The Liberty Papers

There was a time when it looked like the Equal Rights Amendment, first proposed in the midst of the 1970s movement toward gender equality, would actually passed. It had garnered the support of 35 of the 38 states needed for ratification. And then it just died. A few states passed resolutions purporting to rescind their earlier ratification, a move which remains Constitutionally questionable, but the movement to get the three states needed to ratify the proposed amendment just stopped. And the ERA has effectively been dead ever since.

Now, Democrats in Congress are planning to reintroduce the legislation and start the process all over again:

Federal and state lawmakers have launched a new drive to pass the Equal Rights Amendment, reviving a feminist goal that faltered a quarter-century ago when the measure did not gain the approval of three-quarters of the state legislatures.

The amendment, which came three states short of enactment in 1982, has been introduced in five state legislatures since January. Yesterday, House and Senate Democrats reintroduced the measure under a new name — the Women’s Equality Amendment — and vowed to bring it to a vote in both chambers by the end of the session.

The renewed push to pass the ERA, which passed the House and Senate overwhelmingly in 1972 and was ratified by 35 states before skidding to a halt, highlights liberals’ renewed sense of power since November’s midterm elections. From Capitol Hill to Arkansas, legislators said they are seizing a political opportunity to enshrine women’s rights in the Constitution.

The text of the ERA is as follows:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

Though simple in language, the impact of the ERA would be significantly. With the Amendment as part of the Constitution, claims of gender discrimination would be subject to the same strict scrutiny as claims of racial discrimination. The question, though, is whether we really want that.

I don’t think that there is any disagreement with the argument that there is almost never a good reason for the government to discriminate among people based on race or ethnicity. Whether someone is white, or black, Asian, or Hispanic can almost never be said to be a relevant criteria for, say, school admission.

The same cannot be said, I would submit, when it comes to discrminiation based on gender. There are differences between men and women and sometimes the law needs to recognize those differences. Opponents of the ERA back in the 1970s argued that it would lead to unisex bathrooms and women in the military. Quite obviously, that argument is absurd. But what about a college athlete who doesn’t qualify for the men’s basketball team and wants to play for the women’s team, under a strict reading of the language of the ERA it would be unconstitutional for a state-run school to deny him that opportunity.

Or let’s take a more radical example. Marriage. Right now a man and marry a woman, but not another man. A woman, however, can marry a man (but, of course, not another woman). Does it really take all that much imagination to think that there will be a lawyer somewhere out there who will argue that the ERA prohibits the state from barring persons of the same gender from marrying each other merely because they are of the same gender ?

More importantly, though, it seems pretty clear that, given the state of the law and the state of society, the Equal Rights Amendment simply isn’t necessary. Under the law today, nearly all gender-based discrimination other than the examples I noted above that merely recognize the differences between men and women are considered unconstitutional thanks to a series of Supreme Court decisions based on the Equal Protection Clause of the Fourteenth Amendment. Eugene Volokh, who seems to favor the idea of an Equal Rights Amendment, puts it this way:

On the one hand, enacting the ERA will cement the broad antidiscrimination principle, and perhaps defeating it might in some measure undermine the principle, among some members of the public or even among some judges; and it’s possible that judges will carve out some sensible exceptions from the ERA’s flat ban if the ERA is enacted. On the other, it seems highly likely that the constitutional nondiscrimination rule is here to stay, and maybe it’s better for judges to continue developing exceptions from this rule when it’s basically a judicially developed interpretation of the Equal Protection Clause, rather than for judges to create exceptions from a categorical guarantee.

My preference would be for an ERA that has explicit exceptions for the few areas where exceptions seem necessary, but I doubt that this is a politically viable option. The question then is which is better — the status quo, under which there is a broad but not securely textually anchored constitutional prohibition of most forms of sex discrimination, or an ERA that expressly bars sex discrimination but goes literally further than I think it should. My sense is that the status quo is probably good enough, because it seems so solidly entrenched; but it’s not an open-and-shut matter, it seems to me.

Given the danger that judicial interpretation of the Equal Rights Amendment could lead to outcomes that even it’s supporters today wouldn’t support, I think staying with the status quo makes the most sense.

Finally, it should be noted that we are having this conversation in very interesting times. The frontrunner for the Democratic nomination for President is a woman. The Speaker of the House, second in line to succeed to the Presidency, is a woman. There are women serving as Cabinet Members, Senators, Congresswomen, Governors, and all over politics. This is not the same country it was in 1972 when the ERA was first sent to the states. Perhaps we need an idea more appropriate for our time and not one rooted in the 1970s.