Facing Equality for Women

A constitutional amendment seeking to establish equal rights for women has been introduced in every Congress since 1923. But historic attitudes about the frailty of women and their need for special treatment under the law have usually prevented serious consideration of any of the proposals. The Women's Liberation movement now makes it an idea whose time has come--at least for a full and candid hearing. Last week the Yale Law Journal devoted the bulk of its new issue to an article that not only offers convincing arguments for passage of the latest version of the amendment but also attempts to predict just what the measure would mean in practice.

The product of eight months' work by 1971 Yale Law Graduates Barbara A. Brown, Gail Falk, and Ann E. Freedman and Law Professor Thomas I. Emerson, the article states flatly that "our legal structure will continue to support and command an inferior status for women so long as it permits any differentiation in legal treatment on the basis of sex." That firm judgment is applied even to the subject that many consider the most distressing implication of the amendment: the drafting of women into the military. "When women take part in the military system," say the authors, "they more truly become full participants in the rights and obligations of citizenship"--even if the obligation involves combat. Physical stamina on the battlefield, they contend, is no longer as necessary in a mechanized military as it once was. Moreover, "as between brutalizing our young men and brutalizing our young women, there is little to choose." The article is similarly direct in its examination of the amendment's probable effect in other areas:

DOMESTIC RELATIONS. A wife would no longer routinely take her husband's name, though she could choose to do so, or he could choose to take hers. If the couple retain different surnames, they would have to choose which name they wanted for the children. The age of consent for marriage would be the same for both sexes. Alimony would be available to either spouse, according to the financial facts of the individual case. Though child-custody laws that specify a preference for the mother would be illegal, in practice, a judge would still be free to decide how he thought a child's welfare would be best served.

CRIMINAL LAW. Most such laws would be unaffected since men and women are already treated equally. Prostitution statutes, however, would be unconstitutional in those states where male prostitutes are not included; and they might be jeopardized unless the customer is also subject to penalty. Rape would continue to be punishable insofar as it is defined as forcible penetration, because such a definition involves a physical characteristic unique to one sex and so "does not deny equal rights to the other sex." (Similarly, civil regulation of wet nurses or sperm donors would be permissible.) Statutory-rape laws concerning voluntary intercourse would probably be taken off the books, though both young boys and young girls could still be protected against any sexual abuse by older persons.

LABOR LEGISLATION. Many of the present labor laws "protective" of women would probably become invalid. Thus, the classic prohibition on work that would require a woman to lift more than, say, 40 pounds could not stand. Instead, the qualification for employment would have to be an individual's ability to meet the job's physical demands. Many job classifications now filled only by women provide for extra rest periods, and thus they often bring lower pay; the same arrangement would have to be available to both sexes. Enforced maternity leaves would be allowed, again because of the unique sex characteristic, but the length of the leave would have to be calculated according to the nature of the work the woman is doing. Banning women from certain jobs because of the possibility of pregnancy would be impermissible. Leaves or special arrangements for the rearing of young children would have to be available to the father also, if the couple decided that he was to take over the domestic duties. The underlying theory is that special treatment could still be extended to whole classes of people, parents, for instance, but not to classes defined solely by sex.

The proposed new amendment would sometimes conflict with other constitutional safeguards. But courts are already accustomed to balancing competing interests, and the authors are confident that the right of privacy, for instance, would protect such practices as maintaining separate rest rooms and sleeping facilities. Nonetheless, the authors acknowledge that the amendment would mean wrenching changes for the nation. That, they say, is what the concept of equal rights is all about. To make the transition less jarring, they endorse a two-year delay between the amendment's ratification and its effective date. During that period federal and state laws could be changed by legislators to conform to the new requirements, and afterwards, courts could strike down whatever laws continued improper discrimination.

The amendment is scheduled for floor debate next week in the House, and it is expected to pass. The Senate is considerably more resistant. Last year, though debate on the issue was extensive, it was often off the point, partly because supporters were reluctant to direct attention to the amendment's more troublesome implications and partly because opponents with serious doubts or deep prejudices did not want to appear antifeminist. Authoritative discussions like the one in the Yale Law Journal should help to clarify the issue. With that goal in mind, Michigan Congresswoman Martha Griffiths, sponsor of the House proposal, last week sent copies of the article to every member of Congress.

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