Legal Docket: The Equal Rights Amendment

NICK EICHER, HOST: Hope your weekend was restful. It’s Monday and time to get back at it. Today is the 20th of August, 2018.

And this is The World and Everything in It from member-supported WORLD Radio.

Good morning. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. We are talking about the Equal Rights Amendment again.

The ERA movement started in the 1970s. It faded away, but now it’s back in everyday conversations.

In no small part, that’s because of the MeToo movement: by which I mean, the cultural response to accusations against men in power who force their unwanted sexual attentions on women.

Outrage over these allegations, and these admissions of guilt, has snowballed into renewed political demands. That’s led to renewed talk of the ERA which is aimed at guaranteeing equal treatment regardless of sex.

EICHER: Illinois in May became the 37th state to ratify the ERA. This on the heels of Nevada’s ratification in 2017.

So now the push is on for a 38th state to ratify the Equal Rights Amendment.

And that would solidify it as the law of the land, assuming its supporters can clear away other legal obstacles.

In June, pro-ERA activists rallied on Capitol Hill. One of the speakers was actress Alyssa Milano:

MILANO: The fact that women aren’t protected under the Constitution is the most absurd thing I’ve ever heard. It’s 2018. And the only way to guarantee that our rights aren’t rolled back is to pass the ERA. And the only guarantee that my daughter won’t have to deal with the sexual harassment and assault that I had to deal with in my life is to pass the ERA.

REICHARD: Supreme Court Justice Ruth Bader Ginsburg has promoted ERA for years. This is 2014.

GINSBURG: I have three granddaughters. I would like to be able to take out my pocket Constitution and say: that the equal citizenship stature of men and women is a fundamental tenet of our society like free speech, the women’s equal right to do whatever her talent and hard work enable her to do. I would like that to be in the Constitution.

REICHARD: Justice Ginsburg has said ERA would affect at least 800 federal laws.

That’s from her report titled “Sex Bias in the U.S. Code.”

ERA proponents say it’s needed to put women on equal legal footing in all 50 states. They say ERA will ensure equal pay for equal work, that it will eliminate sex discrimination across industries.

CHANT: What do we want? The ERA! When do we want it? Now!

EICHER: In the 1970s, Gloria Steinem and Betty Friedan were leading voices for the ERA.

Rallies held around the country demanded action.

But other voices demanded action against ERA.

One of those was Phyllis Schlafly.

She argued protections for women would be lost under ERA, because the law would eliminate sex distinctions.

Housewives would no longer receive their husbands’ social security benefits, for one thing. And women would no longer be exempt from the draft or combat during wartime.

Here’s Phyllis Schlafly back in 1976.

SCHLAFLY: Now all these things will be lost when you apply a rule that says that everything must be equal. Now until you can make it equal for men to have the babies just like the women, then it is a double burden to the women to say that the rules for family support should be equal on the husband and the wife.

EICHER: Congress passed ERA in 1972.

Amending the Constitution requires ratification by 38 states. But ERA fell short: only 35 ratified the amendment by deadline time.

Even a time extension to get more states on board didn’t get the job done.

But remember the two states I mentioned earlier: Nevada and Illinois. They are 36 and 37.

ERA proponents count them as though the deadline hasn’t passed. They argue exceptions to deadlines exist, and even if they don’t, Congress could grant another.

REICHARD: Confession: I went into this story hoping that ERA was a good idea.

I’ve experienced some of the things ERA is supposed to make better: things like pay discrimination and sexual harassment, none of which I’ll stress have happened here!

I’d like these things never to happen to my daughter.

That’s why I want to be hopeful about the ERA.

But in my legal research, I’ve not found enough evidence to support the idea that ERA will accomplish these worthy goals.

Moreover, my legal experience tells me when we consider changing the Constitution, wishful thinking is no substitute for sober analysis.

Pro-ERA voices were easy to find because they are well-funded and well-organized. And they receive plenty of media attention.

What I wanted to know was what negative consequences might arise for women.

So I called up three people on the anti-ERA side, and I’ll share with you parts of all three conversations.

First, Victoria Cobb. She’s president of the Family Foundation of Virginia. We pick up the interview here where I ask her how she sees the ERA today.

COBB: I mean, the ERA sounds innocuous. If you don’t know the details, it sounds innocent. What’s the harm of passing a nice sounding statement of equality? But, because we know the potential result in the vague wording, all of which are liberal social policy results, there is a left wing driving this resurgence. So, if you just make it, “you’re against the ERA so you must oppose equality for women,” it’s a real simple way to try to pull folks in your direction. It’s just not a comprehensive understanding of the reality of the ERA.

REICHARD: And if you could look into the future after a passage of an Equal Rights Amendment, should it happen, what do you think that would mean for the gender issues we are already dealing with now?

COBB: You know, in the midst of a culture that is struggling to define what it is to be male and female, this is the last place we should want to go. Virginia’s legislature this past session was presented with the concept of degendering the whole code. And in one bill in particular, our legislators were asked to replace the term “pregnant women” with “pregnant person.” So, we look at this and we say science tells us that only women can get pregnant, but liberal ideology tells us to displace reality. The ERA demands that women and men have no differences when both biology and social science tell us otherwise. True feminism doesn’t fear the use of the word woman or insist on androgynous symbols on bathroom doors or tolerate men who insist on dominating in our sports because they can’t win their own. These are outdated notions of feminism. Sophisticated, modern feminism must allow me to be fully feminine and different from men in meaningful ways and still be equally respected and rewarded for my contributions.

REICHARD: I also spoke to Evangeline Bartz with Americans United for Life. She is focused on what the ERA means for unborn girls and boys.

BARTZ: This is a bold statement but I’m going to make it. Really, the ERA is anti-woman because it doesn’t acknowledge that women have unique characteristics that deserve legal protection because only women get pregnant, therefore, we need to be sure that we have protections for women. We don’t want to pretend that women don’t have unique circumstances and with the ERA, even liberal and pro-abortion law professors have said that treating people differently on account of characteristics unique to one sex is treating them differently on account of their sex and that would be prohibited by the ERA. Is that where we want to go? Don’t we want to protect pregnant women from job discrimination, from all kinds of  harms that might be related to them being pregnant?

REICHARD: Lastly, I spoke to Matt Sharp with Alliance Defending Freedom. He affirmed concerns about abortion, and cited another worry:

SHARP: A second concern, I think equally troubling, is by enshrining sex into the Constitution we’ve seen a lot of activist judges redefine what sex means. And so rather than it being the original understanding of male and female based upon your biology, genetics, anatomy, and things like that, those courts have been reinterpreting it to include sexual orientation, gender identity, and these other undefinable fluid concepts that have no solid grounding. And so if this has been put into the Constitution, you now could have courts saying, well, there’s a constitutional protection for sexual orientation or gender identity and, therefore, states that pass laws protecting faith-based organizations when it comes to hiring practices and things like that. All of those would be nullified and this would be imposed across the nation of enshrining sexual orientation and gender identity as a protected class.

REICHARD: Well, some would say the #MeToo movement means things have ripened to the point that we do need the Equal Rights Amendment because the word “women” isn’t in the Constitution. Why or why not?

SHARP: Yeah, I would actually say that times have changed in a positive way. Things like Title IX and other federal laws that have provided, I think, meaningful protections for women, ensuring that they’re able to attend college and pursue a degree of their choice and have equal access to athletic opportunities and things like that. The problem is this is not really going to do anything to solve any existing problems when it comes to discrepancy between men and women when it comes to opportunities. ERA is trying to find a solution that does not even fit what happened there.

REICHARD: And what do you think contemporary confusion over the meaning of gender will bring if ERA passes?

SHARP: It’s interesting when you look at the efforts to redefine sex the impact it does have on women. For example, there was a situation in Connecticut where two men who claim to be females ended up winning the state track meet, set a new record for women in the state athletic association, and I looked at the young girls who had spent years perfecting their running practice and their form and everything and because two guys now claim to be women, those young girls lost out on the opportunity to stand on the podium, to have that equal opportunity to participate in sports. So, I look at this redefinition and what activists are trying to do with the existing protections in Title IX as being an affront to a lot of the important protections that Title IX and other laws like it did bring to women.

REICHARD: Pro-ERA advocates are looking to Virginia, North Carolina, or Georgia. Success in any of those three would give them the 38th state to claim ratification success.

I can only conclude that the problems ERA advocates want to address aren’t likely to be solved by a Constitutional amendment.

Other laws protect against pay inequities, and we’re making progress on that front.

As for the sexual harassment that’s behind the #metoo movement: that’s more a question of cultural and moral rot, not legal. Harvey Weinstein and company got away with abuse for years because people who knew stayed quiet—and the lack of an equal-rights amendment in the Constitution was no gag order.

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite, File) In this Tuesday, April 4, 2017, file photo, the Supreme Court in Washington. 

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