Zephyr Magazine - Issue 58

                              T H E
  
                           Z E P H Y R
  
                  __     M A G A Z I N E
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                 Issue #58                7-03-88
 
            A weekly electronic magazine for users of 
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                            (c) 1988
  
THIS ISSUE:
 
   What better topic could there be for the Fourth of July weekend 
but one that deals with personal freedom?
   Leigh has met the challenge I offered. (Hmmm. No one else thus 
challenged came forward.) She wrote an article for us on the 
badly misunderstood Equal Rights Amendment.



                   THE EQUAL RIGHTS AMENDMENT

                               by

                             Leigh


 Since I lived overseas during the great ERA battle I always wondered
 why so many people, both men and women, found the proposed amendment so
 threatening. First I decided it must be the way the amendment was
 written, but after reading it I was still mystified.

 
                     THE EQUAL RIGHTS AMENDMENT
 
                       Proposed Amendment XXVII
               (Proposed by Congress on March 22, 1972)
 
       Section 1. Equality of rights under the law shall not 
         be denied or abridged by the United States or by any 
         State on account of sex.
 
       Section 2. The Congress shall have the power to enforce, 
         by appropriate legislation, the provisions of this 
         article.
 
       Section 3. This amendment shall take effect two years 
         after the date of ratification.
 

  It appeared to be a very straight forward law to me.  There was
nothing in it that seemed particularlly threatening. Next I decided it
must have been the remarks of the people supporting it that were the
problem. 

   Representative Barbara Jordan, in a written statement to the 
Subcommittee on Civil and Constutional Rights said: 

   "The Equal Rights Amendment is a mandate for change. It is a 
   standard by which to measure our future legal and social 
   constructs. It is about equality and freedom and the pursuit 
   of happiness."

   Again, nothing too threatening in that. That left only the way the 
Senate planned to interpret it. But the Senate report said:

   "The basic principle on which the Amendment rests may be stated 
   shortly: sex should not be a factor in determining the legal 
   rights of men or women.  The Amendment thus recognizes the 
   fundamental dignity and individuality of each human being. The 
   Amendment will affect only governmental action; the private 
   actions and the private relationships of men and women are 
   unaffected." 

 And, that it: 

   "must deal with the individual attributes of the particular 
   person and not with stereotypes.... based on sex."

 
   After this I was pretty lost. Why should people be bothered by
a law that simply stated that everyone, under the law, should be 
treated the same regardless of sex? Of course, there are those 
who say there is no need for another constitutional amendment, 
that the 13th, 15th, 19th and 26th amendments took care of all 
discrimination. However, since there were, at the time of the 
ERA's passage, over 800 sections of the U.S. Code that contained 
examples of sex bias and prior to 1971 the Supreme Court had 
upheld laws that denied women the right to serve on juries and 
barred them from occupations ranging from attorney to bartender.
   I had also heard all the anti-ERA rhetoric that stated 
ratification would mean co-ed bathrooms and other similarly 
outrageous claims, but since 14 states have added equal rights 
amendments to their state constitutions without mandating such 
changes I quickly dismissed these claims as ludicrous.
123
  There were those who said that the ERA would discriminate against 
men but since one of the first Court decisions after passage of the 
ERA rendered unconstitutional a statute that granted automatic fringe 
benefits to the wives of servicemen but required the husbands of 
servicewomen to prove dependency it appeared obvious to me that 
the benefits of ERA would cut both ways.


                         THE LABOR FORCE

   No one can deny that much progress has been made by women who 
work outside the home but the fact remains that in 1956 a woman's 
average earnings were 63% of a man's but by 1976 it had fallen to 
60%. The jobs most available to women still fall in the traditional 
"woman's" areas of clerical and service work. The laws which 
discriminate against women were, for the most part, enacted in 
the late nineteenth and early twentieth centuries. Though called 
"protective" they have effectively made it difficult for women to
obtain the desirable jobs for which they are qualified. Research 
reveals that these laws were based not only on stereotypical beliefs 
concerning a woman's "weak physical condition" and secondary place 
in the labor market but also the desire of men to reduce competition 
for higher paying jobs. As a result, as recently as 1976, a woman 
with 4 years of college was earning about the same salary as a man 
with an 8th grade education. This added to the fact that by 1974 
over half the women aged 18-64 worked fulltime, almost half of all 
married women worked full time and 1 of 10 women was head of a 
household clearly shows the need to eliminate the discriminatory 
laws.  
   Basically there are three types of labor laws affecting women, 
1) those which exclude them from certain jobs, 2) laws concerning 
the number of hours they can work and 3) laws providing so called 
benefits such as minimum wage and rest periods. While the Civil 
Rights Act of 1964 has helped to challenge and change some of the 
restrictive laws many still remain on the books. 
   As of 1977 there were 22 states with laws still in effect that 
contained sex-discriminatory prohibitions concerning barbers and 
cosmetologists.
   Most comommonly these laws prohibit female cosmetologists from 
serving male customers while male barbers can serve either male or 
female customers.  Three states still had laws restricting the 
number of hours a woman could work overtime and five states had 
laws that applied minimum wage benefits to women only.

 WHAT THE ERA WOULD DO

   The ERA would give the same benefits, rights and protections 
to all workers, both male and female. Laws would be rendered 
"gender neutral" so that laws which offered workers protection 
would offer the same protection whether the worker was male or 
female. Laws concerning worker rights and benefits also would be 
applied equally to both men and women.


                          CRIMINAL LAW

    Many of today's criminal laws discriminate against women, both 
as victim and offender. Legal defense as well as definitions of 
criminal behaviour can be based on sex. A good example of that 
is the so called "unwritten law" which allows a man finding his 
wife in an adulterous situation to kill her and still be charged 
only with manslaughter rather than murder while no such defense 
is available to a woman in the same situation. Most states do not 
allow for a charge of forcible rape to be brought against a husband 
by his wife no matter what the circumstances or the amount of force 
involved. And from a man's point, many states have no provisions in
their laws for the male victim of sexual assault.
   Prostitution has always been considered a "woman's" crime and 
many laws covering it ignore both male patrons and male prostitutes. 
In juvenile law, girls have traditionally been institutionalized 
for less serious conduct and have remained incarcerated for longer 
periods of time. Even in prison the discrimination continues since 
female prisoners receive less job training.  

 WHAT THE ERA WOULD DO
 
   The ERA would require that all laws be "neutral" in regard  
to sex. The same crime, committed by a man or a woman, would 
require the same punishment. And victims of crime, male or 
female, would have the same protections and rights.

 
                           FAMILY LAW

    Perhaps the most emotional issue surrounding the ERA is its 
perceived impact on the family. It was assumed that the traditional 
homemaker would lose her protections yet much of the "protection" 
was simply myth. Since US law has its roots (basis?) in English 
common law a woman has traditionally been treated as a second 
class citizen when it comes to laws concerning marriage and its 
associated property rights. While many laws have been changed 
over the years there are still laws in effect that:

 1. state that a home belongs to the husband, even if the wife 
paid for it.

 2. give the husband the right to manage community property 
without the wife's consent, even if she paid for it.

 3. say a woman cannot sue a third party who has injured her 
husband and deprived her of his services, though a husband can 
sue under similar circumstances.

 4. give no value to the contributions of a full time homemaker.

 5. assume that all property aquired during a marriage is the 
property of the husband unless the woman can prove she paid 
for it.

    This last can best be exemplified by the Nebraska farm couple 
who worked the land together for 33 years. After her husband's 
death and despite the fact of a joint title, in the eyes of the 
governement the farm belonged entirely to the husband. Unless 
the wife could prove she had helped to pay for the purchase of 
the farm or the improvements she was liable for an inheritance 
tax, yet if she had died first her husband would have faced no
such tax.
   Even under Social Security a fulltime homemaker has no 
independent right to benefits. A woman under 50 who is widowed, 
even if she is disabled and unable to work, will not receive 
benefits unless she has minor or disabled children. And since 
the program does not attach any economic value to her contributions 
in the home, if she becomes disabled her dependents have no rights 
to benefits even though her services are lost to them.
   Clearly then, the ratification of the ERA would have benefited, 
not only women who work outside the home, but all full time 
homemakers, male or female, by assigning a value to their 
contribution to the family.
   It has also been assumed by many that the ratification of the 
ERA would mean an end to laws requiring men to support dependent 
wives and children and it is in this area that the opponents of 
the ERA point to the "special status" of women under the law that 
would be lost. Research shows though, that in none of the states 
with ERA provisions have these laws been repealed and none have 
been rewritten to require a "fifty-fifty" division of financial 
responsibility, either during or after a marriage. Legal standards 
in these states now look at the needs and capabilities of each
family member, not their gender.  
   In Texas, for instance, the law now states that "each spouse 
has the duty to support his or her minor children" and the Texas 
Court has ruled that the ERA "does not require that the parents 
make mathematically equal contributions for the support of their 
children. It only provides that each parent has the equal 
obligation, in accordance with his or her ability, to contribute 
money or services which are necessary for the support and 
maintenance of his or her children." 
   The Pennsylvannia Supreme Court also ruled that the equal 
obligation of men and women does not just mean financially and 
that direct financial contribution to a child's support was not 
required from a mother who felt it necessary to stay home with 
her young children. In that case the value of her services to 
the children at home were deemed of equal value to the father's 
financial contributions. 
   Of course, these laws also make it possible for women to be 
obligated to pay either child support or alimony. Such cases have 
been widely reported by the press but when the distortions are 
set aside the fairness of the court decision has been revealed.
   Much of the rhetoric in this area concerned the Pennsylvannia 
case of Buonocore vs. Buonocore in which the non-custodial mother 
was charged with child support. However the facts of the case show 
that Mrs. Buonocore had moved out of the family home leaving her 
husband with their two minor children. After showing no interest 
in having custody of the children or contributing towards their 
support her husband sued her for child support. At that time she 
was earning a weekly salary equal to that of her husband who was 
incurring the expenses of raising two small children. The Court 
ruled that Mrs. Buonocore should pay child support in the amount
of $30 a week, hardly a newsworthy event had she been a man.  
   The Maryland case of Tignor vs. Tignor is another favorite of 
opponents of the ERA. In this case, Mrs. Tignor was required to 
pay support to her husband after the marriage was dissolved. 
However, the facts of the case reveal that Mr. Tignor was blind 
and had relied on his wife's support during the marriage. This 
clearly shows the fairness of the ERA and its "mutual 
responsibility" doctrine.

 
   In conclusion, it appears to me that there is a real need for 
enactment of the ERA. Women continue to be disadvantaged by laws 
that are gender based. In the work place they still face an earning 
gap wider now than it was in 1956. As wives they can be and often 
are denied an equal role in marriage. And they face a criminal 
court system that all too often judges them by their sex alone. 
The ERA would have provided a remedy for these inequities as well 
as providing equal rights and protections under the law for both
men and women.  


Sources:
 
 Statement on the Equal Rights Amendment - United States Commission 
 on Civil Rights

 Women's Rights and the Law - Barbara Brown, Ann E. Freedman, 
 Harriet N. Katz, Alice M. Price with Hazel Greenberg


UNTIL NEXT TIME
 
   Simple? Straightforward? 
   Makes you think, doesn't it? (Or it should.) 
   Read the amendment itself and you're almost certain to wonder 
just what the big hoo-haa is all about. Ahh, but if it's all as 
simple as it seems, why the continuing resistance?
   Think about it.
   And share your thoughts here on the board.
 
   Thanks, Leigh, for a very interesting article.
   Now - who's next? Anyone else care to contribute to the magazine?