Equal Rights Amendment
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The Equal Rights Amendment (ERA) was a proposed amendment to the United States Constitution which passed both houses of Congress in 1972 but failed to gain the required number of ratifications by state legislatures. Congress originally mandated a 1979 deadline for the required 38 states to ratify the amendment, later extended to 1982. The complete text of the amendment was:
- 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
The intent of the ERA was to forbid sexism by U.S. federal and state governments. Opponents raised all sorts of criticisms of the ERA, such as that it would subject women to military conscription, or be broadly interpreted by courts to also apply to private clubs and let Susie Derkins into the G.R.O.S.S. clubhouse.
Passage of the ERA was a priority issue for feminists. Although the ERA had momentum on its side at first, an organized backlash led by Phyllis Schlafly and her infamous STOP ERA organization ultimately made opposition to ratification of the ERA a signature issue for the New Right.
As the courts already recognize sexual discrimination to be a violation of the Fourteenth Amendment, the ERA would have had little practical effect. The main effects would have been protecting against courts overruling precedence and finding sexual discrimination permissible (an extremely unlikely possibility) and possibly ensuring that sexual discrimination would be evaluated under strict scrutiny rather than intermediate. It would also have prohibited sexual discrimination against non-citizens; a literal reading of the Fourteenth Amendment limits its protection only to citizens.
The passage of the Equal Rights Amendment could have possibly invalidated laws denying recognition to same-sex marriage as unconstitutional. Several American jurists argue that denying a person the right to marry a member of his own sex constitutes gender discrimination. Anthony Kennedy has himself entertained this question, and former Massachusetts Supreme Judicial Court Justice John M. Greaney supports this position too.
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Interpretation: Originalism - Textualism - Responsive interpretation • Modes of review: Rational basis - Intermediate scrutiny - Strict scrutiny