NEW YORK ( TheStreet) -- In 1905, the labor activist Emma Gotcher was working in an Oregon laundry. It wasnt uncommon for such jobs to require shifts of 13 hours or more, for wages of $3.50 to $5 a week. But Oregon had recently passed several labor laws, guaranteeing workers the right to join unions; regulating child labor; and limiting women employed in factories, mechanical establishments and laundries to 10 hours of work per day.
Gotcher's employer, Grand Laundry owner Curt Muller, was not a believer in so-called protective labor legislation. So on Labor Day, Muller told his foreman to make Gotcher work longer than the statutory maximum. Muller was cited for this infraction, and fined $10, which didn't sit well with his free enterprise principles. The result was a consequential court battle, which not only decided between worker protection and laissez-faire but also split labor activists and equal-rights feminists, setting a precedent for laws based on sex differences -- pregnancy in particular.
Although several state courts had upheld limits on working hours in the previous decade, a powerful contrary precedent was set that same year: in Lochner v. New York, the Supreme Court voted 5-4 to strike down a ten-hour workday for bakers in the Empire State. Proponents presented the law as a necessary safeguard of worker health, but the majority deemed it "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract."
In spite of this ruling, Muller lost the first two rounds of his legal challenge. So he and his attorney -- corporate lawyer William Fenton, who had previously represented Standard Oil, American Steel and Wire, and Southern Pacific Railroad -- appealed to the Supreme Court. Local laundrymen contributed funds to help to pay Muller's legal expenses, and thereby keep their cause alive.
Gotcher's cause (and Oregon's) was taken up by the National Consumers League, a citizens' lobby for workers' rights. Under the directorship of Florence Kelley, the NCL fought against sweatshops and in favor of the eight-hour workday. Although Kelley wanted all workers to benefit from new protections, she focused her efforts on women and children -- partially as a matter of principle, and partially out of pragmatism. The legal and intellectual atmosphere of the age was not sympathetic to labor -- social Darwinism was widely influential -- and Kelley's strategy was to use initial, limited recognition of rights as an "entering wedge," a beachhead from which to push for broader reforms.
Looking for an advocate who could argue successfully before the high court, the NCL first contacted attorney Joseph H. Choate, formerly president of the American Bar Association and U.S. ambassador to the United Kingdom. But Choate subscribed to the general callousness of the time: why, he asked, should "a great husky Irish womannot work in a laundry more than ten hours in one day, if her employer wished her to do so?" The NCL had better luck with its second choice, Boston litigator Louis Brandeis. This future Supreme Court justice was prominent in the contemporary Progressive movement, having fought against railroad monopoly and insurance corruption, and he accepted the case pro bono. But Brandeis had a condition. He was committed to legal empiricism; as he put it, "Out of the facts grows the law; that is, propositions are not considered abstractly, but always with reference to the facts."
Accordingly, Brandeis requested as much relevant background information as could be assembled in two weeks. Kelley returned to New York, with her NCL comrade Josephine Goldmark (Brandeis's sister-in-law), and the two of them scoured library collections, along with ten other readers, in search of supporting evidence.
The result was a seven-part, 113-page document that came to be known as the Brandeis Brief (a name that neglects everyone elses contribution). The brief marshalled data from fields outside the law -- medicine, social science, economics -- to support the contention that women deserve legal safeguards as women, particularly because of their reproductive capacity: "Long hours of labor are dangerous for women primarily because of their special physical organization. The evil effect of overwork before as well as after marriage upon childbirth is marked and disastrous."
With respect to legal argument, Brandeis shrewdly turned apparent weakness into strength by heavily citing Lochner. That decision had held that the state could exercise its "police power" so long as the law in question had a "real substantial relation to the protection of the public health and the public safety" -- a standard that the Brandeis Brief set out to satisfy.
Oral arguments took place in 1908; the Court quickly and unanimously ruled in Oregon's favor. The opinion was written by archconservative Justice David J. Brewer, typically not a champion of the working man. But Brewer believed in political equality for women, and he seemed moved by Brandeis's argument that the state should show special solicitude toward female workers. "That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious," Brewer wrote, reflecting the popular interpretation of Darwin. "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 well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race."
And so Oregon's worker protection prevailed, but that victory resulted from distinctly sexist reasoning. Proponents of free enterprise presented the decision as a setback for women's rights: one Oregon newspaper ended its front-page report by observing, "The Supreme Court evidently takes the view that women are not citizens in the fullest sense of the term, as it sustains in full the Oregon statute limiting their right to make contracts."
Brandeis and the NCL won further battles in the same vein, and the fight soon expanded to women's wages. Male workers were eventually included as well, as Kelley had intended: in Bunting v. Oregon (1917), the Supreme Court upheld a general ten-hour workday by a vote of 5-3. (Justice Brandeis recused himself.)
Around the time of World War I, however, things began to change. Protective legislation began to cost women certain jobs, especially once legislatures started using such laws to favor returning soldiers. Soon the National Woman's Party, having secured ratification of the 19th Amendment in 1920, was arguing for a federal equal rights amendment, which Kelley and Goldmark feared would eliminate all protective legislation for women, undoing decades of their work.
The women's movement was split, with Kelley characterizing the schism as a class conflict. For wage-earning women, she argued, professional and civic activities were out of reach; hours and pay were paramount, matters of life and death. Kelley was not unacquainted with the discrimination that even women of relative privilege faced: despite her obvious brilliance and drive, she was rejected by the graduate school at the University of Pennsylvania "by reason of her gender." But she was also acutely conscious of class, and of her own status as "belong[ing] by birth, and especially education" to "the class that lives by profit-plunder." She saw her opponents' position as "topsy-turvy feminism": "Will the new party," she asked in a letter to a high-ranking member of the NWP, "become the effective tool of exploiting employers who maintain and seek to prolong these industrial evils?"
It's easy to see why Kelley's arguments alienated some feminists. In that same letter, Kelley explained that while she of course supported full civil rights for women, she considered it nonsensical to elide all sex difference: "To say Equality, Equality where there is no Equality, when Nature herself has created permanent physical inequality, can, however, be as stupid and as deadly as to cry Peace, Peace, when there is no peace." In a materialist epoch, when mental traits are assumed to have some physical basis, Kelley's insistence on essential difference is uncomfortably compatible with, say, Larry Summers-style speculation about women's inherent limitations.
But her judgement about which arguments would likely prevail in court proved sound. In Adkins v. Childrens Hospital of the District of Columbia (1923), the Supreme Court rejected a minimum wage law for women and children in D.C., ruling that it violated the "right to contract." Perhaps because opposing lawyers had started using feminist rhetoric to attack protective legislation, the NCL and its allies emphasized not physical difference but rather sociopolitical disadvantage: "the mass of women employees cannot secure terms of employment needful from the point of view of public welfare without the weight of legislation being thrown into the scale," the counsel for minimum wage board argued.
The other side allied itself with the stated goals of feminism: "All over the country today thoughtful and progressive women are contending for industrial equality which follows as a natural and logical sequence to political equality." This maneuver was successful in the short-term, but the Court's decision caused a massive backlash (including comparisons to the Dred Scott case). Kelley, who had a law degree (which she earned while raising three children, with full custody), called for the next Supreme Court appointee to be a woman. According to law professors Jennifer Friesen and Ronald K.L. Collins, "the NWP's Alice Paul was nearly alone in her praise of the opinion when she wrote, '[It makes] one...feel that at last the world is beginning to realize that women are adult human beings.'"
Kelley died in 1932; she did not live to see the New Deal enact so much of what she fought for: the eight-hour day, minimum wages for workers of both sexes and welfare for poor families. (Adkins was overturned in 1937.) Though it wasn't without costs for her, politically or personally -- Kelley was branded a communist by a U.S. senator for her efforts to ban child labor -- history seems to have validated her approach to litigation: women and children first. In addition to activists like Kelley, we can thank in part the concept of motherhood, even in a discomfitingly anachronistic sense, for reforms we easily recognize as necessary today.
In addition to Friesen and Collins's two-part "Looking Back at Muller v. Oregon," published in the American Bar Association Journal in 1983, this article made use of Kathryn Kish Sklar's introduction to Notes of Sixty Years: The Autobiography of Florence Kelley (Chicago: Charles H. Kerr, 1986).