Everyone loves the party game/icebreaker “two truths and a lie.”
The Equal Rights Amendment has been in the news recently, and recently failed to pass in Virginia. Can you identify which of the following is NOT true about the Equal Rights Amendment?
A. Women’s natural rights and basic legal equality are already protected in the U.S.
B. The ERA will not protect women against the predatory men being exposed by #MeToo or ensure that they are paid equally for the same work.
C. The ERA needs just one more state to ratify before it is added as the 28th Amendment to the U.S. Constitution.
Let’s take these statements one at a time:
The Constitution protects women’s rights to free speech, religious liberty, jury trial, and many other crucial rights. The 19th Amendment ensured that all women of age would have the right to vote and the Equal Protection Clause in the 14th Amendment protects women from being treated differently under the law solely on the basis of sex. Discrimination against women based on sex is also barred by the 1964 Civil Rights Act, and by other federal and state laws.
However, the Constitution as currently interpreted does allow for some common sense distinctions. For example, only men are required to sign up for draft, and government facilities such as public school restrooms and prisons are still allowed to be single-sex. These “discriminations” could be jeopardized by some readings of the ERA, which leaves extraordinarily broad language for judges to interpret instead of leaving these thorny social issues to the voters (the majority of whom are women).
Proponents of the ERA say that it only enshrines the basic legal equality that well over 90 percent of both women and men say they support, and at the same time, that it will solve the societal problems exposed by #MeToo and erase the so-called pay gap between men and women. But the ERA will not affect criminal laws against harassment and assault, which are already in place in all 50 states. Similarly, sex discrimination in the workplace is already barred by federal law since 1963. Furthermore, there is ample evidence that the pay gap is not primarily the result of discrimination against women, but instead, the natural result of the different choices women make on average about balancing work and family.
35 of the state ERA ratifications took place in the 1970s before a long-passed deadline from Congress, while two (Nevada and Illinois) have taken place since 2016. There are serious legal issues involved in counting all of these ratifications together when they took place over such a long period. While the Supreme Court has left the exact parameters for ratification to Congress as a political question, it has also ruled that they need to be “reasonably contemporaneous” and part of a single act, in order to uphold the purpose of the amendment process in showing overwhelming popular support. Furthermore, four of the original states have rescinded their ratifications of the ERA, and one attached a sunset clause to its original ratification. Finally, Congress will need to remove the deadline it set in its passage of the ERA in the 1970s.
These open legal questions are unlikely to be resolved immediately upon a 38th state’s ratification, should one occur. Instead, look for a drawn-out court battle over the amendment process.
Read more about the ERA and its potential consequences here.