Fifty Years Ago a Southern Segregationist Made Sure the Civil Rights Act Would Protect Women. Thanks!

The law, lawyers, and the court.
Feb. 7 2014 12:54 PM

The Accidental Feminist

Fifty years ago a Southern segregationist made sure the Civil Rights Act would protect women. No joke.

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The following month, when Smith made good on his promise, Celler immediately rose in joking opposition. “I can say as a result of 49 years of experience,” he said, “that women, indeed, are not in the minority in my house. I usually have the last two words, and those words are ‘yes, dear.’ ”

More serious opposition came from Edith Green of Oregon, whom the White House had asked to speak against Smith’s amendment. Both Green and the Johnson administration worried that the proposal would make the bill harder to pass. “At the risk of being called an Aunt Jane, if not an Uncle Tom,” she said, “let us not add any amendment that could get in the way of our primary objective.” Despite the opposition, the amendment passed 168133. When the vote was announced, a woman in the gallery shouted, “We've won, we've won!” Another yelled, “We made it, God bless America!”

Smith’s motives were complex, to say the least. No doubt he saw the amendment as a tool to gum up the bill, before and after passage. But while it may seem incongruous today, it didn’t seem contradictory to him to be against civil rights and for gender equality. In fact, Smith’s commitment to white supremacy fits neatly with a racist strain of the mid-20th-century women’s movement that gained currency in response to civil rights advances: objecting to giving labor protections to black men, but not white women.

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At first, Smith’s amendment drew only widespread ridicule. This is the part of the story you may have heard before. The New York Times editorial board worried that the Rockettes would now be forced to include male dancers. Franklin D. Roosevelt Jr., the chairman of the Equal Employment Opportunity Commission tasked with putting Title VII into practice, considered the provision a joke. When a reporter asked “what about sex?” he replied, “Don’t get me started. I’m all for it.” Roosevelt and a majority of his commissioners had no intention of enforcing the ban. In September 1965 they voted to permit gender discrimination in job advertising.

But the EEOC’s curt dismissal of the sex discrimination ban provided just the sort of immediate, concrete challenge that the burgeoning modern feminist movement needed to generate momentum. Two of the EEOC commissioners, Aileen Hernandez and Richard Graham, dissented from the job-advertising ruling, and the next year joined several dozen people in forming the National Organization for Women. Though NOW’s charter outlined a broad set of goals, its first concern was forcing the EEOC and Congress to take Title VII’s sex discrimination provision seriously. Allies of the movement soon fell in line. The United Auto Workers, among others, said, “We reject out of hand” the idea that the provisions were a fluke. “The point is that Congress did bar employment discrimination on sex grounds, and that bar should be vigorously enforced.”

By the early 1970s, the feminist movement had produced its own lawyers, who honed their skills by pushing courts to enforce Title VII against workplace discrimination. It also developed a powerful lobbying force in Washington, which led to a series of bills that strengthened the Civil Rights Act, including a 1972 law extending it to cover local, state, and federal governments.

Few people today remember Howard W. Smith as anything other than a soldier in the South’s losing war against civil rights. But one could argue that without the EEOC’s initial weakness on sex discrimination—which is to say, without Smith—modern feminism might not have developed the strong institutional structure that has secured many of its legislative successes. “Along with Betty Friedan,” wrote Smith’s biographer, Bruce Dierenfield, “Smith must be credited with giving the modern feminist movement a powerful, if unanticipated, push forward.” Smith was no hero—but then again, sometimes the most effective drivers of progress are the ones who stand strongly against it.

Clay Risen is an editor at the New York Times and the author of the forthcoming book The Bill of the Century: The Epic Battle for the Civil Rights Act.