How Courts Would Use the Equal Rights Amendment to Ruin the Country

COMMENTARY Courts

How Courts Would Use the Equal Rights Amendment to Ruin the Country

Feb 27th, 2020 4 min read
COMMENTARY BY
Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

Thomas is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow.
Speaker of the House Nancy Pelosi during a press conference on the House’s upcoming vote to remove the ratification deadline for the Equal Rights Amendment on February 12, 2020. Tasos Katopodis / Stringer / Getty Images

Key Takeaways

Like a zombie, it’s back. Decades after the ERA’s demise, advocates now claim they can resuscitate it and pick up where they left off.

If the court could turn its sociological opinion into a constitutional mandate without the ERA, imagine what it could do with that explicit constitutional weapon.

The ERA has been controversial from the start, and is even more so today.

Democrats claim they’ve taken a big step toward adding the Equal Rights Amendment to the Constitution: passing a resolution in the House of Representatives that allegedly removes the deadline for states to ratify the ERA.

To do that, however, they’d need to invent a time machine. Congress can’t amend a resolution that expired nearly four decades ago. But it’s easy to see why they’re resorting to such legislative sleight of hand. The ERA is more controversial than ever.

The Constitution requires two-thirds of the House and Senate to propose an amendment, and three-quarters of the states to ratify it. The ERA was so contentious that, beginning in 1923, more than 1,100 resolutions to propose it were introduced in the House or Senate before one finally received enough congressional support in 1972.

Getting even that far required the compromise of adding a seven-year ratification deadline. States initially jumped on board because of the ERA’s superficial appeal—who could be against equal rights, after all? Genuine scrutiny, however, stalled ratifications at 35 by January 1977, and led five of those states to withdraw their approval.

Controversy continued when Congress passed a resolution in 1978 to add three more years for ratification. That resolution had only majority support, rather than the supermajority the Constitution requires, and in 1981 a federal court ruled the extension unconstitutional. No additional states ratified the ERA and, whether it took its final breath in 1979 or 1982, the ERA died.

>>>The "Equal Rights Amendment" Virginia Just Ratified Is a Legal Fiction

Like a zombie, though, it’s back. Decades after the ERA’s demise, advocates now claim they can resuscitate it and pick up where they left off. Three more states—Nevada in 2017, Illinois in 2018, and Virginia this year—actually claim they’ve ratified it.

No More Mother’s Day

The ERA’s backers are trying such gimmicks because they know that time has only made the ERA more controversial. Many statutes and regulations from government at all levels make distinctions between men and women. If, as the 1972 ERA states, “[e]quality of rights under the law” may not be abridged, or limited, “on account of sex,” every one of those distinctions would be open to constitutional challenge.

Think that’s far-fetched? In 1977, while the 1972 ERA was pending before the states, the U.S. Commission on Civil Rights issued a report titled “Sex Bias in the U.S. Code” with 230 pages of such provisions in federal statutes. The list even includes the law designating Mother’s and Father’s Day as separate holidays. The author was then-Professor Ruth Bader Ginsburg.

Two decades later, now-Justice Ginsburg authored the Supreme Court’s opinion in United States v. Virginia holding unconstitutional single-sex education at the Virginia Military Institute. If the court could turn its sociological opinion into a constitutional mandate without the ERA, imagine what it could do with that explicit constitutional weapon.

Then There’s Abortion and Transgenderism

Then there’s abortion. During the House floor debate last week, House Speaker Nancy Pelosi (D-Calif.) said it had “nothing to do with the abortion issue.” If you believe that, I have some ocean-front property in Utah to sell you. To ERA advocates, everything has to do with the abortion issue.

In Roe v. Wade, the Supreme Court created a right to abortion based on the autonomy of women. Abortion advocates, however, have sought an alternative to Roe to keep the right to abortion alive (so to speak). Some believe that Roe itself is constitutionally defective. In a 1985 article, for example, Ginsburg argued that equality between women and men would be a stronger constitutional foundation for abortion rights. Others believe that state or federal statutes can fill the gap if the Supreme Court corrects its mistake and overturns Roe.

Last year, New York state adopted a law not only legalizing abortion up to birth, but even denying legal protection to babies who survive abortion. On the federal level, the so-called “Women’s Health Protection Act” would prevent state or local governments from taking any steps to protect children from abortion. Unlike the “right” to privacy and abortion, which is not in the Constitution, the ERA would be.

But the controversy does not stop there. Title VII of the 1964 Civil Rights Act prohibits employment discrimination “because of sex.” In three current cases, advocates want the Supreme Court to redefine the word “sex,” which meant biological sex when Congress enacted Title VII, to also include sexual orientation and gender identity. What do think they will do when “on account of sex” pops up in a constitutional amendment?

Then there’s a curious change in the ERA’s wording. In September 2013, for the first time, Rep. Carolyn Maloney (D-N.Y.) introduced a resolution to propose the ERA with a new first sentence: “Women shall have equal rights in the United States and every place subject to its jurisdiction. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” What does that mean?

The very first version of the ERA, introduced in Congress in 1923, read: “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” But what does it mean to say that women alone have equal rights? Equal with what? Maloney would not add this curious new sentence unless she believed it meant something different than the familiar “equality of rights” language. What’s going on here?

These few examples, both old and new, are more than enough to make the point. The ERA has been controversial from the start, and is even more so today. Federal judges will need no more than an imagination and a political agenda to use the ERA for all sorts of mischief. And it looks like ERA advocates are still trying, under the “equal rights” cloak, to turn it into a way to force upon Americans policies and cultural changes that they would not choose for themselves.

That’s no way to treat a Constitution.

This piece originally appeared in the Federalist

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