The Feminist Promise

by Christine Stansell

  Women’s suspicions that the media was fundamentally sexist, not just accidentally prejudiced, reinforced the effects of employees’ battles. NOW chapters in the early 1970s monitored local television and newspapers on the quantity and quality of reporting about women, the fairness of presentation of women’s issues, and the numbers of female journalists.74 Scrutiny highlighted the use of demeaning language, sometimes converging with women employees’ own objections. In fact, the first time female employees protested anything at The New York Times was when they objected to a 1970 editorial titled “The Henpecked House,” about the passage of the Equal Rights Amendment by the House of Representatives. “Would you call something the ‘Nigger-loving House’?” they demanded. The point was indisputable, but regardless, plenty disputed it. What came to be called sexist language was supposedly only innocuous and well-meaning. In 1974, the Times, riled on this point, mocked another publisher’s efforts to avoid language that treated women as the exception rather than the norm by raising what the Times writer saw as the reductio ad absurdum: Would someday “Betty Co-ed” simply be called a student? Would people say that boys grew to adulthood rather than manhood? Others were less belligerent and backed away. Preempting conflict at his own newspaper, the editor of The Washington Post instructed his reporters to desist from using words such as “brunette,” “divorcée,” “cute,” or “grandmother” to describe women unless they used parallel descriptions of men.75

  The double pressure—from female staff inside, from audiences and readers outside—had visible effects on the media. In the 1972 presidential primaries, women reporters worked on the floor of the conventions for the first time.76 New sections directed to female readers appeared in newspapers, abrogating the silliness of the society and women’s pages for retooled, ostensibly gender-free features on fashion and food, packaged as lifestyle reading. In New York, discontent with the women’s magazines led to Ms. magazine, launched in 1972, devoted to bringing feminism to a mainstream audience. Ms., glossy, cheerful, and ebulliently pluralistic, mixed human interest and glossy advertising with devotion to liberal causes—the ERA, legal abortion. Pushing a political version of the self-improvement ethic, Ms. became the woman’s magazine of choice for the enlightened female masses.

  Litigants in lawsuits were the shock troops in a legal revolution spearheaded by feminist lawyers in Washington and New York. They kept tabs on a busy, buzzing field, looking for cases like Lorena Weeks’s that could be used to change law and policy. The process worked from the bottom up, with plaintiffs searching to bring new sorts of matters to court, and from the top down, with legal thinkers searching for cases to use in crafting appeals. Reva Siegel and Robert Post capture the creativity of the times in constitutional law: “Working with a variety of resources inside and outside the formal legal system—with principles, precedent, collective memory, social movement organizing, the party system, congressional legislation, constitutional lawmaking, and litigation—feminism in the 1970s helped change the meaning of the Constitution.”77

  In 1970, the American Civil Liberties Union (ACLU), the premier organization for legal reform in the country, decided to pursue litigation on women’s issues. Dorothy Kenyon, a moving force on the ACLU executive board since 1930 and a lifelong feminist, had long urged the organization to take a role in fighting for women’s rights. When Pauli Murray joined the board, she acquired an ally. Their pressure led to the ACLU’s Women’s Rights Project, which Ruth Bader Ginsburg, newly appointed to the Columbia Law faculty, helped launch in 1972. Ginsburg and Brenda Feigen Fasteau, a recent graduate of Harvard Law School, were co-directors. The Women’s Rights Project opened a channel between the women’s movement and the considerable financial and legal resources of the ACLU. There was enough money to push cases as far as they could go and brilliant talent to call upon, including Ginsburg’s women students at Columbia.78

  The problems went beyond job discrimination. Differentiation between the sexes pervaded the law. A labyrinth of sex discriminations was embedded in statutes and government regulations. For example, they littered Social Security provisions and the tax codes. Judicial treatment of cases involving sex discrimination ranged from poor to abysmal, judged two scholars in 1971 who reviewed the record. While judges had largely freed themselves from thinking that could be called racist, “ ‘sexism’… is as easily discernible in contemporary judicial opinions as racism ever was.” Prejudice reigned. Judges “have failed to bring to sex discrimination cases those judicial virtues of detachment, reflection and critical analysis which have served them so well with respect to other sensitive social issues.”79

  Judges partook of a romantic paternalism, as ACLU director Mel Wulf dubbed the mindset, jovial and ostensibly well disposed toward women. Ginsburg is worth quoting at length on the tenor of the law at the end of the 1960s and into the 1970s:

  [L]egislators and judges, in those years, were overwhelmingly white, well-heeled, and male. Men holding elected and appointed offices generally considered themselves good husbands and fathers. Women, they thought, had the best of all possible worlds. Women could work if they wanted, or they could stay home. They could avoid jury duty if they were so inclined, or they could serve if they elected to do so. They could escape military duty or they could enlist. 80

  Federal courts invalidated statutes based on race discrimination on Fourteenth Amendment grounds, but they consistently refused to extend that logic to sex discrimination. Ginsburg recalled beginning the Women’s Rights Project determined but pessimistic: “The possibility of getting a favorable decision seemed nil. The Supreme Court had held the line so long.”

  A recent example was Hoyt in 1961, when the justices upheld a Florida law that allowed women, but not men, to exempt themselves from jury service. The justices reasoned that sex discrimination in jury service was benign, designed to protect women from the stresses of public life so that they could function in their ordained sphere of the family, echoing the Bradwell decision of a century earlier and articulating what Ginsburg characterized as “these gross lines between men and women.”81 She sought a Supreme Court decision that would hold sex discrimination to the same standard of strict scrutiny from the Court as was used in examining race discrimination.

  Linda Kerber, who has written the classic history of these years, gives a dramatic account of the 1970s as a legal revolution that “first established the principle that discrimination on the basis of sex was a burden, not a privilege, [and] challenged law and custom in virtually every sector of American life.” There was a great deal of work at the appellate level and in trial courts. “Everything was coming together,” Ginsburg told Kerber. “The Equal Rights Amendment, the Women’s Rights Project, teaching, the casebook, litigation.” “It was really exhilarating,” she summed up. “But we were always tired.” Meanwhile, the ERA was pending, but Ginsburg followed Pauli Murray’s theory in “Jane Crow and the Law” that the Supreme Court could use Fourteenth Amendment guarantees of equal protection to strike down discrimination without the huge effort of securing the ERA’s passage. As Murray had earlier enunciated the point of pressure to a colleague:

  [W]hat I am after, of course, is to get a clear cut decision from the Supreme Court … that the Fourteenth Amendment is applicable to discrimination because of sex, and to get a clarification of the term “reasonable classification” as applied to women against the backdrop of mid-twentieth century notions of democracy.82

  The number of cases percolating through the courts meant there were rich resources for planning a line of attack. Basing her approach on Pauli Murray’s work, Ginsburg’s plan was to bring a series of carefully chosen cases up through the appeals process, “each maximally suited to a favorable court response, each serving as a foundation for its immediate successor and each taking the reasoning one step closer to constitutionally guaranteed sexual equality.”83 Ginsburg was seeking a decision that women were a “suspect classification” in the law, and that statutes discriminating on the basis of s
ex would be, like those using race to discriminate, subject to “strict scrutiny” to determine that there was a rational basis for the distinction.

  The precise requirements for an opening move came together in Reed v. Reed (1971), which tested a seemingly innocuous but altogether discriminatory Idaho law that concerned a separated couple’s dispute about who could administer their dead son’s estate: Automatic preference went to the father. Ginsburg and the ACLU, representing the mother, Sally Reed, persuaded the Court to rule that although Idaho’s different treatment of men and women—supposedly a neutral provision designed for administrative convenience—was not without some legitimacy, it could be a denial of women’s Fourteenth Amendment right to equal protection. She didn’t convince the justices to apply strict scrutiny to the classification of Sally Reed as a woman to determine her qualifications (like race), but the Court, in reversing the lower court’s decision, seemed to indicate that it was “somewhat suspect.”84

  Two years later, Ginsburg submitted an amicus brief for the ACLU, arguing before the Court on behalf of Sharron Frontiero, a married air force officer who had run afoul of a law that provided additional employment benefits to dependent wives of male officers, but not to husbands of female officers. Ginsburg’s brief for Frontiero v. Richardson (1973) was “stunning,” co-counsel Brenda Feigen writes in her memoir. Historical amnesia obliterated most of the feminist tradition, but Ginsburg wove together what shreds she could find to survey centuries of legal opinion about and social attitudes toward women. In Reed v. Reed she acknowledged her own historical debt by listing Dorothy Kenyon and Pauli Murray on the amicus ACLU brief, even though they had not contributed directly. And in the brief, she unveiled the backstory to a Court that had never had to consider the history of women’s subordination. She reminded them of coverture; traced the close association in America between slaves and women, abolition and women’s rights; trotted out old chestnuts of misogyny to show how outrageous they were; and quoted extensively from Sojourner Truth’s “Arn’t I a Woman” speech. She stressed the forward-looking hopes of the President’s Commission on the Status of Women and the relevance of the civil rights struggle to the contemporary women’s movement. She quoted the now-ludicrous reasons the 1873 Court gave to deny Myra Bradwell the right to practice law and the equally absurd rationale it used to evade the question of women’s enfranchisement in Minor v. Happersett. In oral argument, she ended with Sarah Grimké’s ringing declaration. “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”85

  The Court ruled for Sharron Frontiero, for the first time articulating a heightened standard of judicial scrutiny when classifications of sex were involved. Justice William Brennan, writing for a plurality of the Court, pointed to the burst of lawmaking from the Ninety-second Congress the previous year to buttress its conclusion that “classifications based upon sex are inherently invidious.” Moreover, Brennan’s opinion recognized—for the first time—America’s “long and unfortunate history of sex discrimination.” Frontiero was a major step toward making sex a category of discrimination analogous to race and bringing the full implications of the equal protection clause of the Fourteenth Amendment to bear on the rights of women. Although it fell short of the strict scrutiny classification the Women’s Rights Project sought, it was a landmark decision, an indication of the Court’s new openness to feminist claims.86

  The gains were remarkable, and they were also shaky. A revolution that had barely been on the horizon in 1963 swept through the culture. Young women went out into the world with a soaring faith in their own possibilities and a determination to live as they imagined men did. As the heady days of women’s liberation faded, a détente with men took hold—although it never entered the realm of theory or ideas. For the lucky, the circumstances of work itself—the shared burdens and aspirations, the rhythms of labor and leisure, the pride in tasks well done—seemed to offer a footing for reciprocal relationships between the sexes, practically a guarantee of sexual equality. Soon, a genre of high-class soap operas emerged on TV depicting the shifting liaisons, romances, marriages, and friendships of male and female workmates in police stations, hospitals, and law firms.

  But after 1975, further gains in Washington eluded feminism. The structural changes in work that would have created lasting support did not materialize. The wage gap between men’s and women’s incomes, with black women at the bottom of every index, hardly budged. While educated women moved into professional and managerial positions, a much larger stream poured into low-wage, nonunionized women’s jobs: the ever-voluminous pink-collar ghetto. Sex discrimination law lumbered along, but it was unwieldy, cumbersome, and expensive to pursue; the weakening of labor unions meant that in general, employers found ways to circumvent restrictions. The effect was to move prejudice against women into a subtler register. Through the 1970s and thereafter, workingwomen moved into the labor force with no publicly funded support for child care or other family matters.87 The PCSW’s recommendations for public policies that would accommodate women’s work and family lives, so conservative compared to the proposals of radical feminism, were by 1980 artifacts of a bygone era, expectations of state largesse now inconceivable.88

  As a result, five and ten years into the great transformation, the old order had weakened but not toppled. New structures of discrimination emerged, more difficult to challenge because they were more covert. Ironically, given the matrophobia of the late 1960s, motherhood proved to be a great undoer of the daughters’ romance of work. Faced with structures geared to men who usually had families but had few household obligations, they ended up in less prestigious and lower-paying jobs. Forced to circumvent the most demanding levels of careers and professions, some dropped out and others were pushed out by employers who claimed that their family involvements disqualified them. Men proved disappointing feminist partners. Friendly male co-workers were cold to the importance of changing routines in order to accommodate mothers’ responsibilities. The sexual division of labor at home failed to budge; studies showed that women with full-time jobs did as much or more housework than did full-time homemakers, while male partners’ contributions dwindled to negligible. An ideology of choice emerged as the explanation for why highly trained, ambitious women in high-power jobs failed to achieve the goals that, given the momentum of change up to 1975, had seemed within reach.

  By 1975, there was much that feminism had changed in the three decades after the end of World War II—more than anyone in 1945 could have dreamed. Indisputably the old order was beyond resurrection. But what would take its place? There was also much that, by 1975, had not changed—and still hasn’t. All of us, men and women, live with the aftereffects: the bright enduring hopes, the second thoughts, the revisions and reactions, the compromises and defeats.

  Everywhere, among those who thought of themselves as feminists and those who didn’t, the insights and claims of the women’s movement shaped expectations of themselves and others. No longer were girls told so readily that their arms weren’t made to throw balls and that their fingers destined them to be typists. Antipathy toward women could no longer swagger about in the public square without repercussions. It often had to walk more softly and rephrase its boasts and slurs in an idiom of reason and good feeling. The task of conservatives over the next quarter century would be to refashion family government, with all its embedded scorn for women, into a modern, efficient setup. For a time they succeeded, and gained an influence in politics that was unprecedented. In the years leading up to Ronald Reagan’s election in 1980, the successes of feminism and antifeminism were entwined and the victories of the women’s movement became food for the antifeminist feast.

  CHAPTER TEN

  POLITICS AND THE FEMALE BODY

  A FEW WEEKS AFTER the Supreme Court heard arguments in the Frontiero case, it handed down its decision in Roe v. Wade. A seven-justice majority held that a Texas statute banning abortion violated women’s constitutional right to priva
cy. An all-male Court thereby brought the power of the Constitution to affirm what by then was a passionately sought goal of the women’s movement.

  When Roe was announced in January 1973, the women’s movement had already changed the Republican and Democratic nominating conventions, popular feminism was building, and the ERA was trooping along blithely picking up one ratification vote after another. Far-flung approval greeted Roe’s announcement. None of this amounted to a feminist revolution. Radicals were lukewarm to Roe, which seemed a modest decision that came nowhere near the call for free abortion on demand. But if the whole loaf was not in evidence, a steady output of half loaves seemed guaranteed.

  The campaign to legalize abortion did not begin as a feminist cause, as is often assumed. The movement to legalize abortion actually dates back to the 1950s. It included a range of viewpoints, from left-liberal to conservative—although it was liberals, eventually joined by feminists, who were the mainstays. Until 1967, men dominated the movement, and they continued to play a major part through the Roe victory and beyond. Lucinda Cisler, who led NOW’s work for legal abortion, acknowledged that feminists entered belatedly a movement that others started: “The abortion issue is one of the very few issues vital to the women’s movement that well-meaning people outside the movement were dealing with on an organized basis even before the new feminism began to explode.”1

  Initially, physicians, psychiatrists, and family planning professionals sustained the campaign. For fifty years, physicians had seen illegal abortions as a threat to public health. This was one reason why the American Medical Association (AMA), a prime mover of illegalizing abortion in the nineteenth century, did an about-face and came to endorse legalization in 1970.2 Family planning professionals also reversed their view. In the 1910s and ’20s birth control advocates kept the abortion issue at arm’s length, counterposing the goal of safe, available contraception to the plague of secret murders of unborn children. But in the late 1950s, a few figures from the Planned Parenthood Federation (PPF), heir to Margaret Sanger’s campaign, broke with the standard line to join with physicians concerned about the devastating effects of illegal abortion. The PPF called for laws allowing “therapeutic” abortions, to be authorized by committees of physicians upon application of a pregnant woman whose life was in danger.