When she asked Robinson for her paper, to her astonishment he produced it instantly from files near at hand. As they waited for a secretary to make a carbon copy, Robinson remarked off-handedly that her paper “was helpful to us” in destroying Plessy. When preparing the briefs as part of Thurgood Marshall’s NAACP team arguing the Brown v. Board of Education case, Robinson had remembered Murray’s paper and dug it up from the law school’s files. It was her framework that segregation caused lasting psychological harm, thereby violating the Equal Protection Clause of the Fourteenth Amendment, that led Marshall and his colleagues to their successful argument that separate educational institutions were inherently unequal and in violation of the Constitution. The Supreme Court decision had been unanimous: segregated public education “generates a feeling of inferiority” with enduring consequences; separate could never be equal.43 Her law school essay had influenced one of the most important civil rights victories of the century. She was stunned to the point of near speechlessness.
“Spots, why on earth didn’t you tell me?” was all she could muster.44
Murray’s political and legal work in the years to come similarly shattered long-standing justifications of discrimination. But this time she would receive credit for her contributions.
In the 1960s, “Help Wanted, Men” and “Help Wanted, Women” ads filled daily newspapers; bans persisted in preventing women from serving on juries, attending universities, or controlling their own credit cards and bank accounts; and “No Ladies,” “Men Only,” and “Only Escorted Women Will Be Served” signs were still posted in the windows of restaurants, clubs, and bars around the country like sentinels guarding the castle. Yet few considered women’s subordinate status to rise to the level of legal segregation. Many white women considered their chief battles to have already been won: suffrage, contraception, and access to the professions. But Murray saw deep, structural inequality that cut across racial and class lines. Determined to expose the uneven distribution of power entrenched far deeper than voting rights, she built on her expert knowledge of prosecuting civil rights cases under the Equal Protection Clause of the Fourteenth Amendment to advocate another new strategy. Women’s marginalization, she insisted, was similarly a violation of constitutional rights.
When some of the March on Washington demands to end Jim Crow materialized in the form of the new civil rights bill proposed in Congress in the winter of 1964, Murray found her opportunity to weaken Jane Crow. In the final hours of debate in the House of Representatives, the Virginia Democrat Howard W. Smith introduced an amendment to Title VII of the civil rights bill, the section that made discrimination illegal in the realm of employment. “Sex,” he proposed, should be included among race, color, national origin, and religion as characteristics that employers were prohibited from taking into account when hiring. Smith was a segregationist who thought white Christian women would need protection from the rights Black people were gaining in the post–civil rights era. Most congressmen took Smith’s suggestion to be a joke, and the sound of laughter rang throughout the chamber. The committee tasked with drafting the bill hadn’t even considered including sex as a protected category. But surprisingly, the House passed the amendment and sent the civil rights bill on to the Senate. Murray was ecstatic at the inclusion of sex in the equal employment opportunity portion of the bill, whatever its origins. “As a Negro woman,” Murray explained, “I knew that in many instances it was difficult to determine whether I was being discriminated against because of race or sex.”45
Unlike discrimination on the basis of race, however, restricting access to jobs on the basis of sex was considered a significant progressive agenda. Back in 1908, labor activists had successfully pushed for sex to be a valid employment restriction in order to win worker protections. Significant labor victories such as ten-hour shift maximums for women workers were won on the basis of the Muller v. Oregon ruling that the state had a vested interest in shielding women from overbearing work because of their social duty to birth and raise children. In the 1960s, Muller still set precedent, and the most common sex-based restrictions that remained were those specifying the maximum number of hours women could work per week. The US Supreme Court continued to uphold “sex as a basis for legal classification” in a variety of arenas. A 1961 case affirmed that restricting the courtroom jury bench to men alone was constitutional given that women were tasked with the “special responsibilities” of taking care of their families and thus shouldn’t be burdened with civic duties.46
Murray, however, was convinced sex-based protections did more harm than good. To help ensure that the clause prohibiting jobs-related sex discrimination would survive the wheeling and dealing over the civil rights bill sure to happen in the Senate, she returned to her typewriter. She drafted a provocative legal memorandum in its defense, issuing her response to leading senators, the attorney general, Vice President Hubert Humphrey, and the first lady. She stressed her innovative argument that the Fourteenth Amendment of the US Constitution guaranteed equal treatment before the law, even in the case of sex. “Title VII without the ‘sex’ amendment would benefit Negro males primarily and thus offer genuine equality of opportunity to only half of the potential Negro work force,” Murray insisted.47 A reply from Lady Bird Johnson’s social secretary two weeks later alerted Murray to the success of her memo: the Johnson administration supported the sex amendment, and the Senate soon did as well. Thanks in large part to Murray’s intervention, Title VII of the Civil Rights Act of 1964 had achieved what the Fourteenth and Fifteenth Amendments failed to do a century prior—to prohibit discrimination on the basis of race and sex, in this case in the realm of employment. Murray won intersectional feminism’s first major legal victory.
In the wake of her success, Murray joined forces with a white woman civil rights attorney, Mary O. Eastwood, on a scholarly article cum manifesto, “Jane Crow and the Law” (1965). Together, they set a legal agenda for intersectional feminism. Discrimination on the basis of sex is illegal under the Fourteenth Amendment and Title VII, they argued, correlating race and sex as “entirely comparable classes” in which the precedence of antidiscrimination law for one should set precedent for the other. Murray and Eastwood saw the doctrine of sex classification to be akin to race classification: both addressed “permanent, unchangeable, natural classes” that were “susceptible to implications of innate inferiority.” Paternalistic labor protections like hours limitations and weight-lifting restrictions reinforced inequalities through “restrictions and confinement,” they argued. These laws enacted “chivalry,” not justice, and reproduced the logic of separate but equal.48 Debasement on the basis of womanhood, Murray continued to stress as she had during the March on Washington battle, did not merely pose individual setbacks—sexism rose to the level of structural marginalization.
Soon Murray herself landed a major court victory against Jane Crow. In 1965, she and Dorothy Kenyon, a seventy-seven-year-old white lawyer, successfully argued on behalf of the NAACP that male-only, white-only juries in Alabama violated the Fourteenth Amendment. It was the first time a civil rights lawsuit simultaneously challenged race and sex discrimination together. It was also the first time a federal court ruled that the Equal Protection Clause applied to cases of sex discrimination.49 Though the case set precedent only in Alabama, Murray was on her way to chipping away at Jane Crow.
Six years later, in a case testing the validity of an Idaho law barring women from serving as executors of wills, the Supreme Court established national precedent. Reed v. Reed (1971) declared that the Fourteenth Amendment prohibited differential treatment on the basis of sex throughout the United States. The promising gender rights attorney at the ACLU who represented the plaintiff made sure Murray got credit for developing this legal reasoning. When signing her brief, she added two more names, though these women hadn’t been directly involved in the case: Pauli Murray and Dorothy Kenyon. The lawyer was Ruth Bader Ginsburg. Ginsburg’s move to share authorship, Brittney Cooper write
s, “is a model for how to solve contemporary issues among young feminists over white feminists’ appropriation without attribution of the intellectual and political labor of women of color.”50
Murray’s insight that sexism was akin to racism considerably advanced the project of intersectional feminism. Her reasoning depended on analogies, a favored rhetorical strategy of white feminist theory. Yet in her hands analogy became a method of convergence, rather than separation. White feminist theorists like Stanton posed equivalences between groups of people in which one allegedly stands in for the other: the woman becomes the slave. Murray, however, interrogated multiple structures of power and showed how they worked in tandem. She didn’t position the women’s movement as a separate, autonomous campaign from other social movements, as Betty Friedan did: “The students were doing it. The blacks were doing it. It was time for us,” Friedan reflected in 2000. These formulations insist on distinct, parallel identities that never meet, leaving Black women structural impossibilities. By contrast, as Cooper and others have argued, Murray created a conceptual framework for revealing the connections between sexism and racism. “Since the problems of race discrimination and sex discrimination meet in me,” Murray wrote, “I must consider both as equally important.” For those who live at the crosshairs, she revealed, these forces compound one another, multiplying in effect, such that it is Black women, not white, who experience the fullest brunt of sexism within Black and white spaces.51
Murray sits at a key historical juncture. Her legal work in the 1960s made significant progress achieving the agenda initially set by Frances E. W. Harper, Frederick Douglass, and others one hundred years prior—civil rights that simultaneously addressed the forces of racism and sexism as separate, but overlapping, forms of social power. Murray also laid the foundation for feminist theory in her wake. The term intersectionality was first coined by Black feminist legal scholar Kimberlé Crenshaw in 1989 to address the confluence of racism and sexism in the realm of law, and she cited Pauli Murray as a precedent.52
Intersectional feminism rejects white feminism’s biopolitical mandate to advance oneself through dispossessing others. Instead, it focuses on the needs of the most marginalized as the best vantage to power in all its complexity. “If Black women were free,” the Combahee River Collective theorized in 1977, “it would mean that everyone else would have to be free since our freedom would necessitate the destruction of all the systems of oppression.”53
Murray had helped ensure that the civil rights bill included the prohibition of sex-based employment discrimination. The “Help Wanted, Women” and race-segregated job ads were to become a relic of the past. Yet a piece of civil rights legislation is only as good as the institutions that enforce it and the social movements that hold those institutions accountable. In 1965, a new body was created to oversee the application of Title VII in the workplace, the Equal Employment Opportunity Commission (EEOC). Its leadership gave every indication that it would not be taking sex discrimination seriously. In a major speech, the EEOC executive director Herman Edelsburg declared that the inclusion of “sex” in the civil rights employment law was a “fluke,” a bastard idea “conceived out of wedlock.” Meanwhile, the EEOC’s legal team further weakened the provision, arguing in law review articles for what Murray called an “unduly restrictive interpretation” of the sex clause.54 The EEOC was not willing to take women seriously as workers in need of rights.
Murray perceived that in effect Title VII would offer no protection from sex discrimination. Unless strong outside pressure forced the EEOC to uphold the clause, women would continue to provide capitalism’s largest supply of exploitable labor. “What will it take to arouse the working women of this country to fight for their rights?” she wrote to her network of feminist attorney allies. “Do you suppose the time has come for the organization of a strong national Ad Hoc Committee of women?”55
From the stage of New York’s Biltmore Hotel, an upper-crust establishment whose bar didn’t even admit women patrons, Murray made a more momentous recommendation. She was an invited speaker at the annual conference of the National Council of Women, an organization founded by Elizabeth Cady Stanton and Susan B. Anthony—and the setting where Frances E. W. Harper had shut down Alice Fletcher’s appeal for white women to civilize the so-called dependent races. Women, Murray counseled her genteel listeners, should prepare to demand that Title VII’s prohibition of sex discrimination be enforced.
“It should not be necessary to have another March on Washington in order that there be equal job opportunities for all. But if this necessity should arise, I hope women will not flinch from the thought.”56
Murray hadn’t thought her speech particularly moving or radical, covering as it did the legal details of Title VII, and she returned home that evening to New Haven where she was about to become the first African American to earn a Yale doctorate in law. But she had underestimated her own effectiveness as a speaker, and her audience was largely white upper-middle-class women.57 Murray’s spirited provocation that ladies ought to revolt in the streets landed an account of her speech in the pages of the next day’s New York Times.
When New York woke up and read their morning papers, Murray’s phone rang. Betty Friedan was on the other end, and she wanted to talk. Friedan requested an interview for her new book, a follow-up to The Feminine Mystique. Friedan never finished that book, though she sold it to her publisher, wrote one-third of it, and gave it a memorable name: Jane Crow.58
“When I was fired for being pregnant, there were no words such as ‘sex discrimination’ in my vocabulary,” Friedan later recalled. “Those words ‘sex discrimination,’” in the air since the passage of Title VII, “suddenly threw light onto the murkiness.… I tracked down Pauli Murray at Yale and made a date to meet her. And I started down the road that would lead to the women’s movement.”59
Within months, Friedan, Murray, and a dozen others would join forces to launch the National Organization for Women. Together, they were instrumental in reinventing feminist activism for the civil rights era.
Murray provided Friedan with considerably more than an interview and a manuscript title. By this time, Murray was well connected with other feminists quietly and not-so-quietly working for women’s rights from positions within federal institutions and commissions. Pauli Murray “tuned me into the underground network of women,” Friedan explained. “I didn’t have to work underground, however. As the author of a best-selling book on women, I was often invited to the White House in the Johnson years, when token women were needed.”60 Friedan’s visibility and independence were major assets to the underground network, however. Government employees couldn’t fight government institutions, but journalists could.
The underground turned into a movement in June 1966, as Murray, Friedan, Mary Eastwood, and others attended the third annual conference of the Commission on the Status of Women, an organization established by President Kennedy to further women’s rights. On the escalator of the Washington Hilton the first morning, Friedan ran into Murray and Dorothy Haener, a labor leader with the United Auto Workers. They were all concerned that Title VII’s prohibition of sex discrimination in employment was about to be rendered meaningless. The EEOC was retreating from any enforcement of sex equality and had recently decided that sex-restricted job ads were permissible because they served “the convenience of readers.” All three suspected the real reason: sex-segregated employment that confined half the population to lower-paying jobs served the interests of capital. White women made about fifty cents, on average, to every white man’s dollar, and Black women made only seventy-one cents compared to white women. Jane Crow rendered women, Black and white, a tremendous source of surplus labor, for the value they produced for their employers far exceeded the value of their paychecks.61 Murray and Haener successfully urged Friedan to host a meeting in her hotel room that night to strategize how women could push the commission to enforce Title VII.
From her position on the next morning�
��s keynote panel, Murray made plain that the EEOC must act to protect workplace equity. But the commission refused to offer even a resolution recommending that the EEOC uphold Title VII—the commission’s function was restricted to window-dressing for the Democratic White House. Angry and energized, at the conference lunch Friedan, Murray, and a dozen others whispered and traded notes plotting a new organization that could pressure government agencies into action. Together they named their new group NOW—the National Organization for Women—and Friedan sketched the first line of its mission on a paper napkin: “to take the actions needed to bring women into the mainstream of American society now, exercising all the privileges and responsibilities thereof, in truly equal partnership with men.”62
Betty Friedan became president of NOW and Murray one of its cofounders alongside Eastwood, Haener, and four dozen others, including March on Washington alumna Anna Arnold Hedgeman and Puerto Rican activist Inez Casiano. Over the summer, Murray joined a small group of seven who strategized building NOW into a permanent entity. At the founding conference that fall, she pushed the organization to address social injustice in all its forms, including poverty, rather than focusing exclusively on women’s legal rights. Wealth inequality hit Black women particularly hard, Murray stressed. After Friedan drafted the full-length NOW mission statement, Murray replaced Friedan’s narrower focus on individual “equal rights” with a nod to the wide-ranging nature of social power. “We realize that women’s problems are linked to many broader questions of social justice,” Murray inserted after striking through Friedan’s words, and NOW would attend not only to “discrimination,” but also “deprivation.”63
The Trouble with White Women Page 21
