in the Nation's self-identity but the other side not being allowed to use the same tactics to motivate legislators into disapproving such an earlier approval.

The ironies should not be lost on us. We are talking about equal rights and equal protection, yet it is seriously urged that that group of citizens who favor ERA may continue to hammer at the 15 reluctant States which have not approved; but that group of citizens who disfavor ERA may not hammer at any of the 35 States which-sometimes hastily and without much reflection-already have approved. If anything manifested "invidious discrimination," this is it.

I believe the logic of Prof. Charles Black is airtight and irrefutable when he said:

Extension of time *

must be for action on the amendment, and not simply for one kind of action on the amendment. *** The extension of time for ratification but not for rescission would be so grotesque that. * * I am firmly of the opinion that lopsided extension would be unconstitutional.

His point becomes dazzling clear if one rephrases the original Joint Resolution proposing the amendment to embody the lopsided extension now urged, so that it would have appeared candidly at the beginning. Let us consider the fairness in an original resolution that might read-this would be a quote of the resolution—

That the following article (ERA) is proposed as an amendment to the Constitution of the United States, which shall be valid as part of the Constitution when ratified by the Legislatures of three-fourths of the several States which, from the date of its submission by the Congress, have eight years to vote to ratify but only one year to vote not to ratify.

In light of developments in the law, a constitutional amendment is no longer needed, if it ever was, to provide all the legitimate changes in our legal and social life that women may deserve.

Many sincere proponents of the equal rights amendment see it as a shortcut way of ending discrimination against women in whatever field or role they personally deem important. But as a practical matter it settles nothing. Almost every operative phrase must be judicially interpreted, whether one wonders about the real meaning of "equality of rights" or "under the law," or "abridged," a word clearly different from its juxtaposition, "denied," or the phrase "on account of sex."

If the equal protection clause of the 14th amendment has spawned metaphysical distinctions between "invidious" and noninvidious discriminations, and "strict" and "ordinary" scrutiny, and if it has generated a body of case law on such arcanea as "reverse discrimination" and "suspect categories," one may be sure that the proposed ERA will be an even broader canvas on which inventive judges may paint jurisprudential impressionism.

And as for section 2, one may be sure that Congress already has the power, and has exercised the power, to rid the Nation of sex discrimination by appropriate legislation. We have, inter alia, the Civil Rights Acts in general, the Equal Employment Opportunity Act of 1972, the Title IX Education Amendments of 1972, the Equal Credit Opportunity Act of 1974, the admission of women as cadets in the Military Academies, the activism of the Department of HEW in treating women as a de facto "disadvantaged minority" in university hiring and promoting practices.

This is not the place to analyze these statutes in detail. But it should be clear that Congress has not needed ERA and probably would not do much more with ERA passed than it already could do, to insure fair treatment of women.

Further, expansive notions of State action and the reach of the 14th amendment equal protection clause to matters unrelated to the suspect category of race have enabled courts to strike down practices treating men and women or boys and girls differently. For example, a statute authorizing separate girls' and boys' teams for contact sports was nullified by Federal District Judge Carl Rubin in Dayton, Ohio, on the grounds that the 14th amendment prohibits such separate but equal entities.

This is only one among many examples of judicial overreach under already available constitutional provisions. In my judgment, the 14th amendment, coupled with civil rights statutes already passed or civil rights statutes that could be passed, provide abundant rifles and ammunition for those who would shoot down the remaining vestiges of sex-based discrimination.

There is a principle of economy we must respect. It is far better to aim at specific problems with the rifle of specific statutes than to grab the shotgun of a constitutional amendment, of all things, which we really cannot aim straight, which will hit innocent bystanders and which will recoil with such force that the marksman himself may be wounded.

The ERA will only transfer the pursuit of women's rights to the judiciary; in most cases the judicial forum follows a ruthless logic unrestrained by history or the dictates of commonsense, and in this case is almost certain to do far more harm than good.

I will develop this theme with a few concrete examples in the next section. Here it will be enough to recall the growing disenchantment among the public and among many constitutional scholars at the courts' wanderings in the thickets of political and social policy, guided only by the wavering compass of their own transitory feelings about what is best for the rest of us.

A generation ago, Learned Hand remarked that he would not wish. to be ruled by a bevy of platonic guardians, even if he knew how to choose them. A few years ago Prof. Robert Bork reminded us that "the law is vulnerable" when it undertakes through the adversary system tasks that system cannot perform. Prof. Philip Kurland has frequently criticized the lack of judicial restraint among the unelected judges. Nathan Glazer, it was, I believe, who first coined the phrase, the "imperial judiciary."

And most recently, Prof. Raoul Berger's book, "Government by Judiciary," documents the Supreme Court's wandering far afield from its original purpose and its usurpations of the policymaking role reserved by the Founders to the Congress and the States.

The "countermajoritarian difficulty," as Alexander Bickel called the problem arising whenever a court of last resort overturns the manifest will of the people speaking through their legislatures, is no longer a problem for democratic theory; it is a crisis of democracy itself.

It is no answer to say that it is all right for the courts to make policy when it is a good policy the courts are making. Under this benign dic

tatorship theory there is no way for the people to register their judgment as to the policy's goodness. By what calculus can one say that a judge knows better than a school board what is good for students and that it is good for girls and boys in Dayton, Ohio, to play on football and wrestling teams together, even though the parents' elected officials adamantly opposed for medical, psychological, and moral reasons eminently more persuasive than a judicial reading of a couple of sentences in an amendment written over a century ago to deal with quite a different question?

In a democracy, unless we are to be ruled by a bevy of platonic guardians, good policy is to be made by the legislature; assuredly, if bad policy is made by a legislature rather than by a court, that policy cen be much more readily corrected.

The point here is more than the usual clash between theories of judicial restraint and judicial activism. The point here is the cosmic magnitude of ERA: We must consider its extensive reach, its ambiguity, the ideology behind it, courts' inclinations in the field of equality to go to excess, and the fundamental social and moral and familiar arrangements that the shotgun ERA will necessarily affect.

If ERA is ratified, it will be left to a few attorneys and judges to decide virtually every question of importance dealing with children's education, husband-wife relationships, the place in society for deviant subcultures, the makeup and readiness of the military, the very existence of private, all-girl or all-boy schools, and even perhaps the sexual makeup of seminaries and ministerial schools associated with colleges receiving Federal aid. The issue is whether the American people want to decide questions of such importance in a forum so unsuited to the task.

One may confidently predict that the ratification of ERA will usher in an era of judicial involvement in the affairs of our daily lives unprecedented in scope. Compared to what is to come, past judicial struggles over the 14th amendment in such areas as reapportionment and school busing will seem like a firecracker compared to a blockbuster bomb. The judicial restructing of social mores through the ERA will cause a political crisis that will last for decades.

If one responds that this is the price that we must pay for full equality, my rejoinder is that the people should know the price before they strike the bargain.

If one asserts that the foregoing exaggerates, let the examples below be considered:

ERA necessarily entails an immense upheaval in established patterns of education, sexual maturation, family stability, social mores and military recruitment. These changes will be gravely harmful to society.

Consider these examples:

1. In Commonwealth of Pennsylvania v. Pennsylvania Interscholastic Athletic Association, decided in 1975, the Pennsylvania State ERA was construed to require that girls be allowed to compete with boys in any athletic contest, including contact sports such as football and wrestling. The case is similar to Darrin v. Gould, a 1973 Washington Supreme Court case, which held that regulations prohibiting girls from playing on high school football teams violate the State ERA.

2. An Illinois court has already decided that equality cuts both ways, and has ruled that when a school provides no participation for one sex is an noncontact sport, members of that sex have the right to compete for places on a girls' bowling team, and boys won four out of five places on the Dixon High School team that later won the girls' State championship bowling tournament, to the disgust of the adult onlookers. The result of this ruthless pursuit of equality will be boys playing on most girls' teams, taking most of the positions and ultimately the result will be destruction of most girls' sports.

Three, the U.S. Supreme Court decision of Runyon v. McCrary in 1976 held that no private school could discriminate on the basis of race. By analogy, courts are virtually certain to hold, under ERA, that no private school may discriminate in admissions on the basis of sex, thus effectively abolishing all-male or all-female schools, even though they exist because their supporters want distinctive quality education and their existence, unlike racially segregated schools, in no wise betokens a judgment of inferiority of those excluded or promotes inferior education.

I believe that if the experience of Brigham Young University and Hillsdale College dealing with HEW are any indication, it will also follow that ERA will mandate-through ruthless judicial logic-commingling of all students, regardless of sex, in every class, dormitory, locker room, sport activity, extracurricular amusement such as choir, and even associated seminary programs. That this last point may be prevented by the first amendment, free exercise of religion clause hardly invalidates all the others.

Mr. EDWARDS. Professor Stanmeyer, there is a vote in the House of Representatives. We will recess for 10 minutes.

[Brief recess.]

Mr. EDWARDS. The subcommittee will come to order.

We will now proceed with the testimony of Professor Stanmeyer. Mr. Stanmeyer?

Mr. STANMEYER. Thank you, Mr. Chairman. I believe I had come to subsection 4 of a short series of examples designed to illustrate the ambiguity and the possible detrimental effects that judicial elaboration of the uncertainties of ERA could well develop, and to set the discussion in context again, although it is obvious to all, my judgment on the merits of these things, the real point is not the merits of these various changes I foresee. The real point is that, arguably at least, the ERA will bring about changes that were not intended at the outset, are not part of the legitimate and bona fide motivating elan or thrust behind it; therefore, the point I am trying to urge is that there will be good and bad that will flow from ERA, not simply good. That being the case, the public, the educated public, must review it from the perspective of the good and bad and have a chance, as they are beginning to have under the 7-year discussion, to see it from that point of view.

Let me return to where I believe I was, subsection 4.

Four, ERA has already been judicially construed in some Statesand its partisans tend to admit that it strikes down anv preferential benefits for women in such family matters as the husband's obligation to support his wife, the widow's allowance in probate, and other protective exemptions. This is part of the two-edged sword: If the man does not have the protection, neither will the woman.

Five, the legislative history of ERA, sparse at it is, contains the revealing debates-March 21 through 22, 1972-on the Ervin amendments to the proposed text. Among others that were defeated were amendments to exempt women from compulsory combat service in the military, to preserve protective limited labor exemptions, to secure privacy in public accommodations such as hospital rooms and school restrooms, and to preserve distinctions based on psychological or functional differences between male and female. Thus it is simply not true that the doleful predictions of the impact of ERA on women's rights and traditional sexual mores envisioned by the opponents are fanciful; there is warrant for their view in the legislative history. At best, these delicate matters will be left to the imperial judiciary.

Six, it is virtually certain that passage of ERA will entail broad acceptance of the pure contract notion of marriage, including the right of mutual rescission and consequent even easier divorce, and the removal of any even customary requirement that the marriage partners take the last name. While neither development needs be deemed a tragedy and here again is the point, really, these delicate matters will be left to what Glazer called the imperial judiciary. By no means would it be, I might add, necessarily certain-anything that furthers the atomization of the family unit, with deleterious consequences for the children, should be a matter of concern.

Seven, it is likely, granted the fact that courts tend to reverse Justice Holmes' famous dictum and now often act as if a page of logic were worth more than a volume of history, that homosexual marriages and other mores changes will be mandated by the judicial fast using ERA-a "countermajoritarian difficulty" of sizable proportions, especially in light of recent democratic referenda in Florida, Minnesota, and elsewhere on the point. This likelihood is well understood by homosexual and lesbian groups, which strongly support ERA; again because of the reaction of the people in the audience, I depart momentarily from the text.

This is hardly the place to discuss the merits pro and con of such a prediction. The point is that we should be aware of the possibility that this kind of development will occur through the judicial mandate and we should take into account and balance in some way as a Congress and as a people the pros and cons on our social mores that ERA will bring about, pros and cons of the changes that it will bring about.

I do not claim that all these possibilities will occur at once, but the trends, the theoretical scholarly literature and the zeal of activist attorneys lacking any sympathy for traditional values all point in these directions.

But the real nub of the issue is not the evil of such developments. The nub is that we must recognize the bitter along with the sweet and decide whether it is worth it, in light of the less drastic means we have for insuring legitimate equality for women, to make the American people swallow both bitter and sweet under the pretense that the medicine will have no baneful side effects.

Let us not deceive ourselves. Six years of debate on ERA leaves us with only one consensus emerging: As presently drafted, ERA will bring both some good and some harm. It is likely that it will cause more harm than good. But no one really knows, since its vague meaning will be filled in by judicial fiat.