Muller v. Oregon

These two ideas--the state's "special interest" in regulating business and the Constitution's protection of "liberty of contract"--clashed dramatically during the Progressive Era (1900 to World War I). In 1905, the Supreme Court upheld "liberty of contract" in Lochner v. New York by overturning a state law setting sixty hours a week as the maximum hours that (mostly male) bakers could work. The Lochner decision effectively blocked protective legislation for women. Kelley and Goldmark attempted to circumvent it.

They turned to 51-year-old Louis Brandeis, the husband of Goldmark's sister, Alice. Known as "the people's attorney," Brandeis had made a career of expanding the law to address the social needs of people. He had represented several states whose wages and hours laws were under attack.

Brandeis agreed to help on two conditions: first, Oregon had to hire him as its attorney, and second, the National Consumers' League had to provide him with a massive amount of statistical information on working women within two weeks. Goldmark and Kelley, laboring around the clock, gave him a 113-page document. It marshaled facts and figures showing that working long hours affected the health and morality of females. For the first time the Supreme Court would hear an argument based on human welfare instead of legal reasoning. The new argument became known as the "Brandeis brief."

Before the Supreme Court, Muller's side argued that to deny women the right to work more than ten hours a day interfered with their liberty to make contracts and diminished their power to support themselves. Since Oregon law gave married women equal contractual and personal rights to men, the state could not use its police power to infringe on these rights.

With modern reasoning, Muller's attorney pointed out that the Oregon law was unconstitutional because "the statute does not apply equally to all persons similarly situated, and is class legislation."