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March 30, 2007

Equal Rights Amendment Open Thread

by Nicholas Beaudrot of Electoral Math

Set aside the scaremongering from Phylis Schafly about unisex bathrooms. What are the practical consequences of enacting the Equal Rights Amendment? What rights does it protect that the equal protection clause in the fourteenth amendment, now interpreted to apply broadly to stop discrimination against any "suspect class" including women, doesn't protect? What discriminatory laws that might otherwise be held constitutional would become unconstitutional? What enforcement legislation (e.g. portions of the Violence Against Women Act) that's currently unconstitutional would become constitutional? Or is it purely symbolic?

I'm genuinely curious about the answers here. I'd like to believe that discrimination in law or policy on the basis of sex would not be upheld by todays courts. But perhaps I'm being idealistic.

Discuss.

Update: The ERA's "why" page is a good start. Gender discrimination is subject to "heightened scrutiny" a somewhat lower standard than the "strict scrutiny" standard applied to racial discrimination. The "let women into VMI" case seems to be the rallying cry. But, the women's groups won the VMI case, with the court voting 7-1 to allow women to enroll (Scalia dissenting, Thomas recusing). ERA advocates also point to other discrimination reducing laws that have failed to pass as evidence that discrimination, or at least apathy towards reducing discrimination, in Congress still exists. No arguments there, but I don't see how the ERA will allow the courts to change the set of available defenses under the Equal Pay Act without a legislative change.

March 30, 2007 | Permalink

Comments

I'm not sure the ERA would affect the constitutionality (or lack thereof) of the civil remedy provisions of the VAWA, since the ERA (unlike the 14th Amendment) doesn't contain a provision specifically authorizing Congress to enforce its provisions through appropriate legislation.

Posted by: nolo | Mar 30, 2007 11:59:05 AM

You are not a serious person if you think opposing the ERA makes one a "woman-hating asshole". It's fair to assume you endorse the caption, right, since you linked to it?

Posted by: FoolsMate | Mar 30, 2007 12:06:18 PM

The ERA brings up some good questions with regard to mathiness and legal thoughts.

Namely, it's a shame that women earn 70% of what men earn in generally the same jobs. I'm not opposed to this being remedied via federal policy.

HOWEVER, I'm sure that there would be some companies where because of the specific employees there, the X women earn 70% of what the Y men do. This sort of variation is inevitable. And a wage policy that would deny the existence of variation is pretty problematic.

So what can we do? Basically all we can do is make it easier for women to sue when they think they are being discriminated against because of sex, and that certainly isn't popular.

Posted by: Tony V | Mar 30, 2007 12:09:31 PM

The ERA does contain an enforcement provision.

And no, I don't think opposing the ERA makes one a woman-hating asshole. Personally I don't see what the ERA accomplishes—it seems redundant in the face of the fourteenth amendment—so I don't see why we should pass it. Getting Republicans on the record seems like fun, though something of a cheap political shot if there's never going to be a real effort to pass it.

If you could convince me that passing the ERA would help reduce discrimination, then I might get on board.

Posted by: Nicholas Beaudrot | Mar 30, 2007 12:13:14 PM

Whether women are a suspect class is currently up to the courts, I believe. The ERA would change that, I suppose.

Posted by: Sanpete | Mar 30, 2007 12:22:51 PM

Are there equal protection cases where women lose when intermediate scrutiny is applied? My impression always was that in practice it came to the same end as strict scrutiny.

Posted by: collin | Mar 30, 2007 12:34:21 PM

I had an argument with some people in a comment thread over at Shakespeare's Sister about this. My points were these:

1) The ERA doesn't do anything about discrimination by private actors, such as employers, insurance companies, etc. (Read the language: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.") Congress already has constitutional authority to enact legislation to redress discrimination by private actors, and has done so (e.g., the Civil Rights Act of 1964 and Title IX).

2) As a result of activist litigation since the 1970s, the Equal Protection Clause of the 14th Amendment is now interpreted to prohibit most of what we think of as invidious sex discrimination by government actors. Here is Justice Ginsburg's description of the rule in US v. Virginia (1996):

Without equating gender classifications, for all purposes, to classifications based on race or national origin, the Court ... has carefully inspected official action that closes a door or denies opportunity to women (or to men). To summarize the Court's current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is "exceedingly persuasive." The burden of justification is demanding and it rests entirely on the State. The State must show "at least that the [challenged] classification serves `important governmental objectives and that the discriminatory means employed' are `substantially related to the achievement of those objectives.' " The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.

It is unclear to me what the ERA adds to that.

3) Any claim that the ERA will accomplish any specific thing beyond what exists in the law now (e.g., it will guarantee the right to an abortion) depends on getting a court to read that thing into the ERA. That is not something that the present, methodologically conservative judiciary is likely to do.

4) Choosing to commit resources to getting the ERA adopted is not a costless choice for progressives. Put more bluntly, for progressives, spending the next ten years arguing with right wing nutjobs about whether the ERA will require unisex bathrooms will not be a good use of that time.

5) None of the foregoing is inconsistent with thinking that it would be good if the ERA were part of the Constitution, if one could wave a magic wand and make it so.

Posted by: alkali | Mar 30, 2007 12:38:12 PM

Collin, that was my impression to ... that there has yet to be a case where "heightened scrutiny" was applied and yet the discriminatory law was upheld.

Posted by: Nicholas Beaudrot | Mar 30, 2007 12:50:17 PM

Alkali: Good summary, but the real question lies in point #4.

Sometimes you are shifting resources to fight a major battle when you'd rather use those resources elsewhere.

Sometimes the fight itself summons new resources. There may be plenty of women who aren't involved in Democratic politics that would be inspired by this battle.

This is why the right generates their own hot-button issues all the time. They don't think gay marriage is worth a ton of resources. They think arguing over gay marraige doesn't cost anything AND gets more people involved.

The proliferation of such issues though, while potentially helpful to the Democratic party, may not make for good policy.

Posted by: Tony V | Mar 30, 2007 12:50:24 PM

I'd like to believe that discrimination in law or policy on the basis of sex would not be upheld by todays courts.

Ummm ... I, as a man, can legally marry [insert name of your favorite teh hawt sessy gal here] but a woman cannot. Sounds ter me like a pretty straightforward matter of discrimination in law on the basis of sex.

Some courts have indeed refused to uphold that discrimination. But then you hear such outcries about "legislating from the bench" by the religious right, et al.

And this consequence of the ERA has not been un-noticed by the religious right, FWIW.

Also -- perhaps this just hasn't been challenged, but as a male, if I were to have forgotten to mail out one of those selective service registration cards, I would have been refused college financial aid. Women have no such burdon. Sounds to me like discrimination in law, albeit not a very big time example.

Also -- what about policies allowing men to go topless on beaches but not women? FWIW, even though I am a man, I don't go topless, simply because I am so frickin' white that the cost involved in putting enough sun-lotion on my torso that I don't fry would be prohibitive. I hardly wear shorts (except for swimming) for the same reason -- I don't want to spend money on the amount of sun-lotion it takes to keep my legs un-burnt. < / drifting off topic >

Posted by: DAS | Mar 30, 2007 12:53:37 PM

Thanks for the correction, Nicholas -- the version of the ERA I saw obviously was incomplete. The presence of an enforcement provision obviously would dispose of any need to invoke, say, the Commerce Clause as authority for the legislation (as the government did when it was arguing for the constitutionality of VAWA in the Morrison case). However, the VAWA would still be vulnerable to the same arguments that were made against its viability as an exercise of federal power under the Fourteenth Amendment. After all, the basis for the Court's rejection of the Fourteenth Amendment argument was that the Fourteenth Amendment's equal protection clause only applies to state actors, and does not extend to the conduct of individuals. The same argument could be made for the ERA, as it currently is worded.

Posted by: nolo | Mar 30, 2007 1:08:12 PM

One answer is that the 14th Amendment's equal protection clause applies only to the states. Nothing in the constitution can plausibly be interpreted as forbidding sex discrimination by the Federal government.

Posted by: Matt Austern | Mar 30, 2007 1:34:42 PM

I hope no one will dispute that reliable actuarial data shows that women live longer and experience fewer car accidents. Consequently, women enjoy lower auto and life insurance premiums than men do. Fair? I think so. However, the ERA would preclude insurance companies from offering different rates for men and women. Without being able to discriminate between men and women, rates will go up for women.

Posted by: FoolsMate | Mar 30, 2007 1:38:38 PM

Tony V sums up my dilemma:

Sometimes you are shifting resources to fight a major battle when you'd rather use those resources elsewhere.

Sometimes the fight itself summons new resources. There may be plenty of women who aren't involved in Democratic politics that would be inspired by this battle.

The "my plan will rally the armies of the disaffected nonvoters" argument is heard frequently on the left. I'm extremely skeptical, but I suppose I can't say that it's never correct.

Posted by: alkali | Mar 30, 2007 1:39:48 PM

Matt Austern writes:

Nothing in the constitution can plausibly be interpreted as forbidding sex discrimination by the Federal government.

The Supreme Court has held that the due process clause of the Fifth Amendment -- which is applicable to the federal government -- incorprates the equal protection guarantee of the Fourteenth Amendment. See, e.g., Tuan Anh Nguyen v. I.N.S. (2001) (reviewing gender discrimination claim against federal agency; "The question before us is whether the statutory distinction is consistent with the equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment.").

You may not find that reading of the Fifth Amendment plausible, but that's what the courts have held.

[FoolsMate: See my point #1 in my 9:38 am post.]

Posted by: alkali | Mar 30, 2007 1:48:38 PM

"However, the ERA would preclude insurance companies from offering different rates for men and women. Without being able to discriminate between men and women, rates will go up for women."

Would it? The text of the amendment forbids states or the government from abridging or denying "equality of rights under the law" based on sex. Do we have a right to equal insurance premiums that's currently being abridged? Granted, I'm a real amateur at this stuff, but by my reading that seems a bit suspect.

Posted by: Tim | Mar 30, 2007 1:48:55 PM

Here's what I'm confused about with the ERA. Doesn't it make men a suspect class? Won't it make any government affirmative action for women illegal?

Posted by: Noah | Mar 30, 2007 2:11:25 PM

Actually, Nicholas, there's almost nothing in the VAWA (at least in the grant program or immigration bypass portions) that's gender-specific. The actual text of VAWA is surprisingly gender-neutral, given the name.

-- ACS

Posted by: ACS | Mar 30, 2007 4:35:27 PM

Doesn't [the ERA] make men a suspect class? Won't it make any government affirmative action for women illegal?

Men are already a "suspect class" -- meaning that discrimination against them is subject to scrutiny under the US v. Virginia standard I quoted above.

For example, the Supreme Court decided in 1976 that a state law permitting women but not men to buy "3.2" low alcohol beer at age 18 violated equal protection.

That doesn't mean that all government affirmative action program that favored women are unconstitutional, but any such program would be subject to (at least) the same constraints as government affirmative action programs that favor minority racial and ethnic groups.

Again, that's all current law. I don't see that the ERA would change any of that.

Posted by: alkali | Mar 30, 2007 4:39:00 PM

You are not a serious person if you think opposing the ERA makes one a "woman-hating asshole". It's fair to assume you endorse the caption, right, since you linked to it?

I didn't think that's what the caption was trying to imply; I thought it was implying that anyone who thinks that Phyllis Schafly is worth listening to is a woman-hating asshole, which is probably true.

I mean, the woman said that it's not rape if it's your wife. If believing that doesn't make you a woman-hating asshole, what the hell does?

Posted by: Jason | Mar 30, 2007 5:17:38 PM

Speaking of Hillary....I'm still trying to figure out the blurr between policy disagreement, double standards and misogyny.
http://www.youtube.com/watch?v=48Nz5UB-UCw

Posted by: scoutt | Mar 30, 2007 10:43:13 PM

From my limited viewpoint as a male, it seems to me that widespread (but not universal) pay inequality and promotion maldistribution in larger private organizations/busineses is the remaining major evidence of gender inequality. If that is also true in state government or the federal government, I'm not aware of the studies that demonstrate that pattern. The Congress could change federal law to get to private actors who have provable gender disparaties without the ERA.

It seems to me that the time to renew the ERA constitutional amendment is when progressives are much more securely majorities in the federal legislative and exective branches, and have working majorities in enough states to realistically have a chance of passing the amendment. Without the working control, ERA might well eclipse other major issues on the national stage without a practical chance of getting passed. I'd fight on national universal health care, controlling the US military activities in Iraq, Iran, etc., improving educational success and access to higher education, and bringing back our domestic civil liberties curtailed by BushCo in preference to a fight that that will bloody the playing field to little practical effect. This says nothing about my feelings about gender imbalance which needs action, but not necessarily a constitutional amendment.

One of curious aspects of the previous ERA fight was the substantial number of women (mostly married and not working) who fought against ERA because they feared it would be a setback of some kind if passed, or wanted women to remain in secondary positions in the economy and society. I never understood that position, but it happened, and might happen again. Why send some women back into battle on the side of the conservative right?

Finally, I really don't want to fiddle with the constitution while the right wankers and their sympathists in the media are so much in control over public information. It seems likely that a renewed ERA fight will provoke the wasp's nest, and lead to counter amendments with truly dangerous consequences.

So, better laws, yes! Constitutional amendment for ERA, not right now, thank you.

Posted by: JimPortlandOR | Mar 31, 2007 2:46:10 AM

What if the ERA meant that progressive legislation meant to help remedy social discrimination along the basis of sex was ruled unconstitutional (think affirmative action)?

What if conservatives use the ERA to knock down government employee benefits to women, to pregnant people, etc? Just curious - isn't intermediate scrutiny the sweet-spot for an oppressed group? Do we want to shift it to strict scrutiny?

Posted by: MDtoMN | Mar 31, 2007 3:13:04 PM

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Posted by: judy | Sep 27, 2007 2:51:42 AM

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