On February 24, 1908, the Supreme Court decided Muller v. Oregon, unanimously upholding an Oregon law setting a 10-hour limit on the workday of women in factories and laundries.
The Muller decision was a major victory for rising progressive lawyer Louis D. Brandeis because it upheld protective state regulations. It also supported legal classification by sex and in so doing, split the women’s movement for decades. (The National Consumers’ League defended sexual difference in their commitment to a family wage, while the National Woman’s Party opposed protective laws in favor of greater individual liberty for women.) Single-sex protective laws lasted until 1970, when Title VII of the 1964 and decisions of the Warren Court altered the legal landscape.
Muller came just three years after the Supreme Court’s decision in Lochner v. New York, in which the Court struck down a 10-hour workday for bakers in New York City. In the same period, lower courts began to move towards treating women as a special class in need of certain protections that men did not, simply because of their perception of the physical nature of women. States could use their police power to protect women workers as the “mothers of succeeding generations” and prevent them from being “incapable of bearing their share of the family and the home.” These precedents made clear the significance of distinguishing women from men with respect to laws connected to public health and welfare.
Curt Muller was the owner of a Portland, Oregon laundry that kept a woman employee at work overtime, violating the 1903 Oregon law barring the employment of women in factories and laundries for more than 10 hours a day. The law was inspired by progressive reformer Florence Kelley, who drafted an eight-hour day for women for Illinois in 1893 that was later struck down by the Illinois Supreme Court in 1895 as infringing upon the state and federal constitutions, setting the stage for 20 states to follow suit with 10-hour workday regulations.
Muller believed the Oregon law was unconstitutional because it violated his freedom of contract under the 14th Amendment’s Due Process Clause under the rule of Lochner and was not a valid health regulation. In particular, Muller argued that women, “equally with men, are endowed with the fundamental and inalienable rights of liberty and property” and that “difference in sex alone does not justify the destruction or impairment of these rights.”
Brandeis, representing the National Consumers League for free, asked his sister-in-law, Josephine Goldmark to produce what is now known as a “Brandeis Brief.” Goldmark recruited ten researchers, including her sister Pauline and Florence Kelley, to present a barrage of social scientific evidence to show the relationship between long hours, worker health, and public welfare. The brief argued that long hours were “more disastrous to the health of women than of man” by affecting “childbirth and female functions” and was of public interest because the “overwork of future mothers thus directly attacks the welfare of the nation.” All told, the brief had only two pages of legal argument among 100 pages total. (Legal historians generally conclude that Brandeis did this to not directly challenge Lochner but to prove that the Oregon law was within its police power.)
Justice David Brewer wrote the unanimous opinion for the Court upholding Oregon’s 1903 statute. Brewer, along with Justice Rufus Peckham, was most strongly committed justice to the “right to contract” under the 14th Amendment. However, he believed the difference between the sexes provided an exemption from the rule of Lochner. In a rare moment for the Court, Brewer referred to Brandeis and his brief directly: “In the brief filed by Mr. Louis D. Brandeis for the defendant in error is a very copious collection of all these matters, an epitome of which is found in the margin.”
The Court declined to question the precedential value of Lochner, instead carving out an exemption to “freedom of contract” based on gender differences. Because the idea of the unique fragility of women was held widely at the period, the opinion was widely celebrated as being democratic and humane. In the years after Muller, similar Brandeis Briefs would be put forward by states to support similar limitations upon the working hours of women before upholding a 10-hour workday law for all industrial workers in Bunting v. Oregon..
Yet, after the ratification of the 19th Amendment in 1920, the Supreme Court through Justice George Sutherland’s opinion in Adkins v. Children’s Hospital implied that the amendment overruled Muller and eliminated any civil or contractual restrictions based on gender—thus, in Adkins, the Court struck down a congressional minimum wage law under the Due Process Clause of the 5th Amendment. Alice Paul, who worked with Sutherland on the 19th Amendment and later conferred with the attorneys for the hospital in the case, believed that achieving equal rights—including contract rights—was key to the women’s movement. From there, arguments over protective laws moved from the courts to within the women’s movement itself.
Nicholas Mosvick is a Senior Fellow for Constitutional Content at the National Constitution Center.
