The Congressional Record notes that laughter rippled through the U.S. House chamber when in 1964 a wily, 80-year-old Virginia congressman proposed adding one word—sex—to landmark civil rights legislation for which he and his fellow Southerners had no use.
“What harm will this do to the condition of the bill?” asked the congressman, Howard W. Smith, then chairman of the influential House Rules Committee—a post through which he could control the ebb and flow of legislation, killing any measure to which he was hostile.
And the pipe-puffing Smith would do so with nary a word, sometimes by retreating to his farm in Fauquier County when he was supposed to be in Washington reviewing bills with his committee.
“Some of the bills would fall out of his pocket when he was bending over to milk the cows,” said Tony Troy, a lawyer-lobbyist who learned of Smith’s procedural prowess in the mid-1960s as a just-out-of-law-school hire in a Virginia attorney general’s office run by remnants of the segregationist Democratic machine of which Smith was a pillar.
Smith’s amendment survived, ensuring the Civil Rights Act of 1964 would prohibit discrimination on the basis of race, color, religion, national origin—and sex.
Some viewed Smith’s proposal as an attempt to sabotage the bill, burdening it with specious legalese. Others said it was a prescient step toward women’s equality.
Still others contended Smith had a narrow purpose: to protect white women, an important source of cheap labor in Southern textile factories, with an impediment that might have managers thinking twice about hiring African Americans.
On June 15, nearly six decades after the act became law, the U.S. Supreme Court decided that one word—sex—applied not just to gender but to gay, lesbian and transgender Americans, guaranteeing they, too, are protected against discrimination in the workplace.
Decried by the right, welcomed by the left, the ruling is a reminder of a constant in the law: that words have power and such power can be diminished or—in this instance—increased by events unforeseen when those words were melded into law.
“The law hasn’t changed, but our understanding of how the law is applied has changed because we are living a more informed life,” said Claire Guthrie Gastañaga, a former chief deputy attorney general—the first woman to hold the position —who has lobbied for the American Civil Liberties Union and Equality Virginia, a gay-rights organization.
Virginia’s journey on gay and transgender rights has, over the past 20 years, been one of resistance, punctuated by progress, followed by accelerating advances fueled by the state’s increasing diversity and the growing influence of younger voters.
Two Democratic governors, Mark Warner and Tim Kaine, signed executive orders shielding gay and transgender state employees from bias on the job. A Republican governor, Bob McDonnell, refused to extend the order, saying it had no basis in law. His Democratic successor, Terry McAuliffe, reinstated the order.
Virginians overwhelmingly approved a constitutional amendment in 2006 banning same-sex marriage. When it was ruled unconstitutional bya federal judge in Norfolk eight years later—the U.S. Supreme Court would throw out all restrictions in 2015—polls showed voters’ views had flipped in favor of allowing same-sex marriage.
This year, with Democrats again controlling the General Assembly, Virginia became the first state in the South to prohibit discrimination against gay and transgender people in employment, housing and public accommodation.
Virginia is among 23 states to adopt such protections, complementing the federal law on which the Supreme Court recently ruled.
Smith—known as the Judge, a bow to his years as a state jurist—never concealed his views on race, nationality and labor, winning legislation during World War II that made it easier to prosecute foreign-born residents for subversive activities and tougher for unions to advocate for workers.
So his tweak to the Civil Rights Act of 1964 seemed consistent with his long record as an obstructionist and master of process. But Smith would insist he was standing with women’s groups in Virginia that favored what we know as the Equal Rights Amendment, itself finally approved here this year.
But in 1966, running for re-election to the seat he had first won in 1930, Smith was viewed by Democratic primary voters as an emblem of inequality. His district had been reconfigured the previous year to include a chunk of Fairfax County, then beginning to brim with moderate suburban voters.
A challenge by an enthusiastic liberal, George Rawlings, led to the seemingly unthinkable: Smith’s defeat. And though the seat would go Republican, Rawlings’ victory—years before he would come out as gay—would augur the full-on cross-pollination of state and national Democratic politics playing out these days in the suburbs, the statehouse and the streets.