This is a guest post by Magdalene Zier, a Ph.D. candidate in the Department of History at Stanford University and 2024 Library of Congress National Woman’s Party Research Fellow.
In 1948, for the first time, women pressed the U.S. Supreme Court to consider whether sex discrimination violates the Fourteenth Amendment’s Equal Protection Clause. The case, Goesaert v. Cleary, concerned the constitutionality of Michigan’s 1945 ban on women working as bartenders. Writing for a majority of the nine justices on the Court, Justice Felix Frankfurter upheld the law, swiftly concluding that the regulation was reasonable. “Beguiling as the subject is, it need not detain us long,” he explained. “The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes.”
Frankfurter’s brief and belittling opinion belied the complexity of the issue. Between the 1870s and 1970s, the bar became a battleground over gender roles in labor and leisure. Many states and cities enacted “barmaid bans” in the name of protecting women’s morality and men’s jobs. Women’s inroad into the profession during WWII intensified debate, and some states, like Michigan, responded with new restrictions. Challenging these laws brought barmaids into court—up to the other bar—and served as early experiments in challenging sex discrimination under the Equal Protection Clause.
My time as National Woman’s Party (NWP) Research Fellow has been fruitful, enabling me to investigate Goesaert and its late 1940s context—a pivotal period for the feminist, labor, and civil rights movements—using the Manuscript Division’s extensive collections.
As the work of a prior NWP Research Fellow explores, feminist groups fractured after the suffrage victory of 1920. While the NWP pushed to enshrine formal sex equality in a constitutional amendment, groups like the National Consumers’ League (NCL), Women’s Trade Union League, and U.S. Women’s Bureau advocated for state-level reforms to protect working women. This standoff over the Equal Rights Amendment (ERA) reached a highpoint in the 1940s, just as Goesaert arrived at the Supreme Court. The story is especially well documented in four of the Manuscript Division’s collections.
As the National Woman’s Party Records chronicle, the ERA gained political momentum during World War II. Twenty-three years after the amendment’s inception, the Senate voted on the ERA for the first time on July 19, 1946. But such progress could not heal long-festering division within the NWP, and a vicious lawsuit broke out in 1947 between NWP factions who disagreed over the group’s leadership and priorities. As the protracted court battle expended resources and reaped bad press, Doris Stevens—leader of the faction looking to shake up the status quo—decided to make amends and refocus on the future. As Stevens wrote to NWP founder and chair Alice Paul, “The advantages which we believed would result from adding new blood to party leadership have now become, in our opinion, outweighed by the injury that would result from interminable controversy to the detriment of our objectives.”
The NWP’s longtime rival, the National Consumers’ League, stayed the course. Seizing on the NWP’s internal distraction and the political upheaval of the postwar period, the NCL and other advocates of “protectionism” succeeded in stalling the ERA’s momentum. Notably, the NCL’s papers do not convey a firm stance on the barmaid ban issue, suggesting that the group’s leaders regarded such bans on an entire category of women’s employment as distinct from other types of labor laws regulating women’s wages, hours, and workplace conditions.
Justice Felix Frankfurter, author of the Goesaert opinion, had a long history of labor advocacy and allyship to the NCL. A protégé of Louis Brandeis, Frankfurter joined NCL as counsel when his mentor ascended to the Supreme Court in 1916. Working alongside NCL leaders like Molly Dewson, Frankfurter litigated major cases concerning protective labor laws. Favoring state-level labor reform, Frankfurter criticized the ERA and advocated a restrained view of the Fourteenth Amendment that targeted only racial and religious discrimination. He wrote of the ERA in 1923,
“Only those who are ignorant of the nature of law, and of its enforcement, or indifferent to the exacting aspects of woman’s life, can have the naivete, or the recklessness, to sum up woman’s whole legal position in a meaningless and mischievous phrase about ‘equal rights.’ Nature made men and women different; the Woman’s Party cannot make them the same.”
Despite shared opposition to the ERA, Frankfurter clashed with NCL leaders over legislative strategy in the 1930s, according to historian Nancy Woloch. Frankfurter’s 1939 appointment to the Supreme Court furthered this divergence. The patent paternalism of the Goesaert decision, Woloch argues, added insult to injury, with Frankfurter offering a “tin ear” to his old protectionist allies. Frankfurter’s papers illustrate this evolution at a personal level.
For instance, in a 1949 letter, Frankfurter expressed that he was “in Dutch” with Dewson, frustrated that she still expected to benefit from his D.C. connections despite their fading friendship and the ethical constraints of the Court.
The Manuscript Division also holds the papers of Justice Wiley Rutledge, Jr., who authored the landmark dissent in Goesaert. Joined by Justices William O. Douglas and Frank Murphy, Rutledge concluded that Michigan’s barmaid ban violated the Equal Protection Clause by invidiously discriminating between male and female bar owners. Although he did not reach the larger question of whether a state could lawfully limit jobs to men only, Rutledge’s scrutiny of a sex-based classification was momentous. Rutledge’s Goesaert file offers an archaeology of his dissent’s evolution. While most of these drafts picked at the Michigan law’s illogic, an early version reflected the broader stakes of the decision. Rutledge cautioned, “I can hardly imagine a decision here which would speed the adoption of the so-called Equal Rights Amendment more than this.”
Of course, Rutledge’s ERA prophecy did not come to pass, but the decision did speed some state-level reform of the barmaid bans. The restrictions finally toppled state by state in the 1970s, following the California Supreme Court’s rejection of California’s barmaid ban in Sail’er Inn v. Kirby. This landmark decision was “the first to declare sex, like race, a ‘suspect classification’ subject to ‘strict scrutiny’” nationwide. Following the thread to Sail’er Inn, we can begin to appreciate Goesaert’s legacy. The archives of the Library of Congress have been invaluable to my research on the trajectory of feminist legal equality in the 1940s and the perspectives of the organizations and jurists who shaped it.
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“he explained…” Goesaert v. Cleary, 335 U.S. 464, 465–66 (1948).
“new restrictions…” On Goesaert’s backdrop, see Amy Holtman French, “Mixing It Up: Michigan Barmaids Fight for Civil Rights,” Michigan Historical Review 40 (Spring 2014): 27–48.
“This standoff…” On the evolution of the ERA debate, see Rebecca DeWolf, Gendered Citizenship: The Original Conflict of the Equal Rights Amendment, 1920-1963 (Lincoln: University of Nebraska Press, 2021).
“vicious lawsuit…” See Leila Rupp and Verta Taylor, Survival in the Doldrums: The American Women’s Rights Movement, 1945-1960s (New York: Oxford University Press, 1987), 28–32.
“Stevens wrote…” Doris Stevens to Alice Paul, February 16, 1948. Box V:338, National Woman’s Party Records, Manuscript Division, Library of Congress.
“succeeded in stalling…” See DeWolf, Gendered Citizenship, 163–200.
“litigated…” Nancy Woloch, A Class by Herself: Protective Laws for Women Workers, 1890s-1990s (Princeton: Princeton University Press, 2015), 100–02; 114–17; 127–28. On Frankfurter’s career, see Brad Snyder, Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment (New York: W.W. Norton, 2022).
“restrained view…” On Frankfurter’s views on the ERA, see DeWolf, Gendered Citizenship, 1, 56–59; on Frankfurter and the Fourteenth Amendment, see Snyder, Democratic Justice, 6–7, 139, 517.
“He wrote…” Felix Frankfurter to Ethel Smith, August 7, 1923. Reel 51, National Consumers’ League Records, Manuscript Division, Library of Congress.
“clashed…” Woloch, A Class by Herself, 158–59.
“Woloch argues…” Woloch, A Class by Herself, 177–78.
“expressed…” Felix Frankfurter to Dorothy Kenyon, May 19, 1949. Reel 43, Felix Frankfurter Papers, Manuscript Division, Library of Congress.
“concluded…” Goesaert, 335 U.S. 464, 467–68 (1948) (Rutledge, J., dissenting).
“cautioned…” Draft dissent of Justice Rutledge, Goesaert v. Cleary. Box 168, Wiley Rutledge, Jr. Papers, Manuscript Division, Library of Congress.
“toppled…” Sail’er Inn, Inc. v. Kirby, 485 P.2d 529 (1971). See French, “Mixing It Up,” 47.
“first to declare…” See Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (Cambridge, MA: Harvard University Press, 2011), 60.