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]