Muller v. Oregon

Brandeis, however, claimed that women as a group needed special protection, using the widespread assumption that women were the "weaker sex." He said it was "common knowledge" that to permit women to work more than ten hours a day in factories, laundries, and the like "[was] dangerous to public health, safety, morals [and] welfare."

This argument forced the Court to reconsider Lochner v. New York. The Court had ruled that New York's law was not a legitimate exercise of the police power of the state and interfered with the right of male bakers to contract their labor. The question was whether women were any different?

Nineteen state legislatures, under pressure from suffragists and some union leaders, had placed women in a special class, regulating their hours of work. Justice Brewer, speaking for the majority, noted that the laws were "significant of a widespread belief that woman's physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil."

In a view that seemed progressive for its time but now appears paternalistic, Brewer said:

That woman's physical structure . . . place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not . . . continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.

For these reasons, Brewer decided that a woman "is properly placed in a class by herself, and legislation designed for her protection may be sustained." The Court unanimously affirmed the lower court's decision requiring Muller to pay the fine and court costs. The Brandeis brief had been a success.