In Search of Equality for Women: from Suffrage to Civil Rights

Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2021 In Search of Equality for Women: From Suffrage to Civil Rights Nan D. Hunter Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/2390 https://ssrn.com/abstract=3873451 Duquesne Law Review, Vol. 59, 125-166. This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Civil Rights and Discrimination Commons, Law and Gender Commons, Law and Race Commons, and the Sexuality and the Law Commons In Search of Equality for Women: From Suffrage to Civil Rights Nan D. Hunter* ABSTRACT This article analyzes women’s rights advocacy and its impact on evolutions in the meaning of gender equality during the period from the achievement of suffrage in 1920 until the 1964 Civil Rights Act. The primary lesson is that one cannot separate the conceptualiza- tion of equality or the jurisprudential philosophy underlying it from the dynamics and characteristics of the social movements that ac- tively give it life. Social movements identify the institutions and practices that will be challenged, which in turn determines which doctrinal issues will provide the raw material for jurisgenerative change. Without understanding a movement’s strategy and oppor- tunities for action, one cannot know why law developed as it did. This article also demonstrates that this phase of women’s rights advocacy comprised not one movement—as it is usually described— but three: the suffragists who turned to a campaign for an Equal Rights Amendment (ERA) after winning the Nineteenth Amend- ment; the organizations inside and outside the labor movement that prioritized the wellbeing of women workers in the industrial econ- omy; and the birth control movement. All three branches engaged with courts, legislatures, and other lawmakers, using a variety of methods and a mixture of complementary and contradictory arguments in an effort to secure full citizenship status for women in the political, economic, and family realms. Different approaches to equality, however, created a significant movement disability. Prioritizing the ERA cemented that branch’s allegiance to what would now be called formal equality, the princi- ple that men and women should be held to the same rights and du- ties under law. This absolute equality stance precluded support for laws setting protective working standards only for women, the par- amount goal of those most concerned with women working in * Scott K. Ginsburg Professor of Law, Georgetown University Law Center. The author expresses her appreciation to the organizers of the 2020 AALS Conference Symposium on the Nineteenth Amendment for their selection of this paper as one of the presentations and to the editors of the Duquesne Law Review. 125 126 Duquesne Law Review Vol. 59 factories. ERA advocates saw protective laws as Trojan horses that promised minimum wages and a cap on hours but also disqualified women from some of the highest-paying jobs. Labor activists saw the disabilities associated with women’s political and family status as problematic, but secondary to economic issues. Birth control advocates developed arguments that sidestepped the frame of equality altogether. The absence of a united position on the scope of gender equality under the law facilitated the silence of the Supreme Court, which perpetuated a discourse of domesticity with respect to the legal status of women that began before suffrage and continued long after. The gap in constitutional law as to gender not only stymied doctrinal development but also deprived women’s rights advocates of the cultural power that attaches to an overarching equality narrative. Yet although the discourse of law drove the branches of women’s rights advocacy apart, it also provided a venue in which equality had to be, and ultimately could be, defined, at least for regulatory purposes. It was the labor-oriented portion of the movement that brought an anti-discrimination model into women’s rights advocacy. De- mands for equal pay combined the no-differential-treatment ap- proach of the ERA wing with the workplace-only focus of the labor movement. This linkage ironically brought the women workers groups substantively closer to the anti-classification position associated with the equality/sameness understanding advocated by sup- porters of the ERA. The institutional mechanism that instantiated this melding was a presidential commission that produced a report which appeared destined for the shelves of the bureaucracy. Be- neath the surface, however, the commission served the function of aggregating and integrating women’s rights advocacy across all three movement branches. The conventional understanding that feminism was dormant between adoption of the Nineteenth Amendment and the eruption of rights claims in the 1960s is wrong. Examining the campaigns for legal change across the branches of the movement during this time reveal an increase, not a diminution, in demands for full and equal citizenship in multiple arenas. What was dormant was the development of the concept of gender equality in constitutional law, but that was not for lack of activity by women on the ground. Winter 2021 In Search of Equality 127 TABLE OF CONTENTS I. INTRODUCTION ..............................................................127 II. DÉBUT DE SIÈCLE ..........................................................133 A. The Iron Triangle of Gender .............................134 B. A New Relationship Between Social Movements and Law .........................................136 C. Confluence .........................................................139 III. THREE ROADS DIVERGED ..............................................139 A. The Women’s Movement for Citizenship...........141 B. The Women’s Movement for Economic Rights.................................................................146 C. The Women’s Movement for Sexual Autonomy...........................................................151 D. Summary ...........................................................155 IV. STATE, FAMILY, MARKET...............................................158 V. BRIDGE DISCOURSES .....................................................160 A. Seeds of the Civil Rights Paradigm..................160 B. Truce ..................................................................163 C. Childcare: The Missing Link ............................164 VI. CONCLUSION..................................................................165 I. INTRODUCTION In 1966, the National Organization for Women (NOW) declared in its Founding Principles that it sought to fill a yawning political gap: “[t]here is no civil rights movement to speak for women, as there has been for Negroes and other victims of discrimination.”1 The implicit message that there was no comprehensive social movement focused on equality under law for women was both right and wrong. It was wrong because, by 1966, decades of work by multiple organizations that were feminist in function, if not always in name, had produced not just the Nineteenth Amendment’s promise of suffrage,2 but also social insurance programs that partially 1. Betty Friedan, The National Organization for Women’s 1966 Statement of Purpose, NAT’L ORG. WOMEN, https://now.org/about/history/statement-of-purpose/ (last visited Oct. 10, 2020). 2. I use the term “promise” to reflect the reality that only white women and Black women outside the South received the benefits of the Nineteenth Amendment. In the re- mainder of this article, I sometimes use “women” when the proper referent would be “white women.” Rather than seek to specify differential consequences for each instance, I make note here that the organizations, strategies, and concepts of law discussed throughout were per- vasively racialized. Foundationally, the Nineteenth Amendment itself had little impact on Black women in southern states who were disenfranchised by Jim Crow laws in 1920 and 128 Duquesne Law Review Vol. 59 compensated for gendered economic structures, nationwide access to birth control, and Congressional enactment of two anti-discrimination statutes. NOW was right, though, that there had not been a successful litigation campaign framed in terms of women’s rights of the kind that the NAACP had brought to the campaign for racial justice. The desire by NOW’s founders to mimic the role of the NAACP, and especially its Legal Defense Fund, reinforced the belief during the 1960s that creating new law, especially in and through the pro- cess of Supreme Court rulings, constituted the most effective strategy to achieve equality. By that measure, women’s rights advocacy was indeed several steps behind efforts to end discrimination based on race. And the path suggested by NOW proved to be essential. Politically and doctrinally, feminist arguments succeeded only after they built directly on the analogy to race. The civil rights movement—a phrase generally used as synonymous with seeking to secure racial equality—has provided the dominant narrative for all American social movements for equality. As a result, most legal scholarship on law and social movements has taken race-oriented efforts as the starting point for the field.3 The early conventional wisdom was that these campaigns were cen- tered on litigation, a strategy later imitated by many movements.4

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