October 20, 1983 — US House of Representatives, Washington DC

When proponents were presenting their case for passage of the Federal Equal Rights Amendment to Congress in 1971 and 1972, they used as their principal legal statement about its anticipated effects an article of some one hundred pages in the Yale Law Journal. The article was quite frank in proclaiming that the adoption of a Federal ERA “will give strength and purpose to efforts to bring about a far-reaching change which, for some, may prove painful.”

The chief victims of these “painful” effects of the “far-reaching change” will be wives and mothers. This is the inescapable conclusion to be drawn from the family litigation in the states that have adopted authentic State ERAs.

In Washington, which has a State ERA, the court admonished wives to face up to what ERA means:

It is to be remembered that while the 61st amendment to the Constitution of the State of Washington, approved November 7, 1972, is commonly referred to as the Equal Rights Amendment, it firmly requires equal responsibilities as well. This amendment is the touchstone of the developing case and statute law in the area of marriage dissolution.

The holding in this case, Smith v. Smith, was that ERA requires equal responsibilities of parents for child support and that the ex-husband can get his support obligations reduced to meet the ERA standard.

Wives have traditionally had in this country a great variety of extensive rights based on their marital status, as a result of our public policy to respect the family as the basic unit of society, and as a statutory and common-law balance to the biological fact that only women have babies. These rights, which vary from state to state, include the wife’s right of financial support in an ongoing marriage, the right of separate maintenance and payment of attorney’s fees during divorce litigation, the right to alimony after divorce, the right to a presumption of custody of her children, rights against her husband’s alienation of his property during his life or by will, and with a variety of special benefits accorded to widows.

Such benign discrimination is wholly in harmony with the Equal Rights Protection Clause and was seldom challenged prior to the 1970s. The U.S. Supreme Court is Kahn v. Shevin made clear the current constitutionality and relevancy of such preferential statutes designed for the benefit of wives and widows. The Court held that, consistent with the Equal Rights Protection Clause, a legislature can make a rational classification of widows as a class of people who need a special benefit. The Court upheld Florida’s property tax exemption for widows. The challenge to the Florida statute was strongly supported by pro-ERA lawyers.

The states that have State ERAs are blazing the trail of the “painful” effects of applying an absolute standard of equality to the marital and parental relationships. They provide a window into which we can look to see what “equality of rights” means when applied to the husband-wife relationship.

Maryland is a State ERA state. In Coleman v. Maryland, the Court of Special Appeals held that the statute which makes it a crime for a husband to fail to support his wife is unconstitutional under the State ERA. The court said that this statute “establishes a distinction solely upon the basis of sex” and “such distinctions are now absolutely forbidden” by the State ERA.

The court discussed the social policy and the history of the law which made it the duty of the husband to support his wife, calling it “warp and woof of the prevailing ethos” of the nineteenth century. All that is changed now, according to the court; “that view has been subjected to a series of violent cultural shocks. The Equal Rights Amendment of 1972 more accurately reflects the ethos or zeitgeist of this time.” The court held that the support statute “is no longer the public policy of this state.”

Newspapers which had been strong supporters of ERA were made very uncomfortable by this decision, calling it “an unfortunate conflict” of sexual justice, but admitted that the court had “no alternative” under the State ERA. The newspapers accurately pointed out that, while imprisonment for nonsupport is seldom imposed, the threat of imprisonment is a most valuable and necessary tool “to impress upon husbands their financial responsibility.” It is almost the only tool available to reduce the welfare rolls because, in the absence of this law and the remedies available under it, a large group of women become the financial responsibility of the taxpayers.

Pennsylvania is a State ERA state and, because of the State ERA, wives have lost their common law and statutory right to have their necessaries paid for by their husbands.

This common law right has been a right of wives for centuries and is an essential ingredient of the concept of the right of the wife to be supported in her home. The Pennsylvania statute read as follows:

In all cases where debts may be contracted for necessaries for the support and maintenance of the family of any married woman, it shall be lawful for the creditor in such case to institute suit against the husband and wife for the price of such necessaries, and after obtaining a judgment, have an execution against the husband alone.
In Albert Einstein Medical Center v. Gold, the issue was whether, under the law which obligated the husband to pay for his wife’s necessaries, the State ERA would obligate the wife to pay for her husband’s necessaries. The Gold court held the law unconstitutional under the State ERA but, instead of invalidating it, extended the husband’s liability to the wife and required her to pay for her husband’s medical and hospital expenses.

In Gold, the court apparently could not resist this caveat to wives:

The matter before us is yet another example of the impact of the Equal Rights Amendment upon the lives of all citizens of the Commonwealth and, once again, demonstrates that those who seek to expand the equal rights concept must be prepared to accept the burdens as well as the benefits of such expansion.
The court did not say what the “benefits” are, but Gold and the subsequent “necessaries” cases described below surely made clear some of the burdens.

Two years later in Albert Einstein Medical Center v. Nathans, the court faced the same law in its traditional circumstances: the question of payment for a wife’s necessaries. The “necessaries” involved in this case were medical and hospital services provided to the wife in an ongoing marriage which were conceded to be “necessary for her health, well-being and comfort.” The court simply nullified the common law and statutory responsibility of a husband to pay for his wife’s “necessaries,” noting that these include not only medical care, but also food, clothing, and shelter.

The court waxed very righteous in applying the absolute standard under the State ERA. The court held that “all legal distinctions based on the male or female role in the marital relationship are rendered inoperative but the [State ERA] amendment” and that the common law concept obligating the husband to pay for his wife’s necessaries is “repugnant to the Equal Rights Amendment.” The court tool judicial notice of what it called “medical and scientific advances which have increased both production and population…have made birth control a desirable social objective, and have been factors liberating her [a wife] from the common law requirements that tethered her to her husband and to her husband’s home.”

Thus, it is clear that whichever way a State ERA is interpreted by the courts—to extend liability to both sexes as in Gold or to nullify the husband’s liability as in Nathans — the Pennsylvania wife suffers the “painful” effects of the “far-reaching change” forced upon her by the State ERA.

Two cases in State ERA states have established the new rule that girls must be permitted to compete with boys in all sports, even contact sports such as football.

In Commonwealth v. Pennsylvania Interscholastic Athletic Association, the court held unconstitutional under the State ERA a bylaw of the Pennsylvania Interscholastic Athletic Association (PIAA) which prohibited girls from competing against boys in interscholastic competitions. Even though neither of the parties requested it, the court extended its decision to cover football and wrestling. “It is apparent,” the court said, “that there can be no valid reason for excepting those two sports from our order in this case.”

Granting summary judgment as a matter of law, the court held that the mandate of the State ERA is absolute and must apply to all school sports regardless of any rational arguments that might be presented in behalf of exceptions:

The PIAA had sought to justify its bylaw on the ground that it gave girls “greater opportunities for participation if they compete exclusively with members of their own sex.” The PIAA never got its day in court to make its argument.

In Darrin v. Gould, the Supreme Court of the State of Washington likewise held that it is a sex discrimination under the State ERA to deny girls the right to play on the high school football team. The court cited the “broad, sweeping, mandatory language” of the State ERA that compelled this result.

The argument was made in this case that allowing girls to compete with boys in contact sports such as football will result in boys being allowed to compete on girls’ teams, thereby disrupting the girls’ athletic programs. The court simply dismissed this as “opinion evidence” or “conjectural evidence” which cannot support a public policy contrary to the State ERA mandate.

One judge concurred reluctantly, “exclusively upon the basis that the result is dictated by the broad and mandatory language” of the State ERA. He questioned whether the people fully contemplated the result, but said that whether the people understood what they did or not, “in sweeping language they embedded the principle of the ERA in our constitution, and it is beyond the authority of this court to modify the people’s will. So be it.”

Title IX of the Federal Education Amendments of 1972 bans discrimination on account of sex in schools and colleges, but makes a number of statutory and regulatory exceptions to the absolute mandate. One of these exemptions is for the contact sports: boxing, wrestling, football, basketball, ice hockey, and rugby. If the Federal ERA is placed in the U.S. Constitution, it will wipe out all statutory and regulatory exceptions under Marbury v. Madison: “a law repugnant to the Constitution is void.”

Vorchheimer v. School District of Philadelphia raises an interesting question about the tactics of proponents of the absolute standard for enforcement of ERA. The School District of Philadelphia maintains two sex-segregated public high schools as part of an otherwise coeducational, public school system, one called Philadelphia High School for Girls and the other Central High School (for boys). The trial court found in Fact #27 that “The courses offered at Girls are similar and of equal quality to those offered at Central.” Susan Vorchheimer brought suit to force the boys’ school to admit her.

The fatal defect in her suit, however, was that she brought it under the Equal Protection Clause of the Fourteenth Amendment and under the Equal Education Opportunities Act of 1974, neither of which requires the sex-integration of all schools. The court upheld Philadelphia’s right to maintain two voluntary sex-segregated schools. The U.S. Supreme Court, dividing 4 to 4, let this decision stand.

The mystery is why Susan Vorchheimer’s lawyer and her ERA friends, who now complain about the decision all over the country, did not involve the Pennsylvania State ERA, under which, using the absolute standard, she certainly would have won. Perhaps Miss Vorchheimer’s friends were not yet ready to let the country know that the Equal Rights Amendment will make all single-sex schools unconstitutional—and thereby bring their long tradition of academic excellence to a close in the name of “equal rights.”

In contract to the absolute standard used by Pennsylvania under its State ERA, the courts in the equal-protection states continue to hand down decisions that allow a rational difference of treatment based on sex. Thus, in Mercer v. North Forest Independent School District, the Texas Court of Civil Appeals held that the two-tiered approach used by the U.S. Supreme Court in equal protection cases is the proper method by which to judge the Texas so-called ERA. A boy had challenged the constitutionality of public school regulations which restricted the hair length of boys but not girls. The court stated: “We cannot agree with the Supreme Court of Washington that the ERA admits of no exceptions to its prohibition of sex discrimination.”

It is clear that the non-ERA states and the equal-protection states will be able to maintain diversity in education and common-sense differences of treatment based on sex. The authentic ERA, State or Federal, will use a constitutional whip to force all schools, classes and school activities, athletics and regulations into the gender-free mold.

The insurance industry is built on a distribution of risk among groups in which the average cost of the benefits can be statistically and reliably predicted. Everybody in the group pays a certain small premium so that no one in the group will be financially ruined by unforeseen and unwanted circumstances such as an untimely death, a major automobile accident, or a fire that destroys a home. If the insurance company could look into the future and know which individuals would have automobile accidents, it would obviously sell insurance only to those who would never need it. It is because we cannot predict which individuals will have the accidents or will die early that insurance costs are based on statistical averages of identifiable groups.

Among the facts on which insurance is based are those which prove differences based on sex. Statistical tables used by insurance companies provide such massive and reliable evidence of differences between the sexes that it is unnecessary to recite it here.

Among these differences are the facts, to cite just two examples, that, on the average, young men under age 25 have many more automobile accidents than young women and that women live longer than men. These statistical facts result in differentials in the prices paid by insureds. Young women under age 25 pay a much lower automobile accident insurance premium than young men under age 25. One recent study made by the industry shows that, if the insurance companies were required to charge males and females the same rate, young men would pay 8 percent less but young women would have to pay 29 percent more.

The longer life span of women means that women pay lower life insurance premiums than men because they pay into the system for more years before they die. On the other hand, a pension plan which is designed to start paying an annuity at age 65 must be cost-equalized in one of two ways: by charging women more during the pay-in years before age 65, or by paying them a smaller benefit during the pay-out years after age 65.

Since insurance is regulated by state law, thus involving sufficient state action to bring it under any State or Federal ERA, what will be the effect of ERA on the insurance industry? No ERA State has answered this question yet, but the U.S. Supreme Court gave the probable answer in Los Angeles Dept. of Water and Power v. Manhart.

In Manhart, the issue was whether the city of Los Angeles could charge women more for payments into a pension plan because they live more years after retirement than male employees. The city justified the differential on the grounds that (a) it was needed to equalize the take-home benefits after retirement, and (b) the differential was based on a factor “other than sex” which was protected by the so-called Bennett Amendment. The legislative history of the Bennett Amendment, including the explicit statements of one of the sponsors, Senator Hubert Humphrey, showing the congressional intent to allow sex differentials based on longstanding differences of treatment in retirement determined by valid sex differences, was set forth in the case.

Nevertheless, the Court held that the result was the classification of males and females by sex, and that is “sex discrimination” which is prohibited by Title VII of the Civil Rights Act. Conceding that “retroactive liability could be devastating for a pension fund,” the Court denied retroactive relief but invalidated the differentials in payments into the pension plan.

Manhart applies only to the limited area of pensions governed by Title VII. All pensions, however, could be held subject to the State or Federal ERA whenever the challenge is brought. The results cannot help but be hurtful to women and costly to everyone. Since it is self-evident that insurance companies will have to cover their costs under any formula, the “marriage” of Manhart to ERA threatens the pocketbooks of all those who buy insurance.

Source: Hearings Before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, Ninety-eighty Congress, 1st Sess., on J.J. Res 1, , Equal Rights Amendment, Serial No. 115 (Washington DC: US Government Printing Office) 1983, pp. 433-37, 450-455.