AFTER SUFFRAGE: THE UNFINISHED BUSINESS OF FEMINIST LEGAL ADVOCACY

Serena Mayeri, Professor of Law and History

“Long before scholars spoke of intersectionality, Murray theorized how women of color shouldered uniquely heavy burdens and provided underappreciated leadership in movements for racial justice and women’s liberation.”

In her essay “After Suffrage: The Unfinished Business of Feminist Legal Advocacy,” published in the Yale Law Journal Forum, Serena Mayeri provides a nuanced account of post-Nineteenth Amendment feminist organizing through the lens of racial and gender justice advocate Pauli Murray. Mayeri demonstrates that Murray was “a largely unsung architect of second-wave feminism’s legal and constitutional strategy.” Though the women’s suffrage movement, which culminated in the passage of the Nineteenth Amendment, grew out of the anti-slavery movement, the “abolitionist-feminist alliance” fractured during the Reconstruction era. Notably, the Fourteenth Amendment referred to “male” citizens’ right to vote, and the Fifteenth Amendment prohibits race- but not sex-based abridgment of voting rights. In the decades that followed the Nineteenth Amendment’s passage, some white suffragists relied on racist rhetoric, arguing that women’s rights would function as “an antidote to the voting power of black, immigrant, poor, and disabled men” and they “rebuffed African Americans who continued to fight for women’s right to vote.” Murray, born in Durham, North Carolina, in 1910, “resolved to fight the ‘twin inequalities’ of Jim and Jane Crow.” Rejected in 1938 by the University of North Carolina because of race and by Harvard Law School in 1944 because of sex, she earned law degrees from Howard University, Berkeley, and Yale. As a member of President Kennedy’s Commission on the Status of Women, Murray wrote “a founding document of modern feminist constitutionalism,” which Ruth Bader Ginsburg credited with laying the intellectual groundwork for her own Supreme Court constitutional litigation strategy a decade later. While some activist white women “saw racial-justice movements as competitors, even antagonists” in the early 1960s, Murray sought to unite feminism and racial justice by suggesting that advocates organize an “NAACP for women” in pursuit of equal rights under the Fourteenth Amendment. She centered women of color in her successful behind-the-scenes campaign to win passage of an amendment to the 1964 Civil Rights Act to prohibit sex-based employment discrimination, writing another pivotal memo that circulated widely among senators and the Johnson administration. Murray challenged both male civil rights leaders as well as white feminists: she protested the exclusion of Black women speakers from the dais of the 1963 March on Washington for Jobs and Freedom and two years later called for a women’s March on Washington if the newly formed Equal Employment Opportunity Commission (EEOC) failed to enforce Title VII’s sex discrimination prohibition. “Murray’s calls for a coalition between white women and people of color spoke to multiple audiences: civil-rights leaders wary of white feminists’ flirtations with segregationists; white women preoccupied with sex equality at the expense of racial justice; black and working-class women skeptical that women’s interests aligned across race and class,” Mayeri writes. “By identifying intersecting axes of inequality, Murray sought to persuade those who believed their interests to be divergent that they shared a common cause.” The Voting Rights Act of 1965 represented an enormous win for “universal adult suffrage,” but a decidedly “gendered family political economy that rewarded households headed by a male breadwinner and a female homemaker and caregiver” persisted. The Moynihan Report, released the same year, cemented a mainstream liberal consensus that restoring African American men as heads of households was necessary to protect against a “matriarchal” family structure that allegedly encouraged “illegitimacy,” poverty, and violence. Murray and her allies argued instead for empowering women of all races as equal partners at home and in the public sphere of work and politics. Murray advocated for more inclusive juries across both race and gender lines, arguing that the “State-level de jure exclusion of (all) women and de facto exclusion of black men from juries had long prevented defendants from receiving fair trials and denied equal citizenship to white women and persons of color.” In 1966, Murray, alongside Dorothy Kenyon, succeeded in securing a federal district court declaration that Alabama’s ban on women’s jury service was unconstitutional; that same year, a daughter of a prominent civil rights activist advocating for racial and gender equity in Mississippi jury pools lost her eye to a bullet likely meant for her mother, underscoring both the importance and the danger of the advocacy work. During this time, Murray also worked for the inclusion of “qualified women” in powerful political offices, such as the presidency, Congress, and the Supreme Court. Though the number of women in these roles remained small in the 1960s and 1970s, as the women’s rights movement gained steam, a number of women of color, including Representatives Patsy Takemoto Mink (D-HI) and Shirley Chisholm (D-NY), worked both separately and together to continue to advance legislation for racial and gender justice. They frequently collaborated with Representative Bella Abzug (D-NY), a civil rights lawyer who introduced early legislation for LGBTQ+ rights. Mayeri writes that “[i]ntersectional advocacy also left a lasting mark on employment discrimination law, as women of color frequently pioneered new claims” and theories of discrimination such as sexual harassment, discrimination against unmarried mothers, and pregnancy discrimination, despite initial resistance from courts. Groundbreaking scholars of intersectionality such as Kimberlé Crenshaw and the University of Pennsylvania Carey Law School’s Regina Austin extended these insights in the following decades. To Murray, full citizenship required a “human rights revolution” that transcended the public sphere and touched every aspect of private life. Together with Eleanor Holmes Norton, Murray worked to invert the Moynihan Report’s reasoning, arguing that more equal partnerships between Black couples could function as a model for white families as women shouldered increasing career responsibilities. In the 1970s, Ruth Bader Ginsburg succeeded in using this “vision of egalitarian marriage” in her litigation for sex equality in cases such as Frontiero v. Richardson and Weinberger v. Wiesenfeld. Nonetheless, Mayeri observes, attempts to challenge “the legal supremacy of marriage itself” were “less coordinated, less visible, and ultimately less successful.” For example, though activists fought discrimination based on “illegitimate” birth status, the cases that succeeded did little to further women’s liberation or racial and economic justice aims. “When plaintiffs in family-status discrimination cases did succeed, it was largely because they persuaded courts that ‘hapless and innocent children’ should not be punished for the ‘sins’ of their parents,” Mayeri writes. “The capacious constitutional arguments women advanced — that family-status-based disadvantage discriminated based on race and poverty subordinated women, denied parental autonomy, and limited sexual and reproductive freedom” appeared nowhere in judicial opinions. Mayeri writes that “the feeling of never quite belonging, of transcending categories of gender and race, informed Murray’s social and legal theorizing.” As a public persona, Murray “wrote poignantly about her mixed-race heritage” but grappled with sexuality and gender identity more privately. Murray dressed and passed as a young man in the 1940s and explored hormonal treatments to align physical being with inner sense of self. Following a very brief marriage to a man, Murray had several intimate relationships with women before entering a “happy and fulfilling relationship” with her long-term partner, Renee Barlow. Though interracial feminist activism achieved important victories in the late 1960s and early 1970s, the political alliances between activists remained tenuous as interests and priorities of feminists of color and “mainstream, white-dominated women’s organizations” diverged. But an increasingly conservative political climate and the activism of women of color also worked to unite the causes of feminism and racial justice. Murray’s hopes for a broad progressive political alliance that included southern white women remained only partially fulfilled, however. As anti-feminists such as Phyllis Schlafly galvanized conservatives around a reimagined Republican Party that celebrated “traditional family values” and merged social and economic conservatism, a partisan “gender gap” opened. But although many more white women than white men cast their ballots for Democrats in the late 20th and early 21st centuries, race and, for women, marital status, often proved stronger predictors of political identity than gender. Mayeri reflects on the many reverberations of Murray’s work that are still visible and powerful in contemporary gender and racial justice advocacy. Mayeri writes that, “[w]hile Murray’s vision of white-southern-female progressivism faltered in practice, her conviction that women of color would provide pivotal leadership for an American human-rights revolution found a lasting legacy” in Black Lives Matter, #MeToo, prison abolitionism, and many other vanguard movements. And activists in the LGBTQ+ community “can now strive openly, as Murray never felt she could, for safety and justice.” Mayeri concludes: “A century after the Nineteenth Amendment and more than a half-century after suffrage, intersectional advocacy that bridges islands of identity and ideology flourishes in the words and deeds of Murray’s inheritors.”