Preferred Citation: Harrison, Cynthia. On Account of Sex: The Politics of Women's Issues, 1945-1968. Berkeley:  University of California Press,  c1988 1988.

2 "Reasonable Distinctions": An Alternative to the ERA

The Hayden Amendment

In 1921, when the National Woman's party first proposed a constitutional amendment guaranteeing equal rights for women, it had considered a proviso to exempt laws that applied to conditions of women's work, hoping to win support from the women's groups who advocated those laws. It was a compromise unacceptable to both sides. The members of the Women's Bureau coalition found it insufficient protection, and the NWP, irritated by the coalition's response, declared that special laws for women ought to be eliminated because they restricted women's right to employment on their own terms. A Wisconsin decision concerning an "equal rights" law passed in that state substantiated this view. That law had included a clause exempting "special protections and privileges" for women, and in 1923 the state attorney general had ruled that the state could continue to forbid women to work as employees of the Wisconsin legislature because that job required "unseasonable" hours of work.[22]

Nevertheless, adversaries of the ERA held to their view that the addition of a section to the ERA expressly exempting protective labor legislation would not prove adequate. In 1944 the solicitor of the Department of Labor had warned that too many kinds of protective laws existed—an amendment could not exempt them all: no matter how carefully such a provision were drafted, some desirable laws might yet be vulnerable to elimination through the ERA. Moreover, the possibility existed that such an amendent to the ERA could be adopted by one house of Congress and then eliminated by the other. Still, in the face


of the apparent popularity of the ERA, the National Committee on the Status of Women had decided that it had no choice but to support a safeguarding clause.[23]

The Senate debate on the ERA in the Eighty-first Congress began on January 23, 1950, and continued for three days. Proponents cited platform pledges, favorable committee reports, the support of well-known women's organizations, and the unfairness of discrimination based on sex. Opponents defended protective laws for women, cited labor opposition, and expressed fear of unknown consequences. Senator Estes Kefauver (D-Tenn.), an ERA opponent and introducer of the Status Bill, claimed that the ERA could "eliminate rape as a crime" and lead to joint bathroom facilities. Senator Andrew Schoeppel (R-Kans.) argued on the other side that giving women constitutional equality would help counter Communist propaganda (a salient issue with the intensification of fighting in Korea).[24]

On January 25, near the close of the debate, Carl Hayden (D-Ariz.) offered his amendment. Following instructions from the Women's Bureau, Hayden proposed that a new section be added to the ERA: "The provisions of this article shall not be construed to impair any rights, benefits, or exemptions conferred by law upon persons of the female sex." Hayden offered the following explanation: "In the beginning, God made them different when male and female created He them." He went on in a personal vein, noting that his mother had borne and breast-fed him, that his father had built them a home and provided food and clothing on the "wild Apache-infested frontier," and that neither could have played the other's role. In the few minutes remaining for debate, Claude Pepper (D-Fla.) protested that Hayden was "emasculating" the ERA. The senators, however, eagerly took advantage of the opportunity to go on record in favor of both equal rights and special laws for women. They voted for the Hayden rider fifty-one to thirty-one and the ERA sixty-three to nineteen, well over the two-thirds vote required for a constitutional amendment.[25]

The Hayden amendment caught ERA adherents by surprise. Because of the short time between Hayden's motion and the vote, ERA backers Sen. Margaret Chase Smith (R-Me.) and Rep. Katharine St. George (R-N.Y.) had no opportunity to


approach their colleagues and explain that they wanted the rider defeated. Thus the ERA went to the House with the Hayden rider attached.[26]

ERA adversaries considered the amendment with the Hayden rider only slightly less objectionable than the unaltered version, but ERA proponents repudiated it completely: in their view, the rider effectively negated the body of the amendment. NWP leader Alice Paul stated flatly, "It is impossible to imagine the Constitution containing two such paragraphs."[27] If given no other choice, they preferred the bill dead.

In the House, the ERA faced not only the threat of the Hayden rider but also the unshakable antipathy of House Judiciary Chairman Emanuel Celler. The liberal New Yorker had become committee chair in 1949, and he had no intention of allowing the ERA to reach the House floor even in its amended form. Katharine St. George had collected enough signatures of representatives to discharge Celler's committee, but fear of the Hayden amendment led her to withdraw her petition.[28]

ERA opponents had succeeded in finding a technique to undercut the ideal of complete legal equality for women. The Hayden amendment proved unbeatable, so long as no outside social or political impetus pressured Congress to choose unequivocally between equal treatment for women or a legally defined special family responsibility. If forced to vote on the measure, members of Congress could now have it both ways: equality and special privileges for women. Moreover, with the Hayden rider, the ERA proved unacceptable to its initial backers, making it unlikely to pass—the outcome the anti-ERA forces desired most. If it were to pass, the rider offered a safeguard for the legislation they deemed essential to the welfare of women workers.

ERA advocates were stymied. Eleanor Roosevelt, now at the United Nations and sensitive to the international implications of constitutional equality for women, backpedaled on her long-standing objection to the amendment, but it made no difference. President Truman stayed out of the crossfire. With no genuine support for an amended ERA, and with no grassroots enthusiasm for a radical change in women's legal status, stalemate was a foregone conclusion. The NWP therefore looked to


the 1952 election, hoping for a Republican presidential victory to move the amendment forward.[29]

2 "Reasonable Distinctions": An Alternative to the ERA

Preferred Citation: Harrison, Cynthia. On Account of Sex: The Politics of Women's Issues, 1945-1968. Berkeley:  University of California Press,  c1988 1988.