMC proposed. Women's Bureau director Alice Leopold recommended that the secretary "utilize existing facilities, including both governmental agencies and interested non-governmental organizations" to look into the effect of legislation on women's employment.[6] Leopold may have doubted her ability to control a commission composed of leaders of women's organizations and notable educators with whom she had few ties; yet if the director of the Women's Bureau recommended against appointing a commission on women, no other administration official was likely to overrule her. The secretary followed her advice, and the commission was not appointed.[7]
Ideas for a commission under the Kennedy administration
came from many sources. The New York Business and Professional Women's Club had written to the president on inauguration day to request the creation of a panel to discuss the utilization of the skills of mature women. Kennedy turned the letter over to Esther Peterson, who replied that another, similar plan was being considered. With Peterson, Katherine Ellickson, formerly assistant director of the Social Security Department of the AFL-CIO, and Dollie Lowther Robinson, also a longtime union employee now at the Women's Bureau, the coalition favoring a commission had strong voices. Robinson, a black woman, urged that the president express the same concern for women's opportunities as he had about racial discrimination; the commission would be such a vehicle. Secretary Goldberg took the plan to Kennedy.[8]
Kennedy agreed to the idea, sympathetic to the general aims and recognizing that his administration needed a program for women. At the commission's first meeting, Kennedy explained his support: "Every two or three weeks," he said, "Mrs. May Craig [the Washington correspondent for the Portland, Maine, Press Herald ] asks me what I am doing for women."[9]
The president's commission had many other appealing aspects. For one, it had the potential to do some good—the problems it pointed to were legitimate matters of concern. kennedy was confident of the commission's leadership in the Labor Department, believing rightly that they would not allow the commission to embarrass him. The proposal also had virtually no costs to the administration. The commission's goals, so far as they were stated, were congruent with the goals of the administration, and the mere establishment of the commission committed the president only to examining the problems raised, not to a particular set of policy initiatives. Once proposals were made, he could pursue them with some insulation from criticism. They would, after all, represent the best judgment of a prestigious group of public leaders, including the most prominent exponent of the liberal Democratic position and the most highly respected woman in the country, Eleanor Roosevelt.
The former first lady's acceptance of the commission chair identified her—at long last—with Kennedy's administration, an
endorsement the president had long sought. Everyone backing the plan agreed that only Eleanor Roosevelt could chair a presidential commission on the status of women. Her acquiescence gave it the seal of approval and smoothed out the long and troubled relationship she had had with Kennedy. As early as 1950, Roosevelt had opposed the then representative over a bill he was sponsoring giving aid to Catholic schools. In 1956, when Kennedy made a bid for the vice-presidential nomination, she had made much of his failure to speak out against Joseph McCarthy, the senator from Wisconsin who was wreaking havoc with unsubstantiated charges of communist infiltration in the government. Later, Roosevelt and Kennedy became embroiled in a tense exchange over an allegation Roosevelt had made on television—that Joseph Kennedy was spending lavishly to buy the nomination for his son. Intensely hostile to Kennedy's father, who had infuriated her husband when he was president, and dedicated to the candidacy of Adlai Stevenson, she had been a powerful opponent during the primary campaign. She was slow to rally to Kennedy even after he won the nomination, and Roosevelt's distance had been a constant irritant to the Kennedy team. But now she was officially on board. Apart from conducting meetings, Roosevelt did little of the actual work of the commission; she did, though, serve as an adviser, make herself available for publicity purposes, and sign letters. When she died in November 1962, the administration decided not to appoint another chair, stating simply that there could be "no adequate replacement."[10]
Under the leadership of the Women's Bureau, the plan to appoint a commission to investigate the status of women, after so many years of proposals for legislative and executive action, came finally to fruition. The Women's Bureau staff drew up a comprehensive program, and Peterson, Goldberg, and the White House staff selected the eleven men and fifteen women participants, making sure to acquire people who would ultimately develop a program the White House could endorse.[11]
Commission membership represented the mainstream opinion of the Women's Bureau coalition and included several key administration officials. Eleven members came from the govern-
ment, including Peterson, who held the position of executive vice-chairman, the attorney general, the chairman of the Civil Service Commission, the secretaries of the Departments of Commerce, Agriculture, Labor, and Health, Education, and Welfare, and four members of Congress, two Republican and two Democrat. Officers of the National Councils of Jewish, Catholic, and Negro Women and the National Council of the Churches of Christ spoke for middle-class women reformers. Two more members came from labor unions. Two college presidents, Mary Bunting of Radcliffe College and Henry David of the New School for Social Research, represented the world of higher education. (Under Bunting's direction, Radcliffe had instituted a new program to permit older women to return to college, and David had been executive director of the National Manpower Council when it published Womanpower .)
The commission also included Caroline Ware, a historian who had been fired in 1935 from a summer teaching job at the University of Wyoming because she was married (to Gardiner Means, a New Deal economist). The incident had engendered a great deal of publicity because Ware fought the dismissal, gaining the support of the National Association of Women Lawyers, the BPW, the American Federation of Teachers, the National Woman's party, and several other organizations but to no avail. Margaret Hickey, the public affairs editor of the Ladies' Home Journal , also served. As a past president of the pro-ERA National Federation of Business and Professional Women's Clubs, Hickey appeared to favor the ERA, but only Marguerite Rawalt, an attorney and a member of many pro-ERA groups, endorsed the amendment openly. A representative of the progressive business firm Kaiser Industries and one political appointee placed on the commission at the request of Vice-President Lyndon Johnson made up the balance of the membership. Dr. richard A. Lester, a Princeton University economist who had worked on the Kennedy campaign, was appointed vice-chairman.[12]
President Kennedy established the President's Commission on the Status of Women on December 14, 1961. In his executive order, written at the Women's Bureau, the president contended that "prejudices and outmoded customs" prevented the
"full realization of women's basic rights" and hindered their ability to make their fullest contribution to the national welfare. He pointed out that women traditionally had "served with distinction" in times of national emergency, only to be treated as marginal in times of peace. The creation of the commission recognized, he said, that women were entitled to "develop their capabilities and fulfill their aspirations on a continuing basis irrespective of national exigencies." The twenty-six-member commission was charged with reviewing progress and making recommendations in six arenas: employment policies and practices of the federal government: employment policies and practices of federal contractors; social insurance and tax laws; labor legislation; political, civil, and property rights; and new and expanded services necessary for women as wives, mothers, and workers. The commission's report was due October 1, 1963.[13]
In his accompanying remarks, the president expressed his hope that the commission would indicate what needed to be done to demolish the barriers to women's full participation in the nation. Progress, he said, would require the "cooperation of the whole community," through legislation and the provision of needed services. He promised to make the federal government "a show case of the feasibility and value of combining genuine equality of opportunity on the basis of merit with efficient service to the public." The federal career service would henceforth be maintained, he declared, "in every respect without discrimination and with equal opportunity for employment and advancement."[14]
Because the commission met only eight times in the two years of its existence, the Women's Bureau and commission staff exerted a great deal of influence. They implemented all commission requests, planned meetings, answered mail, communicated with other government agencies between meetings, developed position papers, and reviewed recommendations. Commission staff and officials also conferred with the White House over questionable proposals.[15]
Confident that the commission would yield good results, the White House supported it enthusiastically. At the commission's first meeting, held at the Executive Mansion, the president assured the members of his backing: "I can't imagine any more
important assignment—not merely for women, but for members of Congress, organized labor, women's organizations themselves, religious groups, and all the rest," he said. "I promise you that we are strongly behind you in all your work."[16] In May 1962 he reiterated his interest in the commission's work on Eleanor Roosevelt's television program, "Prospects of Mankind." Kennedy, moreover, never refused a request made of him by the commission, a happenstance undoubtedly aided by the fact that Esther peterson cleared all such appeals with the White House before they were proffered.[17]
In order to broaden its support among women's organizations, the commission agreed at its first meeting to set up subcommittees composed of experts in various areas. The staff named seven committees after the subjects listed for investigation in the executive order: federal employment; private employment; civil and political rights; protective labor legislation; social insurance and taxes; home and community; and education. Each committee was chaired by a commission member, and most had at least one other member on its rolls. Like the commission, the eighty-nine committee members included educators, lawyers, and members of women's organizations, labor unions, business firms, and state governments. The committee system gave many individuals and organizations a feeling of involvement in the commission's outcome.[18]
Still, Esther Peterson, who guided the development of the commission within the Kennedy administration, realized that the dispute over the Equal Rights Amendment could easily wreck this commission, as it had all the other commission proposals. She knew that if the commission opposed the amendment at its outset, pro-ERA organizations would be unwilling to cooperate, and no consensus would emerge on an effective plan to help women. Although Peterson herself opposed the Equal Rights Amendment, she wanted to keep the conflict from destroying a serious effort at addressing the many conflicts, burdens, and obstacles confronting American women. Therefore, in contrast to the 1947 bill to establish a commission, the President's Commission on the Status of Women did not begin with an overt declaration against the constitutional amendment; Peterson promised, rather, that it would examine the issue "objectively."
The Equal Rights Amendment and the 1960 Campaign
John Kennedy agreed with the Women's Bureau coalition on the ERA. In 1957 the then senator had told the Massachusetts Committee for the Equal Rights Amendment that he could not declare in favor of the amendment although he believed in "nondiscriminatory treatment of women." He wrote: "There is still, I humbly acknowledge, some question in my mind as to the most appropriate method of insuring real equality for women."[19] In 1958 he explained to a constituent who requested his support for the resolution, "My experience in the field of protective labor legislation has made me somewhat wary about over-all solutions to problems which do not always lend themselves to easy or simple formulas."[20] He assured her, however, that he continued "emphatically" to favor equal opportunity for women. During the preconvention presidential race, the senator declined to comment directly on the ERA.[21]
Although attached to the Kennedy campaign, Esther Peterson was less circumspect. She was still working as a legislative representative for the Industrial Union Division of the AFLCIO, and from this position she headed the alliance to prevent the Democratic convention from endorsing the amendment in the 1960 party platform. Peterson testified before the platform committee on behalf of twenty-four national organizations, contending that real equality required measures that distinguished between men and women. "Specific bills for specific ills," she declared, was the better way to go. Peterson listed three principal objections to the ERA: it would nullify protective labor legislation at a time when increasing numbers of women in the labor force made the need for such laws more acute; it would create confusion in legislation concerned with marriage, property, and personal status; and it would fail to address the major forms of discrimination that were the result of custom. She asked the platform committee instead to endorse equal pay legislation and the pursuit of equal opportunity without disturbing protective labor laws.[22]
The organized opposition surprised the National Woman's party, which had not been confronted by its opponents at the
platform hearings since 1948. The NWP told the platform committee that renunciation of the ERA, in view of the Democratic party's past commitment to it, would be "unprecedented and incredible." With support from the National Federation of Business and Professional Women's Clubs and the General Federation of Women's Clubs, Emma Guffey Miller, chairman of the NWP, pointed out that past efforts showed that it would take more than a hundred years to repeal, law by law, the fourteen hundred statutes that discriminated against women. Moreover, she asserted, without the constitutional amendment subsequent state legislatures could reenact each one.[23]
To Miller's dismay, the Democratic drafting committee accepted enough of the opposing argument to endorse, not the Equal Rights Amendment, but "equal treatment" for women. Incensed, Miller labelled the language "impossible" and meaningless. Working with Representative William Green of Philadelphia, she managed to get the plank amended in the full platform committee, of which she was also a member. The plank read in its final form: "We support legislation which will guarantee to women equality of rights under the law, including equal pay for equal work." Despite the alteration, the platform represented success for opponents of the ERA. A statement in support of a constitutional amendment, which had appeared in every platform since 1944, had been eliminated.[24]
The National Woman's party simply refused to acknowledge the defeat. As a member of its national council explained, "The wording, . . . though not so specific as 'Amendment,' does we feel include an amendment as a means of bringing about 'equality under the law.'" The language of the plank, she insisted, did not represent a victory for ERA enemies. Ignoring the facts, the NWP maintained that the Democrats had endorsed the ERA in 1960.[25]
After the platform battle, the NWP sought Kennedy's personal endorsement of the ERA. Emma Guffey Miller, ultraloyal Democrat and chief advocate of the ERA within the Democratic party, wrote to John Kennedy that she was extremely concerned because Vice-President Richard M. Nixon, the Republican nominee, had delivered a prompt statement asking for "widespread support" of the Amendment.[26] Miller advised Ken-
nedy to announce quickly in favor of the ERA and to point out publicly that the Democratic platform surpassed the Republicans' on women's rights. Labor opposition to the ERA, she counseled him, came not from chivalrous concern for the well-being of mothers but from male fears of lost jobs.[27]
Wringing an affirmation of the ERA from John Kennedy proved difficult, however. Not only had Kennedy himself declined to support the ERA theretofore, but campaign letters on women's rights had to meet Esther Peterson's approval. Kennedy's reply to Miller, which Peterson checked over, thanked her for the opportunity to make a statement "regarding equal rights for women." Expressing his belief in equal rights for all "regardless of race, creed, color, or sex," he quoted the platform plank and stated his full approval of it. The letter concluded: "You have my assurance that I will interpret the Democratic platform . . . to bring about, through concrete actions, the full equality for women which advocates of the equal rights amendment have always sought." The letter did not contain any statement of support for the Equal Rights Amendment.[28]
Annoyed, Miller took the matter into her own hands. Although she had few ties to the Kennedy campaign (she had supported Lyndon Johnson in the primary battle), as a Democratic Committee member from Pennsylvania she had many friends at DNC headquarters. Miller amended the letter in pen and had a colleague deliver it to the DNC. There, an assistant to the chairman of the publicity committee had it typed on the Kennedy campaign letterhead and signed, presumably by machine, without the knowledge of the Kennedy campaign staff or of Peterson. The new letter read: "Thank you for providing me with an opportunity to make a statement regarding the equal rights amendment. . . . You have my assurance that I will interpret the Democratic platform . . . to bring about, through concrete actions including the adoption of the Equal Rights Amendment, the full equality for women which advocates of the equal rights amendment have always sought." In this manner, John Kennedy's "support" for the Equal Rights Amendment became a matter of official record. Peterson was outraged, but the Kennedy campaign let the matter drop, unwilling to expose internal conflict or inefficiency.[29]
Miller won the battle, but the announcement that Esther Peterson was to head the Women's Bureau suggested that she would lose the war. When press reports intimated that Kennedy intended to appoint Peterson as Women's Bureau director, the National Woman's party was aghast. Emma Guffey Miller tried to organize a movement against Peterson and wrote to the president that this appointment was inconsistent with his stated support of the ERA, a disingenuous argument at best. Miller, who had no influence at the White House, did not succeed in harming Peterson.[30]
The Pcsw: An Alternative to the ERA
Peterson, in the meantime, found herself in a good position to make Miller miserable. In April, with eighty-two House resolutions on the ERA in the hopper, she told a Washington Post reporter that rather than having the ERA she would like to see a committee of the "best brains in the country" assay the status of women and recommend ways to improve it. She expressed her confidence that if all the women's organizations, pro and con, would discuss the conflict over women's legal place, a solution would appear. "If we sit down and talk this over," she said, "I feel sure we can work out a way to achieve our goals."[31]
While the commission was being planned, Peterson cautioned presidential aide Myer Feldman to have his letter writers stick to the platform and omit any mention of the "nuisance" amendment in responding to letters from ERA supporters. She realized, she said, that the issue amounted to "peanuts," but the "pile of peanuts" was growing pretty big and the proponents were intensifying their efforts. Indeed, Miller, who scoffed at Peterson's offer of compromise, told her co-workers at the NWP to barrage Secretary of Labor Arthur Goldberg with letters in order to "counteract" Peterson's influence, a campaign doomed to fail. Miller regarded Goldberg as "very broadminded"—but Peterson authorized the secretary's answers to letters from ERA supporters, and she used the exact language of the original Kennedy campaign letter, endorsing the Democratic platform and full equality for women but not the Equal Rights Amendment.[32]
In the meantime, the ERA languished in Congress. Although 135 members of the House had introduced ERA resolutions by the fall of 1961, they did so with the knowledge that House Judiciary chair Emanuel Celler would not permit the bill to be reported. The seventeen Senate sponsors knew likewise that the upper chamber would agree to the amendment only with Carl Hayden's rider preserving "benefits" for women. Still, Miller viewed Peterson as the ERA's greatest threat.[33] "We must find some way to shut her up, at least from opposing what our platform and President have endorsed," she told a friend.[34]
Peterson did not shut up; instead, she and her colleagues used the presidential commission on women to stop the ERA dead in its legislative tracks. Peterson reasoned that Congress would not be likely to act on the amendment while the matter was under consideration by a presidential panel. In addition, she presumed that eventually the commission would offer substitute recommendations that would further stymie the amendment's progress.
But obstructing the ERA was not the commission's chief objective; the Hayden rider had already taken care of that. The creators of the commission intended it primarily to devise an alternative program to improve women's status. Unfortunately, as they saw it, the ERA dispute had always made such a goal impossible.
From the very first discussions about the commission early in 1961, its creators worried about protecting the commission from being "diverted" from its task by the argument over constitutional equality. Throughout the spring, the Women's Bureau staff, Peterson, and Katherine Ellickson of the Social Security Department of the AFL-CIO refined arguments in favor of a commission, hoping to devise a plan that women's organizations would deem acceptable, regardless of their position on the ERA.[35] One staffer observed that "there is a good bit of evidence to suggest that the objectives of most women's groups with respect to women's status are the same, despite differences expressed by those who favor or oppose the Equal Rights Amendment."[36]
When Peterson presented the plan to the White House, she began by arguing that "the appointment by the President of a
Commission on women in our American democracy would substitute constructive recommendations for the present troublesome and futile agitation about the 'equal rights' Amendment." But more than that, she asserted, the commission would "help the nation to set forth before the world the story of women's progress in a free, democratic society, and to move further towards full partnership, creative use of skills and genuine equality of opportunity." Peterson told White House aide Myer Feldman that trade union women, professional women, and congressional staff had all greeted the idea with enthusiasm. But the commission could succeed only if the ERA dispute did not undermine it.[37]
Therefore, Peterson decided, the PCSW would, in contrast to past commission proposals, begin without taking an overt stand on the issue. In her remarks at the announcement ceremony, Peterson paid tribute to Emanuel Celler, who had first introduced a bill proposing a national commission on women in 1947—but the Celler bill had included a policy statement endorsing statutes that distinguished women from men if the laws were "reasonably based on differences in physical structure, biological, or social function." This statement established before the fact that such a national commission would necessarily oppose the ERA, which was designed to strike down laws based on just such characteristics. The executive order creating the President's Commission on the Status of Women contained no such phrase indicating a preconceived position.[38]
Peterson's plan paid off. The president's commission won enthusiastic support from the influential BPW, as well as from many pro-ERA organizations. Congress members and women's organizations joined the BPW in expressing widespread interest in the commission, and women in the federal government felt encouraged by the new policy the president had enunciated. Caroline Davis, director of the Women's Division of the United Automobile Workers, wrote to Peterson: "Congratulations[;] you did it. This is a victory that we have long waited for."[39] In an editorial, the Washington Post praised Kennedy for creating the "blue ribbon panel," declaring that the country could not afford to waste the trained talent of women.[40] The Christian Science Monitor , observing that Kennedy had been criti-
cized for failing to appoint women, crediting him with launching a "distaff 'fair deal.'"[41]
Not everyone shared the enthusiasm, however. Despite Peterson's expression of esteem and a letter from Arthur Goldberg telling him that the presidential commission represented the "fruition" of his efforts, Emanuel Celler took the commission to task. He noted its appearance with interest, he said, but he wanted to "sound a warning" that he would oppose "any effort on the part of this group to revive any campaign for the adoption of the so-called Equal Rights Amendment which is an 'Unequal Rights Amendment.'" Celler, perhaps because of the absence of the biological function clause, apparently did not recognize the commission's origins in his own proposal. He went on to vilify the amendment, declaring that "mores have set off women from men and no constitutional Amendment could alter them." He expressed his hope that the commission would not be "pressurized" to raise the "specter" of the ERA.[42]
The National Woman's party also viewed the commission with suspicion, but for reasons more realistic than Celler's. Emma Guffey Miller correctly judged that the commission arose partly from Peterson's distress over Kennedy's "endorsement" of the ERA during the campaign, and Miller saw to her own dismay that Peterson was now "riding high, wide and handsome" within the administration.[43] Alice Paul presciently explained to a questioner that the commission had been set up to prevent the adoption of the amendment and that ERA opponents would urge Congress members to delay action on the amendment until the commission had issued its report.[44]
Opponents of the amendment did just that. The White House reported that the president would not comment on the amendment until the commission had concluded its work, and Arthur Goldberg asked Emanuel Celler to defer House Judiciary Committee activity on the ERA until the commission report was submitted. Celler in turn recommended to the Senate Judiciary Committee that it wait for the report, and Carl Hayden made the same request to the full Senate. Although the Senate Judiciary Committee reported the ERA favorably in August 1962, the Eighty-seventh Congress took no further action on it.[45] An NWP member reported to Miller that both adversar-
ies and advocates of the ERA in Congress with whom she had spoken "say frankly that they are not going to 'jump the gun'" on the president's commission.[46]
Of course, there was never a chance that the commission would endorse the Equal Rights Amendment, despite its claim to be approaching the study of the ERA without prejudice. By design, too many commissioners came from labor or women's groups that opposed it. Because a body with no ERA supporters would lack credibility, Marguerite Rawalt, a past president of the BPW and a member of the National Woman's party, had been appointed, but she was the only certain ERA supporter of the membership of twenty-six. In addition, Peterson, Ellickson, and the Women's Bureau staff maintained a careful watch over the commission, monitoring proposals and making the administration position clear.[47]
Although she knew Peterson would not allow many ERA supporters on the commission, Emma Guffey Miller, Democratic National Committee member and NWP chairman, did not take her exclusion philosophically. She brought her displeasure to the attention of John Bailey, chairman of the DNC, and to Governor David L. Lawrence of Pennsylvania, a state in which the Guffeys and Millers had significant political clout. Lawrence confidently wrote to the White House asking that Miller be given a seat on the commission, but to his surprise he received a letter, drafted by Peterson, regretfully denying his request but offering Miller a seat on the commission's subordinate body, the Committee on Civil and Political Rights. Even this appointment did not come to pass, because Edith Green, the committee chairman, vetoed Miller's participation. Miller continued her efforts to win a place on the commission until its conclusion, but Peterson squelched her petitions without much difficulty, explaining to the White House staff that the commission contained no political members except members of Congress and the cabinet. Furthermore, Peterson said, Marguerite Rawalt represented Miller's point of view. Miller's extended campaign to become a member of the Commission came to nothing.[48]
Understandably, tension between Peterson and the National Woman's party remained high. Miller bitterly resented Peter-
son's station within the administration. An informant had told her, to her disgust, that "no woman has an entree at the White House unless Esther Peterson . . . introduces her";[49] although this was an overstatement, the White House did customarily check such matters with her. Indeed, Peterson's instructions caused a White House aide to deny an appointment to an NWP member the president himself had promised to meet.[50] For her part, Peterson viewed the National Woman's party with increasing disdain. She told Assistant Secretary of Labor Daniel Patrick Moynihan and Lee White, a White House aide, that the NWP was a "paper organization, with no standing with substantial women's organizations." The ERA was introduced each session, she said—"tongue-in-cheek"—because male legislators hesitated to declare themselves against women, and the NWP consistently met with defeat despite the fact that "the little ladies marched the corridors from the first day of the session to its end."[51] Nevertheless, because the Commission was ostensibly neutral, the warfare was covert. Peterson promised NWP correspondents that the subject of the ERA would be approached with an open mind. "As a member," she wrote, "I want to take this opportunity to assure you that the Commission has undertaken a completely objective study of this question."[52]
Sequestering the ERA
If the commission did not in fact approach the subject of the ERA with an open mind, neither did it consider the subject lightly or arrive easily at the stand it took. The Women's Bureau and the commission staff recognized that, improperly handled, the dispute over the ERA could still make the commission fruitless. Even the commission members, many of whom were not privy to Peterson's rationale for the Commission's establishment, realized the dangers. Hyman Bookbinder, representing the secretary of commerce, broached the issue at the first meeting, feeling, he said, like "the proverbial fool who likes to move in where angles fear to tread." Remarking that the amendment had "divided the country" for years, he asserted that "if this Commission does nothing else [but] get an accommodation of views on this difficult and delicate area, we will have made a
substantial contribution." Viola Hymes, president of the National Council of Jewish Women, agreed that the ERA had been "the most divisive . . . issue . . . among women's organizations," which had not reexamined their positions on it for twenty-five years. The commission would, she felt, "enable the women's organizations to take a new look in the light of developments and changes which will be very helpful." "Maybe," she suggested, "the women's groups will get together." To this Peterson declared: "It will be worth the Commission if we do it."[53]
But for the commission to unite women's groups on this issue, it first had to make sure it would not itself be torn apart by it. Indeed, the planners evolved a way to prevent such an outcome—by sequestering the highly loaded discussion so that it did not supplant the rest of the commission's work. The commission turned the issue over to one of seven subunits it had established, the Committee on Civil and Political Rights. Because no public statement on the ERA would be made until the commission concluded its work, the other six committees could address the many additional problems women faced without themselves becoming embroiled in the conflict over constitutional equality.[54]
As a result of this strategy, the Committee on Civil and Political Rights became the first commission body to confront the problem of the ERA directly. It did so in an exceedingly civilized fashion. Representative Edith Green, an ERA opponent, chaired the committee, although Marguerite Rawalt, the commission's one ERA advocate, took over when Green turned her attention to her reelection campaign. Peterson had appointed Rawalt to the commission because she considered her a sensible and thoughtful advocate of the ERA; Rawalt, in her turn, respected Peterson's directness and her commitment to improving women's employment laws. Committee membership, apart from the two commission members, included two representatives of labor unions, six members of the legal profession, most of them opposed to the ERA, and three presidents of pro-ERA women's organizations. ERA supporters were outnumbered, but at least they were represented.[55]
The committee met for the first time in May 1962 and quickly established pointedly even-handed procedures for deal-
ing with the ERA. Like the other commission subunits, the Committee on Civil and Political Rights began to accumulate data, in the form of returned questionnaires from women's organizations (on both sides of the ERA controversy), staff papers, and the findings of committee members' own research. The committee decided to invite four organizations—two groups favoring the amendment (the National Woman's party and the BPW) and two opposed (the American Association of University Women and the American Nurses Association)—to present their opinions on the ERA at the next meeting.[56]
A Compromise Proposal
Unexpectedly, however, a member of the Civil and Political Rights Committee offered yet another approach to the matter of constitutional equality. Pauli Murray, a black attorney long associated with the civil rights movement, volunteered to write a memorandum detailing a strategy to get a court ruling that discriminatory state laws violated the Fourteenth Amendment. One of the few explicit connections between the civil rights movement and the federal quest for equity for women in the early 1960s, Murray's proposal offered, she said, an alternative to choosing one side or the other of the controversy. Murray thought the commission could thus avoid both conflict with the "very influential" National Woman's party and the waste of effort in attempting to win ratification of the ERA from three-fourths of the state legislatures, which she viewed as impossible. Murray suggested instead that the commission recommend a concerted effort to pursue litigation of a case involving a discriminatory state law, with the goal of having the Supreme Court decide that arbitrary discrimination against women violated the Fourteenth Amendment in the same way racial bias did. The problem, as Murray saw it, was not that some laws distinguished between men and women, but that those that did failed to take into account differences among groups of women, such as those with children and those without. A ruling under the Fourteenth Amendment would provide the flexibility to maintain appropriate laws relating to women, while abolishing those that simply hampered women's right to function in the
public sphere. In reviewing previous court cases, Murray argued that past decisions had not revealed a consistent pattern and that the Court might be willing to make a ruling distinguishing among groups of women if persuaded by a "Brandeis-type brief" discussing the changing roles of women. She proposed that either the American Civil Liberties Union or the Justice Department compile such a brief with the assistance of a commission-sponsored Legal Advisory Committee.[57]
At the request of Esther Peterson, Pauli Murray presented her plan to the full commission at its October meeting. Impressed with her suggestions, the members decided to distribute an expanded version of her memorandum to attorneys in the Justice Department. Concern arose over the plan's implications for protective labor legislation, but Murray herself asserted that these laws should remain undisturbed.[58]
In the expanded version of her paper, Murray explained that a new differentiation needed to be drawn between laws "genuinely protective of the family and maternal functions" and those that discriminated "unjustly" against women as individuals. The courts, she counseled, had not theretofore made distinctions among women, assuming that all would consider their maternal and family functions primary. True freedom of choice would permit women to develop different abilities if they so chose. Murray argued that the principle developed in the 1908 case Muller v. Oregon , which permitted states to enact laws aimed exclusively at women, had inappropriately been extended to institutionalize a virtual "separate but equal doctrine" for women. Laws could appropriately classify citizens by sex, she maintained, when the law protected "maternal and family functions" and applied only to women who performed those functions, when it protected the health of women or compensated for women's traditionally disadvantaged position, or when the differential treatment did not "imply inferiority." Murray suggested that a statute to protect future mothers could legitimately single out "women of child-bearing age"; she therefore did not envision the total equality sought by advocates of the Equal Rights Amendment. Nevertheless, she still affirmed the need to proscribe arbitrary classification by sex in state codes.[59] Peterson regarded Murray's proposal with great hope.
"You must know how grateful I am to you for this work," she wrote her. "I feel in my bones that you are making history."[60]
Aware of the controversial nature of the proposal, and therefore of the necessity of frequent consultation with interested women's organizations, the Committee on Civil and Political Rights invited fifteen women's organizations, including the National woman's party, to appear before it in March to address the Fourteenth Amendment strategy, the ERA, and the state-by-state approach to women's legal status.[61] Murray was hopeful of reaching an accord. She observed that in the past the advocates of both the national commission and the ERA had assumed that the Fourteenth Amendment could not reach discrimination based on sex. "The controversy over the Equal Rights Amendment seemed to force people who espoused the same goals into rigid positions and dissipated energies which might have gone toward a development of standards for the concept of equal status," she said. "[This controversy] can be avoided if we can get a consensus of sound alternatives."[62]
But agreement was hard to come by. The American Association of University Women asserted that it still preferred the state-by-state approach. The American Nurses Association reasserted its stand against the ERA but said it did not feel qualified to comment on the Murray proposal. The National Council of Jewish Women both reiterated is objection to the ERA and took exception to the Murray recommendation.[63] The NCJW spokeswoman, Mrs. Samuel Brown, predicted that the procedure would be "time-consuming, costly and laborious without any assurance that the results will be entirely satisfactory." Brown found the plan fundamentally lacking in two ways: it equated racial discrimination, which was always bad, with differential treatment based on sex, which was sometimes desirable; and it assumed that women's organizations, which had never before been able to agree on what constituted "discrimination," would now unite on a definition.[64]
ERA proponents were no more enthusiastic. Although the National Woman's party agreed to appear at the committee hearing, the members evinced a deep distrust of the proceeding. Margery Leonard declined Emma Guffey Miller's request to represent the NWP, saying, "I wouldn't mind the time, effort
and money involved in such an undertaking if I could feel it would do any real good. [But the Commission] is controlled by our arch enemy. The Commission was handpicked." Leonard asserted that even Marguerite Rawalt—an NWP member—was not their advocate: "The fact that she is on the Commission shows she is no friend of ours."[65] Other NWP members contended that Pauli Murray, a black woman, was primarily concerned with the movement for racial equality and that she apparently intended "to hitch that wagon to our Equal Rights Amendment star," which would "spell disaster for our hopes." One party officer believed, in a staggering misperception of reality, that black civil rights groups wanted to use the ERA struggle "as a springboard for their own propaganda."[66] Finally, however, the NWP did send two representatives to the committee meeting, at which the NWP, the BPW, the American Medical Women's Association, and the National Association of Women Lawyers backed the ERA, arguing that the Supreme Court had not in the past been amenable to making the sort of ruling that Murray advocated.[67]
Of the groups asked, only the National Council of Catholic Women endorsed the Murray approach, but at the same time it emphasized the necessity of recognizing differences between men and women. It approved of wider access for women to the world of politics and paid labor, especially in the fields of education and social work, but it cautioned, "It must be remembered that the most important function of woman will always be associated with home and family." Although man and woman were equal in dignity before God, the council asserted, their natures differed and women did not have the same ability to "wage that struggle for survival which still prevails in all walks of life." Women's organizations thus seemed to feel no impulse to abandon their prior positions to unite behind Murray's plan.[68]
Nevertheless, as the discussion continued, the committee appeared convinced that, with the Fourteenth Amendment approach, women could have the protection of both the Constitution and state labor statutes. Its members felt sure that the Court would uphold statutes such as support laws requiring husbands to provide for their families—which would not be permissible under the ERA—and still strike down "unreasonable" legal dis-
tinctions. Respectful of differing viewpoints, and without an established position to defend or a history of personal antagonism, the committee could reach for a compromise.[69]
The ERA—"Need Not Now Be Sought"
But even as the committee sought a new route toward constitutionally based equality, it still felt obliged to make a statement about the Equal Rights Amendment. At the March 1963 meeting committee member Frank Sanders, a Harvard University Law School professor, insisted that, with the amendment now under consideration by Congress, they had a duty to take a stand on the controversial item. "This has been an eternal political question," he told them. "There has been no Congress when this hasn't been pending before it. . . . Here is an expert body that spent two years and a hell of a lot of the government's money." Congress, he claimed, would want to know the committee's views.[70] Esther Peterson said with Sanders that Congress expected guidance from the commission, and other committee members agreed that the situation demanded a declaration. Pauli Murray, however, demurred, still suggesting some way of dealing with the issue short of polarization, which had stymied any action in the past. She explained, moreover, that if the Court refused to rule as she hoped under the Fourteenth Amendment, she herself would advocate the ERA.[71]
Although Peterson said she was reluctant to influence the committee's position, she nevertheless made the Department of Labor's views known. Pauli Murray asked whether the Labor Department would object to mention of the ERA as one of many alternatives. Peterson initially replied: "I think you should express yourselves on this. I have tried to stay out"; but she continued, "The Department of Labor does feel that protective labor legislation is seriously threatened if an equal rights amendment were passed."[72] Peterson endorsed the suggestion that the committee approve the principle expressed in the ERA while indicating "dissatisfaction" with "any formulation presently in effect" coupled with an affirmative approach under the Fourteenth Amendment. At the end of the March meeting, the committee asked a subcommittee composed of Pauli Murray,
Marguerite Rawalt, and three others to draft a recommendation on the subject of constitutional equality, which it could propose to the full commission.[73]
The subcommittee resolution affirmed the need for constitutional recognition of women's equality before the law and ducked the issue of the Equal Rights Amendment. The recommendation read: "Equality of rights under the law for all persons, male or female, is so basic to democracy and its commitment to the ultimate value of the individual that it must be reflected in the fundamental law of the land." Pauli Murray proposed an additional statement that declared: "The Commission also believes that legal distinctions between the sexes not reasonably justified by differences in physical structure or by maternal function are violative of this constitutional principle," but the subcommittee rejected it. The subcommittee expressed its sentiment that the principle of equality was implicit in the Constitution and that the courts would ultimately affirm it. It requested interested groups to take steps that would lead to a ruling to that effect. As for the ERA, the subcommittee recommended a statement for the commission: "In view of the promise of this constitutional approach, the Commission at this time takes no position on the proposed equal rights amendment." The recommendation carefully refrained from criticizing the efforts of any group with regard to improving the status of women, remarking that the progress women had made in the recent past was due to the work of civic and women's groups; the statement urged that such activities continue. The subcommittee proposal went on: "[The Commission] therefore commends and encourages the continued efforts of such interested groups in educating the public to the problems and in urging action within the . . . government to the end that full partnership of women may become a reality whether effected by federal or state legislation . . . or through appropriate federal or state constitutional Amendment, or by test litigation within the existing constitutional framework." Marguerite Rawalt was deeply relieved at the recommendation.[74]
At the meeting of April 5, the committee changed the recommendation from "at this time takes no position on the proposed equal rights amendment" to "does not take a position in favor
of the equal rights amendment at this time." The majority of the committee opposed the ERA and felt obliged to say so. But those who objected to the constitutional amendment believed they were leaving options open, both by including the phrase at this time and by encouraging other groups to work toward the end they considered most suitable, even including a constitutional amendment. In making this statement, the committee hoped to placate ERA supporters.[75]
The commission was not at first so cautious or so diplomatic. Far more than the committee, it seemed willing to turn the amendment down flat. Marguerite Rawalt chaired the discussion at the commission meeting of April 23–24; the lone ERA supporter, she had more at stake than any other commission member. Carefully she explained to the commission the reasoning behind the committee's delicately worded recommendation and its desire not to bar any course of action. John Macy, chairman of the Civil Service Commission, was not persuaded. Unwilling to admit even the possibility of supporting the ERA, he contended: "You weaken the basic position . . . if you also continue to ride the equal rights amendment horse."[76] Rawalt tried to persuade the commission against complete rejection of the ERA, saying it was a national commission's duty to encourage rather than to foreclose action, and she cited the support of the BPW and the General Federation of Women's Clubs and of Presidents Truman, Eisenhower, and, ironically, Kennedy for the ERA. On the other side, both Henry David, president of the New School for Social Research, and Viola Hymes, president of the National Council of Jewish Women, argued against hedging, including phrases like at the present time . They insisted that because the president's commission was to go out of existence in October, it could either endorse the amendment or reject it, but it could not suggest that the position might change in the future. Caroline Ware, herself a victim of sex discrimination, dissented. She suggested that if the Court refused to rule favorably in a test case, some constitutional amendment might be appropriate. Although David and Hymes repeatedly asked for a clear commission vote on the subject, vice-chairman Richard Lester, Caroline Ware, and Mary Bunting, the president of Radcliffe, seemed eager to avoid one. Ware suggested that a
"pro or con" approach was "wrong" in view of Murray's new suggestion. Rawalt, who recognized the certainty of a rejection if a poll were taken, predicted that a "yea or nay" vote would result in a newspaper headline the commission might wish to avoid. The majority of the commission appeared sensitive to the prospective enmity a flat denunciation of the ERA would bring from the BPW and other pro-ERA women's groups: only three voted in favor of a substitute statement offered by Henry David and Norman Nicholson of Kaiser Industries clearly condemning the amendment.[77]
A substitute drafted by the Department of Justice that did not change the substance of the committee draft won greater favor. It read: "In view of the fact that a constitutional Amendment does not appear to be necessary to establish the principle of equality, the Commission believes that constitutional changes should not be sought unless, at some future time, it appears from court decisions that a need for such action exists." Rawalt objected to the contention of "fact" in the first part of the recommendation, and the commission eliminated that part and substituted the word since : "Since a constitutional Amendment does not appear to be necessary. . . ." ERA opponents then maintained that the word since indicated that they were not foreclosing the possibility that the amendment might become desirable under unforeseen future circumstances; they therefore moved to strike the words after sought . Despite Rawalt's objection, the motion carried ten to five. Rawalt, who felt sorely defeated, asked to be recorded in opposition. The other four votes opposed are unknown.[78]
On the day following the vote, Rawalt made a final attempt to modify the commission statement. She observed that deleting the words from the Justice Department recommendation—"unless at some future time it appears from court decisions that a need for such action exists"—appeared to close off the consideration of amendments in the future. Rawalt argued that many had said that the word since indicated a recognition that a constitutional amendment might be appropriate if the Murray approach failed, and that this position could be stated more clearly by inserting the word now —"the Commission believes that constitutional changes should not now be sought." Henry
David, although an enemy of the ERA, seemed eager for some sort of compromise and suggested "need not now be sought," a change Rawalt quickly accepted. Margaret Mealey of the National Council of Catholic Women, another strong ERA opponent, seconded the motion. The motion carried, but the vote was not recorded, except that Henry David asked to be noted as "not voting." Rawalt had succeeded in averting a flat denunciation of the ERA.[79]
But more important, despite lingering concern that even the Fourteenth Amendment approach might imperil some legislation commission members thought valuable, the commission had followed the committee recommendation and asserted that women had to have some affirmation of their rights to equal treatment under the Fourteenth Amendment to the Constitution. Coming from a citadel of the Women's Bureau coalition, it was the first genuine move toward compromise since the NWP had proposed exempting protective laws from the ERA forty years before.[80]
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.