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February 21 2019

Is the ERA Dead in the Water? Or Just Gasping for Air?

by Jennifer C. Braceras

The Equal Rights Amendment failed to pass the Virginia House of Delegates today, but the matter may not end there as activists shift focus to ratification efforts in North Carolina and Arizona and promise to raise the matter again in Virginia should Democrats take control of the lower chamber next year.

According to U.S. News:

The [Virginia] House of Delegates vote deadlocked 50-50 on a bid to force a full floor on the gender-equality measure Thursday. The tie vote meant the effort failed.

The Washington Post reports that:

The lower chamber of the General Assembly has consistently thwarted a campaign by ERA activists to make Virginia the 38th — and theoretically the last — state needed to ratify the measure.

After failed attempts to bring the ERA resolution to the floor this session, Democrats on Thursday unsuccessfully attempted to change House rules and force a vote.

They believe that voting against the measure could hurt vulnerable Republicans in elections this November, when all 140 seats in the legislature are on the ballot and Democrats hope to seize control of both chambers.

The Equal Rights Amendment, approved by the Congress in 1972, states simply:

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

The innocuous-sounding amendment purports to provide legal equality for women. But is it necessary?

After all, the Equal Protection Clause of the Fourteenth Amendment already provides that the government may not “deny to any person within its jurisdiction the equal protection of the laws.”

Adopted after the Civil War to address government treatment of newly freed slaves, the plain language of the 14th Amendment is not limited to race. And anyone who has seen the recent Ruth Bader Ginsburg biopic On the Basis of Sex knows that since the 1970s the Supreme Court has applied the language of the Equal Protection Clause to sex-based distinctions.

In the movie, opposition to Ginsburg’s argument that the Equal Protection Clause applies to sex differences focused around “Appendix E,” a compilation of every provision of U.S. law (and there were many) that differentiated on the basis of sex. The implication, of course, was that adoption Ginsburg’s argument would have massive unforeseen consequences, many of which might not be favorable to women.

Ultimately, Ginsburg prevailed. But in the 1976 case of Craig v. Boren, the Supreme Court dealt with the possibility raised by Appendix E by adopting the standard of “intermediate scrutiny” for sex-based claims.

Under “intermediate scrutiny,” courts examine sex-based distinctions with a critical eye, but do not apply the same level of scrutiny they apply in claims based on race.

And with good reason. Although race and sex are both immutable characteristics that have been the basis for pernicious discrimination, biological sex differences are sometimes relevant. This is rarely the case with race.

Current constitutional precedent is, therefore, flexible and allows judges to take real differences between women and men into account and to consider, on a case by case basis, whether differential treatment is justified. The ERA has no such escape hatch, which worries opponents (particularly when it comes to privacy, safety, or programs that seek to benefit women and girls).

Specific arguments against ratification of the ERA are outlined by IWF Senior Policy Analyst Inez Stepman here. These arguments are the primary reasons the ERA failed to garner the necessary support from state legislatures back in the 70s and 80s.

Today, the question is not only whether the ERA should be adopted, but whether it legally can be. That is because the Congress that passed the ERA in 1972 did so pursuant to a resolution deeming the amendment effective only if approved by three-quarters of state legislatures “within seven years.”

Although 35 states did pass the measure in time, 38 were needed for passage. ERA proponents came up short by three.

In recent years, ERA supporters have launched a two-pronged strategy to revive the amendment:

(1) obtain a congressional resolution retroactively extending the deadline; and

(2) obtain ratification by three of the 15 states that did not approve the amendment within the original time frame.

Nevada ratified the ERA 2017; Illinois in 2018. With Virginia failing to ratify, pro-ERA activists will take their case south, to North Carolina and Arizona. But even should another state ratify, the legal status of the Amendment remains confused.

Since approving the measure decades ago, Idaho, Kentucky, Nebraska, South Dakota and Tennessee have either rescinded their approval or “dropped out” pursuant to a sunset provision. ERA proponents will no doubt challenge these rescissions.

Writing in the Atlantic earlier this year, Professor Garrett Epps of the University of Baltimore School of Law notes that

at every stage of the amendment process, it is Congress—not the courts—that takes the leading role. The language of Article V puts Congress at the center of the action, but it doesn’t specify exactly how Congress should determine which amendments have been validly adopted.

Others contend that if one more state ratifies the amendment, its legitimacy will be resolved by the courts.

Stay tuned . . .



Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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