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[1]

The intent of the ERA was to forbid sexism by U.S. federal and state governments.[2] Opponents raised all sorts of criticisms of the ERA, such as that it would subject women to military conscription,[3]:1018 bring about the end of sex-separated public bathrooms,[3]:1018 lose women beneficial labor laws,[3]:1017 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. Alternative solutions to legally enforced sexism, such as extension of the Equal Protection Clause and passage of piecemeal legislation, had proven slow and unreliable by the early 1970s. With regard to the 14th Amendment, the Supreme Court had historically proven to class women separately from men, finding in Muller v. Oregon (1908), for instance, that woman "is properly placed in a class by herself".[2]:877 In 1971, the Supreme Court refused to re-examine its 1961 finding that a Florida law requiring women to volunteer to be on a jury, while men were automatically registered, did not constitute discrimination.[3]:1015[4] Reliance on piecemeal legislation failed to address "the large role which generalized belief in the inferiority of women plays in the present scheme of subordination".[2]:883 Although the ERA had momentum on its side at first,[note 1] an organized backlash led by Phyllis Schlafly, who claimed that American women were the most privileged class of people in history,[5] 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.[6]

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,[7] and former Massachusetts Supreme Judicial Court Justice John M. Greaney supports this position too.[8]

Notes[edit]

  1. The amendment was ratified by 30 of the 38 required state legislatures within a year of its approval by Congress.

References[edit]

  1. Archive copy at the Wayback Machine ERA History
  2. 2.0 2.1 2.2 Brown, Barbara A., et al. The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women. The Yale Law Journal, vol. 80, no. 5, 1971, pp. 871-985. JSTOR.
  3. 3.0 3.1 3.2 3.3 Ginsburg, Ruth Bader. The Need for the Equal Rights Amendment. American Bar Association Journal, vol. 59, no. 5, 1973, pp. 1013–1019. JSTOR.
  4. Hoyt v. Florida, 368 U.S. 57 (1961)
  5. Schlafly, Phyllis. What's Wrong With "Equal Rights" for Women? The Phyllis Schlafly Report, vol. 5, no. 7, 1972.
  6. The 14th Amendment, Section 1
  7. Slate: What Is Anthony Kennedy Thinking? 12 June 2013
  8. Goodridge v. Department of Public Health, pages 64-76 of the linked PDF