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Chief Justice Wrote Memo Saying ERA Would Ruin Family

September 10, 1986

WASHINGTON (AP) _ Chief Justice-designate William H. Rehnquist wrote in 1970 that the Equal Rights Amendment could ″turn holy wedlock into holy deadlock,″ according to a memo obtained Tuesday.

The ERA could destroy the American family and leave no distinction between the sexes beyond the right to separate restrooms, wrote Rehnquist, whose nomination goes before the Senate on Wednesday.

The May 4, 1970, memo was written by Rehnquist as an assistant attorney general in the administration of Richard M. Nixon, who favored the ERA. The document was released by civil rights organizations.

Rehnquist wrote that he detected in the women’s rights movement ″a virtually fanatical desire to obscure not only legal differentiation between men and women, but insofar as possible, physicial distinctions between the sexes.″

The memo said the amendment’s effect would not be ″to confer any benefits or privileges upon women,″ but to ″prohibit virtually all distinctions between men and women presently embodied in the law.″

Rehnquist called it ″highly dubious″ whether the majority of American women and men would support the amendment ″if they knew that this were the main thrust ... ″

At several points, he predicted an adverse effect on families, saying, ″The overall implication of the Equal Rights Amendment is nothing less than the sharp reduction in importance of the family unit, with the eventual elimination of that unit by no means improbable.″

Posing hypothetical questions, Rehnquist asked:

″Do a majority of women wish to be deprived of special protection in hazardous occupations ... to see their preferential treatment under the Social Security Act taken away ... to be eligible for the military draft?

″Put in broader terms, do a majority of women really wish to have the only distinction between themselves and men be the preservation of separate restrooms in public buildings?″

Reacting to the memo, Judith Lichtman, executive director of the Women’s Legal Defense Fund, said it reflects an ″extreme position″ and a ″deep- seated animosity to women’s basic rights as partners in the family.″

Rehnquist, she said, ″has an archaic notion of the family. In his view, men are masters of the house, and Rehnquist fears that an Equal Rights Amendment would undermine a man’s right to determine all decisions in the house.″

Eleanor Smeal, president of the National Organization for Women, called the memo ″the most reactionary argument I’ve seen against women in a long time.″

But Senate Judiciary Committee Chairman Strom Thurmond, R-S.C., a staunch Rehnquist supporter, commented, ″I am not surprised by all of these attacks from liberals, which are clearly aimed at stopping the nomination of Justice Rehnquist. We expect to vote on the nomination in the next few days, and as I’ve said all along, Justice Rehnquist will be confirmed by a very wide margin.″

Rehnquist consistently has refused to publicly discuss reports regarding his confirmation.

Rehnquist’s memo was sent to Leonard Garment, then a special consultant to President Nixon. Rehnquist explained that a memo prepared by a staff member in his office was ″an excellent brief in support″ of the ERA, and he wanted to ″summarize objections ... in order that both sides might be available to you.″

His memo said the Constitution already protected women, and they could successfully challenge in court any distinction in treatment that had ″no rational basis.″

Rehnquist said ″one could feel that changes are desirable in the legal relationships between men and women and nonetheless, feel that a rigid constitutional amendment such as this is not the way to seek those changes.″

In the memo, Rehnquist also said that under state laws, ″the domicile of a married woman has been that of her husband.″ If the husband decides to move to another city to take another job, Rehnquist wrote, then the wife is ″legally obligated to accompany him.″

If the ERA were approved, however, both the husband and wife would have ″the power to decide this question - with a result which could indeed, to paraphrase a famous English author, turn ‘holy wedlock’ into ’holy deadlock,‴ Rehnquist said.

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