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Duquesne Law Review

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 conceptualization of equality or the jurisprudential philosophy underlying it from the dynamics and characteristics of the social movements that actively 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 opportunities 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 Amendment; the organizations inside and outside the labor movement that prioritized the wellbeing of women workers in the industrial economy; 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 principle that men and women should be held to the same rights and duties under law. This absolute equality stance precluded support for laws setting protective working standards only for women, the paramount goal of those most concerned with women working in 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. Demands for equal pay combined the no-differential-treatment approach 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 supporters 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. Beneath 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.

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