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The Catalyst
The newsletter of the ISBA’s Standing Committee on Women and the Law

November 2015, vol. 21, no. 3

Myths about the ERA debunked

This October, a post on ISBA listserv sparked spirited debate. There were over 70 comments made in the span of a week—all about the Equal Rights Amendment (ERA), which states in relevant part: “Equality of rights shall not be denied or abridged by the United States or any state on account of sex.” That conversation inspired the following collection of common misperceptions about the ERA and recent efforts to restart the ratification process.

1. Aren’t the sexes equal?

Constitutionally speaking, no.

To quote Justice Antonin Scalia, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that’s what it meant.”1 More troubling, 72% of Americans mistakenly believe there is a constitutional guarantee that women and men must be treated equally.2 While some federal legislation has tackled discrimination, the U.S. Constitution lacks an affirmative declaration of equality between the sexes. And the legislation that does exist is not comprehensive and leaves significant gaps in coverage.3 These gaps help explain why women still make only 77 cents for every dollar earned by a man for the same work.

If read plainly, the 14th amendment would seem to encompass gender discrimination as it mandates no “state shall deprive . . . any person within its jurisdiction equal protection of the laws,” but that is not how it has been applied historically. Despite decades of challenges, the U.S. Supreme Court did not treat sex-based classifications as even quasi-suspect until the 1971 case Reed v. Reed, striking down estate administration laws that preferred men. Justice Ruth Bader Ginsberg spent most of her career trying to get the Supreme Court to see gender in the 14th Amendment, but this goal remains unfinished business.4

2. Didn’t the ERA die?

The ERA was initially introduced into Congress in 1923. In 1972, it passed both houses of Congress and was sent to the state legislatures for ratification, but fell three states short of ratification prior to the Congressionally-imposed deadline.5

There are many unresolved constitutional questions regarding the process for adoption of the ERA.  Currently, Congress has before it two options regarding the ERA. The first option proposes to re-start the amendment process anew.6 The second and easier option is a resolution to remove the time limit on the original amendment.7 This second option is commonly called the “three state strategy” because 35 states have ratified and 38 states are required. S.J. Res. 15, which would re-start the process, has 35 co-sponsors as of November 1, 2015, including Senators Durbin and Kirk. H.J.Res. 51 or the “three-state strategy” has 162 co-sponsors including nine from Illinois.

The 27th Amendment to the U.S. Constitution (congressional raises) was ratified in 1992, more than 200 years after it was first introduced. The so-called Madison Amendment’s path to ratification is the inspiration for the three-state strategy. Proponents maintain that the time limit Congress added to the process is either unconstitutional because it is an additional burden that is not found in Article V of the U.S. Constitution, or the time limit can be amended again by Congress.8

At the state government level, Arizona, Florida, Missouri, Nevada, North Carolina and Virginia have pending bills for ratification. In 2014, the Illinois Senate passed a resolution of ratification; however, the Illinois House failed to take up the measure before the legislative session expired.9 There are plans to reintroduce the proposal next legislative session.

3. Isn’t the ERA just symbolic?

Symbols can be powerful as shorthand for complex ideas. The ERA is not just symbolic, but would be law, conveying enforceable rights. As Jessica Neuwirth concludes in her book, Equal Means Equal, “law is a formal expression of public policy that plays a critical role in advancing social norms . . . an Equal Rights Amendment will promote public understanding that all men and women are created free and equal in dignity and in rights, and should be treated as such.”

Enactment of the ERA will make discrimination based on sex more difficult. Currently, the Supreme Court reviews classifications based on sex or gender under “intermediate scrutiny” rather than “strict scrutiny” as is used for classifications based on race, ethnicity or alienage. The intermediate standard was first introduced in 1976 with Craig v. Boren.10 That case struck down a law that allowed women, but not men, to purchase 3.2% alcohol beer. The Supreme Court found this gender distinction to be unfair. In subsequent application, intermediate scrutiny has proven to be an elusive test, heavily influenced by a court’s sense of proper gender roles.11

It is possible that if the ERA were passed, the Supreme Court would apply strict scrutiny to sex or gender-based classifications. Strict scrutiny is a more predictable standard than intermediate scrutiny.12 The government must show a compelling interest and the law must be narrowly tailored to achieve that compelling government interest, a more difficult burden to meet.

4. Isn’t this just more partisan politics?

While the ERA seems to be more popular with Democratic legislators at present, there was a period when the ERA was embraced by leaders in both parties. In fact, the first presidents to support the ERA were republicans—Eisenhower, Nixon and Ford. Locally, ERA supporters include State Senate Minority Leader Christine Radogno, Senator Mark Kirk, and the late Judy Barr Topinka. In the 70s, social conservatives opposed the ERA as a threat to the traditional role of women. But many of the concerns they raised, such as integration of the armed forces and same-sex marriage, have come to pass without the ERA.

5. Rauner will just veto to it.

A joint resolution does not require the Governor’s approval. However, a supermajority of 3/5 of both houses is required by Article 14, Section 4 of the Illinois Constitution.

6. The ERA will burden businesses.

Illinois has already enshrined the ERA in its state constitution. Article 1, Section 18 of the Illinois Constitution reads “equal protection of the law shall not be denied or abridged on account of sex by the state or local government and school districts.”  Therefore, the ERA already is the law in Illinois. The only issue is whether to make it the law for our country. According to the Illinois Legislative Research Unit, Section 18 resulted in changes to marital law, criminal law, and juvenile law after the Illinois Constitution of 1970 was adopted.13

The active clause of the ERA is only 24 words. There is no new program proposed. There are no implementing regulations required. There is no appropriation necessary. There is no new agency created. Instead, existing laws and future laws must be gender neutral or be justified under a higher standard of review when sexes are differentiated. Again, the ERA is already state law.

7. How is the ERA different from the Civil Rights Act and similar legislation?

The Civil Rights Act of 1964 was landmark legislation prohibiting discrimination on the basis of race, color, religion, sex, and national origin in programs and activities receiving federal financial assistance. The drafters sought to eradicate Jim Crow laws. Originally, gender was added as an attempt to torpedo the bill. With that pedigree, it took years for the Civil Rights Act to be applied to women. In addition, several of the Titles had limited enforcement mechanisms. For example, the EEOC was established about ten years later to address employment discrimination under Title VII. Moreover, the U.S. Supreme Court has interpreted Title VII of the Civil Rights Act in a way that has left women without protection from sex discrimination in many instances, most prominently in its holding that the Civil Rights Act often does not require employers to accommodate pregnancy.

Putting aside the specifics of the Civil Rights Act, it has the inherent weakness of any statute—it can be limited, amended, not renewed, etc. One has only to consider what is happening to the Voting Rights Act to see that progress made by statute can be temporary.

8. Why should women get special treatment?

The Equal Rights Amendment would cement gender equality into our legal foundation. This is not Women’s Rights, but legal gender equality. Gender discrimination hurts men too. For example, under the Immigration and Nationality Act, it is easier for a mother than a father to confer U.S. citizenship on a child born out of wedlock. The Supreme Court upheld this discrimination against men in Nguyen v. INS (2001).

Conclusion

The ERA requires that our sons and daughter be equal under the law. As for what specifically the ERA might accomplish, it is not a panacea, but a tool. The amendment would reshape the framework for gender equality and serve as a seawall against the ebb and flow of politics.

The ERA makes manifest the American promise that we are all equal under the law.

__________

Cindy G. Buys is a Professor of Law at Southern Illinois University School of Law. She is a member of the ISBA Women and the Law Committee and of the International and Immigration Law Section Council. Many thanks to Amy Jo Conroy for her invaluable assistance with this article.

1. The Originalist, California Lawyer, January 2011. See also, Jennifer Senior, In conversation: Antonin Scalia, N.Y. Mag., October 7, 2013, available at http://nymag.com/news/features/antonin-scalia-2013-10/ (accessed 11/6/15). Supreme Court observers speculate that Justices Alito, Thomas and Roberts share Scalia’s analysis. See, Ian Millhiser, Scalia Says Constitution does not prevent gender discrimination, Think Progress, September 20, 2010, available at http://thinkprogress.org/politics/2010/119769/scalia-women/ (accessed 11/6/15).

2. Jessica Neuwirth, Equal Means Equal: Why the Time for an Equal Rights Amendment is Now, The New Press (2015).

3. Id.

4. Irin Carmon and Shana Knzhinik, Notorious RBG, Dey St. (2015), 50.

5. Five states also subsequently voted to rescind their resolutions of ratification.

6. S.J. Res. 16/H.J. Res. 52.

7. S.J. Res. 15/H.J. Res. 51.

8. Allison L. Held, Sheryl L. Herndon, and Danielle M. Stager, The Equal Rights Amendment: Why the Era Remains Legally Viable and Properly Before the States, 3 Wm. & Mary J. Women & L. 113 (1997), available at http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1271&context=wmjowl (accessed 5/10/15); and Thomas H. Neale, The Proposed Equal Rights Amendment: Contemporary Ratification Issues, Congressional Research Service (May 9, 2013), available at https://www.fas.org/sgp/crs/misc/R42979.pdf (accessed 5/10/15).  

9. HJRCA7, 98th Gen. Assem. (Illinois 2015); HJRCA1, 93th Gen. Assem. (Illinois 2003).

10. 429 U.S. 190 (1976).

11. John E. Nowak and Ronald D. Rotunda Constitutional Law (8th Ed), West (2010), 999.

12. Lisa Baldez, Lee Epstein and Andrew D. Martin, Does the U.S. Constitution Need an Equal Rights Amendment? J. Legal Studies, 35:1 (2006) 243-283, available at https://www.isba.org/sites.dartmouth.edu/lisabaldez/files/2012/11/ERA.pdf (accessed 5/11/15).

13. Illinois Legislative Research Unit, 1970 Illinois Constitution Annotated for Legislators (4th Ed.) 2015, 26-7, available at http://www.ilga.gov/commission/lru/ILConstitution.pdf (last accessed 11/6/2015).