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]