DOCUMENT RESUME CE 041 349 The Impact of the Equal Rights Amendment. Part 2. Hearings

841 Pages·2007·19.66 MB·English

DOCUMENT RESUME
CE 041 349
ED 255 774
The Impact of the Equal Rights Amendment. Part 2.
TITLE
Hearings before the Subcommittee on the Constitution
of the Committee on the Judiciary, United States
Senate, Ninety-Eighth Congress, First and Second
Sessions (June 22, August 7, and September 19,
1984).
Congress of the U.S., Washington, D.C. Senate
INSTITUTION
Committee on the Judiciary.
Senate-Hrg-95-1259-Pt-2
REPORT NO
PUB DATE
84
841p.; For part 1, see CE 041 348. Document contains
NOTE
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Adults; *Civil Rights; Court Litigation; *Federal
DESCRIPTORS
Legislation; Females; *Feminism; Hearings; *Sex
Discrimination; *Sex Fairness; State Legislation
Congress 98th; *Equal Rights Amendment; Family Law
IDENTIFIERS
Congress 98th
ABSTRACT
Presented are three congressional hearings on a joint
resolution proposing an amendment to the Constitution of the United
States relative to equal rights for women and men. The hearings focus
(ERA) on domestic
on the impact of the Equal Rights Amendment
relations or family law; exceptions to the rule of equality contained
in the ERA, in particular the "right to privacy" and the "unique
physical characteristics" exceptions; and state experiences with
state equal rights amendments. Testimony includes statements,
prepared statements, and miscellaneous material (newsletters,
letters, reports, etc.) from U.S. Senators and individuals
representing Brigham Young University; National Organization for
Minnesota;
Women Legal Defense and Education Fund; Carleton College,
Washington University, Missouri; University of Texas; and Harvard
University. Over 600 pages of appendixes contain additional
testimony, correspondence, reports, legal analysis, and miscellaneous
materials. (YLB)
***********************************************************************
Reproductions supplied by EDRS are the best that can be made
from the original document.
**********************************************************************
S. Him. 98-1259, Pr. 2
THE IMPACT OF THE EQUAL RIGHTS
AMENDMENT
HEARINGS
LC1
LIN
BEFORE THE
CZ
SUBCOMMITTEE ON TIIE CONSTITUTION
W
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-EIGHTH CONGRESS
FIRST AND SECOND SESSIONS
ON
S.J. Res. 10
A JOINT RESOLUTION PROPOSING AN AMENDMENT
TO THE CONSTITU-
TION OF THE UNITED STATES RELATIVE TO EQUAL
RIGHTS FOR
WOMEN AND MEN
JUNE 22, AUGUST 7, AND SEPTEMBER
19, 1984
PART 2
Serial No. J-98-42
Printed for the use of the Committee
on the Judiciary
U.E. DEPARTMENT Of EDUCATION
NATIONAL INSTITUTE OF EDUCATION
ED
C
ATIONAL RESOURCES INFORMATION
CENTER (ERIC)
This document has been
reproduced as
received horn the person or
organization
originating it
Minor changes have been made
to imorove
reproduction quality
Points of view or opinions stated
on this docu
ment do not necessarily represent official
NIE
position or policy
\
I
S GoVERNMENT PRINTING (meal:
II Milo
WASHINGTON :
19/45
2
COMMITTEE ON THE JUDICIARY
South Carolina, Chairman
STROM THURMOND,
JOSEPH R. BIDEN, JR., Delaware
CHARLES McC. MATHIAS, Ja., Maryland
EDWARD M. KENNEDY, Massachusetts
PAUL LAXALT, Nevada
ROBERT C. BYRD, West Virginia
ORRIN G. HATCH, Utah
HOWARD M. METZENBAUM, Ohio
ROBERT DOLE, Kansas
DENNIS DrOONCINI, Arizona
ALAN K. SIMPSON, Wyoming
PATRICK J. LEAHY, Vermont
JOHN P. EAST, North Carolina
MAX BAUCUS, Montana
CHARLES E. GRASSLEY, Iowa
HOWELL HEFLIN, Alabama
JEREMIAH DENTON, Alabama
ARLEN SPECTER, Pennsylvania
Director
VINTON DIVANS Line, Chief Counsel and Staff
DEBORAH K. Owirs, General Counsel
DEBORAH G. Bwarriaw, Chief Clerk
MARK H. GITINSTEIN, Minority Chief Counsel
SUBCOMMITTEE ON THE CONSTITUTION
ORRIN G. HATCH, Utah, Chairman
DENNIS DsCONCINI, Arizona
STROM THURMOND, South Carolina
PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa
Directo,
Smarty J. MARRMAN, Chief Counsel and Staff
RANDALL RADER, General Counsel
CAROL EPPS, Chief Clerk
Boa 17siman, Minority Chief Counsel
CONTENTS
(Part 2)
Hearings held on:
Page
Friday, June 22, 1984
1
Tuesday, August 7, 1984
95
Wednesday, September 19, 1984
159
STATEMENTS OF COMMITTEE MEMBERS
Hatch. Senator Orrin G
1, 95, 159
Thurmond, Senator Strom
96
CHRONOLOGICAL LIST OF
WITNESSES
FRIDAY, JUNE
22, 1984
FAMILY LAW
Wardle, Lynn D., professor of law, J. Reuben Clark Law School, Brigham
Young University, Provo, UT, and Marsha Levick, legal director, NOW
Legal Defense and Education Fund
2
MISCELLANEOUS MATERIAL
Articles from the Wall Street Journal:
"Divorcing Us From the State-Drawn Marriage," by Roger Arnold, July
31, 1984
91
Responses to the article by Roger Arnold, from the Wall Street
Journal, August 14, 1984:
"Marriage Rites Don't Cancel Rights," by John V. Long, Bethes-
da, MD
92
By Glen Edward Ashman, East Point, GA
92
7, 1984
TUESDAY, AUGUST
EXCEPTIONS
Zuckert, Prof. Catherine, Carleton Coll?.ge, Northfield, MN, and Prof. Jules
Gerard, Washington University School of Law, St. Louis, MO
96
MISCELLANEOUS MATERIAL
Excerpts from "Virginia Task Force on ERA (1974 ": Analysis on "Prisons
atight to Privacy," by Prof. A.E. Howard, University of Virginia Law
School
152
WEDNESDAY,
SEPTEMBER 19, 1984
THE STATE EXPERIENCE
Rees. Prof. Grover, University of Texas School of Law; and Prof. William
Kristol, Harvard University School of Government
159
(m
4
IV
MIIR'FI.I.ANKOU8 MATERIAL
Page
Letter to the editor, from the New York Times, June 22, 1984: "Sixteen State
190
E.R.A.'s: A Boon to Women and Men," by Judith I. Avner
The Effect of Equal Rights Amendments in State Constitutions," by Phyllis
Schlafly, from Policy Review, summer 1979
191
Excerpt from "The Equal Rights Amendment: Myths and Realities," by Sena-
tor Orrin G. Hatch 119831, on State ERA Laws
231
ALPHABETICAL LIST AND MATERIAL SUBMITTED
Gerard, Prof. Jules B.:
116
Testimony
122
Prepared statement
183
Kristol, Prof. William: Testimony
Levick, Marsha:
49
Testimony
56
Prepared statement
Rees, Prof. Grover:
159
Testimony
169
Prepared statement
Responses to written questions of Senator Hatch
181
Wardle, Lynn D.:
2
Testimony
Prepared statement
10
Zuckert, Prof. Catherine:
96
Testimony
102
Prepared statement
Letter to Senator Orrin G. Hatch, August 8, 1984
114
APPEND!
ADDITIONAL TESTIMONY
I.
"On the Policy Implications of Feminist Theory for the ERA," by Jean M
Yarbrough, Loyola University of Chicago, associate professor of political
233
science, director, Institute for Political Philosophy and Policy Analysis
"The ERA and the Earnings Gap Between Men and Women," by Michael and
247
Judith Finn
Attachment: "ERA and the 59c Wage GapWhy Women Don't Get
258
Equal Pay," wage gap charts
"Implications of the E.R.A. for Employment," testimony of Michael Levin,
professor, City College of New York, for the Subcommittee on the Constitu-
260
tion
Attachments:
"Comparable Worth: The Feminist Road to Socialism," commentary,
272
September 1984
"The 'Comparable Worth' Trap," by June O'Neill, from the Wall
Street Journal, January 20, 1984
279
Testimony of Charles E. Rice, professor of law, Notre Dame Law School, on
280
the Equal Rights Amendment and Criminal Law
Testimony of Carl C. Hoffman, Ph.D., on the Equal Rights Amendment and
289
Income Differences
"The Equal Rights Amendment: Its Revolutionary Implications," observations
of former Senator Sam Ervin, of North Carolina, on this subject, June
306
1983..
Attachment: Minority Views of Mr. Ervin, from the Congressional
330
Record, Wednesday, March 22, 1972
338
Testimony on the Equal Rights Amendment, by Phyllis Schlafly
Statement of Elizabeth L. Chittick, president, National Woman's Party, on
357
the Equal Rights Amendment
Statement of Brig. Gen. Elizabeth P. Hoisington, USA Retired, former direc-
tor, Women's Army Corps, on the Equal Rights Amendment and the
Mili-
365
tary
Testimony of Mary Lawlor of Winnetka, IL, on the ERA and the Military
367
Letter to: Hon. Don Edwards, chairman, House Judiciary Committee,
Subcommittee on Civil and Constitutional Rights, November 7, 1983
373
V
Page
Letter to Senator Orrin I;
Hatch
re: Equal Rights AmendmentEffect on
Women's and Children's
from Priscilla Ruth MacDougall, attorney
at law, August 5, 1983
375
Statement of Paige Comstock Cunningham, Esq.,
on the Equal Rights Amend-
ment and Abortion
378
Testimony of Elaine Donnelly on the Equal Rights Amendment
and Insur-
ance
387
Attachment: Letter from Kimberly Dove, Detroit, to Hon. John D.
Din-
gell, chairman, House Committee on Energy and Commerce, May
6,
1983
398
Statement of lion. Charles E. Wiggins on the Equal Rights Amendment
399
Statement of Henry C. Karlson, professor of law, Indiana University
School of
Law, on the Impact of the Equal Rights Amendment
on American Society
408
Statement of Prof. William A. Stanmeyer on the Impact of the
ERA on the
Military
417
II. CORRESPONDENCE
Letters to Hon. Orrin G. Hatch, chairman, Subcommittee
on the Constitution,
Committee on the Judiciary, from:
John C. Datt, secretary and director. Washington Office, American
Farm
Bureau Federation, May 20, 1983
429
Robert D. Evans, director, American Bar Association, July
1, 1083
430
Resolutions adopted in the 42d Annual Convention of the
National
Association of Evangelicals, Columbus, OH, March 6-8, 1984
432
.Judith M. Hertz, national chairperson, RNEW, July 21, 1983
433
Resolution of the Unitarian Universalist Association of Churches
in
North America, passed at the 22d Annual General Assembly
held
in June 1983, in Vancouver, BC
434
Resolution of tile National Federation of Business and
Professional
Women's
Inc., passed at the National Convention in Colum-
,
bus, OK July 24-28, 1983
435
Margaret J. Barr, president, American College Personnel
Association,
May 12, 1:183
436
James E. Andrews, Presbyterian Church (U.S.A.), July 30, 1984
437
Resolution on the Equal Rights Amendment to the U.S.
Constitution,
approved by the 196th General Assembly (1984),
Presbyterian
Church (U.S.A.), June 1984
438
Resolution of the National Council of Catholic Women, November
5,
1972
439
Thomas W. Strahan, Christian Legal Society, Minnesota
Chapter, July
27, 111X3
441)
Resolution of the National Right To Life Committee
on the Equal
Rights Amendment. January 21, 1983
441
III.
REPORTS
Report of Archbishop John 1. May, chairman, ad hoc Interdisciplinary
Com-
mittee, on the Equal Rights Amendment, General Meeting, November
12-
1.1, 1981, Washington, DC
442
"The Equal Rights Amendment," a legal assessment by the
Office of General
Counsel, U.S. Catholic Conference, October 23, 1984
449
Summary of the report by the California Commission
on Status of Women
11975): A National Study of the Societal Impact
on Conformance of Laws to
the ERA
498
Equal Rights Amendment, Briefing Paper, submitted by the
Congressional
Caucus for Women's Issues, prepared by Caucus Staff, November 1, 1983
514
'The Equal Rights Amendment: Guaranteeing Equal Rights
for Women
Under the Constitution," U.S. Commission on Civil Rights,
Clearinghouse
Publication 68, June 1981
530
Dissenting Views on House Joint Resolution
(Proposed Equal Rights
1
Amendment) of U.S Reps. Hyde, Sawyer, McCollum, DeWine
547
VI
IV. LEGAL ANALYSES
Page
Excerpts from the Harvard Civil Rights-Civil Liberties Law Review, vol. 6,
1971:
"The Equal Rights Amendment Is Not The Way," by Paul A. Freund,
Carl M. Loeb university professor, Harvard University
552
The Equal Rights Amendment: Some Problems of Construction," by
Philip B. Kurland, professor of law, the Law School, the University of
561
Chicago
"The Equal Rights Amendment: A Constitutional Basis for Equal Rights for
Women," by Barbara A. Brown, Thomas I. Emerson, Gail Faik, and Ann E.
Freedman, from the Yale Law Journal, vol. 80, No. 5, April 1971
571
Appendix: Legislative History of the Equal Rights Amendment
682
Statement of Dean Pound and other lawyers and legal scholars in opposition
to the equal rights amendment, from the Congressional Record, March 20,
687
1972
"The Case for an Equal Rights Act," by Gayle Binion, from the Center
Magazine, November-December 1983
689
"The Effect of Section 2," by Miss Evelyn Pitschke, attorney at law, Indianap-
olis
704
"ERA's Section 2: Federal Power Grab," from the Eagle Forum, Washington,
706
DC
"A Lawyer Looks at the Equal Rights Amendment," ch. 11, by Rex E. Lee
708
"The Equal Rights Amendment: Myths and RealitiesThe Constitutional
Balance," ch. 5, by Senator Orrin G. Hatch
719
"Sex Discrimination and the United States Supreme Court: Developments in
," ..y Kathy L. DiPippa, legislative research assistant, and Karen J.
the 1
Lewis, legislative attorney, American Law Division, Congressional Research
Service, the Library of Congress, August 3, 1977updated August 1984
726
"Supreme Court Decisions Applying Equal Protection Clause to Sex Classifi-
cation," by Johnny H. Killian, senior specialist in American constitutional
law, Congressional Research Service, the Library of Congress, March 24,
733
1983
V. MISCELLANEOUS ISSUES
"The Feonomic Impact of the Equal Rights Amendment," by U.S. Rep. James
Sensenbrenner, from the Congressional RecordHouse, March 27, 1984
739
Letter on ER4 and military draft, from William H. Rehnquist, Assistant
Attorney Ceneral, Office of Legal Counsel, to Hon. Don Edwards, chairman,
Subcommittee No. 4, House Judiciary Committee, House of Representatives,
Washington, DC, May 7, 1971
742
"ERA and Insurance," from the Eagle Forum, Washington, DC
746
"ERA/Insurance Connection," submitted by the National Organization for
Women, Inc., Washington, DC
748
"Legal Analysis of Potential Impact of the Proposed Equal Rights Amend-
ment [ERA] Upon the Use by Insurance Companies of Gender as a Risk
Classification," by Karen J. Lewis, legislative attorney, American Law Divi-
sion, Congressional Research Service, the Library of Congress, March 31,
749
1983
Hartford Accident and Indemnity Co. v. Insurance Commissioner of the Com-
monwealth of Pennsylvania. case argued in the Supreme Court of Pennsyl-
vania, Eastern District, October 20, 1983, reargued: April 10, 1984:
Excerpts.
Opinion
763
Concurring opinions by:
Mr. Justice Flaherty, filed September 27, 1984, joined by Mr.
Justice Hutchinson
769
Hutchinson, J., filed September 27, 1984, joined by Mr. Justice
Flaherty
771
"The Impact of the ERA on Financial Individual Rights: Sex Averaging in
Insurance." by Barbara A. Brown and Ann E. Freedman, from 'Impact
ERA," edited by the Equal Rights Amendment Project of the California
Commission on the Status of Women
774
"Privacy. Prisons, and the ERA," from Open Issue, No. 2. February 12, 1982,
published by United Families Foundation
787
VII
Newspaper articles:
Page
"Liberty & Equality for Fraternities," by George S. Toll, from the Wall
Street Journal, Feb. 5, 1984
792
"Burning Tree Tax Exemption Ruled Illegal," by Nancy Lewis and Victo-
ria Churchville, from the Washington Post, Sept. 14, 1984
792
"Ohio Task Force on Implementation of Equal Rights Amendment
19751 Verbatim Excerpts"
793
Letter from Stephen H. Sachs, attorney general, Baltimore, MD, to Hon
Stewart Bainum, Jr., Maryland State senator, August 3, 1983, submitting
the Opinion of the Attorney General on the ERA and private clubs
796
"How ERA Would Change Federal Laws," from the Phyllis Schlafly Report,
November 1981
806
"Revolution: Tomorrow Is NOW," excerpt from summary of NOW's existing
resolutions and policies on religious policy
810
Excerpt from "The ERA In DebateWhat Can It Mean For Church Law?" by
Father Anthony J. Bevilacqua, from the Catholic Lawyer, vol. 24, No. 2,
spring 1979
812
"The Equal Rights Amendment: Myths and RealitiesMiscellaneous Laws,"
ch. 14, by Senator Orrin G. Hatch
821
"Polls, Pols, and the Equal Rights Amendment," from Open Issue, No.
1,
February 7, 1982, published by United Families Foundation
830
THE IMPACT OF THE EQUAL RIGHTS
AMENDMENT: FAMILY LAW
FRIDAY, JUNE 22, 1984
U.S. SENATE,
SUBCOMMITTEE ON THE CONSTITUTION,
COMMITTEE ON THE JUDICIARY,
Washington, DC
The subcommittee met, pursuant to notice, at 9:30
a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Orrin
G. Hatch
(chairman of the subcommittee) presiding.
Present: Senator DeConcini.
Staff present: Richard Bowman, full committee; Stephen
J.
Markman, chief counsel and staff director; Carol Epps, chief
clerk;
and Leslie Leap, clerk, Subcommittee on the Constitution.
OPENING STATEMENT OF SENATOR ORRIN G. HATCH
Senator HATCH. The subcommittee will be in order.
Ladies and gentlemen, this marks the ninth day of hearings
by
the Subcommittee
on the Constitution on the proposed equal rights
amendment to the Constitution. Although the present amendment
has already been rejected during this Congress by the
House of
Representatives, we continue to hold these hearings
on a periodic
basis in order to establish the most thorough legislative
history
possible on the meaning of the ERA.
Should Congress, at some subsequent point, choose to
repropose
the ERA, I believe that the present series of hearings will
enable
Members of Congress as well as members of State legislatures
to
cast their votes on this measure in a more informed
manner.
The focus of this morning's hearing will be
on the potential
impact of the equal rights amendment
upon domestic relations or
family law. I believe that it is fair to
say that a substantial part of
the controversy surrounding the ERA
over the past decade has re-
lated to the effects of the amendment
on this area of law.
As with our earlier hearings on the ERA, it is not principally
our
purpose to debate the substantive merits of the expected changes in
public policywhether such changes
are desirable or undesirable
but rather to determine precisely what changes will be required
by
law should the ERA be ratified.
Whether or not such changes reflect improvements in public
policy will, of course, have to be decided by Members of
Congress
and the State legislators.
(1)
9
2
In order to explore today's subject, we have two outstanding wit-
Wardle and Ms. Marsha
nesses before us. They are Prof. Lynn
Levick.
Professor Wardle teaches at the school of law at the Brigham
Young University in Utah and is a nationally recognized authority
books on related topics.
on family law, having written several
Ms. Levick is the legal director of the NOW Legal Defense and
Education Fund. Ms. Levick, no doubt, will have a direct impact on
what the ERA means should it become part of the Constitution.
So I welcome both of our witnesses to the committee this morn-
ing. We look forward to hearing their views on this particular
issue.
Several members of the committee have expressed concern about
the fact that we have held so many hearings. This is the ninth in a
series of hearings. 'I believe that all of the hearings have been very
beneficial in understanding just where the ERA may be taking us
should it become part of the Constitution.
We have tried to be balanced in these hearings, and of course, we
have tried to make sure that both sides are equally represented. I
have been somewhat disappointed from time to time because, al-
though we have invited both sides to participate, we have not
always been 'given the names of the witnesses for the proponents in
here on in, if the proponents genuinely
a timely manner. From
want to participate in these hearings, they need to cooperate a
little more with the committee and let us know who their witness
will be in a more timely fashion. I would appreciate their help in
making these hearings an effective means of defining and address-
ing the issues and problems associated with the ERA.
Let me call both witnesses to the table. Professor Wardle and
Ms. Levick, we are very happy to have you here today.
We will start with Professor Wardle first and then we will turn
to Ms. Levick.
STATEMENTS OF A PANEL CONSISTING OF LYNN D. WARDLE,
PROFESSOR OF LAW, J. REUBEN CLARK LAW SCHOOL,
BRIGHAM YOUNG UNIVERSITY, PROVO, UT, AND MARSHA
LEVICK, LEGAL DIRECTOR, NOW LEGAL DEFENSE AND EDUCA-
TION FUND
Professor WARDLE. Thank you, Mr. Chairman.
It is a great honor for me to appear in these hearings today and I
commend the subcommittee and the Senate as a whole for its at-
tention to this issue. This is a matter of great concern, the impact
of the ERA on family law.
In fact, one study that I read before coming out here revealed
that homemakers or housewives who have no independent source
of income, that is, who are not members of the paid work fbrce,
constitute one of the most potent groups of opponents to the equal
rights amendment.
The reason that so many homemakers and women who pursue
traditional careers as mothers and wives are opposed to the equal
rights amendment is because of their concern over this very issue,
the potential impact of the ERA on family laws.
10