The Equal Rights Amendment, Cooties, and the Constitution

“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

In another period of my life–the insufferable thirteen-year-old boy who already knows everything phase–I was a deeply committed opponent of the Equal Rights Amendment. Informed by several pamphlets distributed by the youth leaders at our church, I stalked the halls of Waller Junior High school just looking for hippies and feminists to punch (metaphorically) with my superior intellect and rhetorical skill. I knew, in the same way that young Mormons “know” so many things, that if three more states ratified the ERA, our society would be plunged into a morass of unisex bathrooms, women in combat, and people of the same gender getting married to each other.

I got over it.

The 1979 ratification deadline came and went, and the forces of good triumphed. Oklahoma (where I grew up) did not pass the dreaded co-ed bathroom amendment. And, 40 years later, we have co-ed bathrooms, women in combat, and same-sex marriage. But we have still not ratified the ERA.

In 2017, though, something remarkable happened: Nevada ratified the ERA. In 2018, Illinois ratified it too. Both state legislatures were buoyed by the argument that the Constitution itself doesn’t limit the time frame for state ratification of amendments once they have passed both houses of Congress by the required super-majority. After all, the 27th Amendment became part of the Constitution in 1992–203 years after James Madison proposed it in 1789 and the First Congress of the United States approved it.

If one more state ratifies the Equal Rights Amendment, then it will reach the 38 state threshold necessary for inclusion in the Constitution. This doesn’t mean it will immediately take effect. There are several more issues to be worked out in the courts, like whether or not a legislative sunset clause can be enforced or legislatively rescinded, or whether or not a state can (as five states have already claimed to do) rescind ratification.

But there is a path–and it is a realistic enough path that ERA supporters in the 13 states that have not ratified it have been pushing their state legislatures hard to become #38.

Utah, as one of these states, is no exception. And the question that everybody had–“is the LDS Church still against it”–was answered conclusively, if not enthusiastically, by a statement from a spokesman that “The church’s position on this issue has been consistent for more than 40 years.” Though this is hardly, “We shall fight on the beaches, we shall fight in the hills; we shall never surrender,” it did squelch the hope that the Church might decide to remain neutral this time, and an editorial in the Church-owned Deseret News laid out the rest.

The Deseret News raises two objections to the ERA 2.0. The first objection is precisely the same objection raised in 1976: “far-reaching unintended consequences that could ultimately harm women.” The second objection is more recent: “Serious doubt remains whether the expired amendment can be picked up more than 40 years later.”

As a former (but reformed) anti-ERA crusader, I would like to speak briefly to each of these points, which, I think, are misguided. But they are misguided for different reasons: the second point, while absolutely true, is not actually an objection; and the first point, while certainly an objection, is not actually true.

Let’s take the unintended consequences argument first, of which the DN suggests there are many possibly including, but not limited to, the following:

“It could, for example, change family law — including child custody rights in divorce — impact abortion law and potentially draft women into military service during times of war.”

There is some code talking going on here, but what they seem to be saying in the first two points is 1) that women might not be given custody automatically in all divorce cases where the husband is not an ax murderer; and 2) that it might be more difficult to place unnecessary burdens on women seeking abortions. These are not unintended consequences. They are part of what “equality of rights under the law” means.

As for women being drafted. I agree that women should not be drafted into the military. I also agree that men should not be drafted into the military. There is an easy way to meet the burden of equality under the law here: don’t draft anyone, and don’t start wars. If the Canadians ever decide to mount an attack across the border, then I would hope that good citizens of all genders would rise to the occasion and beat them back with their own hockey sticks.

But these aren’t the real objections. A claim of unspecific “unintended consequences” is not an argument; it is the absence of an argument masquerading as something to say. It is designed to raise the specter of unimagined awfulness that nobody has considered. Sure it sounds good now to give everybody equal rights under the law, but once we let loose the monster, we cannot control it, and things could go drastically awry. There could be cooties.

It is difficult to refute this kind of argument, but, fortunately, it is not necessary, since laws don’t work that way. Constitutional amendments are not like the Stone Golem of Prague. We don’t set them loose into them world to wreak havoc on their own. They are guidelines for passing laws and are subject to interpretation and implementation within a democratic framework. If it somehow turns out that the ERA requires us to sacrifice every third daughter to Isis, we have ways to deal with it before anyone gets killed.

The consequences of declaring everybody to have equal rights are actually not that complicated–it means that everybody will have equal rights. And though some individuals and organizations may object–preferring to retain the ability to treat people unequally, neither states nor the federal government should be among them.

But what about the whole bit about revisiting an amendment forty years after it supposedly faded away into a sunset clause? This is actually an interesting question, and I don’t know the answer. The Constitution is silent on all of the key questions, which will have to be tested in the courts–up to and including the Supreme Court, because, well, that’s how the Constitution tells us to resolve these kinds of questions. I have no idea what will happen if the ERA is passed by one more state. And neither does the Deseret News.

But it makes no sense to treat this as a reason not to ratify the amendment. Quite the reverse: in its current form, the Equal Rights Amendment raises some fascinating and important questions that have never be resolved. The answers to these questions will be important to the way that we craft future Constitutional amendments. The current situation gives us a great way to test these questions in our federal court system. Let’s try it and see what happens, and if it doesn’t make it through the Courts, then we will know we have to try again from scratch.

But we should keep trying because there is something important at stake. “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex” should not be a controversial statement. It expresses values and policies that are central to our religion, our nation, and our very humanity. The Constitution of the United States is the foundation of our law and the symbolic soul of our nation. Our commitment to equality–as both law and symbol–matters. It is time to pass the Equal Rights Amendment.

Comments

  1. Left Field says:

    It’s worth noting that Utah has virtually the identical provision in its own constitution. And it’s been there since statehood, so any unintended consequences might have reared their head by now.

  2. “The rights of citizens of the State of Utah to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.”

    That’s what the Utah constitution says. It also says that schools have to teach the metric system, idiots can’t hold elected office, and public officers can’t enrich themselves from public money. Yet here we are.

    Per the constitution, only men could vote for the constitution, in spite of the above clause about women voting, and ballots were to be cast for the constitution by erasing the word Yes for a No vote or erasing the word No for a Yes vote on the ballot. Can you imagine Florida voting this way?

  3. What does the ERA do that the 14th Amendment doesn’t already do? The ERA really just seems like a subset of the general protection of equal protection under the law. With that in mind, the ERA ought to do something, and if we can’t identify what that something is, why would we then hand it over to judges to figure it out? The unintended consequences argument then is pretty darn powerful in the absence of any intended consequences. And if the suggestion is that abortion rights are among the intended consequences, then sign me up to picket against the ERA.

    The ERA is not close to passage. The argument that Congress can resurrect an amendment long after its sunset is incredibly weak. The states ratified under the understanding that if it didn’t pass by a certain date, it would not become part of the constitution. Further, the other necessary argument, that a state can’t rescind ratification, is preposterous. I would ask proponents of these legal theories how they would feel if something like a Defense of Marriage Amendment had gotten close to passing, whether a state could not rescind its ratification.

  4. Sorry, but a couple of other things that bothered me about this.

    “The consequences of declaring everybody to have equal rights are actually not that complicated–it means that everybody will have equal rights.” I don’t mean to sound rude, but this is a naive statement. We’ve spent the better part of a century trying to figure out what equality means. I don’t see how the ERA makes that any clearer.

    “which will have to be tested in the courts–up to and including the Supreme Court, because, well, that’s how the Constitution tells us to resolve these kinds of questions.” No, actually, the Constitution doesn’t say that. The Supreme Court decided that it had the right and responsibility to do so several years after the Constitution was ratified. I’m not opposed to judicial review, but in an ideal world we would all know exactly what it is we are passing into law, and we would respect the law as passed without trying to make an end-run around it. Congress set a deadline. That deadline wasn’t met. If folks want the amendment passed, they will have to start over.

  5. The standard of revenue for sex based discrimination is intermediate scrutiny. Passage of the ERA would most assuredly elevate the standard to strict scrutiny.

    I’m pretty sure the “unintended consequences” the church is worried about is the loss of tax exempt status if women remain ineligible to hold priesthood offices.

  6. Review, not revenue. Stupid autocorrect.

  7. The argument of “we haven’t been able to think of a bad unintended consequence” is a pretty sad reason. Might as well have not joined the Union at that point. Without the ability to see the future, just huddle in a corner until you starve to death? I get not ratifying it on day one, but if you’re best and brightest can not come up with reasons to not support something that many feel are important, go ahead and support it.

  8. I just finished reading “Invisible Women: Data Bias in a World Designed for Men” by Caroline Criado-Perez, and while I definitely still support the ERA, I find myself actually more sympathetic to the “unintended consequences” argument. To summarize a couple of key takeaways from the book: ‘Gender-neutral’ does not mean men and women are affected equally, and there’s a serious gender data gap dating back millennia that would even allow us to understand all the [sex-disaggregated] consequences of our decisions. It’s not a reason to oppose the ERA, I think, but if it ever passes there will almost certainly be some major growing pains that, in this political climate, might take a reeally long time to fix.

  9. Michael Austin says:

    “No, actually, the Constitution doesn’t say that. The Supreme Court decided that it had the right and responsibility to do so several years after the Constitution was ratified.”

    The Constitution says:

    “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

    Whether or not this means that the courts have the power of judicial review depends on whether or not judicial review was understood by the framers to be a “judicial power.” It was. We have overwhelming evidence that judicial review was understood and regularly practiced in both England and America as an element of what was seen as judicial power. The argument that judicial review was NOT part of the Constitution can only be made by dropping the assumptions of “originalism”–or the doctrine that the Constitution should be interpreted by the way it was generally understood by those who originally created and ratified it. Ironically, though, the argument against judicial review is almost always made by those who consider themselves “originalists.”

  10. Michael, I think you missed the point of my comment. I specifically said that I’m not opposed to judicial review. However, the Constitution does not give exclusive power to the judiciary for constitutional interpretation. Every branch of government, and in the case of Tge amendment process, the states, have the duty to interpret the constitution and avoid taking any action that is in violation of it. Knowingly throwing the issue to the courts in the face of ambiguity is an abdication of that duty and unwise.

  11. Michael Austin says:

    “The states, have the duty to interpret the constitution and avoid taking any action that is in violation of it. Knowingly throwing the issue to the courts in the face of ambiguity is an abdication of that duty and unwise.”

    You are assuming that the ambiguity is all on one side, which is not, actually, how ambiguity works. There is a reasonable argument that Congress acted unconstitutionally by putting a sunset clause on the Amendment, since there is nothing in the Constitution that says they can do that. There is also a very strong argument that, since the sunset clause was placed legislatively it can be rescinded legislatively, by a simple majority in Congress. And, yes, there are arguments on the other side.

    You are assuming that the arguments against rescinding the sunset clause are a slam dunk. They are not. If they were, it would not be ambiguous. The courts have the responsibility to clarify things like this, and we use them for this purpose regularly. The vast majority of cases that are decided by the Supreme Court contain ambiguities that have been specifically created to test and resolve legal and Constitutional issues. If there are no ambiguous issues to resolve, then the Court will probably not take the case, since solving unambiguous cases of settled law is not worth their time.

    You are also assuming that individual states voting to ratify a duly proposed Constitutional Amendment constitutes an action that is in violation of the Constitution. This is simply not the case. Whether or not the Amendment becomes part of the Constitution is a legitimate question that could be decided either way, and it will not go into effect until that is decided. But there is nothing illegal, unconstitutional, or inappropriate about an individual state legislature voting to ratify an open Amendment. Ultimately ineffective is not the same thing as unconstitutional. That is not even a controversial question.

  12. There is no “reasonable” argument that Congress acted unconstitutionally by passing a sunset provision. Article V commits to Congress the power to propose amendments by a 2/3 vote. There is no limitation on that power. The arguments in favor of rescinding the sunset provision are juvenile and smack of “Air Bud” logic (“there’s nothing in the rule book that says you can’t”).

    A state voting to ratify a duly proposed and valid constitutional amendment is not in violation of the constitution. A vote to ratify a dead amendment in an effort to circumvent the role of Congress in the amendment process is unconstitutional because that’s not how the amendment process is laid out. It is, therefore, totally inappropriate.

    By the way, I still don’t have any response to what this amendment does that the 14th amendment doesn’t do. I don’t understand why there is an urgent need to get creative with the process to pass an amendment that just expresses a subset of the Equal Protection Clause.

  13. Don said: “Per the constitution, only men could vote for the constitution . . . .”

    If he’s talking about Utah’s constitution the clause he quotes at the beginning of his comment belies that statement. And if he’s talking about the U.S. Constitution, he’s unfortunately ignorant of what the Constitution actually says.

  14. Michael, you are confusing the issues. The Constitution explicitly grants to Congress the power to propose an amendment. That power must be exercised by a 2/3 vote of both houses. Article V grants a power and provides no hint that Congress cannot, in exercising that power, place limitations on it. So we have a grant of power without a restriction. Likewise, Article V grants to the states the power to ratify to the states, and places no specific restrictions on that power either. The power to ratify implies the power to rescind ratification before the amendment becomes effective absent any language to the contrary. There is absolutely nothing contradictory in that.

    At any rate, look at your erroneous summary of my argument. If the inverse is the ERA proponents’ position, isn’t that also “arguing on opposite sides of the issue”?

    In the case of the ERA, Congress passed a joint resolution that stipulated that the amendment would only be valid if ratified within seven years. That’s what the state legislatures voted on. Most states that ratified referenced the resolution’s sunset clause in their ratification. To hold those ratifications valid would be to change what the state legislatures voted on. Voting to ratify is inviting the judiciary to make a decision in contravention of the constitution (i.e. unconstitutional).

    Your argument now appears to be that we should conduct a constitutional experiment to see what is and isn’t legal. This is a terrible reason to do anything. So, for the third time, I ask, what does this effort get us that the 14th Amendment doesn’t already do?

  15. Re Don’s comment: “That’s what the Utah constitution says. It also says that schools have to teach the metric system, idiots can’t hold elected office, and public officers can’t enrich themselves from public money. Yet here we are.”

    The metric system bit was amended out long ago. The word “idiot” wasn’t meant the way we use it today, and so was amended to refer to “mentally incompetent persons.” And popular perceptions of self-enrichment are much higher than the fact of it. It’s been several years now since elected officials could legally spend campaign funds on personal use, for example.

    It turns out that constitutions do matter. Utah has had ERA-like language in its constitution since statehood, and we have not seen the slipper slope into hell just yet.

  16. Dsc, you’re wrong. Only Republicans have the duty (and the immeasurable wisdom) to interpret the Constitution.

  17. My husband’s job gives him an amazing 4 weeks of paternity leave. His employer gives women 4 weeks of maternity leave. That is equal, but it is not fair, considering that a mother’s body needs time to recover in ways that a father’s doesn’t.

    I generally like the idea of the ERA, but I’m curious about how it would affect situations like maternity leave.

  18. Deborah Christensen says:

    Special K.-4 I’d say as far as the ERA is concerned women should get the same amount of leave as a man…if the baby was adopted or birthed by a surrogate.
    If the woman has been pregnant and given birth, possibly with a major surgery then she should get more time off.

  19. It only makes sense to have the same parental leave time for men and women if it’s based on the woman’s needs and physiology. But this is the concern, that policies would be based on what works better for men. Men are still treated as the default human being. Having an ammendment guaranteeing equal treatment is fantastic as long as men and their needs aren’t considered universal. 4 weeks for leave is appaling.

  20. The fact that a bill with a sunset clause that took effect over forty years ago is being called “ambiguous” seems to be a pretty good argument that even laws with clear language may have unintended consequences.

    That said, I see nothing wrong with states continuing to ratify it as a political statement – and perhaps it will gain enough momentum to be re-proposed as an amendment.

  21. Dsc, “What does the ERA do that the 14th Amendment doesn’t already do?”

    “By the way, I still don’t have any response to what this amendment does that the 14th amendment doesn’t do.”

    “So, for the third time, I ask, what does this effort get us that the 14th Amendment doesn’t already do?”

    I believe JLM answered this the first time it was asked. In fact, less than 30 minutes after it was asked. But that doesn’t matter because if you actually wanted an answer it is easily found, even if you think it is wrong. This isn’t a game where you score points by asking a question that other people do or don’t answer. Cheerio.

  22. Rockwell: the question was directed at Michael, which was a little more obvious before Michael deleted at least one comment that I was responding to. In any event, describing the level of scrutiny doesn’t really answer the question anyway. What situations would be affected by apply strict scrutiny rather than intermediate scrutiny? There are plenty of legal scholars who argue that there’s no real difference between the two standards. And you seem to imply that I have not researched the issue. I have. Most advocacy I have read either restates things already protected by the 14th Amendment, or else it mentions things that the ERA would not affect (like workplace pregnancy discrimination, which involves discrimination by a private party, not the government).

  23. Dsc, I did not mean to imply that you have not researched the issue, although I can see why you would say I imply that. Knowing your comment history I’m sure you consider yourself well versed in the law. I don’t claim to know enough about the law to say if you actually know your stuff or not, but I wouldn’t expect you see you give a balanced view.

    I was pointing out that you asked the question three times and ignored the answer put forth by JLM. I appreciate seeing your response on scrutiny. It’s the first time I’ve seen someone claim scrutiny level doesn’t really matter. I may have to look into that.

    That you wanted an answer specifically from Michael was something I considered, but I thought you still would have made some kind of acknowledgement to JLM. But that’s your prerogative.

    From what I’ve read, the supreme Court has been using the 14th amendment to protect women (not with strict scrutiny), but only since the 70s, and I’m not sure the reason for the change. Not have all justices have agreed. In fact, I’m sure you’re probably aware that Antonin Scalia did not agree with you; he said specifically that the Constitution does not protect women from discrimination. With Scalia on the record on the subject, I’m not sure why anyone would need to invent a hypothetical case for you to argue against.

  24. Rockwell: I guess I’m not sure why the isolated opinion of a single, now-dead justice whose opinion cannot possibly be squared with the text of the 14th Amendment, especially when read in conjunction with the 19th Amendment, should justify a constitutional amendment to say what the Court and the constitution already say. It would be like adding a second religious liberty amendment in response to a single dissenting opinion questioning some traditionally held aspect of the free exercise clause. The constitution already says it, the Court already upholds it, so why change it?

    Since I don’t support the ERA, it’s important to me to respond to actual supporters’ assertions about its potential impact. However, since I don’t know of any concrete examples of what the ERA would change, I’m left to speculate. The Equal Protection Clause stands on the principle that people who are similarly-situated should be treated the same by the law. The ERA potentially shifts that understanding to assume that the law must treat men and women perfectly equally, regardless of actual differences between the sexes. While that sounds great, there are real world problems. Take abortion, for example. If we assume that abortion remains legal, how do we square a woman’s power to determine, at her sole discretion, whether her child lives or dies with equal rights? Does the ERA then require that men be permitted to have a so-called “paper abortion”, which would allow a father to disclaim any parental responsibility to the child? After all, if a woman can choose not to become a parent, equal rights would dictate that a man have the same right. On the other hand, if the Court reversed its atrocious abortion precedent, how would “equal rights” affect a woman’s ability to get government aid during pregnancy or hold the father accountable? Are equal rights served by requiring fathers to financially support the pregnancy (my preferred solution)? Or does the financial support requirement grant special rights to women that are not available to men? What about the maternity leave issue raised above? If the government created a system of government-sponsored parental leave, would the amount of time have to be the same for mothers who gave birth and fathers who didn’t? If longer leave is justified for mothers on a medical basis, would such a program also require that non-childbirth medical events be treated equally? As Special K pointed out, sometimes equal can be the enemy of fair.

  25. In LDS circles I sometimes hear “unintended consequences” interpreted as “prophet/seer/revelators are seeing ahead; trust them and vote no.” I don’t know that this is intended, and I more often hear people (and the Deseret News) filling in the unintended with actual but speculative consequences. But I’m intrigued by the role of the “PS&R know better” argument. It seems to me a good example of where I want religion and state to separate. Give me reasons, not “trust me” by one religious leader over another. And a good example of what D&C 121:41 advises against, i.e., an attempt to influence by virtue of the priesthood rather than persuasion and long-suffering.

  26. A tangent on unintended consequences:
    Some have or claim experiential reasons for trusting a leader apart from persuasion on a particular issue, others have or claim experiential reasons for not trusting that same leader apart from persuasion on a particular issue. Perhaps the difference can be found in which experiences (positive or negative) of the results of the leader’s earlier/other claims matter most to those able or unable to trust without persuasive reasons on the current issue. Or it may be that one’s general experience with authoritarian figures has been either positive or negative, even without experience specific to the particular leader who urges “trust me.”
    I had not thought to connect the bald “trust me” claim of the “PS&R know better” argument to D&C 121:41. After Chris’ comment the connection now seems obvious, at least for those who have reasons to distrust, but doesn’t address those who have or claim reasons to trust even without knowledge on a particular point.
    My level of trust in statements of a leader that are bolstered only by direction to “trust me” is similar to my amused reaction to use of the phrases “to be honest” or “I’ll be honest with you”. Use of those phrases allows the inference that not using them at other times means the person who uses them is not being honest at those other times. Even while recognizing that that inference is not an intended implication, the use of those phrases or of “trust me” may have, for some, the opposite of what I suppose is the intended result.

  27. Michael Austin says:

    ” A vote to ratify a dead amendment in an effort to circumvent the role of Congress in the amendment process is unconstitutional because that’s not how the amendment process is laid out. It is, therefore, totally inappropriate.”

    You understand, of course, that the overwhelming majority of cases that the Supreme Court considers have been designed to test a legal principal. We have a process of Constitutional interpretation that requires that questions be asked before the courts make interpretations. Sending this case to the federal judiciary is no different than sending, say, a law that limits abortion after 16 weeks or one that bans certain kinds of weapons. Constitutional law is constantly being fine-tuned because individuals and states ask for certain things to be considered. Saying that it is “unconstitutional” to pass laws and allow them to be tested in the courts kind of misses the entire point of the judiciary.

    I get that you totally think that your interpretation of the Constitution here is right and mine is wrong. Most people think that their ideas are right and other people’s are wrong. We are kind of built that way. But the fact is that there is significant disagreement on this issue, and your interpretation of the interaction between a Constitutional process and a Congressional resolution is not universally shared. There is an argument on the other side that reasonable people can and do believe. And it is not self-evident in the Constitution that a Congressional resolution limiting the Amendment process cannot be overturned by another Congressional resolution extending it.

    It is also true that comment threads on blogs are not an approved path for Constitutional interpretation. The fact that you disagree, and assert that anybody who disagrees with you is unreasonable, is not actually Constitutionally meaningful. Courts largely exist because anonymous blog commentary is generally unreliable. The suggestion that ambiguous issues should not be referred to the federal courts fundamentally misunderstands the way that our institutions work.

    And the idea that it is “unconstitutional” for a state to vote to approve a proposed amendment is just silly. A state legislature does not have the power to make a declaration that is binding on the federal government. Without that power, then a ratification vote is simply an expression of the legislature’s opinion. If, as you say, the Amendment is dead, and there is no way to bring it back, then state legislatures who ratify it are wasting time. They are not accomplishing anything because they lack the power to accomplish anything. It only matters if the Federal Government accepts their vote as a legitimate exercise. A state could vote to ratify Prohibition without doing anything unconstitutional. It would just be dumb. To act unconstitutionally, you have to be exercising power, and a state vote to ratify an amendment is only an exercise of power if the amendment is still alive. If it is, as you say, dead, then the state has not actually acted.

    “What does the ERA do that the 14th Amendment doesn’t already do? The ERA really just seems like a subset of the general protection of equal protection under the law.”

    The 14th Amendment was designed to convey due process rights to everyone under the jurisdiction of the United States or any of its states. It was not designed to convey civil rights, or rights attaching to citizenship. We know that its framers did not intend for it to cover civil rights because the same Congress that passed the 14th Amendment also passed the 15th Amendment conveying the right to vote to all of the people who gained the right to due process under the 14th Amendment.

    If the 14th Amendment had indeed conveyed all of the civil rights necessary for full legal equality, there would have been no need for a 15th Amendment, or a 19th Amendment, or a 1964 Civil Rights Act, or the 1972 Title IX legislation that effectively created an ERA-like set of rights in higher education. The level of scrutiny that JR brings up is important, as is the idea of putting in the Constitution what is now handled through legislation. I can imagine a parallel universe where the 14th Amendment was indeed interpreted to provide all of the civil rights that the Civil Rights Act, Title IX, and the Equal Rights Amendment provide. But we do not live in that universe.

  28. Dsc, Scalia’s opinion is obviously relevant because it reflects an originalist viewpoint, similar to what one would expect to hear from other originalist justices, Gorsuch, Kavanaugh, and probably any justice nominated by Republicans in the near future.

  29. Are gender-designated public restrooms separate but equal?

  30. I’m not necessarily against *an* ERA, but join Dsc in believing that the one proposed now would be at best superfluous vis-a-vis the 14th Amendment. Perhaps its value is in its symbolism, but I can’t think of another Amendment we’ve passed for purely symbolic reasons. At worst, it will add effects/rights that no one seems to be able to articulate–good or bad (depending on you POV). And if we don’t know what it’s going to do above and beyond the 14th Amendment, then maybe it’s time to go back to the drawing board and spell those things out so people can make an informed decision.

    Also, FWIW, my personal experience tells me that “intermediate scrutiny” is a construct we learn in law school, but exists largely as window dressing in real litigation–intermediate is almost always treated in practice as strict. As always though, YMMV.

  31. Michael: You are of course free to disagree and claim that your viewpoint has validity. But, to me anyway, that’s a bit like Trump claiming that a quid pro quo is not a quid pro quo. Yes, it’s an argument that people make. No, it’s not entitled to any serious consideration.

    I understand what you’re saying about states having the right to test the law. From a practical standpoint, I don’t object to that. My claim that such a move is unconstitutional does not imply that it is immoral or somehow procedurally barred. I do think that advancing an argument on the basis that it hasn’t been tested in the courts is an abdication of the states’ individual responsibility to analyze and apply the constitution. To try to bring the case to the courts on the basis that the Supreme Court hasn’t decided it yet is, in my view, irresponsible. A federal district court has already persuasively ruled on these issues. The arguments I see don’t even pretend to address that case (it’s Idaho v. Freeman, in case you’re curious). At any rate, I’m not interested in splitting hairs between what is “unconstitutional” and what is “constitutionally ineffective.”

    “[The 14th Amendment] was not designed to convey civil rights, or rights attaching to citizenship.” Really!? “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

    The framers of the 14th Amendment assumed two classes of rights: political and civil. The 14th amendment unquestioningly granted equal protection of civil rights. There was some debate about the grant of political rights; hence the 15th Amendment and later the 19th Amendment. Some of the framers of the 14th Amendment doubted that the 15th Amendment was necessary, but it was passed in order to ensure that political rights were granted to newly freed black citizens. My question is if the ERA is necessary to ensure equal rights for women, why is there not a similar amendment that is necessary to ensure equal rights based on race? After all, race is not mentioned in the 14th Amendment. Would not the combination of the 14th and 19th Amendments have the same effect as the 14th and 15th Amendments?

    The scrutiny question is something, I guess. But how is that any more concrete than the vague “unintended consequences” argument that you’ve criticized? I honestly can’t think of any circumstance in which heightened scrutiny changes the status of any law or set of laws in a positive way. I’m open to concrete examples, but so far, I don’t have any. As I’ve already pointed out, I CAN think how it would negatively affect current or hypothetical laws.

    You’ve also made the same mistake that so many ERA proponents have made with respect to the applicability of the Amendment to non-government action. The text of the ERA does not have any effect on private parties. Under a constitution with an ERA, the Civil Rights Act, Title IX, etc. are all still necessary because these regulate actions between private parties.

  32. Rockwell: Originalists are not a monolithic group. I’ve seen absolutely no indication that Gorsuch, Kavanaugh, Alito, Roberts, or even Thomas (who sat out the VMI case where Scalia registered his lone dissent on this issue) agree with Scalia. Originalist scholars disagree with Scalia on this issue (see Calabresi and Rickert, Originalism and Sex Discrimination, Texas Law Review, Vol. 90, No. 1, 2011).

  33. Michael Austin says:

    “Michael: You are of course free to disagree and claim that your viewpoint has validity. But, to me anyway, that’s a bit like Trump claiming that a quid pro quo is not a quid pro quo. Yes, it’s an argument that people make. No, it’s not entitled to any serious consideration.”

    Yeah, this is why I prefer to have issues like this decided by courts rather than comment threads on blogs. Deciding what deserves serious consideration is just not something that comments sections do well.

  34. Michael: A court has already decided this. This only becomes a serious argument if you put forth facts or reasoning that somehow demonstrates that the court was wrong.

  35. The argument that I’m more interested in is the issue of what the ERA would actually do. After all, “A claim of unspecific [benefits] is not an argument; it is the absence of an argument masquerading as something to say.”

  36. You know what’s really fun? Watching a bunch of having a pissing match about a statement on the equality of women. Sigh.

  37. Kristine, feel free to join in with an argument on one side or the other. Laws aren’t merely statements. They affect people in very real ways. What they do and don’t do seems pretty relevant to me.

  38. So chime in, Kristine. You own the blog; nobody’s standing in your way.

  39. A Turtle Named Mack says:

    Managing unintended consequences is always a post hoc endeavor. By definition, there must be actual consequences, which can only occur after implementation. And there will ALWAYS be unintended consequences. We can try to anticipate, and avoid, undesirable outcomes and limit them through modifying a policy or enacting concurrent policies aimed at mitigating them. However, most of the problems we anticipate never emerge in any significant way. Being paralyzed by the spectre of unintended consequences is just poor policy-making. There will absolutely be unintended consequences of an ERA. As a man, I guess I could allow myself to be frightened by that (they will surely limit my privilege in some measure), but I’m actually convinced that many of those will be positive consequences that we weren’t able to anticipate.

  40. Kristine – The ERA doesn’t mention women, just says –
    “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
    Could refer to either sex, or any sex. Unless it is passed and the Supreme Court starts interpreting and ruling on it we really wouldn’t know how it would impact women, or men, or anyone else who claims to be neither. And I think that is part of Dsc’s question, what rights do either sex not have today that the ERA would protect tomorrow?

  41. A Turtle Named Mack – What privileges do you currently enjoy today that you are sure would be limited in some measure?

  42. A Turtle Named Mack says:

    No more-
    Preference in hiring, promotion, and compensation… lower health insurance premiums… lots of stuff I don’t even realize…

    One might counter that the 14th amendment is supposed to cover that stuff. Well, it doesn’t seem to be working.

  43. “lots of stuff I don’t even realize…” Well, if you don’t realize it then how are you so sure it exists?

    Look, I am neither for nor against the ERA. I have not been convinced that it would either help nor harm anyone. It could be interpreted anyway. The way the Supreme Court wrestles with words and derives interpretations out of thin air, and the myriad of 5-4 decisions they have made over the years, leads me to believe that we just can’t know the outcome. We might guess, we might have good intentions, but we just don’t know. That doesn’t mean we shouldn’t move forward if we believe the ERA is necessary. I’m trying to understand both sides and why today in 2019 given the state of our society, and the patchwork of all our other amendments and statutes and regulations, if and why the ERA today is necessary to correct some injustice. Is this the right fight? Is it necessary? I don’t know, but I haven’t been convinced.

    There are already laws against sex discrimination in the workplace regarding hiring, promotion, and compensation. I doubt the ERA would change any of that. Perhaps it would be used to strengthen enforcement, perhaps. I get that some people believe there is still discrimination against women in terms of compensation, but the facts do not play out that way. The media is fond of peddling bad studies to claim there is some pernicious wage gap, but the real numbers don’t support that conclusion. Any claims of discrimination can and are already addressed by a myriad of existing laws. I doubt the ERA would really influence the Supreme Court today to recognize some new right that did not already exist. In reality, the Supreme Court decision would be less influenced anyway by the ERA and more influenced by the social and political biases and proclivities of the nine justices.

    As far as insurance, if the law were to equalize premiums for health insurance it would then also equalize premiums for life insurance and car insurance. So if you are benefited on one you would be harmed on the other. It would cut both ways. Yet, I doubt the ERA would be used to negate actuarial tables if there were a demonstrable way to defend sex-based differences in premiums, which might still be defensible as “equality of rights under the law”. It is not inevitable that that clause would be interpreted by the Supreme Court to strictly mean that there is never any justified reason under the law to ever consider sex-based differences. Many people opposing the ERA fear that, but it isn’t clear. I imagine, though I do not know, that even under the ERA there would still be legally justified sex-based differences. Just as the Supreme Court has upheld race-based differences i.e. college admissions, using the logic of ‘compelling interest’, and other interpretations and justifications, it is reasonable to assume that under the ERA the court would still allow sex-based differences.

    I could see this regarding public restrooms and other accommodations (dorms, locker rooms, changing rooms), college scholarships, sex-based sports teams, health coverage (men and women do have biologically different bodies with different medical needs after all), physical traits required for specific jobs (could go either way, don’t assume this benefits one gender over another)

    Perhaps the original intent of the ERA 40 years ago was to guarantee some equal rights to women which had been denied. But we should not assume that that would be the outcome today. I’m not afraid of the ERA, I just doubt it would change anything. I have not seen any reason for me to either support or advocate for the ratification of the ERA, or to fight against it. I think if it were ratified it would be merely symbolic.

  44. A Turtle Named Mack says:

    “lots of stuff I don’t even realize…” is an acknowledgment that, as a male, the privilege I enjoy surely extends into areas I can’t even comprehend.

    As for your statement that you “get that some people believe there is still discrimination against women in terms of compensation, but the facts do not play out that way. ” Well, no idea where you’re getting your facts, so I’m just going to bow out.

  45. Mack, the ERA doesn’t affect private parties. It doesn’t prohibit discrimination by employers. It’s prohibits discrimination by public entities. It’s power over private parties would onLy be to allow Congress to write legislation prohibiting discrimination in employment and insurance, but Congress already can and has prohibited those things. An amendment won’t magically fix problems with enforcement of already existing laws.

  46. “I think if it were ratified it would be merely symbolic.”

    That symbolism is important to me, and I would support it for no other reason than it would enshrine what should be a governing principle of our country. The argument against it doesn’t make a lot of sense to me either, as it consists of both “we don’t know what the effects will be” and “it isn’t necessary so it won’t change anything.” It has to be one or the other. I agree with the author and think most of the “what-ifs” would be good things, including equal paternity leave and either equalizing the draft or removing it entirely.

  47. Geoff - Aus says:

    In case anyone is interested, in Australia maternity/paternity leave is 18 weeks paid, divided between the parents, as they decide. So both could be home for the first fortnight, then the mother have another 14 weeks?
    Another possibility?

  48. Good one