OREGON HISTORICAL SOCIETY–ORHI 56468
Muller v. Oregon: A Class By Herself?
Oregon’s 1903 law to protect women factory workers triggered a national debate about the equality of women and men—a debate that continues today.
On Monday, September 4, 1905, the overseer of the Grand Laundry in northwest Portland told one of the female employees that she would have to work beyond her usual ten hours. She filed a complaint and the laundry owner, Hans Curt Muller, was summoned to appear in circuit court and answer the charges. At issue was a new state law that prohibited women from working “in any mechanical establishment, or factory” for more than ten hours a day. The law specifically mentioned laundries.
By 1905, more than a dozen states had enacted laws that limited the number of hours an employer could require an employee to work, and many of those laws were being challenged and overturned in the courts. And so, when Muller made his appearance in Multnomah County Circuit Court, he, too, expected the Oregon law to be overturned. He pleaded not guilty. A trial by judge followed.
The seven women who worked at the Grand Laundry were subpoenaed and testified, including Lenna Gotcher, who filed the complaint. Gotcher was twenty years old and married for two years to Edward Gotcher, who also worked at the laundry. The testimony was overwhelming. Muller had repeatedly required female employees to work beyond the ten hours limited by law. Furthermore, he had probably instructed his overseer to require one of the women to work additional hours on September 4, 1905, Labor Day, the new holiday celebrated, as it is today, by many businesses closing for the day. The testimony indicated that Lenna Gotcher might have been singled out because she and her husband had been members of the now-defunct Shirtwaist and Laundryworker’s Union. Edward Gotcher was elected a member of the union’s board of trustees in 1903.
That same year, the Oregon legislature had passed its maximum work-hour law for women. The laundry owners of Portland reacted by locking out union members. After six weeks, the union essentially dissolved. Those who still regarded themselves as members met once again and voted to go back to work—if they could find any. Muller and the other laundry owners were now determined to challenge the Oregon law and have it declared unconstitutional—and Lenna Gotcher was a good target to set that process in motion.
The judge in Muller’s trial was Alfred Sears, a former district attorney. Sears took three months to decide what should have been a simple case. Muller had obviously defied the law, but Sears was against the law intruding into private enterprise. The judge was also reluctant to overrule a legislative act. In the end, he decided that Muller was guilty of a misdemeanor and ordered the laundry owner to pay the minimum fine of ten dollars. As expected, Muller appealed the decision to the Oregon Supreme Court.
William Fenton, one of Portland’s leading attorneys, argued Muller’s appeal. Fenton, a benefactor of the University of Oregon for whom Fenton Hall is named, was a new type of lawyer—a corporate lawyer. His major clients included the American Steel and Wire Company, Standard Oil, the Pacific Coast Biscuit Company, and the Equitable Assurance Society, a large insurance company in New York.
In the argument he presented at the state supreme court, Fenton reminded the justices that a similar case had been decided the previous summer by the United States Supreme Court. In Lochner v. New York, the high court had ruled on a New York law that limited the maximum number of hours a person could work in a bakery to ten hours a day and sixty hours a week. Most bakeries were then small, family-owned operations. The work areas were often dark and overheated. Insects ran over tables and flour dust filled the air. The law primarily addressed sanitation issues, but also included a provision that limited work hours. The New York legislature had passed the law unanimously and three times state courts had upheld it, but the federal Supreme Court reversed those decisions, saying that the state legislature had interfered with an individual’s right “to contract in relation to his own labor.” The majority of justices had found this new right in the due process clause of the Fourteenth Amendment, which, the court said, implied a liberty of contract, that is, the right of two entities, including two people, to bargain freely between themselves the terms of any contract without government interference. Now it was a question whether the Oregon legislature had also gone too far and had abridged that right.
Chief Justice Robert Bean wrote the opinion for the Oregon Supreme Court. Bean was a member of the first graduating class from the University of Oregon, which consisted of three men and two women who received their diplomas in 1878. In the opinion, the court rejected the relevance of Lochner because the Oregon law was fundamentally different from New York’s. The New York bakery law was to be applied to all workers. The Oregon law, the justices noted, applied only to women.
In writing the decision, Bean cited two recent decisions by other state supreme courts. In 1902, Nebraska’s court ruled in favor of a state law that limited work hours for women, reasoning that a woman’s “physical limitation” made it necessary for the state legislature to intervene and establish protective legislation. The same year, in Washington, the court ruled that protective legislation for women was necessary because it advanced “the public welfare and the public morals.”
The Oregon Supreme Court agreed with both rulings. And that changed everything. The Muller case was no longer about protection for labor. It was now a question whether women and men had the same fundamental rights.
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In June 1873, Susan B. Anthony was put on trial for attempting to vote in the 1872 presidential election. Her attorney invoked the Fourteenth Amendment and due process as guarantees that women had the right to vote. The judge, Ward Hunt, a justice of the U.S. Supreme Court assigned to that New York circuit court, rejected the defense, later writing that voting was not a fundamental right, but a privilege that was extended only to certain citizens, decided independently by the various states.
Also in 1873, Myra Bradwell appealed a decision by the Illinois Supreme Court that prevented her from becoming a member of the Illinois Bar Association and practicing law in that state. She had sufficient training and had passed the bar exam, but the Bar Association had rejected her simply because she was a woman. The U.S. Supreme Court upheld the decision. A majority of justices held that the choice of a profession, like voting, was a privilege, not a fundamental right. They justified Illinois excluding women from the law profession because, the court said, it was evident to everyone that the two sexes were destined to occupy different “spheres of action,” and, hence, to play different roles in society. Men were protectors and defenders, while women’s primary role was raising the next generation of citizens.
The rulings against Anthony and Bradwell, and similar decisions on other cases, made clear that the federal court maintained that there was a legal distinction between men and women. Exactly how the distinction was to be drawn was yet to be determined, but the Muller case would change that.
In October 1907, the U.S. Supreme Court announced that in four months it would hear Muller’s appeal of the Oregon ruling. That left little time to prepare briefs, and so the State of Oregon sought outside assistance. It soon settled on Louis Brandeis, a Boston attorney, to argue its case.
Brandeis was one of the most famous—and highest-paid—attorneys in the country and would be appointed to the Supreme Court himself in 1916. His lifestyle, however, was decidedly austere. His two enjoyments were his association with close friends and solving intellectual problems. Known as “the people’s attorney,” because he often took on cases that involved social issues, Brandeis agreed to defend the Oregon law for free.
Brandeis realized that if he followed the normal route and argued from legal precedent, the Oregon law would probably be overturned. He needed a novel strategy. He would have to convince the nine justices of the Supreme Court to accept an exception to liberty of contract and the Fourteenth Amendment.
Lochner (the New York bakery case) had been decided by a 5–4 vote. The dissenting opinion had left the door open to challenge liberty of contract if it could be shown that a law was necessary to ensure the health and welfare of the general public. That would be the opening that Brandeis would use. He would argue the case from an extrajudicial view. He instructed assistants to gather expert opinion from doctors, economists, social workers, and others who knew of the negative health effects that poor working conditions and long work hours had on women. The result was a legal brief, a hundred-plus pages long, that contained only two pages of legal precedents. The remainder was sociological data taken from a wide variety of experts and government and private reports.
On January 15, 1908, the nine justices of the Supreme Court heard oral arguments in Muller v. Oregon, Brandeis and Fenton standing before the court. Nineteen other states still had laws similar to Oregon’s. Whatever the outcome, the court’s decision would have national implications.
Brandeis began his presentation by quoting the dissenting opinion in Lochner, then launched into his main argument.
“The dangers of long hours for women arise from their special physical organization,” he read from the first sentence of the major part of the brief. Eleven authorities were cited in the brief as proof of the statement. “The evil effect of overwork before as well as after marriage upon childbirth is marked and disastrous.” Nine authorities supported that statement. “The heightened efficiency of the workers, due to the shorter day, more than balances any loss of time.” And that, Brandeis told the justices, was a conclusion found in thirty government reports from other nations and several states.
Brandeis then described for the court the dangerous working conditions found in modern laundries and the fatigue suffered by those forced to work long hours. A commercial laundry was not the simple enterprise most people associate with a woman working over a wash basin. It had become a highly mechanized industry. Huge metal cylinders spun constantly, blasting out steam. The hands and faces of workers were constantly exposed to strong detergents and bleach. One had to be alert if a finger inadvertently got caught on a piece of clothing or entangled in a loose string to avoid the hand being pulled into and crushed between the rollers. The floors were wet constantly, a worker sometimes standing for sixteen hours a day in water. It was an industry in need of regulation—all the more so because, in places like Portland, 80 percent of the laundry workers were women and most of them either had children or were of child-bearing age.
Fenton began his argument by citing precedent, emphasizing the ruling in Lochner, but then offered his own novel strategy to defend Muller.
“Women, in increasing numbers, are compelled to earn their living,” he stated as a matter of fact. “They enter the various lines of employment hampered and handicapped by centuries of tutelage and limitations and restriction of freedom of contract.” Women must have the same fundamental right to contract their labor as men did for them, eventually, to attain the same social equality as men. To do otherwise, to decide the case against his client and uphold the limitations of the Oregon law, the Portland attorney concluded, would be the same as announcing “that women are wards of the state.”
Except for a change of one justice, the court sitting before Brandeis and Fenton was the same as the one that had decided Lochner, and so court watchers anticipated that Muller v. Oregon would also be decided by a narrow majority. But they were surprised. Thirty-nine days after oral arguments, the nine justices issued their ruling. It was unanimous in favor of Brandeis and the State of Oregon.
The court had accepted fully Brandeis’s contention that protective legislation for women was needed. The unanimous opinion also agreed completely with Fenton’s conclusion that a ruling for the Oregon law meant that women and men were not equal citizens, but the court saw that as a reason for upholding the law rather than overturning it. In particular, the opinion stated, woman “is properly placed in a class by herself.”
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Most legal scholars attribute the success of the State of Oregon in Muller v. Oregon to the Brandeis brief. Other shorter and similar briefs had been filed with the court, but the decision in Muller secured the strategy. It introduced a new means of legal reasoning, one that is taught today in law schools as “sociological jurisprudence.” Its usefulness in other cases soon became apparent.
In 1917, in another case from Oregon, a Brandeis-style brief of more than a thousand pages was filed with the federal court to support the need of a state law that limited work hours for both men and women to ten hours a day at regular pay and no more than three hours a day of overtime. The court upheld the law. The strategy used by Brandeis in Muller would eventually be used to establish the constitutionality of minimum-wage laws. Its most famous application, however, was in a case far removed from labor. In 1954 in Brown v. Board of Education, a Brandeis-style brief helped to overturn more than a century of segregation laws.
The decision in Muller v. Oregon was heralded immediately as an advance of the rights of labor. That decision supported a proliferation of laws over many years that established safety and health guidelines for working conditions. But there were those, besides private business owners such as Muller, who decried the decision.
A month after the Muller decision, The Woman’s Tribune, a daily Portland newspaper that supported woman’s suffrage and promoted women’s rights, published a letter on its front page that scolded those who wanted to limit the hours a woman could work and earn a wage. “Who ever heard of limiting the working woman in a home?” the letter asked. “If the government is interested in the welfare of women, one would think it would stop discriminating against them in civil-service examinations and pay them as well as men when they do work for Uncle Sam!” An editorial in the Oregon Journal, published at about the same time, was more circumspect. “The supreme court evidently takes the view,” wrote the editor of the Journal, “that women are not citizens in the fullest sense of the term.” And that, in essence, was the long-term fallout of the Muller decision.
Woman’s suffrage was approved in Oregon in 1912 and throughout the nation with passage of the Nineteenth Amendment in 1920. That alleviated one of the legal distinctions between the sexes, but the basic thrust of Muller remained in force and a rash of protective legislation for women was passed, maintaining women’s status as “wards of the state.” Passage of the Civil Rights Act in 1964 partially changed that, but a legal inequality was still maintained.
In 1972, Congress passed the Equal Rights Amendment and sent it to the states for ratification. More than two-dozen states did so quickly. Oregon gave its approval in 1973 and reaffirmed its support in 1977. But the necessary three-fourths of the states did not ratify the amendment before the end of the ten-year time limit placed by Congress.
An identically worded amendment, renamed the Women’s Equality Amendment, was introduced in Congress in March 2007. Nearly two hundred members of the House of Representatives signed their names as cosponsors. The debate over whether women’s rights are adequately protected under existing laws—whether a constitutional amendment is necessary to ensure that men and women are treated as equal citizens—is about to resume. Many of the arguments, on both sides of the issue, will echo those used in Muller v. Oregon, a case that still governs the legal status of women and that began as a dispute between a Portland laundry woman and her male boss.
John Dvorak, born in Camas, Washington, is a freelance writer whose articles cover history and science.
