Mr. EDWARDS. Professor Stanmeyer, I and the other members of the committee have received not hundreds but thousands of letters and postcards and messages on this particular subject in the last few months. I am not at all sure that there is support for the statement that the gay community supports ERA strongly. Certainly, of the mail we get from the gay community, none of it to my knowledge expressed that view.

The gay community is more interested and vitally interested in certain legislation that is pending in this subcommittee with regard to protection of the civil rights of people of different sexual orientation. However, I won't make a point of it but I really have not received that impression myself.

Mr. STANMEYER. Sir, again these are matters of impressions. If I may comment, I have seen photographs in the press of various groups including the gay community picketing in favor of ERA. I understand that, at the Houston Women's Year Conference, numerous gay community groups were represented and strongly supported the ERA

movement.

Mr. EDWARDS. There is no possible interpretation ERA could see it as I help them or hinder them. This does not address the problem at all. Mr. STANMEYER. I certainly hope not, too, but my fear is that the language is vague and the results are unclear and that the court's logic, as Father Drinan told us, is rootless.

Mr. EDWARDS. Counsel points out, in Washington State, there was a case in which it was held that is not relevant-it is not sex discrimination when one is of a different sexual preference. I believe there are 9 or 10 States that already have an ERA; isn't that correct? Mr. STANMEYER. I do not know how many.

Mr. EDWARDS. It is about 9 or 10. Except for the one instance that you relate, I am not cognizant of calamities that have taken place in these States. These States are still operating pretty well. It just seems to me women and men are getting along a little better than ever in these States.

I wonder what you really predict. What kind of evidence do you have?

Mr. STANMEYER. It is a value judgment whether it is a calamity. I cited the Pennsylvania case on the contact sports; I cited the Dixon, Ill., judgment of the circuit court which led to the driving of girls out of girls sports by the occupation of those positions by boys.

How well people get along or not, I am not certain. This goes to religious, moral, and other influences. The fact is that these results are arguably painful. I venture to say if the notion of girls playing contact sports were put to a vote of the people in any given community, they would vote it down rather heavily. Since the school board attempts to prevent this, if the court changes the school board's will, it seems if democracy means anything, the people do resent such results.

Mr. EDWARDS. Professor Stanmeyer, this is not totally a country where majority rules. Most of the Bill of Rights has to do with protection of minorities. If every person in a community wanted to discriminate against black people, that does not mean that is right. Is that correct?

Mr. STANMEYER. I agree with that. I might add that taking the 14th amendment as an illustration, I do not believe it was foreseen by those who passed it in 1868, or the courts when they began strenuously to apply it in the 1950's, thought it would prohibit the admission to a law school of a man named Denoonus, or a medical school by a man by the name of Bakke, even though he clearly had superior credentials to those admitted and race would become the determining factor. This is not to make a judgment as to whether Mr. Cox' argument and others that we have a century of wrongs to redress and the social policy is more important than the rootless logic of Mr. Bakke; it is only to say the document itself gave rise to extraordinary practices in terms of admissions, extraordinary litigation, extraordinary court decisions, none of which could be foreseen.

In some degree there have been some wrongs, arguably, that arose out of the very effort of the courts to defend minority rights.

In illustration, I appeared on a panel 1 month ago with a black member of a school board in Columbus, Ohio. He feels as apparently many of other races feel, busing is bad and he cannot do anything about it.

Mr. EDWARDS. There are a lot of things I cannot do anything about and I consider bad, but we have our democratic processes and legislatures and committees to try to change our country in the right direction. Is that not correct?

Mr. STANMEYER. We hope we do. I am saying what will happen here as far more eminent people than I, including Professor Griswold and others, have pointed out-is that there has been a heavy transference of this decisionmaking from the legislative body to the judicial body, and this ERA will be one more illustration. Using words which themselves are very unclear of their application and can lend themselves, as three different courts have alluded to already in Pennsylvania, Ohio, and Illinois, to results that people never intended when they first ratified ERA.

Mr. EDWARDS. My time is up but there are a number of other witnesses who testified exactly the opposite. That is, that the courts are floundering around now, that many of the courts do not know whether to include women within the protection of the 14th amendment even though generally speaking most witnesses think that they already have been, and it is only the reluctance of the Supreme Court to include them in its protections that has made ERA necessary and that if ERA becomes a part of the Constitution that it will reduce the number of court controversies because it will be known in the country this happens to be the law.

Mr. STANMEYER. When you move to this question of quick scrutiny by the court, the fact is, as I read the cases, once you apply a category, one that is suspect and therefore requiring strict scrutiny, virtually automatically and universally the category does fall or the practice is struck down. This may be good. A vending-machine jurisprudence in which an automatic answer comes does not take into account the variegated and pluralistic differences of problems, of psychology, of location, of religious background.

It may be that we ought to have enough play in the legislation, although it is a complicated thing as in the consent area to allow individual communities to decide. I do not know whether ERA will lend itself to that kind of difference in a pluralistic society.

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
statutory rape provision assigning higher offense and punishment
to male offenders.

Mora v. St. Vrain Valley Sch. Dist., Civil No. 75-3182-1 (Boulder Co.,
Colo., filed Dec. 3, 1975). Invalidated rule that girl student could
not practice or play with any boys' team at public school.
Cragun v. Hawaii and Kashimoto, Civil No. 43175 (1st Cir. Ct. 1975)
cited in 1 Women L. Rep. 1.162 (Mar. 1, 1975)]. Gave married
women right to use birth-given name to vote. (Statutory restriction
requiring use of husband's name for all purposes repealed.)
Anagnostopoulos v. Anagnostopoulos, 22 III. App. 3d 4799, 317
N.E. 2d 681 (1974). Custody granted to father based on "best
interests of child." Court recognized no rule requiring maternal
custody.

Boropitz v. Borowitz, 19 III. 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 III. 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). In-
validated 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 Ill. 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 Ill. 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.

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
have equal responsibility for child support according to their
capacities. Presumption that fathers alone are responsible is no
longer valid. Court should assess financial abilities of both.
Corso v. Corso, 59 D. and C. 2d (Allegheny Co. Ct. C.P. 1972). Allow-
ing "bed and board" divorce for women only no longer constitu-
tional. Thus, this cause of action is no longer recognized in this
county.

DeRosa v. DeRosa, 60 D. and C. 2d 71 (Delaware Co. Ct. C.P. 1972).
Statutes allowing alimony and counsal fees to women without
adequate resources do not violate the ERA. (Statutes now sex
neutralized.)

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
estate conveyed to wife in her own name did not create tenancy
by entirety of constructive trust in favor of husband. Wife used no
undue influence against husband and should not be bound by uld
presumptions about the marital unit.

Henderson v. Henderson, 458 Pa. 97, 327 A. 2d 60 (Sup. Ct. 1974).
Found statutory provisions allowing alimony pendente lite and
counsel fees for women only to use impermissible sex classifica-
tion. Noted that statute had now been sex neutralized by legisla-
ture. Held that support rights and obligations depend not on sex
but on relative financial circumstances of spouses.
Hopkins v. Blanco, 457 Pa. 90, 320 A. 2d 139 (Sup. Ct. 1974). Ex-
tended right to sue for loss of consortium to women.
Kaper v. Kaper, 227 Pa. Super. 377, 323 A. 2d 223 (Sup. Ct. 1974).
Must consider mother's income and actual needs of child in
assessing father's support obligation.

Keenan v. Penn Hills School District, 65 D. and C. 2d 764 (Allegheny
Co. Ct. C.P. 1974). ERA creates no new rights of one spouse in
income of other during marriage. Thus, it is proper for wives with-
out outside income to be covered by school tax exemption, regard-
less of income of husbands.

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
A.2d 839 (Cmwlth, Ct. 1975). By-law prohibiting competition by
girls against boys in any athletic contest violates ERA. Sex aver-
aging is prohibited.

Percival v. City of Philadelphia, 317 A.2d 667 (Cmwith. Ct. 1974).
Exempting married women from arrest under writ of capias action
to recover city wage taxes from nonresident employees violates
ERA.

Rogan v. Rogan, Civil No. 1934 (Luzerne Co. Ct. C. P. Oct. Term
1972). Neither husband nor wife should be allowed counsel fees
under statutory scheme allowing such awards to women upon
divorce. (Provision now sex neutral.)

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.