by Michael Fox
Fifty years ago, on another February Saturday, after what had been a grueling fight to pass a strengthened Civil Right bill out of the House, Representative Howard Smith (D-VA) who had lost his battle to bottle the bill in the Rules Committee that he chaired, offered an amendment on the floor of the House to expand the protected categories from race, color, national origin and religion, by adding sex.
Some have viewed his amendment as one last ditch effort to sink the bill, others a slightly more nuanced version that seeing that the bill was ultimately going to pass, Representative Smith sought to make the bill better.
Although there was initial push back from the Democratic floor managers, and much joking colloquy, the amendment ultimately passed.
Whichever view is true, there is no doubt how the world has changed because of what happened 50 years ago today.
That’s why there is dearth of legislative history on sex in the bill, leaving the field wide open to the imagination of the litigants. At the time, as I recall, and from conversations with others closer to the scene, the sex amendment baas offered to muddy the waters; it worked in unforeseen ways.