Deliberating on The Equal Rights Amendment
At issue: Should the constitution be amended to guarantee equal rights on the basis of sex.
My first thought when hearing of the Equal Rights Amendment was simple: The constitution already does that. We have the Bill of Rights, it guarantees equal rights to everyone…doesn’t it? I thought so but someone didn’t or we wouldn’t have the proposal.
Let’s deliberate on the ERA and begin by challenging my initial assumption.
Does the constitution already guarantee equal rights based on sex?
We can start by looking at the Bill of Rights. It uses the term “people” when referring to Americans, indicating the rights protected in those 10 amendments apply equally to all sexes. Even viewpoints critical of the way the Bill of Rights treats women’s interests concede as much. I think we can resolve these 10 rights apply equally.
Gendered language doesn’t appear until Section 2 of the 14th Amendment (reducing representation for states denying men the right to vote), then again in the 25th (presidential succession). The later doesn’t deal with individual rights and can be ignored for this deliberation (though Hollywood could have fun with the idea of a woman not ceding power because the 25th amendment only applies to male presidents).
(The 19th Amendment obviously included gendered language because it stopped the government from denying women their right to vote. But it did not address rights beyond voting. Notably however, suffragists tried to use then-existing constitutional amendments like the 14th to prove they had the right to vote. The Supreme Court shot them down. That experience delivers the initial blow to our assumption that non-specified rights can be pulled from existing constitutional protections. At least in this case. #prenumbra)
Back to the 14th Amendment. Section 1 established the famous Equal Protection Clause, the understanding of which is crucial to answering this question. Its plain text only applies to states, but through some legal jujitsu called “reverse incorporation” it also applies to the national government. Phew.
Let’s look at the 14th's language: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Now let’s say it the way people actually talk: You’re a citizen of the U.S. plus whatever state you live in. States can’t screw with your rights as a U.S. citizen and the law has to treat everyone the same.
The law has to treat everyone the same. If that’s the case, wouldn’t an ERA be redundant to the Equal Protection Clause of the 14th Amendment? The same law applied differently to men and women would clearly violate the principle of equal protection…right? You would think so, but as I mentioned the suffragists were told otherwise.
We can go right to the source of the Equal Rights Amendment for an argument against the 14th covering sex. EqualRightsAmendment.org lays out its case this way: “The 14th Amendment has never been interpreted to make sex a suspect classification like race, religion, and national origin. Progressive laws can be repealed, ineffectively administered, or unfairly interpreted based on social or political bias.” (See The Trump Test later in this deliberation for more detail on the last point.)
The last of its two contentions is the easiest to address. Of course laws can be repealed and the constitution acts as our nation’s ultimate legal backstop. This can be agreed to without any further deliberation.
Considering its first contention—that the 14th doesn’t include sex—will make us get real nerdy. Buckle up.
Courts use different standards evaluate laws infringing our rights, based on how directly the laws attack what the constitution prevents government from abridging. The very highest level of evaluation is called strict scrutiny, and it applies to laws affecting fundamental rights or limitations based on race, national origin and religion. You gotta have a damn good reason to get past strict scrutiny and the robed class will evaluate your law in two ways:
Does it further a compelling state interest;
Does it use the least restrictive means to do further that interest?
If your reason to infringe on a right passes that test you win. Congrats. But there’s more. So much more. Protections granted under laws passed by congress are more easily infringed. When that happens, courts apply a lower standard called “intermediate scrutiny.” The obvious reason for this is it should be easier to mess with a protection granted by the law than one recognized by the constitution.
Recent legal history puts sex-based protections under intermediate scrutiny, meaning they aren’t recognized on the same level as core constitutional rights. They have, however, gone a bit farther and applied what we can call “intermediate scrutiny-plus” to sex-based laws. Still, that’s not as high a standard as if sex-based infringements were considered on par with the other protected classes.
This is where ERA proponents make the case for the 14th Amendment not being enough to guarantee equal rights based on sex. I find their case compelling. A duly elected congress can pass a thousand laws guaranteeing equal protection by sex, but those protections won’t be constitutionally secure unless or until a case comes along for SCOTUS to incorporate them into the Equal Protection Clause.
“Oh, Deliberatus, no congress would ever repeal such a protection nor would any president ever sign such a repealer,” you say. For that argument I will establish what shall hereby and henceforth be known as The Trump Test, or TTT. Anytime we’re talking about granting the government new authority or pondering the extreme execution of its existing powers, we’ll ask ourselves, “Would I want Donald Trump to be in charge of this?” Applied here, would we want the continuance of a legal—but not constitutional—protection based on sex to be decided by Donald Trump? Of course not.
Then it is resolved: The constitution as interpreted at the time of this writing does not already guarantee equal rights based on sex, by virtue of the courts using a lower legal standard for infringement than for rights clearly protected in the constitution.
But the discussion is hardly settled. Like I mentioned earlier, this is the constitution we’re talking about here and it deserves incredible thought.
Why oppose the ERA?
ERA opponents made several arguments over the decades at the height of its debate. Some continue to resonate and some fell away as America’s view of gender roles changed. I think that’s the key thing to consider when evaluating anti-ERA arguments. The prospect of women being drafted into combat or losing access to alimony after divorces or Social Security from their husbands were major factors five and six decades ago. For those of us in a 2020 mindset it can be hard to even grasp how women in the military could have been used to argue against an ERA or how alimony could be a factor. But back when the concept of a single male bread-winner was more ingrained in our cultural fabric it had incredible potency. Raising the threat of losing alimony for a recently divorced homemaker or losing Social Security for a widow was akin to the woman of 1972 as losing unemployment benefits or the Earned Income Tax Credit would be to the head of household in 2020.
(Deliberatus always enjoys when the two traditional sides swap arguments. Here we have anti-ERA conservatives warning a treasured gift from the government will be yanked away by dastardly…liberals. According to the Politico article linked below, Democrats even feared it would cut off New Deal handouts.)
Opponents also hit on issues familiar to someone transported to 2020. Gendered bathrooms. Same-sex marriage. Abortion. Whoa stop right there. Abortion is part of this?
Yes. Abortion is a major contributor to the ERA’s opposition. Anti-abortion groups claim an ERA would render abortion restrictions unconstitutional because by its nature abortion can only apply to one sex: women. Not only that, they say it could actually require government to fund abortions. It is “abortion in disguise” according to the National Pro-Life Summit
On the flip side, ERA supporters make no bones about abortion being a driving factor in their push to ratify the ERA. “There are no equal rights for women without access to abortion, plain and simple,” according to the CEO of Planned Parenthood. Hard to refute it’s part of the plan when PP weighs in.
What to make of this? Decisions, that’s what.
When considering whether or not an idea should be hardcoded into the constitution, I’m inclined to consider it based on its merits relative to what I view the constitution is for: Protecting our natural rights from government intrusion. The potential policy outcomes stemming from such an action, or potential court decisions about how to apply it feel like secondary issues. Let’s unpack that.
Suppose we were debating the First Amendment in 1791. Suppose also there were Nazis in 1791. Would we posit that the freedom of speech should not be enshrined in the constitution because a judge could some day use it to strike down a fictional law banning the expression of Nazi sympathies? If that’s too hypothetical for you, consider flag burning. If we had to renew the First Amendment right this moment, would you oppose renewal because it was once used to justify burning the flag as free expression?
I think not.
So then I don’t think we can reasonably oppose an Equal Rights Amendment solely on the grounds of what a judge or judges might someday do with it. I have no doubt cases will come forward within the first few years after the ERA is ratified, if it ever is. I can’t predict how those cases would be adjudicated (with strict scrutiny, most likely), regardless of my personal view on abortion. Said view should have no bearing on whether or not I think the constitution should be amendment the way the ERA proposes.
Setting abortion aside, ERA opponents make other arguments that deserve a hearing. We have laws protecting pregnant women from being demoted or having their pay reduced or their benefits withheld. There’s a whole law called the Pregnancy Discrimination Act. Could a judge use the ERA to wipe them out because they can’t be applied equally to men? I guess so, if you can get a judge to believe such a law should be required to meet a distinction prevented by simple biology. On the other hand, ERA supporters view it as a way to strengthen the very same protections. So it’s a toss up then. But recall the abortion deliberation. How rulings based on the ERA might affect current or future laws should have no weight when considering whether or not the ERA itself belongs in the constitution.
Let’s also depart here for just a moment to clarify that the ERA doesn’t say or even use the word women. It says sex. I won’t wade into the discussion of why it’s viewed as a “women’s issue” because it’s beyond the scope of this deliberation. But for the purposes of considering the issue all the way around, it must be mentioned that the ERA would apply as much to protecting men as it would women.
I think we’re getting close to an end to this deliberation. We established that the use of intermediate scrutiny does indeed place protections based on sex on a level below existing constitutional protections. We established that women in the military, alimony and other reasons for opposing it in the 1970s are without merit. We lastly established that how courts may interpret it down the line should have no bearing on whether or not the ERA is added to the constitution.
That all leaves us with the true heart of the issue and how we view the constitution. More specifically, how we view its role—mostly via amendments—to be protecting our natural rights from a government we must always assume is out to reduce them. I suppose that sentence gives away my conclusion.
Is legal protection based on sex one of our natural rights? Wrong question. Do we have an inherent right to act freely from a government infringement on that action when the infringement is based on our sex? Better question.
Deliberatus will not be the smarmy prick who points out that “all men are created equal” does not appear in the constitution or its preamble. But nor will I casually remove it from this deliberation. Because while you can legally separate the Declaration of Independence from the constitution, I don’t believe you can separate them philosophically. That’s how I will apply the Declaration to the matter before us.
“…that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.”
“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
It flows. Those two statements can stand next to each other without conflict; can be believed one the same logical and philosophical string.
On that basis, and after significant deliberation, our issue is resolved: The constitution should be amendment to guarantee equal rights on the basis of sex.
- Deliberatus