Mr. EDWARDS. I appreciate your testimony very much. Reasonable people may disagree and you are a very effective advocate, Professor. Mr. Butler. Mr. BUTLER. We have a table of State ERA's. Is this part of the record of this hearing now? Can we make it part of the record? Mr. EDWARDS. Without objection it is accepted as part of the record, and also Mr. McClory's letter that he presented will be made a part of the record. [The information follows:] TABLE 2.1.-STATE ERA CASES-FROM BROWN ET AL., "WOMEN'S RIGHTS AND THE LAW" (1977) Significant ERA decisions Schreiner v. Fruit, 519 P. 2d 462 (Sup. Ct. 1974). Extended right to sue for loss cf consortium to women. People v. Elliot, 525 P. 2d 457 (Sup. Ct. 1974). Upheld felony nonsupport provision applying to men only. (Statute has since been sex neutralized by legislature.) People v. Green, 183 Col. 25, 514 P. 2d 769 (Sup. Ct. 1973). Upheld Mora v. St. Vrain Valley Sch. Dist., Civil No. 75-3182-1 (Boulder Co., Anagnostopoulos v. Anagnostopoulos, 22 III. App. 3d 4799, 317 Boropitz v. Borowitz, 19 Ill. App. 3d 176, 311 N.E. 2d 292 (1974). Proper to look at wife's as well as husband's own financial means in determining alimony, in addition to age of parties and length of marriage. People v. Boyer, 24 Ill. App. 3d 671, 321 N. E. 2d 312 (1974). Struck down higher penalty provision for incest between father and daughter-remanded for resentencing under penalty provision formerly applicable to incest between mother and sons or brothers and sister (but see People v. York, below). People v. Ellis, 57 III. 2d 127, 311 N.E. 2d 98 (Sup. Ct. 1974). Invalidated statutory provision extending juvenile status to female delinquents up to 18 and males up to 17-interpreted statute to apply to both males and females up to age 17. Garland v. Garland, 19 III. App. 3d 951, 312 N.E. 2d 811 (1974). Upheld presumption favoring maintenance of original custody award to mother even though she was leaving state, not because of mother's sex but because of children's welfare. In re Estate of Karas, 61 III. 2d 40, 329 N.E. 2d 234 (Sup. Ct. 1975). Upheld statutory scheme allowing illegitimate children to inherit from mother's but not father's intestate estate. Marcus v. Marcus, 24 Ill. App. 3d 401 320 N.E. 2d 581 (1974). No inflexible rule found requiring maternal custody for child of "tender years"-even if mother is fit custodian, best interest of this child is placement with father. People v. Medrano, 24 Ill. App. 3d 429, 321 N.E. 2d 97 (1974). Upheld rape statute covering only male aggressors, based on what court saw to be physiological and sociological differences between the sexes. Pancio v. Robinson, 23 III. App. 3d 848, 320 N.E. 2d 101 (1974). Cosmetologist, who formerly were restricted to cutting hair incidental to styling females' hair, can now cut hair of both sexes if only incidental to styling. Phelps v. Bing, 58 III. 2d 32, 316 N.E. 2d 775 (Sup. Ct. 1974). Struck down statutory difference in age of marriage for men and women; now men are subject to lower age restrictions of women. TABLE 2.1.-STATE ERA CASES FROM BROWN ET AL., "WOMEN'S RIGHTS AND THE LAW" (1977)—Con. Montana... The dignity of the human being is inviolable. No person shall be denied the Equal Protection of the laws. Neither the State nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas. (1972 Constitution, Art. 2; Declaration of Rights, July 1973). New Mexico No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under law shall not be denied on account of the sex of any person. (Art. 2, § 18. July 1973). or Pennsylvania... Equality of rights under the law shall not be denied abridged in... Pennsylvania because of the sex of the individual. (Art. 1, § 28, May 1971; Ann. Code § 27) Significant ERA decisions Randolph v. Dean, 27 Ill. App. 3d 913, 327 N.E. 2d 473 (1975). Presumption favoring maternal custody not unconstitutional if it is only one factor among others rather than in inflexible rule. Slavis v. Slavis, 12 Ill. App. 2d 467, 299 N. E. 2d 413 (1973). Neither ERA nor amended statute requiring support obligations for both men and women relieves father from payment of child support arrearages past support obligations are a vested right of children. Tan v. Tan 3 III. App. 3d 671, 279 N.E. 2d 486 (1972). Proper to terminate alimony after seven years, as the couple has lived together only seven months and had no children-court noted that wife is employable and has responsibility for own support. People v. Yocum, 31 Ill. App. 3d 586, 335 N.E. 2d 183 (1975). Conviction for aggravated incest between father and stepdaughter overturned because statute did not prohibit sexual conduct between mother and adopted or stepson. People v. York, 29 III. App. 3d 113, 329 N.E. 2d 845 (1975). Upheld higher penalty for father's incest with daughter than for mother's incest with son because of high proportion of incest committed by men (but see People v. Boyer, above). Brooks v. Maryland, 24 Md. App. 334, 330 A. 2d 670 (Ct. Spec. App. 1975). Upheld rape statute penalizing only male aggressors because of physiological differences between sexes because only women can become pregnant. Colburn v. Colburn, 20 Md. App. 346, 316 A. 2d 283 (Ct. Spec. App. 1974). Husband challenging statute allowing alimony and attorney's fees to women only was found not to have standing since he was not seeking alimony or fees for himself. Cooke v. Cooke, 21 Md. App. 376, 319 A. 2d 841 (Ct. Spec. App. 1974). Maternal preference in custody is costitutional if all other factors are equal and application is limited to situations where factual determination is otherwise impossible to make. Maryland State Board of Barber Examiners v. Kuhn, 270 Md. 496, 312 A. 2d 216 (Ct. App. 1973). Statutory scheme prohibiting cosmetologists from washing and cutting men's but not women's hair found to be an unreasonable classification-court relied on "due process" rationale rather than ERA, however. Minner v. Minner, 19 Md. App. 154, 310 A. 2d 208 (Ct. Spec. App. 1973). Same as Colburn, above. Tignor v. Tignor, Divorce No. 12601 (Anne Arundel Co. Cir. Ct. 1974). Allowed alimony to blind man whose wife had substantial assets and income over $10,000 per year (alimony provision now sex neutral). In re Kujath, 1 Family L. Rep. 2533 (Sup. Ct. 1975). Struckdown statute prohibiting wife to alienate over two-thirds of her estate by will without her husband's consent. Schaab v. Schaab, 87 N.M. 220, 531 P. 2d 954 (Sup. Ct. 1974) Alimony statute, already sex neutral on its face, upheld under ERA as to its application to appellant husband, whose wife had custody of all but one child and needed financial help of former spouse. Com. ex rel. Buonocore v. Buonocore, 340 A. 2d 579 (Super. Ct 1975). Child support order against wife upheld since husband's income was inadequate and children were living with him and wife had an ability to contribute otherwise, children would have become "indigent" under "poor law." Butler v. Butler, 2 Family L. Rep. 2092 (Sup. Ct. 1975). Presumption that wife does not intend husband to benefit from her contributions to "entireties" property no longer valid. Court held that "entireties" property should be divided equally at divorce. Commonwealth v. Butler, 458 Pa. 289, 328 A. 2d 851 (Sup. Ct. 1974). Upheld minimum sentence of male defendent under Muncy Act but declared portion of act providing for no minimum sentence for women to be unconstitutional. TABLE 2.1.-STATE ERA CASES-FROM BROWN ET AL., "WOMEN'S RIGHTS AND THE LAW" (1977)-Con. Conway v. Dana, 456 Pa. 536, 218 A. 2d 324 (Sup. Ct. 1974). Parents DeRosa v. DeRosa, 60 D. and C. 2d 71 (Delaware Co. Ct. C.P. 1972). DiFlorido v. DiFlorido, 331 A. 2d 174 (Sup. Ct. 1975). Presumption favoring ownership of all household goods by husband is invalid Nonmonetary as well as monetary contributions to household must be considered. Proper presumption in dividing goods on divorce is one of joint ownership. Einstein Medical Center v. Gold, 66 D. and C. 2d 347 (Phila. Co. Ct. C.P. 1975). Improper for wife to defend against payment of husband's medical expenses by relying on outmoded doctrine that only husbands are responsible for the "necessaries" of their spouses. Frank v. Frank, 62 D. and C. 2d 102 (Lebanon Co. Ct. C.P. 1975.) Upheld statute allowing alimony pendente lite for women. (Now statute is sex neutral.) Green v. Freiheit, Civil No. 1015, Docket No. 260259 (Family Div., 1st Judicial Dist., Oct. Term 1973). Child support responsibility rests equally with both parents according to ability. Presumption charging father with primary obligation no longer valid under ERA. Hakes v. Hakes, 67 D. and C. 2d 25 (Sullivan Co. Ct. C.P. 1974). Real Henderson v. Henderson, 458 Pa. 97, 327 A. 2d 60 (Sup. Ct. 1974). Keenan v. Penn Hills School District, 65 D. and C. 2d 764 (Allegheny Kehl v. Kehl, 57 D. C. 2d 164 (Allegheny Co. Ct. C.P. 1972). Statutory provisions allowing alimony and counsel fees to women only violate the ERA. (Provisions are now sex neutral.) Lukens v. Lukens, 224 Pa. Super. 227, 303 A.2d 522 (Super. Ct 1973). Discrepancy in support provisions for wives and husbands does not violate the ERA because both spouses have a reciprocal and substantial right to support, despite the lack of mathematical equality. Murphy v. Murphy, 224 Pa. Super. 460, 303 A.2d 838 (Super. Ct. 1973). Upheld alimony and counsel fees for women only. (Statute is now sex neutral.) Norris v. Norris, 63 D. and C. 2d 239 (Phila. Co. Ct. C.P. 1974). ERA does not require precise equality in relationship to a substantial right to support for both sexes. Not unconstitutional to allow statutory "in rem" action for support by deserted wife but not by deserted husband. Commonwealth v. Pennsylvania Interscholastic Athletic Ass'n, 334 Percival v. City of Philadelphia, 317 A.2d 667 (Cmwith. Ct. 1974). Rogan v. Rogan, Civil No. 1934 (Luzerne Co. Ct. C. P. Oct. Term Commonwealth v. Santiago, 340 A.2d 440 (Sup. Ct. 1975). Common law doctrine of coercion of wife in crime by husband and wife no longer legitimate defense since wife's identity will no longer seem to merge with husband's on marriage. TABLE 2.1.-STATE ERA CASES-FROM BROWN ET AL., "WOMEN'S RIGHTS AND THE LAW" (1977)-Con. Significant ERA decisions Wiegand v. Wiegand, 226 Pa. Super. 378, 310 A. 2d 426 (Super. Ct. 1973) rev'd on other grounds, 337 A. 2d 256 (Sup. Ct. 1975). Appellate court invalidated statutory provisions allowing "bed and board" divorce for women only. However, supreme court said ERA challenge not properly raised, so status of "bed and board" divorce remains in question in Pennsylvania. Cooper v. Cooper, 513 S.W.2d 229 (Ct. Civ. App. 1974). Unequal Finley v. State of Texas, 527 S.W.2d 553 (Tex. Ct. Crim. App. 1975). Lipsky v. Lipsky, 525 S.W.2d 222 (Ct. Civ. App. 1975). Upheld award Scanlon v. Crim, 500 S.W.2d 554 (Ct. Civ. App. 1973). ERA extends Texas Woman's Univ. v. Chayklintasta, 521 S.W.2d 949 (Ct. Civ. App. 1975). School must provide on-campus housing for men as well as women and must allow women as well as men to live offcampus. "Business judgment" was not an adequate defense to ERA challenge of policy not to build campus housing for men at formerly all-female campus. Ayers v. Employment Security Dep't, 85 Wash. 2d 500, 536 P.2d 610 (Sup. Ct. 1975). Husbands as well as wives should not be denied unemployment benefits for leaving work to follow their spouses to a new location under appropriate circumstances. Darrin v. Gould, 85 Wash. 2d 859, 540 P.2d 885 (Sup. Ct. 1975) Regulations prohibiting girls from playing on high school football team violate the ERA. Hanson v. Hutt, 83 Wash. 2d 195, 517 P.2d 599 (Sup. Ct. 1973). Singer v. Hara, 11 Wash. App. 247, 522 P.2d 1187 (1974). Statute Source: Compiled by the authors. Mr. BUTLER. We mention, for example, the construction of the equal rights amendment of the State of Washington, which is not dissimilar from the matter which is before us. There are different cases in this area, the one to which you referred, the statute prohibiting the same sex marriage upheld under ERA as not being sex discrimination; girls playing on football field was said to violate the equal rights amendment. I think these give some credibility to the alarm that the witness has and for that reason I do think it important that this collection of cases be filed with the minutes. Mr. EDWARDS. Counsel. Ms. LEROY. Mr. Stanmeyer, on page 6 of your statement you seem to raise the objection to the ERA that "Every operative phrase must be judicially interpreted." Is that any different from any other amendment that has been added to the Constitution? Mr. STANMEYER. Oh, yes. For example, the amendment that prohibits a President from seeking more than two terms is very clear. Ms. LEROY. How about the 14th amendment? Mr. STANMEYER. In some degree no, it is not, and this is part of the problem. If you read the ratification debates, as Professor Berger has demonstrated in his recent books, this is the kind of thing to those who ratified the 14th amendment, that would have lead them, had they known at the time, to reject the amendment. Ms. LEROY. So are you saying we should not make the same mistake with the 27th amendment that we made with the 14th amendment? Mr. STANMEYER. I am not saying we made a mistake with the 14th amendment in its passage. Professor Berger and I do agree to the basic thrust of the amendment. If we could confine an amendment to its primary focus in the case of equal pay for equal work and such matters as that, equal funding for high school athletics for girls as well as for men or boys to the number of people of each sex in the school, if we could find a formula to confine the impact of the amendment to the real malady it is designed to address, and not allow the spinoff collateral detriments to emerge, then there should be no problem. I think you can usually confine a statute to interpretation and misapplication, but at least it is not written in stone on Mount Rushmore when you pass a statute. When you pass an amendment, it virtually is. The difficulty we are in is we do not know how the courts will construe it, we do not know how to confine its application to legitimate areas of sex discrimination and abuse. It is likely that it will spill over to some of these areas that testimony here has alluded to. Even the prior witness talking about affirmative action programs in high school sports; is that what was intended by Congress in 1972? I tend seriously to doubt it. Ms. LEROY. Are you also saying you would not like to see the Supreme Court find sex to be a suspect classification? Mr. STANMEYER. I do not like what I have perhaps crudely termed slot-machine or vending-machine jurisprudence, the use of a few key words-suspect or nonsuspect, invidious or not invidious-to create a category into which you stick a problem and then out rolls the automatic answer. I think that in some areas sex would be what the common language would call a suspect category and some areas it is a justified reasonable category. The real question is not whether it is reasonable or unreasonable to use sex as a differentiation of treatment. We have to go from problem to problem to decide where sex is abusive. In the military, from what most of the testimony or at least commentary I have seen from the generals who have been in military combat, by and large if women are to go into combat, then let it be voluntary. |