Multiple Perspectives on the ERA and its Impact on Women’s Rights
In Name Only: The Inequality of the Equal Rights Amendment
By Cathi Herrod – President, Center for Arizona Policy
The Growing Power of Women
The Equal Rights Amendment made more sense in 1923. Women had just won the right to vote three years prior, and the first woman to serve in Congress was elected just three years before that. Following the momentum of the equal rights movement, amending the Constitution to affirm those achievements would have radically changed women’s standing in society.
But even without the ERA, women had made great strides by the time the effort resurfaced in 1972. Women had held a presidential cabinet position, sat on a federal court bench, headed a political party, and more. When the ERA hit the second deadline without reaching the 38 state ratification requirement in 1982, it had lost much of its urgency. Sandra Day O’Connor had become the first female U.S. Supreme Court Justice. Just two years later, Congresswoman Geraldine Ferraro became the first woman on a major party presidential ticket. It has only progressed from there.
To clamor for the ERA, breathlessly painting women as victims who need their own Constitutional Amendment, while Vice President Kamala Harris stands one breath away from becoming President of the United States, is laughable. Here’s why:
The ERA’s Redundancy: Existing Protections for Women
The U.S. Supreme Court has consistently ruled for decades that the Equal Protection Clause of the Fourteenth Amendment protects women from unequal treatment under the law. In 1971 — one year before the first resurgence of the ERA — Reed v. Reed set precedent when the Court applied the Equal Protection Clause of the Fourteenth Amendment to unanimously strike down a law that discriminated against women.
Twenty-five years later, in the United States v. Virginia, the Court affirmed Reed, writing, “Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature-equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”
The American Civil Liberties Union boasted a 40-year precedent of equality for women. The ACLU’s Women’s Rights Project Director, Lenora Lapidus, was adamant back in 2011, saying, “Since the 1971 case, Reed v. Reed, it has been clearly understood that the 14th Amendment prohibits discrimination based on sex. In decision after decision, many authored by conservative Supreme Court justices, this principle has been reaffirmed.”
Neither does the “wage gap” claim stand up to scrutiny. Women usually do not do the same job, working the same hours, with the same background as men. Women typically work fewer hours than men; they choose different education and training; they choose different career paths; and they take time out of the workforce or choose to work from home over higher wages. When the work is comparable and women are denied equal pay, the Equal Pay Act, the Civil Rights Act, and other laws ensure equal pay under the threat of penalty. For example, the University of Arizona recently paid $100,000 to settle a gender disparity lawsuit.
Abortion Expansion under the ERA
So, why in 2021 do we see such an effort to convince women they are not equal under the law, and will not be until a nearly one-hundred-year-old idea is carved into our Constitution? Because a well-funded, politically active industry stands to benefit in a major way. Don’t take my word for it, listen to what those in the abortion lobby acknowledge.
The same ACLU that cited Reed in its understanding of women’s rights ten years ago now ignores the landmark case and 40 years of precedent, demanding the ERA’s passage. The ACLU argues that the ERA would pave the way to “reproductive freedom” — meaning near-unrestricted abortion. The National Organization for Women writes, “[the] ERA — properly interpreted — could negate the hundreds of laws that have been passed restricting access to abortion care and contraception.” NARAL Pro-Choice America fundraised on the link between the ERA and abortion, claiming it would “enshrine” abortion in the U.S. Constitution, writing, “The ERA would reinforce the constitutional right to an abortion by clarifying that the sexes have equal rights, which would require judges to strike down anti-abortion laws because they violate the constitutional right to privacy and sexual equality.”
Pro-abortion activists have used state ERAs to roll back commonsense abortion restrictions and force taxpayers to fund abortions. They have done it in New Mexico and Connecticut, and are trying it in other states.
Legal counsel for the National Women’s Law Center, Emily Martin, confirmed the pro-abortion agenda, with the Associated Press reporting, “Martin affirmed that abortion access is a key issue for many ERA supporters; she said adding the amendment to the constitution would enable courts to rule that restrictions on abortion ‘perpetuate gender inequality.’”
Another recent article quoted the then-acting president and CEO of Planned Parenthood on the subject, stating, “There are no equal rights for women without access to abortion, plain and simple.”
The Evolution of a Term: How “Sex” Broadens the ERA’s Scope
The equal rights amendment’s modern purpose extends beyond expanding abortion, as well. Although the phrase “discrimination on the basis of sex” referred to women in 1923 and 1972, that is no longer the case. Courts have recently interpreted the word “sex” more broadly to include sexual identity, which means the ERA would protect biological men identifying as women. This redefinition not only negates the intent of the original ERA but also necessitates the violation of women’s rights.
Under the 2021 ERA, women are expected to forfeit to biological men their privacy and safety in locker rooms, showers, domestic violence shelters, even elementary school restrooms. They must also surrender their Title IX protections, relinquishing their athletic dreams and the scholarships and other benefits that come with excelling in sports. Women and girls must acquiesce to the new male dominant “female” sports.
The LGBTQ website Advocate recognizes this opportunity, writing, “This burgeoning case law suggests trans+ people are protected under the current interpretation of ‘discrimination on the basis of sex’… it stands to reason that trans+ people may also fall under the umbrella of the ERA’s protections.”
The Modern Push for the ERA
With these new opportunities for special interest groups to swiftly and permanently obtain their goals under the guise of women’s rights, one can begin to see why the Equal Rights Amendment is a top priority in 2021 and why they disregard obvious obstacles.
For example, a federal judge recently ruled the post-deadline ratification votes of three states came too late. Also, three other states rescinded their ratification votes, casting additional doubt on the optimistic viewpoint that the ERA is a Senate vote away from reality. The U.S. House voted in March to simply and retroactively dissolve the congressionally imposed and long passed deadline. They even ignore women’s rights champion, the late Supreme Court Justice Ruth Bader Ginsburg, who cautioned against ignoring the deadline by suggesting proponents “start over.”
Yes, start over if you must. Mount a campaign for a new Equal Rights Amendment if you think it necessary. But, do not leave out the word “women” and claim women are the beneficiaries when in reality, they will pay the highest price.
A Shifting Supreme Court: The Dangers of Not Ratifying the ERA
By Sean Fischer – Associate Dean for External Affairs, Rowan University
A Look at Opposing Arguments
In her piece In Name Only: The Inequality of the Equal Rights Amendment (ERA), Cathi Herrod explores the background and history of the ERA and makes salient points about the evolution of American jurisprudence concerning the 14th Amendment. She rightfully cites the 1971 Supreme Court (SCOTUS) case Reed v. Reed and the subsequent affirmation of the Reed decision in United States v. Virginia. While she is clearly thoughtful and informed on this issue, the introduction of sensationalized concerns related to selective abortion and transgender rights issues muddies Herrod’s argument about the ERA’s effectiveness. Likewise, in his piece The Current Equal Rights Amendment Endangers Women’s Equality, Kim Forde-Mazrui argues that through the evolution of judicial precedent the existence of the ERA is redundant and, at this stage, its ratification might do more harm than good. He suggests that the goals of the ERA de facto exist within the government already, and it would have a limited impact in the private sector, where women face more discrimination and need greater legal protections. He also speculates that its passage might inadvertently prohibit the optimization of efforts to enhance access and opportunities for women where they are underrepresented. Both authors indicate a sincere desire to see that the overarching goal of the ERA is achieved and remains codified as a legal standard.
The Risk of an Evolving Court
However, there is an important point to make about the value of codification versus enshrinement that is absent from both arguments. Forde-Mazrui notes vis-à-vis the aforementioned SCOTUS cases, “The ERA would thus make unconstitutional what is already unconstitutional.” While that is a fair point, that statement is only true for this snapshot in time. A more accurate reflection might be — If passed today, the ERA would assert what is currently considered unconstitutional would forever remain unconstitutional. Our SCOTUS (while it is designed to be, and has proven to be, less susceptible to the fluctuations of temporal political concerns than either the legislative or executive branches) can and has overturned precedent and constitutional interpretations before. Furthermore, we as a political body still debate the correct interpretation of the 14th Amendment itself. Thus, if we abandon the push for the ERA or rest in our faith that the Supreme Court will maintain the current interpretation of the 14th Amendment, we leave women’s equality in the crosshairs of political volatility. By no means am I suggesting either Herrod or Forde-Mazrui are advocating for this. However, if we follow their arguments to their logical end, we should minimally maintain this concern as two constitutional issues glaringly illustrate why there is a need to pass the ERA.
Upending Precedent: The Attack on Abortion
Despite the ruling of Roe v. Wade, both political actors and jurists have steadfastly worked to overturn the case in an effort to either return the issue of a woman’s right to chose to the individual states, ensure restrictions on a woman’s right to choose, or make selective abortion illegal. A recently configured SCOTUS with a clear conservative majority has arguably emboldened these efforts. Regardless of fervor and despite the constitutionally codified inherent right to privacy granted by Roe, the precedent has been under assault by anti-choice advocates since 1973. While a preponderance of arguments exists that champion Roe or seek to undermine it, what is clear is that what was “settled” by precedent in 1973 remains a volatile political issue. Without a clear constitutional reference point (such as a clearly worded and non-ambiguous amendment), this debate will continue and may result in the overturning of what is currently considered constitutional.
Changing Interpretation
In a more concrete example, D.C. v. Heller, which affirms the 2nd Amendment’s protections extend to an individual’s right to own a firearm, upended the interpretations of the 2nd Amendment made in United States v. Miller. Quickly summarized, Miller waded far more deliberately into the use of the word “militia,” whereas the majority opinion in Heller arguably glossed over the term via a particular historical interpretation. In this instance, we saw the Court’s evolution resulted in the overturning of their own precedent, which altered how they and other courts interpret 2nd Amendment protections. Nevertheless, gun control advocates have not let the ruling of Heller alter their political goals of promoting more regulations for private gun ownership.
Furthermore, while the courts have proven to be less politically mercurial than the other two branches of government, they are not immune from doing the wrong thing. In our history, the Supreme Court has ruled that free people of color, native populations, and Asian Americans were ineligible for citizenship, that separate but equal institutions were constitutionally permissible, and that citizens could be summarily denied their rights. Such rulings are rightfully considered embarrassing and repugnant through the lens of modernity, yet these precedents, grotesque as they may have been, were at one time established and then overturned through the Court’s evolution. Importantly, while the Supreme Court evolved in these examples to be more inclusive, there is no guarantee that future iterations of the Court will be configured or oriented similarly. Thus, we have to conclude that by failing to ratify the ERA, warts and all, women’s equality would be left in either a constitutionally nebulous, if not outright precarious place.
The Necessity of the Equal Rights Amendment
Therefore, what appears to be in the public interest is to remember these instances from our history and seize the momentum already behind the current ERA. By enshrining equal protections in the Constitution itself, we as a society will be fulfilling what Abraham Lincoln indicated was our civic obligation toward continuous improvement and demonstrate that the purpose of our government — “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity” — still matters. Herrod’s concise history and case law analysis and Forde-Mazrui’s ERA recommendations each illustrate the extent of the debate over the ERA and that much work needs to be done to ensure that the de facto and de jure goals of the ERA can be achieved in concert with one another. Those with more expertise in the American legal system will likely continue to offer recommendations for ratification or alterations to the ERA. However, there is a clear danger in failing to capture the momentum of where the ERA currently sits within the constitutional process and in relying on the courts alone to maintain consistent interpretive clarity, which must not be ignored or discounted within this ratification debate.
The Current Equal Rights Amendment Endangers Women’s Equality
By Kim Forde-Mazrui – Professor of Law, University of Virginia
Dear ERA supporter,
I strongly support the goals of the Equal Rights Amendment (ERA). Women’s equality is a legal and moral imperative that has not been achieved. Unfortunately, the current ERA would likely endanger women’s equality. It would fail to advance women’s equality over current law and, worse, it would likely prohibit efforts to advance women’s equality.
Let me put my perspective and beliefs up front. Women should be equal to men in all respects, including legally, politically, economically, and socially. In addition, neither sex should be expected to serve particular social roles. Women’s health and reproductive rights, including access to abortion, should be protected by law. The substantial inequality that persists today does not result from inherent differences between the sexes but rather from past and present discrimination, by law and custom, against women and girls that has limited and continues to limit their opportunities. Some laws have also aided women’s equality over the past fifty years but much more needs to be done.
The ERA’s main provision reads, “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.” The ERA thus purports to ban laws and other government actions that discriminate on the basis of sex.
The Good
The equal rights amendment would make unconstitutional virtually any state or federal policies that intentionally discriminate against women. Examples include discrimination by government agencies and employers, public schools and colleges, the criminal justice system, and the military, and it would prohibit sex-motivated harassment and violence against women by government officials.
The ERA’s “good” is largely redundant, however, because the Supreme Court’s (Court) interpretation of the Equal Protection Clause (EPC) already prohibits virtually all sex discrimination by the government against women. The ERA would thus make unconstitutional what is already unconstitutional.
The Bad
The ERA fails to address principal sources of women’s inequality that rightly concern ERA supporters. The ERA would only prohibit sex discrimination by the government. Most occupations in which women receive unequal pay and suffer harassment are private, and most violence against women is committed by men as private individuals. The ERA would also likely apply only to intentional discrimination, not to laws or policies that have a discriminatory impact on women not proven to be intentional. Nor would the ERA likely protect reproductive rights as the Court (counterintuitively) does not view such rights as sex-based, but rather as privacy-based; nothing in the ERA specifies that pregnancy or abortion should be viewed as sex-based.
The Ugly
My strongest concern with the equal rights amendment is that the Court would likely interpret the ERA to prohibit affirmative efforts through law and government policy to advance women’s equality. The Court would likely apply the ERA to sex discrimination similar to how the Court applies the EPC to race discrimination. As scholars of racial equality know, the Court applies the EPC in an increasingly “color-blind” manner, prohibiting virtually all race-conscious government actions, including laws and policies designed to enhance opportunities for Black people and other historically disadvantaged racial groups. By expressly banning discrimination “on account of sex,” the ERA would likely cause the Court to require the government to be “sex blind.”
For example, public schools of higher education would no longer be able to recruit for fields such as STEM, business, and medicine which have an underrepresentation of women, because the Court would likely hold that such policies discriminate against men. Similarly, federal, state, and local governments could no longer preferentially award even a small percentage of government contracts to women-owned businesses because such practices take account of sex. Similarly, legislatures and government institutions would no longer be able to seek to increase the representation of women in mid- and high-level management and corporate boards. For example, California’s recent law requiring at least one woman on corporate boards would be invalidated. Government employers that provide maternity leave, or laws that require such leave in the private sector, would be legally vulnerable. The foregoing policies all take “account of sex” by seeking to support women.
The ERA’s prohibitive effect would, moreover, likely extend to policies that rely on sex-neutral criteria if motivated at all by a desire to help women. As my scholarship on race equality explains, the Court views laws and policies that have a race-based purpose as discriminatory even if they use race-neutral means. Under the ERA, the Court would likely view laws and government policies that have a sex-based purpose as discriminatory even if they use sex-neutral means.
For example, laws designed to support women workers by requiring or merely encouraging paid parental or family leave (not just maternal leave) could be challenged under the ERA as discrimination against men. Or laws designed to promote equal pay for women by prohibiting employers from basing salary on an applicant’s prior salary could be invalidated under the ERA, because such laws would be motivated by a concern for women: i.e., “on account of sex.”
What to Do?
My prescription is twofold. First, we should let the current equal rights amendment go. It is worse than the status quo for women’s equality. Second, we should promote an alternative ERA. For example, feminist legal scholars Catharine MacKinnon and Kimberlé Crenshaw have proposed an “Equality Amendment” that would require affirmative efforts to advance sex equality, including for LGBTQ people. Also, several European countries have sex equality provisions in their constitutions, something ERA supporters point out. What such supporters seem not to recognize, however, is that, unlike the ERA, such constitutions expressly authorize policies to benefit women, and some even require a minimum representation of women leaders in corporations and legislatures. We can learn from the foregoing alternatives to draft and promote a more promising ERA.
I conclude with what I have observed elsewhere:
“The failure of the ERA to address the sex inequalities of today is not the fault of those who proposed the ERA or of those who have fought for its ratification over the ensuing decades. When proposed in 1923, few, if any, Americans imagined that constitutional provisions that guarantee race and sex equality would be interpreted by courts to invalidate efforts to achieve race and sex equality. Intentional discrimination against Blacks and women, by government and private actors, was pervasive. Race and sex equality advocates sought to enlist the courts in prohibiting discrimination against Black people and women. But no one thought that constitutionalizing race or sex equality would prohibit the very political institutions that were oppressing Blacks and women from trying to rectify that oppression. Nonetheless, that is the state of the current Supreme Court jurisprudence on race, one that requires color-blindness even at the expense of racial equality and one that will likely be reinforced by the recent rightward shift of the Court. Similarly, the ERA would likely mandate sex blindness at the expense of women’s equality.”
This article is part of Divided We Fall’s “Constitutional Questions” series, covering a range of political topics fundamental to the U.S. Constitution and democratic institutions. Through this series, we ask constitutional scholars, journalists, elected officials, and activists to discuss how these ideals are – and are not – implemented today. If you want to read more pieces like this, click here.
Cathi Herrod
Cathi Herrod is serving her sixteenth year as president of the Center for Arizona Policy (CAP). A champion of the pro-family movement, and an award-winning public policy leader, Arizona newspapers have recognized her as one of the ten most influential leaders of the 2000-2009 decade. She is the recipient of the Family Champion Award from Focus on the Family and the William Wilberforce award from Students for Life of America. One-hundred-seventy-four (174) CAP-supported bills have been passed into law since CAP made its first appearance at the state Capitol in 1995.
Sean Fischer
Sean M. Fischer is the CEO of Common Sense Consulting and has previously produced a public affairs radio show (Spotlight on Atlantic City, 96.1 WTTH). He teaches American history and government at several colleges and is a veteran of numerous political campaigns.
Kim Forde-Mazrui
Kim Forde-Mazrui teaches Constitutional Law, Employment Discrimination, Criminal Law, and Race and Law at the University of Virginia. His scholarship focuses on equal protection, especially involving race and sexual orientation. His articles have been published in several prestigious law journals, including the University of Chicago Law Review, the California Law Review, the Michigan Law Review, Vanderbilt Law Review, and the Georgetown Law Journal. At Virginia, Forde-Mazrui has also served as the Barron F. Black Research Professor and the Justice Thurgood Marshall Distinguished Research Professor of Law. In 2003, he was appointed the inaugural director of the Center for the Study of Race and Law. Forde-Mazrui holds a B.A. in philosophy from the University of Michigan and a J.D. from the University of Michigan Law School.