“Trying to Bail the Ocean with a Sieve”: Grace Harte’s 1941 Alternative Equal Rights Amendment

In 1941 Grace Harte, an Illinois attorney, drafted an amendment to the United States Constitution, modeled after England’s 1919 Sex Discrimination Removal Act, to secure women’s right to work, serve on juries, and hold public office. These were rights still restricted for women, especially married women, in many states. Harte’s draft was intended to serve as an alternative to Alice Paul’s proposed Equal Rights Amendment (ERA), which was based on an ideology of formal sex equality and was meant to apply broadly to all legal rights. Harte’s amendment, in contrast, offered a narrowly tailored approach, grounded in women’s rights as citizens that would give all women equal civil and political rights “without depriving them of their ‘social and economic rights.’”¹ Paul had introduced her ERA in 1923 (and it had then been reintroduced every four years after that for almost half a century). The strategy of Paul’s amendment was to introduce a set of sweeping changes to gender-based legislation that would take effect concurrently with the passage of the amendment itself.² Harte’s amendment followed the strategy Illinois women lawyers had pursued from the eve of the Civil War, to secure women’s equality through a series of incremental and specific items of legislation.³ This incremental approach had generated positive results. Women lawyers in Illinois had, in fact, secured all the rights in Harte’s amendment in their own state, most recently the right to serve on juries.⁴ But these lawyers understood that state or federal laws could be repealed. To effect lasting change, they needed a constitutional amendment.⁵

Women’s rights activists split over which amendment to support. The Women’s Bar Association of Illinois (WBAI), of which Harte was a prominent member, quickly endorsed Harte’s amendment over Paul’s.⁶ Women labor activists who opposed Alice Paul’s ERA, because of the fear that it would allow men to undo their hard-won protective labor legislation for women, joined with Harte, although she did not share the labor activists’ argument that women needed special legal protections because of the differences between men and women.⁷ Harte’s real opposition to Paul’s amendment was that its breadth rendered it legally meaningless.⁸ The WBAI—with Harte, of course, in the vanguard—sought the endorsement of this more specific amendment from its parent organization, the National Association of Women Lawyers (NAWL), of which Harte was also a prominent member.⁹ The NAWL, which had previously endorsed Paul’s amendment, submitted the question to its members, who hotly debated the issue. Opponents to Harte’s amendment rejected its incremental strategy and narrow focus. They argued it was like “trying to bail the ocean with a sieve.”¹⁰ The NAWL membership remained divided in their support between the amendments throughout most of the decade.

This article explores that debate among women lawyers over the two amendments. Both sides shared the goal of securing women’s position as full and equal citizens and believed that a constitutional amendment was a critical means of achieving that goal. They were both part of the social movement to advance women’s equality. Where they differed was over the content, strategy, and underlying ideology of the amendment. Their debates provide insights into changing notions of gender and legal professionalism, equality, and legal strategies in the decades leading up to what used to be called the second wave of the feminist movement.¹¹

Women studied in law had fought their way into the male-dominated legal profession in the later half of the nineteenth century; however, their rise within the profession was “continuously incremental in a miniscule way through the first half of the [twentieth] century.”¹² In 1940, when Harte drafted her amendment, women comprised just 3.5 percent of the legal profession although women had been admitted to practice law for seventy-one years.¹³ Since the late nineteenth century women lawyers had debated among themselves whether their identity as lawyers should be gendered and what their role should...