The ERA - It's Baaack...
1970s Throwback Is Unnecessary and Would Only Invite More Bizarre Litigation
Like a bad 1970s leisure suit or Carter-era stagflation, the Equal Rights Amendment is attempting a comeback.
This month, radical feminists and leading Democrats announced that they're reviving the Equal Rights Amendment (ERA) after a twenty-five year dormancy. Despite its benign-sounding title, the ERA is a dangerous idea for two primary reasons.
First, the ERA would provide no new protections that don't already exist in the Constitution and numerous statutes. Second, and more dangerously, it would merely create a sinister new vehicle for a flood of bizarre litigation.
The simple text of the ERA stated, "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."
But don't be fooled.
The Constitution and federal statutes such as the Civil Rights Act already ban gender discrimination and provide equal protection to women.
Within the Constitution, the Fourteenth Amendment's Equal Protection Clause has long been recognized to protect against gender discrimination, and courts routinely strike down laws unless they are substantially related to an important government interest. In other words, distinguishing between men and women is allowed only where well-justified, such as on the issue of women in combat or same-sex restrooms.
Further, under longstanding doctrine, gender classifications that intentionally discriminate against women will generally be held invalid.
For instance, in 1981, the Supreme Court overturned a law that gave husbands, as heads of households, the right to unilaterally dispose of property jointly owned with their wives. As another example, as far back as 1971, the Supreme Court overturned a statute granting preference to males over females to act as administrators of estates.
In fact, these protections even go so far as to allow "affirmative action" classifications benefiting women in order to supposedly remedy past discrimination.
In addition to the Constitution, as noted above, numerous federal, state and local statutes also prohibit improper discrimination on the basis of gender. The Civil Rights Act of 1964, for instance, broadly created nationwide prohibitions against unreasonable forms of bias. Even before that, Congress passed the Equal Pay for Equal Work Act in 1963.
Federal statutes also protect against sex discrimination in property law, employment, jury selection, work leave for medical or pregnancy reasons, college athletics and unemployment benefits, among many other specifics.
Furthermore, innumerable state and local laws across the country similarly protect against unreasonable gender distinctions, including even such issues as paid leave for pregnancy in some states.
Obviously, the Supreme Court recognized these protections without the dangerous Equal Rights Amendment, proving it unnecessary.
On the other hand, current protections strike a proper balance by providing enough leeway to allow reasonable distinctions between men and women that the Equal Rights Amendment would not allow.
As a good illustration, the Supreme Court in 1979 affirmed a statute granting hiring preferences to veterans, despite the plaintiffs' argument that the result would disadvantage women because most veterans are men. The Supreme Court in that case justifiably reasoned that the purpose of the statute was to assist veterans, not somehow discriminate against women.
If the ERA were implemented, however, reasonable laws such as this, or rules against single-sex bathrooms or women in combat would be attacked, and perhaps overturned by overzealous judges.
Innumerable other potential targets would also emerge, given our overly-litigious society and activist courts.
For example, would the Boy Scouts and Girl Scouts be forced to integrate? Would religious organizations that ordain only men (or women) lose their tax-exempt status? Would the military be forced to integrate women into military combat? Would prisons be integrated? Would taxpayers someday be forced by activist judges to fund abortions?
If this sounds absurd, consider a 1998 New Mexico Supreme Court decision that its state-level Equal Rights Amendment requires public funding for abortion because denying such funding would discriminate on the basis of sex.
Simply put, protections against unreasonable gender discrimination already exist under the Constitution and various federal, state and local laws. Should the ERA pass, however, even the most reasonable gender distinctions would come under attack, and activist lawyers would have yet another method by which to overwhelm our court system.
Not an inviting prospect.April 27 , 2007