Muller v. State of Oregon
Supreme Court Upholds Maximum Hour Law, February 24, 1908
Until the 1930s, the prevailing view in American jurisprudence held that the due-process clause of the 14th Amendment to the Constitution guaranteed "freedom of contracts" and thereby forbade government regulation of hours, wages, and working conditions. The first government-mandated protections for workers therefore were applied only to those whom the government had a specific interest in protecting.
In Muller v. State of Oregon, the US Supreme Court ruled that the governmental interest in protecting women's procreative value outweighed the "right" of women to have free contracts, and upheld an Oregon law limiting the hours that women employed in factories and laundries could work. The Muller ruling—that the governmental interest in protecting social welfare outweighed the freedom of contract—set the stage for later New Deal protections, culminating in the gender-neutral Fair Labor Standards Act of 1938.
The case at issue arose from a situation in a laundry in Portland owned by Curt Muller. Muller, through his foreman, required his female employees to work for more than the legal maximum of ten hours. When state inspectors charged him with violating a 1903 Oregon labor law, he challenged the statute. Muller v. State of Oregon was argued before the Supreme Court in January 1908 and decided the next month.
Muller reveals a fundamental irony in progressivism. While the protections won by progressives were often the ones which workers demanded, they were attained through the use of inherently patriarchal and/or matriarchal ideologies. The protectionism of Muller highlighted the fissures in reform movements.
First, the women affected by Muller were protected, so the argument went, because society needed them to remain healthy so they could produce babies, not because they had demanded and won the right to set their own working conditions. They were protected as women, not given rights as workers, and the protection was dependent on the beneficence of others, rather than earned by their own collective power. Additionally, women workers often received greater support from maternalist, middle-class progressives affiliated with the Women's Trade Union League (WTUL) than from the male leaders of the American Federation of Labor and its affiliates. (Striking garment workers in Chicago were given support by the WTUL when it was withheld by the United Garment Workers union.)
Second, the protections won in Muller and similar cases were based on creating a legal difference between women and men. Women workers were given more protection than men, but in exchange lost a "right" that was guaranteed by the constitution. (Muller's brief argued that women should be treated equally with men and given the same freedom of contract.) Following the success of women's protective legislation, the women's movement in the United States was split between those who favored protecting women and those who favored equality between the sexes.
Florence Kelley and her National Consumers League (NCL) favored using women as an "entering wedge" to expand workplace protections for everyone, but also took the somewhat contradictory view that protective laws were needed as compensation for women's deficiencies in the labor market. In order to maintain the protections won in Muller and similar cases, they had to defend sex discrimination.
The National Women's Party (NWP), on the other hand, favored equality above all else. Until the late 1930s, when the Fair Labor Standards Act created gender-neutral workplace protections, the Equal Rights Amendment championed by the NWP would have demolished the gains for women workers won in Muller. This dispute between feminists who valued protection and feminists who valued equality continued until the latter group gained the upper hand in the 1970s.
Muller marks an important turning point in American legal history. The brief written by Louis D. Brandeis, then a lawyer in private practice, went beyond legal arguments and created the field of "sociological jurisprudence." The "Brandeis Brief" written with the National Consumers League's Josephine Goldmark, used data collected from social scientists in Britain and the United States, especially that compiled by the Massachusetts Bureau of Statistics of Labor to argue that as a matter of fact—as opposed to matters of law—there was a connection between long hours and social welfare. Brandeis, a future Supreme Court Justice, believed that law should respond to the facts, not just ideals. The same kind of appeal to sociology was used by another future Supreme Court Justice 48 years later, when Thurgood Marshall introduced sociological evidence in the school desegregation case Brown v. Board of Education.