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6 Harv. C.R.-C.L. L. Rev. 234 (1970-1971)
The Equal Rights Amendment Is Not the Way

handle is hein.journals/hcrcl6 and id is 244 raw text is: THE EQUAL RIGHTS AMENDMENT IS NOT THE WAY by Paul A. Freund* My interest in the Equal Rights Amendment goes back twenty-five years, when I was encouraged to draft a statement in opposition on behalf of twenty lawyers and law professors, including Dean Pound of Harvard.1 Last year I learned that this statement was being circulated anew by the AFL-CIO, and it became necessary to review my position on the subject. The issue has always been over choice of means, not over ends. The objective is to nullify those vestigial laws that work an injustice to women, that are exploitative or impose oppressive discriminations on account of sex. Although such laws have been progressively superseded or held to be violative of equal protection,2 some of these laws still disfigure our legal codes. Beyond this, the Women's Rights Movement seeks to achieve equal opportunity and equal treatment for women in business, professional, domestic, and political relationships, but unless equality is denied by a public agency or because of a law the Equal Rights Amendment by its terms has no application. If we want to see more women in law firms, in the medical profession, in the Cabinet-and I, for one, do-we must turn elsewhere than to the proposed amendment. The point is not the smug argument that we must change hearts and minds and attitudes (though that too is involved) rather than look to law; the point is that within the realm of law we have to compare the effects and effectiveness of a constitutional amendment on the one hand and the mandate of congressional legislation and judicial decisions on the other. The proposed amendment attempts to impose a single standard of sameness on the position of the sexes in all the multifarious roles regulated by 'law-marital support, parental obligations, social security, industrial employment, activities in public schools, and military service-to mention the most prominent. It is necessary to try to analyze all these various applications of the single-standard formula in order to discern whether anomalies, uncertainties, and injustices would result. Unfortunately we have no definitive guide in such an exploration, for neither in the House nor in the Senate was there a committee report on the amendment, which *Carl M. Loeb University Professor, Harvard University. IThe statement appears in Hearing on S.I Res. 61 Before a Subcomm. of the Senate Comm. on the Judiciary, 79th Cong., 1st Sess. 78-80 (1945). A list of signatories appears in 116 CONG. REC. S 13906, (daily ed. Aug. 21, 1970) (remarks of Sen. Ervin). 2E.g., United States ex rel. Robinson v. York, 281 F. Supp. 8 (D. Conn. (1968); Commonwealth v. Daniel, 430 Pa. 642, 243 A.2d 400 (1968). Both cases invalidated statutes providing for more severe penalties for women than for men convicted of certain offenses.

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