PORTENT OF DISASTER: THE SOCIALIST WOMAN AND SPECIAL PROTECTIVE LEGISLATION
The Socialist Women's debate over special protective legislation for women demonstrates how the combined legal apparatus of patriarchy and capitalism placed nearly insurmountable barriers in the path of unity of women with women or workers with workers, thus compounding the difficulties of the socialist-feminist enterprise. Some Socialist women demanded special legislative protection for working women. However, in a controversy foreshadowing later disagreements about the Equal Rights Amendment, others decried such protections as assuming, and reinforcing, women's social and alleged biological inferiority. Special treatment of women not only divided male from female workers, but middle-class from working women.
The first sustained discussion of this question occurred in October 1908, after the Supreme Court's Muller v. Oregon validated a ten-hour law for women. The court had consistently voided protective labor legislation for men on the grounds that it infringed the right of contract. The Court, however, said that women were physically weaker than men, and additionally handicapped in the struggle for survival by their maternal functions. Furthermore, healthy mothers were a social asset, thus making women's health a legitimate object of "public interest and care in order to preserve the strength and vigor of the race." Finally, women were traditionally dependent on men for their sustenance; their freedom of contract could therefore be limited for their own protection. Muller v. Oregon emphatically did not rest upon either women's rights or any putative rights of workers against industrial mass murder and torture. Rather, it assumed women's permanent biological, social, and economic inferiority to men. It reinforced women as a distinct legal category, divided from their male co-workers by the law of the capitalist state. But it did confer some benefits upon overburdened female workers.
Mary S. Oppenheimer attacked the decision as, on balance, a defeat for women. It would depress women's wages, confine women to low-paying jobs, render them uncompetitive with men, and prevent them from working longer hours even if survival dictated. Oppenheimer believed that the government could legitimately protect pregnant and nursing women, but not all women. The canard about the physical weakness of women, she said, "partakes of sentiment rather than justice." Women "are, in spite of their physical disabilities, the drudges of the race." Oppenheimer admitted that some Socialist party state platforms demanded special legislative protection for women, but speculated that "these clauses may well have been inserted by the men alone." Parce similarly opposed any special protections for women on the grounds that such protections were based upon male tutelage of women. However, Mary Garbutt championed such laws on the grounds that "there should be no freedom of contract on the part of employer or employee, when human life and human virtue and happiness are in the balance. An interference is justifiable by the state at all times, when such conditions exist as wreck human beings." Although this rationale would also endorse protective legislation for men, Garbutt--perhaps acknowledging political reality--demanded only the protection "of that ever swelling army, of children and young women, utterly defenseless, except as society defends them."
Conger-Kaneko also vigorously supported special protective legislation for women. She criticized the International Socialist Women's Congress of 1910 for essentially adopting Oppenheimer's and Parce's position that Socialists should demand safe workplaces for both sexes rather than accepting special protections for women. Conger-Kaneko's position resembled Parce's own denunciations of male Socialists who opposed partial suffrage for women where that was the only feasible form; in that case, Parce had demanded that women take whatever they could get. Similarly, Conger-Kaneko now protested that Socialists who opposed protective legislation for women "would grant women nothing, until men had it first, or got it at the same time. It is much easier to secure legislation protecting women of this sort, then it is to secure it for men. Night work is much harder on women and infinitely more dangerous than it is on men.... There is not a question of class interests here. It is a question of sex interests in the working class." Garbutt similarly asserted that "all enlightened states are awakened to the fact that wage earning women need special legislation for their protection..... There should be no freedom of contract on the part of employer and employee, when human life and human virtue and happiness are in the balance." Young women and children were "utterly defenseless, except as society defends them."
This justification of special legislation, however, raised precisely the issues which bothered its opponents, who demanded that women be placed in a position where they could defend themselves by their own efforts. Existing limits on women's ability to sign legal contracts, they said, was a badge of their social and legal inferiority, meriting repeal rather than applause. Men as well as women and children suffered in the charnel houses of capitalism; Socialists must safeguard the life and happiness of all workers. Most Socialist women--or at least those whom SP members elected as their representatives--endorsed this line of reasoning in relation to the Socialist party itself: they opposed an amendment to the party's constitution reducing women's dues to one-third of those charged men. The Woman's National Committee charged that "this proposed amendment to the national constitution provides for a special privilege, with its implied inferiority and subservience, and smacks of that old chivalry which has ever granted to women these petty privileges and withheld from them equal responsibility with men, in civic and political affairs.... This proposed amendment is foreign to the ideal of equality and comradeship and not in harmony with the spirit of the Socialist party."
In confronting these issues, Socialist women faced a dilemma which often afflicts and divides victims of oppression: to what extent should revolutionaries compromise with an oppressive reality in order to modify or overthrow it? In this case, sexist cultural patterns, male fear of women's economic independence and competition on the job, and capitalist exploitation of women created a segmented job market that severely disadvantaged women. In the name of protecting women, the Supreme Court merely put its own imprimatur on this gendered system of class oppression. In declaring labor legislation protecting men unconstitutional, while allowing it for women, the capitalist legal system reinforced patriarchy even as it divided the working class, and women, against themselves. In so doing, it placed a nearly insurmountable barrier in the way of both feminism and workers rights. After World War I, disputes over the ERA helped stalemate the feminist movement for a generation even as the near impossibility of winning legal protection for male workers demoralized and defeated labor insurgencies. The Court's solicitude for women was itself limited; in 1923 the Court upheld what Florence Kelly termed "the inalienable right of women to starve" by voiding a minimum wage law for women on the grounds that the nineteenth amendment had accorded women equality. This further defused women's activism.
The intractability of this division became evident in discussions about mothers' pensions. The proposal for such pensions took diverse forms. The most common proposal guaranteed sustenance for a woman and her dependent children in the event of the death, desertion, or disablement of her husband. In this form, it was a relatively minor reform (however vital to individual beneficiaries) that left the causes of capitalist mass murder intact and (because it was available only for women) assumed the privatized home with the wife as the full-time caregiver. Some women advocated more sweeping proposals: because mothers were the foundation of the state, society should reward every mother with a pension, thus paying her for her contribution to society. This would elevate and dignify motherhood by rewarding its services in monetary terms (the only ones respected in capitalist society), protect children, and afford women some independence from their husbands. Conger-Kaneko may have favored this form of pension for mothers. In a somewhat ambiguous statement, she pointed out that "wifehood and motherhood subject more women to invalidism and death each year than soldiers have been subject to during the combined wars of 130 years." Why not, she asked, pension mothers and make soldiers provide for themselves? Parce similarly believed that, in an age when children were increasingly an economic burden rather than an asset, families should be recompensed for the expense and trouble of raising them. In a blistering attack on the natalist policies of some European governments, she asked "if the state needs the children, why doesn't the state pay for the service of producing them. The state pays for every other service it receives; is maternity the only thing on earth that isn't worth anything?" Such payments, she pointed out, would help fathers as well as mothers.
The incendiary nature of such advocacy was demonstrated when a male Socialist wrote what he doubtless felt was a strongly feminist defense of mothers pensions. Walter Lenfersiek, who rarely contributed to The Socialist Woman, complained that most Socialists offered a variety of unpalatable choices to women. Some Socialist men would leave the condition of women virtually unchanged; others would give a wife one-half of her husband's earnings, leaving the husband with the choice of how much to earn; others would give the children an allowance, but leave the wife dependent on the whims of her husband. Lenfersiek, however, said that women "must demand economic independence even from their husbands, or they cannot be really free." He advocated that "women with children should receive an income from society purely as child-bearers, or as mothers," who make an indispensable contribution to society. The condition of mothers, he continued (echoing the Supreme Court) is of concern to everyone, "and not the business of the particular insignificant individual who happens to be the father of her children.... If her well-being is a social need, why should she not receive social pay? Is dressing the children and washing them and soothing their little pains any less useful than the work of a nurse in a hospital?" Other writers made this latter point: work done for pay outside the home was considered valueless when performed lovingly for family members inside the home.
Lenfersiek must have been astonished when his article evoked a spirited rebuttal from Belle Oury, also a very infrequent contributor to The Socialist Woman. Oury attacked Lenfersiek's article as a male inanity typical of those "who are unable to consider women apart from the home, and consider her as part of social processes." Socialism would not compensate mothers at all because "Socialism implies a free race--given a free race, motherhood will be voluntary, and I see no reason why it should interfere with any occupation which a woman may have." The idea that women would work until they marry, and then become mere breeders, "is a most astonishing proposition, and one which will not bear analysis." Women would not be reduced to, or paid for, their sex or maternal functions. Lenfersiek "associates motherhood with care of children. It is not [for] motherhood that he desires recompense, but the duties which have hitherto attended motherhood. Specialization will solve this problem"--kindergartens, day nurseries, and the general professionalization of childcare would ensure that children "receive the best care that society can furnish," which "cannot always be supplied by their mothers." Motherhood would become a merely sexual function, and "we will not have to consider recompensing women in any other capacity than that of worker."
Oregon v. Muller and the state protective laws it sanctioned evoked a contentious debate which foreshadowed the devastating post-war divisions between the "women-first" feminists who condemned special protective legislation, and "social feminists" who supported it--a controversy which would absorb much of the energy of Crystal Eastman, a predominant socialist-feminist of the 1920s.
 Mary S. Oppenheimer, "Is It a Handicap?," SW October 1908.
 Oppenheimer, "Is It a Handicap?," SW October 1908; Parce, "The Examiner's Glass," SW December 1908.
 Mary Garbutt, "For Socialist Locals, Program for October, Labor Legislation in the United States," PW, October 1911. Garbutt surveyed existing laws protecting women and children; as scant legislation protected men, she focused on the two categories of persons for which the Supreme Court allowed protections.
 JCK, "Action of Women's Congress," PW October 1910; Garbutt, "For Socialist Locals: Program for October," PW October 1911; "Resolution Adopted by the Woman's National Committee," PW June 1909.
 William Chafe, The American Woman: Her Changing Social, Economic, and Political Roles, 1920-1970 (New York, Oxford U Press, 1972) p. 80.
 For a moving account of a woman who needed such a pension, see "Pensions for Mothers," PW November 1910 (reprinted from The Social Democratic Herald).
 JCK, "The Woman," [unsigned editorial statements], PW March 1909; Parce, "The Examiner's Glass," September 1910 and November 1910.
 Lenfersiek, "How Shall Mothers Be Compensated Under Socialism?," PW March 1910.
 Oury, "Woman's Relation to Society," PW June 1910.