Image: Collection of the Supreme Court. The Fuller Court (1903-1909). Seated, from left to right: Justices Henry Billings Brown, John Marshall Harlan, and Chief Justice Melville Fuller, and Justices David J. Brewer and Edward Douglas White. Standing, from left to right: Oliver Wendell Holmes, Jr., Rufus Peckham, Joseph McKenna, and William R. Day.
Why did protective legislation for women prove controversial (for both employers and women’s rights advocates) when it was introduced in the early twentieth century?
Would the Equal Rights Amendment negate this legislation? Would that advantage or disadvantage women?
Introduction
On the grounds that women have a more delicate physical structure than men and are subject to limitations imposed on them by their “maternal functions,” the state of Oregon passed a law limiting the permissible hours of employment for women in a wide variety of fields to ten out of any twenty-four-hour period. Curt Muller, owner of a laundry in Multonomah, Oregon, was found to be in violation of the statute and fined. He appealed the ruling on the grounds that under the Fourteenth Amendment, the law represented an undue restriction of women’s freedom of contract. In the unanimous opinion of the Supreme Court, Justice David Brewer argued that because the state has a compelling interest in protecting the health of women, laws restricting their working hours were not an undue imposition on the liberties of women.
—Sarah A. Morgan Smith
Source: 208 U.S. 412 (1908).
Mr. Justice Brewer Delivered the Opinion of the Court
The single question is the constitutionality of the statute under which the defendant was convicted so far as it affects the work of a female in a laundry. That it does not conflict with any provisions of the state constitution is settled by the decision of the Supreme Court of the state. The contentions of the defendant, now plaintiff in error, are thus stated in his brief:
- Because the statute attempts to prevent persons sui juris[1]from making their own contracts, and thus violates the provisions of the Fourteenth Amendment, as follows:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
- Because the statute does not apply equally to all persons similarly situated, and is class legislation.
- The statute is not a valid exercise of the police power. The kinds of work prescribed are not unlawful, nor are they declared to be immoral or dangerous to the public health; nor can such a law be sustained on the ground that it is designed to protect women on account of their sex. There is no necessary or reasonable connection between the limitation prescribed by the act and the public health, safety, or welfare.
It is the law of Oregon that women, whether married or single, have equal contractual and personal rights with men. As said by Chief Justice Wolverton in First National Bank v. Leonard, 36 Oregon 390, 396, after a review of the various statutes of the state upon the subject:
We may therefore say with perfect confidence that, with these three sections upon the statute book, the wife can deal not only with her separate property, acquired from whatever source, in the same manner as her husband can with property belonging to him, but that she may make contracts and incur liabilities, and the same may be enforced against her, the same as if she were a femme sole.[2] There is now no residuum of civil disability resting upon her which is not recognized as existing against the husband. The current runs steadily and strongly in the direction of the emancipation of the wife, and the policy, as disclosed by all recent legislation upon the subject in this state, is to place her upon the same footing as if she were a femme sole not only with respect to her separate property, but as it affects her right to make binding contracts; and the most natural corollary to the situation is that the remedies for the enforcement of liabilities incurred are made coextensive and coequal with such enlarged conditions.
It thus appears that, putting to one side the elective franchise, in the matter of personal and contractual rights, they stand on the same plane as the other sex. Their rights in these respects can no more be infringed than the equal rights of their brothers. We held in Lochner v. New York, 198 U.S. 45, that a law providing that no laborer shall be required or permitted to work in bakeries more than sixty hours in a week or ten hours in a day was not, as to men, a legitimate exercise of the police power of the state, but an unreasonable, unnecessary, and arbitrary interference with the right and liberty of the individual to contract in relation to his labor, and, as such, was in conflict with, and void under, the federal Constitution. That decision is invoked by plaintiff in error[3] as decisive of the question before us. But this assumes that the difference between the sexes does not justify a different rule respecting a restriction of the hours of labor. . . .
. . . [Previous legal precedent indicates] a widespread belief that woman’s physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil. Constitutional questions, it is true, are not settled by even a consensus of present public opinion, for it is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government which otherwise would be lacking. At the same time, when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long-continued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge.
It is undoubtedly true, as more than once declared by this Court, that the general right to contract in relation to one’s business is part of the liberty of the individual, protected by the Fourteenth Amendment to the federal Constitution; yet it is equally well settled that this liberty is not absolute, and extending to all contracts, and that a state may, without conflicting with the provisions of the Fourteenth Amendment, restrict in many respects the individual’s power of contract. . . .
That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical wellbeing of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.
Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the schoolroom are opened and her opportunities for acquiring knowledge are great, yet, even with that and the consequent increase of capacity for business affairs, it is still true that, in the struggle for subsistence, she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right. Doubtless there are individual exceptions, and there are many respects in which she has an advantage over him; but, looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained even when like legislation is not necessary for men, and could not be sustained. It is impossible to close one’s eyes to the fact that she still looks to her brother, and depends upon him. Even though all restrictions on political, personal, and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions—having in view not merely her own health, but the wellbeing of the race—justify legislation to protect her from the greed, as well as the passion, of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future wellbeing of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation, and upholds that which is designed to compensate for some of the burdens which rest upon her.
We have not referred in this discussion to the denial of the elective franchise in the state of Oregon, for, while that may disclose a lack of political equality in all things with her brother, that is not of itself decisive. The reason runs deeper, and rests in the inherent difference between the two sexes and in the different functions in life which they perform.
For these reasons, and without questioning in any respect the decision in Lochner v. New York, we are of the opinion that it cannot be adjudged that the act in question is in conflict with the federal Constitution so far as it respects the work of a female in a laundry, and the judgment of the Supreme Court of Oregon is affirmed.
Footnotes
- 1. Latin term meaning “of one’s own right.” In the law, the phrase refers to someone who is legally capable—that is, not mentally incompetent or a minor.
- 2. French term meaning “single woman.” In the common law, and therefore in much of American state law, a married woman lost the legal standing that she had as a single woman and was said to be covered or subsumed under her husband’s legal status. See Marriage Protest.
- 3. The party who appeals a decision of a lower court, in this case, Curt Muller.
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