The Equal Rights Amendment

has been reintroduced. My sense is that the public, even in relatively conservative states, is much more open to the core principle of the government's generally not discriminating based on sex than it was back when the ERA stalled a couple of decades ago.

On the other hand, I suspect that there'd be much less of a sense of need, given that the Supreme Court's sex equality jurisprudence is now itself decades old, and pretty clearly not going anywhere. The formal test is that sex classifications are constitutional only if the government shows an "exceedingly persuasive" justification, which consists of showing "at least that the [challenged] classification serves 'important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement of those objectives,'" and that the justification "not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." In practice, the test is very hard to meet, so it's hard to point to many sex classifications that are now constitutional but that the ERA would clearly or even likely ban.

What's more, those current sex classifications that are most vulnerable are also ones that many people -- including ones who are far from antifeminist -- may have qualms about invalidating:

1. Limits on Women in Combat: It's generally assumed that the Court would uphold such limits under the current "intermediate scrutiny" test, possibly on the theory that allowing women in combat would pose extremely high risk that captured women will be raped, and that this will not only hurt the women but lead to undue pressure not to surrender, or to launch even very risky rescues. Whether or not this theory is clearly correct, I expect that the Court would defer to the political branches' judgments on this score, even if the limits on women in combat are tightened back to what they were some years ago. Would most ERA backers support constitutionally invalidating these limits, as the ERA may well do, given its categorical language?

2. Sex-Based Affirmative Action Programs: Such programs are in many situations constitutional under the Court's current caselaw. But they would be clearly forbidden by the text of the ERA, "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." And my guess is that the current Court's relatively strong focus on text, coupled with its relative hostility to affirmative action programs (compared to the views of the 1970s and early 1980s Court), would lead it to read the ERA as outlawing legal preferences either for women or men, whether or not the preferences are billed as "remedial."

3. Exclusion of Boys from Girls' Sports Teams: This too is generally seen as constitutional, and I suspect it's even more popular than affirmative action in other contexts. Yet the flat language of the ERA would likely ban it.

4. Limitation of Marriage to Opposite-Sex Couples: Many supporters of same-sex marriage, including those who challenge the opposite-sex-only rule as unconstitutional, argue that the opposite-sex-only rule discriminates based on sex. Some (though not most) state judges that have considered the question have indeed concluded that state constitutional ERA provisions mandate sex-blind marriage laws. It seems quite plausible (though not certain) that enactment of the ERA would increase the likelihood that courts would indeed mandate recognition of same-sex marriages. The arguments that the ERA would lead to such a result can no longer be dismissed, as it once was, as a "hysterical" "emotional scare tactic" "canards."

So it's not quite clear to me what will likely happen given all this (and given the other objections that might be raised, such as the perennial but nontrivial questions related to single-sex locker rooms and the like). Nor is it clear to me what people should do if they believe -- as I do -- that the government generally shouldn't discriminate based on sex, but that some narrow exceptions are proper.

On the one hand, enacting the ERA will cement the broad antidiscrimination principle, and perhaps defeating it might in some measure undermine the principle, among some members of the public or even among some judges; and it's possible that judges will carve out some sensible exceptions from the ERA's flat ban if the ERA is enacted. On the other, it seems highly likely that the constitutional nondiscrimination rule is here to stay, and maybe it's better for judges to continue developing exceptions from this rule when it's basically a judicially developed interpretation of the Equal Protection Clause, rather than for judges to create exceptions from a categorical guarantee.

My preference would be for an ERA that has explicit exceptions for the few areas where exceptions seem necessary, but I doubt that this is a politically viable option. The question then is which is better -- the status quo, under which there is a broad but not securely textually anchored constitutional prohibition of most forms of sex discrimination, or an ERA that expressly bars sex discrimination but goes literally further than I think it should. My sense is that the status quo is probably good enough, because it seems so solidly entrenched; but it's not an open-and-shut matter, it seems to me.

Thanks to Bob Krumm for the pointer.

"the status quo, ... or an ERA that ... goes literally further than I think it should."

It seems like you've implicitly declared that the status quo is, in your judgement, the perfect place to be? You're not skeptical of any cases you described as "popular"?
3.28.2007 12:26pm
Dick King:
Although I don't personally favor such laws, I for the life of me don't see how a law restricting marriage to a person of the opposite sex practices sex discrimination. I would similarly say that it's okay to exclude boys and girls from each others' sports teams.

Limits on women in combat and invalidation of sex-based affirmative action would indeed be features of a new, simple IRA. I personally view this as a good thing.

3.28.2007 12:40pm
Prufrock765 (mail):
Larger question arises: What is the amendment process for? I think that most would agree that there are some public policy preferences that are, however desirable they might be, too ad hoc to be proper grounds for amending the constitution. I would argue that most of the proposals for amending the constitution that have made the papers in recent years fall into that category. The US Constitution, especially the amendment process, should be about political participation and mechanics...who votes and who serves, not about memorialising every bien pensant notion of progress. The Bill of Rights were certainly about more participation and mechancis--more to do with the power of the new government, but that to one side...

Now I suppose that the ERA falls into the "political participation" catgeory. But even granting that, one must contend, I think, with the notion that amendment process should be undertaken only when the political process has broken down. Does anyone think that this is the case on the issue of sex discrimination?
3.28.2007 12:43pm
Aeon J. Skoble (mail):
IANAL, but doesn't the 14th Amendment refer to "persons" -- i.e., not just men, but women also? Since the 14th refers only to persons, why isn't an ERA superfluous? (Not trolling, actually don't get why this is an issue.)
3.28.2007 12:47pm
AppSocRes (mail):
Phyllis Schlafly was ridiculed for sugesting the last time around that the ERA would be used to promote same-sex marriage. She was ridiculed because promoters of the ERA argued that the courts would never allow such an absurd thing to happen. Well, it appears Phyllis was right about that and all prior experience suggests that she'd be right about all the other predicted consequences of an ERA.

Clever left-wing lawyers and judges would almost certainly use it to impose policies that they cannot gain democratically. One obvious example would be soi disant "equal pay for equal work" which would end up with government bureaucrats setting wages and salaries (and eventually all conditions of employment) across the economy. Of course, liberals are going to say this is an absurdity, but that's what they said about same sex marriage the last time they tried to shoe horn through an ERA.
3.28.2007 12:56pm
Eugene Volokh (www):
Aeon: The Fourteenth Amendment bars denial of "equal protection," and it's far from clear that as a matter of pure textual construction this should bar sex discrimination. First, section 2 of the amendment expressly contemplates sex classifications (albeit in voting, which was not originally understood as being within the Fourteenth Amendment's scope): "[W]hen the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.Second, while there is good reason to think that the Equal Protection Clause was originally understood as generally banning race discrimination at least in many areas, it was not understood as banning sex discrimination. Third, while there are plausible arguments that the Equal Protection Clause was originally understood as imposing a general principle of opposition to so-called "class legislation," and that laws seen as "class legislation" today -- including many sex classifications -- should be struck down even though the laws would not have been seen as "class legislation" at the time, these are (to my knowledge) far from open and shut arguments.

So under originalist or textualist constitutional construction principles, the Equal Protection Clause likely should not be seen as barring sex classifications. (Likewise, I suspect, under "representation reinforcing" principles such as John Hart Ely's model of when constitutional limitations are proper.) Thus, if you are arguing that the ERA is unnecessary even for originalists or textualists, I think that this isn't quite so.

On the other hand, as I said, the Court did interpret the Equal Protection Clause -- starting with the 1970s -- as presumptively barring sex classifications. Whether or not that's right as a matter of first constitutional principles (which of course turns in large measure on what interpretive model you think is right), as a practical matter it's the rule and likely to stay the rule; so a new ERA would likely be largely practically unnecessary, as I argued in the post.
3.28.2007 1:02pm
PGofHSM (mail) (www):

One obvious example would be soi disant "equal pay for equal work" which would end up with government bureaucrats setting wages and salaries (and eventually all conditions of employment) across the economy. Of course, liberals are going to say this is an absurdity

If I found that people of different races tended to (self?) segregate into different jobs, would you consider the constitutional requirement of racial equality under the law to demand that government bureaucrats set wages and salaries (and eventually all conditions of employment) across the economy?

I think that the Constitution's plain text already regards sex the same way it does race -- i.e., it is not a basis for keeping someone from voting -- so if we're putting in a sex ERA, why not a race ERA?
3.28.2007 1:05pm
Jon Rowe (mail) (www):
Well, the fact that Phyllis was right will probably help kill the ERA once again. If one substitutes "gender" for "race" (which are now both constitutionally protected categories against which government discrimination is prohibited) Loving is a near perfect analogy to a decision which would grant a right to same-sex marriage. If, knowing this, the ERA is now passed, I'd argue that the ERA ought to be used to mandate same-sex marriage. The only way that the ERA ought not mandate same-sex marriage is if, during the ratification debates, pro-ERA forces explicitly tell us that this is not what the ERA means.

But even then, that will not guarantee against such future usage. For one, this is exactly what happened in Loving. Senator Trumbell, one of the key Framers of the 14th, explicitly told us that the 14th preserves the legality of bans on miscegenation. One hundred years later, Loving held differently.

My own position is that I support the ERA and its use to constitutionalize same-sex marriage. But given all that's been on the news with same-sex marriage in recent times, the ERA almost certainly will not go through for this reason alone.
3.28.2007 1:08pm
Aeon J. Skoble (mail):
Thanks for the thorough reply, Eugene.
3.28.2007 1:10pm
PGofHSM (mail) (www):
Prof. Volokh,

Thanks for this post. Would you say that "as a matter of pure textual construction" that race discrimination is barred by the 14th Amendment?
3.28.2007 1:11pm
The Emperor (www):
"Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."

I think this language is vague enough that it could be massaged by a competent court so as to allow for any of the policies you noted above. For example, sports teams: Arguably, the language requires separate teams for girls, rather than prohibiting them.
3.28.2007 1:12pm
K Parker (mail):
Exclusion of Boys from Girls' Sports Teams
Why no mention of the converse?
3.28.2007 1:13pm
Shinobi (mail) (www):
Actually I don't really see any of the tings that were listed in the post as negatives.

Women are already serving in combat, and being raped, by their fellow US Soldiers. The issues that you raise are not actually indications of a woman's inability to serve in the military. The idea that men might run off on some rescue misson for a woman, or be tempted to rape her are assumptions based on men's inability to control themselves, not women's inability to operate military equipment and serve as competent fighters.

Sex based affirmative action is harmful to women int he workplace because they can then be seen as the "token" not people who achieved their positions based on their abilities. I think ending this (along with raced based affirmative action) would be a good thing.

The boys on girls sports team issue I also have no problem with. Perhaps some kind of weight class would assuage parental concerns over this. The taller stronger students would be in one league with the smaller students in the other, so they would be less likely to have extreme physical advantage over eachother. In fact I think allowing girls and boys to compete together would be good for society in general, letting them see eachother as people and competitors and not just the "other" gender.

And I have no problems at all with same sex marriage.

These obviously are just my opinions, I'm just trying to point out that not everyoen would necessarily see these things as downsides. I know that men and women aren't necessarily the same, but I don't see why we can't try to end the socialization that we are so very different. At least then we will be able to determine what our natural differences are, versus what things are imposed on us by tradition and societal pressures.
3.28.2007 1:15pm
Brett Bellmore:
The thing I wonder about the ERA and the amending process is, is there any longer a <i>point</i> to amending the Constitution? The ERA doesn't get ratified, and the courts implement it anyway. The 27th amendment DOES get ratified, and the courts interpret it in such a way as to render it moot.

Seems the courts don't care to let the states play a role in this anymore.
3.28.2007 1:19pm
PGofHSM (mail) (www):

Er, how has the 27th Amendment been interpreted in such a way as to render it moot? Have couts been saying that a "law, varying the compensation for the services of the Senators and Representatives, shall take effect" before "an election of Representatives shall have intervened"?
3.28.2007 1:29pm
Michael A. Koenecke:
Re: "I think this language is vague enough that it could be massaged by a competent court so as to allow for any of the policies you noted above. For example, sports teams: Arguably, the language requires separate teams for girls, rather than prohibiting them."

Sounds suspiciously similar to "separate but equal" to me...
3.28.2007 1:30pm
Jon Rowe (mail) (www):
If one reads the 14th on the narrowest "originalist" and "textualist" grounds (as Eugene did to deny gender has any protection under it) one could also say that certainly the text says nothing about barring all or even most forms of racial discrimination (even if clearly it was understood to bar some) -- specifically, certain forms of racial discrimination like banning interracial marriages, and arguably segregating public schools were understood to remain legal after the 14th was ratified (this is under the theory that Jack Balkin refers to as the original expected application of the text).

"Equal protection of the laws" in its clearest plainest sense means equal protection of whatever general laws happen to be on the books. For instance White murders Black. A general murder statute exists in state X where the act occured which outlaws said behavior. Black, according to the 14th Amendment, must be protected equally by said murder statute. And btw, even though race was certainly part of the larger context behind the 14th (after all states were denying blacks and not women the equal protection of the general laws), since the text doesn't specify "race" but rather "persons," if a government decided the stop enforcing the equal protection of general laws to any social group including gays, women, or even the "unborn" if they qualify as "persons" -- I see no good reason why even the narrowest understanding of the equal protection clause wouldn't apply.
3.28.2007 1:33pm
Jeff Shultz (mail):
Let's see. under ERA, the US Army would have to equalize the PT Test standards between females and males. While some events, such as the situp, are pretty close, there is still a pretty wide disparity on the pushup event and the run.

So... which do you want, a less physically capable military, or one that few females can physically qualify to stay in?
3.28.2007 1:38pm
Eugene Volokh (www):
As I understand it, "equal protection" was generally understood in 1868 as being a bar on race discrimination in certain contexts -- not as to voting (which is why the Fifteenth Amendment was required) or likely even interracial marriage, but nonetheless as to a pretty substantial range of government action. The text, coupled with the original understanding of the text, would get a considerable amount of restraint on governmental race classifications. The text plus the original understanding would not (especially given section 2) get much restraint on governmental sex classifications.
3.28.2007 1:48pm
Eugene Volokh (www):
K Parker: Unless I'm mistaken, girls already can't be excluded from boys' sports teams at public schools solely because of their sex -- there just isn't a sufficient "exceedingly persuasive" justification for such exclusion. In practice, teams that require pretty high performance would tend to be entirely or almost entirely boys, partly because of biology and partly because of social factors. But formal exclusion of girls, I think, would generally be unconstitutional (though the caselaw on the subject is mixed).

But because girls are generally weaker and smaller than boys, there may be an exceedingly persuasive justification for allowing girls-only teams, since otherwise girls would be largely excluded from competition. I discuss this in more detail in the context of Prop. 209's "bona fide qualifications" exemption in this article, and also cite some Equal Protection Clause / state equal rights amendment cases.
3.28.2007 1:53pm
PGofHSM (mail) (www):
Prof. Volokh,

I agree that the original understanding of the 14th Amendment gives far more support to a ban on race discrimination than on sex discrimination, but is there a purely textualist argument for the 14th Amendment's being read as a ban on race discrimination?
3.28.2007 1:55pm
The sports team example is an EXCELLENT one.

Gender discrimination in sports teams is viewed as totally legitimate by nearly everybody, but is about the most blatant form of gender discrimination around. It is also almost entirely one sided, and almost entirely detrimental to boys/men.

Since males are vastly superior athletes in almost every sport, not allowing men to compete on women's team harms mens equality, since they can't compete for scholarships etc. against inferior athletes, and many who can't make an all mens team could easily make a woman's team.

There is no dispute to this, especially in sports like track and field, where the metric is purely objective.

A decent male sprinter from a second tier school could beat most if not all elite female sprinters for instance. Just compare marion jones times with the times at your local university.

Also, the discrimination is almost entirely one sided.

girls/women have fought for and won the "right" to compete on men's teams, but women ONLY teams are completely accepted. in some sports, there is not even a school sponsored male equivalent (field hockey)

I've trained and competed with some of the best women athletes in the country, and i am not slighting women's sports capabilities in the slightest, just speaking truth about the disparity in performance between men and women, and the way we accept gender discrimination in this field.

if we did not... women would be barely represented at all in most sports that have objective tests (track and field), and thus equal treatment and opportunity would result in vastly disparate representation
3.28.2007 1:56pm
PGofHSM (mail) (www):
So... which do you want, a less physically capable military, or one that few females can physically qualify to stay in?

If one needs to be able to do a certain number of pushups in order to be a capable soldier, then we certainly should exclude all people -- male or female -- who cannot do that number of pushups. If that level of upper body strength is not actually a prerequisite for all military work, but merely an arbitrary belief in pushups, then it seems awfully dumb for us to be letting in convicted criminals while we exclude people who do fewer pushups.
3.28.2007 1:59pm
DiverDan (mail):
EV states "My sense is that the status quo is probably good enough, because it seems so solidly entrenched; but it's not an open-and-shut matter, it seems to me."

I have to admit being really torn on this -- as a purely policy question, I have to agree that the status quo seems to have struck a very acceptable compromise. However, I am really steamed that this is just one of many areas where the Judiciary, and the Supreme Court in particular, has usurped the authority of the people by effectively adopting its own version of the ERA by judicial fiat, even though the ERA could not garner sufficient popular support for adoption by the requisite number of states in the 70s. If it accomplishes nothing else, perhaps adopting the ERA by the proper constitutional process will send a belated message to the judiciary that we are still in charge.
3.28.2007 2:06pm
JohnAnnArbor (www):
Guys are already playing field hockey in some places. I think there was a case of that near Ann Arbor.
3.28.2007 2:10pm
Brett Bellmore:
"Er, how has the 27th Amendment been interpreted in such a way as to render it moot?"

Shortly prior to the amendment's final ratification, Congress saw the writing on the wall, and passed a law creating an automatic mechanism to periodically raise their pay unless they voted to cancel the raise, and the Court interpreted the amendment as permitting this evasion.

I do not think the Court would have allowed such easy evasion of an amendment they actually approved of.
3.28.2007 2:15pm
Brett Bellmore:

If it accomplishes nothing else, perhaps adopting the ERA by the proper constitutional process will send a belated message to the judiciary that we are still in charge.

LOL! Still in charge so long as we rubber stamp the Court's decisions, you mean?
3.28.2007 2:18pm
Bpbatista (mail):
Is there any significant and inherently unjust sex discrimination (i.e., stuff other than opposite sex bathrooms and single sex sports teams, etc.) that is legal today without an ERA? If not, then why bother?
3.28.2007 2:30pm
"inherently unjust" is clearly subjective, but why is sports teams NOT "significant" and "inherently unjust"?

*if* one is of the mind that there should be no gender discrimination?
3.28.2007 2:33pm
John Burgess (mail) (www):
I think it a superfluous attempt at feel-good politics.

As Eugene has said, law and society have already caught up to what the original amendment sought. It is conceivable, though very unlikely, that society could move in a retrograde fashion to abrogate support for sexual equality. Putting a bottom line on that possibility, though, strikes me as unnecessary.

But new laws open new doors for creative politics and lawyering. I'd rather keep that door shut.

Whether a regenerated amendment would draw sufficient public support for ratification this time around is a bit of a crap shoot. Will politicians pander to the masses? Will the masses go for the good feeling? Will a redundant law be promulgated in the service of re-elections? I'm putting my money with H.L. Mencken, unfortunately....
3.28.2007 2:33pm
The Emperor (www):
Michael A. Koenecke said: "Sounds suspiciously similar to "separate but equal" to me..."

Yes, separate but equal. Or rather, "separate and therefore equal." Without separation, things would not be equal. I think a combination of respect for gender equality plus common sense can get us through any of these issues.
3.28.2007 3:07pm
Fitz (mail) (www):
"The arguments that the ERA would lead to such a result can no longer be dismissed, as it once was, as a "hysterical" "emotional scare tactic" "canards.""

Someday, perhaps (unfortunately) people will write the same line concerning same-sex "marriage" and polygamy.
3.28.2007 3:10pm
Houston Lawyer:
Wouldn't the ERA require that women's sports teams in public schools be eliminated in their entirety? Also, separate restrooms would appear to be forbidden, just as separate restrooms for Blacks were. Separate prisons for women would also appear to be a thing of the not so enlightened past.

Most sex discrimination in this country is against men and boys. The Equal Rights Amendment should eliminate preferences in favor of women.
3.28.2007 3:11pm

it is not seperate and "therefore equal"

it is 100% inherently unequal.

if men are prohibited from competing against women, and held to a higher standard to make a team, that is UNequal by any reasonable meaning
3.28.2007 3:11pm
Dick King:
You are all aware that boys, but not girls, are required to register for a potential draft when they reach 18?

If the 14th amendment allows that, how can an ERA be considered redundant?

3.28.2007 3:16pm
Dick King:
Bpbatista, does draft registration discrimination count as significant? As unjust?

3.28.2007 3:23pm
Duncan Frissell (mail):
One difference between now and then is that there is an oganized conservative movement in enough states (only takes 13) to block it.

The first time around, the ERA was blocked by largely by the individual beliefs of legislators, now there's a more coherent and organized ideological movement to push against it.
3.28.2007 3:30pm
Jon Rowe (mail) (www):
If you look at the feminist literature, things like gender segregated sports teams and bathrooms, I think would be abolished under the ERA. Certainly if the ERA were to apply strict scrutiny to all gender based classifications, this would be the likely outcome.

My employment law professor at Temple Law, Marina Angel, a fairly distinguished feminist academic, (though not as prominent as McKinnon, Dworkin, et al.) made clear that gender segregated bathrooms and sports teams were gender discrimination.

But, as a supporter of affirmative action, lefty-liberals like her have no problem with what are arguably "double standards." So that if some gender discrimination is necessary to protect women (but not men) it would be okay.

One classmate then relayed how such a system worked in her undergrad college dorms: They had general unisex bathrooms, but also "women only" bathrooms for girls privacy and protection. The men had no male only bathrooms.

I agree with what I think Eugene argues which is that a norm against gender discrimination ought to be constitutionalized and if the original meaning of the EPC doesn't provide strong enough justification, the ERA would be a good idea, provided it allowed for more reasonable exceptions than our constitutional norm against race discrimination which triggers strict scrutiny, an almost impossible standard to meet.

In short, the current "intermediate" scrutiny that gender classifications receive ought to be constitutionalized either under the EPC (what caselaw currently holds) or a newer ERA (to provide stronger constitutional justification for what is already constitutional law).
3.28.2007 3:31pm
Conservatives in the South blocked ERA in the early 1970s, so it isn't as if today will be any different. The ERA is DOA in most Southern states.

As for sex discrimination being largely against men, dream on. Women still get paid less on the dollar than men for the same work (though not as bad as it was in the 1960s). In most companies today, nearly all the managers and executives are men. One figure I've seen is 97% men.
3.28.2007 3:50pm
"As for sex discrimination being largely against men, dream on. Women still get paid less on the dollar than men for the same work (though not as bad as it was in the 1960s)"

the same bogus statistic trotted out.

sure, when you don't factor in 1) total time spent on the job (years, etc.) 2) average time spent per day 3) degrees etc. etc. etc.

there is no doubt that men make more, on average than women.

there is significant doubt that it is because of external discrimination.

women are, on average, more risk averse, and value different things than men. it would be surprising IF women earned the same as men, just as it would be surprising if women robbed banks as often as men.
3.28.2007 4:13pm
Brett Bellmore:

Women still get paid less on the dollar than men for the same work

Not according to what I've heard. Men and women performing the exact same jobs, with the exact same work histories, get paid, IIRC, almost exactly the same. There are some studies indicating that women get paid less for "comparable" work, but obviously there are a lot of value judgements involved in deciding what's really "comparable". And maybe the market makes those judgments differently from the people doing the studies.
3.28.2007 4:13pm
The ERA is a terrible idea for at least one reason, allouded to above:

Passage of it would raise from the dead the obscene legal doctrine of "Comparable Worth," in which government officials would be responsible matching widely different occupations and comparing the wages paid for each. Wage differentials correlated with gender imbalance would then provide the basis for legal action.
3.28.2007 5:04pm
JohnAnnArbor (www):

The men had no male only bathrooms.

I remember twice throwing girls out (not bodily) of male dorm restrooms. Both times they looked mystified. Another time I threw a girl out of my high-school locker room. Again, the same mystified look. Never mind that I would have been ARRESTED if I were in a girl's dorm bathroom, or would have been suspended if I had been in the girl's locker room in high school.
3.28.2007 5:08pm
Maisy5P04 (mail):
The ERA should require women to register for the draft. Women do not have to be put into combat positions but if equal rights are to be codified than women should bear the same responsibility for protecting those rights and freedoms as men.
3.28.2007 5:15pm
Jim O'Sullivn (mail) (www):
An unintended consequence of the re-introduction of the ERA may be the simple remnder that it failed last time. Those whose belief in sexual equality know no bounds whatsoever speak and act as if the Constitution already bars discrimination of any type whatsoever based on sex. This is a reminder to others that it does not.
3.28.2007 5:25pm
BobNSF (mail):
There are several states with ERAs. Of course, as predicted, society has collapsed in those states, no doubt because everyone spends all their time waiting in endless lines for the bathroom...
3.28.2007 5:33pm
Bpbatista (mail):
I'm not sure mere registration for the draft is inherently unjust discrimination -- as opposed to actually being drafted. But suppose it is for the sake of argument. In what other serious areas is their lingering and pervasive legal sex discrimination? Please don't talk to me about sports teams and restrooms. If those are the best you can do than the ERA is the bad joke that some claim it to be. What area of our society is screaming for an explicit constitutional ban on sex discrimination? I simply don't see it.
3.28.2007 5:43pm
JohnMc (mail):
Would not the passage of the ERA eliminate the FLMA? At its core FLMA recognizes the special needs of women after childbirth. An admirable consideration. But the presence of the ERA would wash that difference away.

3.28.2007 6:12pm
Wince and Nod (mail) (www):
The ERA is a fundamentally bogus notion. Men and woman are substantially different, not equal. Neither better, not worse, just different. Equal means the same. I can think of no more substantial a difference than this: women can bear children, but men cannot. Because man and women are different they should be treatly differently under the law.

This is pretty simple and obvious logic. Any attempt to treat women and men as equal under the law will lead to absurd results when dealing with the ways they differ. The result? Sometimes the courts will ignore the ERA. That's hardly the rule of law! Other times the law will create dysfunctional situations which cannot be remedied.

Society won't collapse, but it will be rather sub-optimal. I'm not sure why we want to replace sub-optimal patriarchical and matriarchial structures with sub-optimal equal structures while destroying the optimal patriarchical and matriarchial structures. Wouldn't it be better to keep the optimal patriarchical and matriarchial structures, and remove the sub-optimal patriarchical and matriarchial structures on a case by case basis?

This reminds me of various zero tolerance schemes. They all fail because a simple rule does not well govern a complex situation.

We can't govern the tide by Constitutional Amendment either!

I would support the following Amendment:

Men and women shall be considered equal under the law insofar as they are equal, and different insofar as they are different. It shall be a political question to determine when man and women are equal, and when they are different.

I do not want judicial precedent to determine when man and women are equal, and when they are different. Judicial precedent is hard to change, but our knowledge about how men and women differ - and how they are the same - has changed dramatically over time.

3.28.2007 6:15pm
Robert West (mail) (www):
PGofHSM: Congressional pay increases are determined by a formula calculated by the Office of Personnel Management, pursuant to a law passed just before the 27th amendment went into effect. Because the law itself isn't changed, the argument goes, increases in salary don't run afoul of the rules of the amendment.

It's basically defeating the spirit of the constitution by hiding behind its letter -- no law varying the compensation was passed, so no election need intervene, but compensation goes up anyhow.
3.28.2007 6:27pm
It is known through actuarial data that women (statistically speaking) live longer and are in fewer driving accidents. The ERA would seem to preclude the lower rates women currently enjoy (that are a result of the actuarial data) for both life and auto insurance.

I also don't see a compelling reason for this and believe the real reason this Left is pushing it is to codify taxpayer funded abortion rights into the Constitution.
3.28.2007 6:27pm
Brian G (mail) (www):
The 14th Amendment does just fine, so the ERA is unnecessary. Take a look at what Title IX has done and the disaster it has been. For the feminists that want the ERA, they think that if only 300 woman want to play sports, then only 300 men should, even if there are 500 men willing and able to participate. That, in their perverse view, is equality.
3.28.2007 6:50pm
Wince and Nod (mail) (www):
That, in their perverse view, is equality.

Well, that is equality, by definition. But who wants equality? I want man and women to be different, not equal. Celebrate diversity!

3.28.2007 7:24pm
eric (mail):

The boys on girls sports team issue I also have no problem with. Perhaps some kind of weight class would assuage parental concerns over this. The taller stronger students would be in one league with the smaller students in the other, so they would be less likely to have extreme physical advantage over eachother.

Now that is funny. I tell you what, try it out. Some girls might be able to hang at the elementary level, but lets be serious.

It tell you what, as a test, Vonda Ward vs. Andre Ward. I am giving you a few pounds there.
3.28.2007 7:26pm
AST (mail):
Does anybody sense some chest pounding on the old '70s left who believe they've been vindicated in the last election and the votes setting a end date for our operations in Iraq? They never seem to know when enough is enough, and they're bound to drive away a lot of the Dems' natural supporters as they did in 1968 and 1972. I think Obama could be the New McGovern.
3.28.2007 8:26pm
Richard Aubrey (mail):
The comparable jobs issue got pounded flat about twenty years ago. For example, it was said that nurses had great responsibility for the lives of their patients--thinking of hospital nurses. Then somebody said that a bus driver can screw up a couple of dozen folks if he sneezes wrong. So bus drivers should get more money. It would take a nurse her whole shift and a good deal of effort to do the same at a hospital, unless she was cross-connecting the oxygen and anesthetic lines.
Teachers... they have all the responsibility for kids and so forth. True, but how badly can a teacher screw up a kid short of assault? We all remember or best teachers, but they didn't make us geniuses. And a short-order cook could ruin us quicker.
So equal pay for comparable work didn't fly then and it will only give Leno more material now.
3.28.2007 9:13pm
Beth B:
Would not the passage of the ERA eliminate the FLMA? At its core FLMA recognizes the special needs of women after childbirth. An admirable consideration. But the presence of the ERA would wash that difference away.


I assume you are referring to the Family and Medical Leave Act. If so, then why on earth would the ERA eliminate it? It doesn't give leave only to women - men can take leave too.

AFAICT, as written it's actually a pretty gender neutral law.
3.28.2007 9:28pm
Observer (mail):
I can guarantee that if the ERA were passed, liberal "public interest" law firms would use it to get the courts to require "comparable pay for comparable work," with the courts determining what jobs were comparable and what they were worth. It's a pretty safe bet that some judges (9th Cir. anyone?) would leap at the chance to do just that.
3.28.2007 10:09pm
Kyle Thortington (mail):
Volokh can argue that the text is understood in light of its first interpretation by a Court (part of the original public meaning). As Scalia has noted in opinions, the Slaughterhouse Cases establish that the text of the 14th Amendment guarantees black equality.

The ERA might eliminate the Pregnancy Discrimination Act and the appointments restrictions related to the Office of Women's Health.
3.28.2007 10:09pm
This renewed ERA push is a charade aimed at drumming up Girl Power sentiment for Hillary's presidential campaign. Whether or not it would be a good idea, while it makes for an interesting debate, is beside the point. It has no chance of going anywhere and the people who reintroduced it know that.
3.28.2007 10:38pm
This time around, any amendment could explicitly exempt the things people want to exempt and explicitly set the standard of review on the others. People don't have to take chances on the courts doing something they don't want. That's what they buy by amending the constitution themselves.
3.29.2007 12:33am
Randy R. (mail):
Can any body tell me which states have enacted a form of ERA? And then I would like to know how those states differ from states that have not. That would tell us a lot more about how a federal ERA would play out much better than mere speculation, which is what everyone is up to here.
3.29.2007 12:43am
Randy R. (mail):
Ah, the good ole days of Women's Lib. I was just a teenager back then, but raised in a house with a strong willed woman and two older sisters, I got quite an earful about equal rights for women. I never had a chance to be sexist. Maybe that's why I ended up gay! (I jest, of course, for those inevitable idiots who think being gay is a choice. But I digress).

As I recall, the ERA was played out at a time when women were entering the work force in unprecedented numbers. And not just as teachers, but as lawyers, executives, doctors, and so on. I still remember all those news segments of women suing to become police officers and firefighters. (Remember when they were called policemen and firemen?) I worked at Sears and I had to keep refering to sales person, rather than salesmen. When I referred to the 'girls' in the office, I got an earful all over again.

But they were right, and had every right to be in those positions. And the men fought them something awful. Those female pioneers can tell you stories about harassment and worse. I remember tv movies that involved a young man having to deal with a (gasp) lady boss! How many were referred to patronizingly as a 'career girl"?"

They've come a long way, baby. Today, we expect to see women in every profession. Sure, they aren't always treated as an equal, but they are there. Even Phyllis Shafley, who argued that the woman's place is in the home, works full time as the prez of the Eagle Forum and is in no way 'just a housewife.' She conceded the war even as she fought the battles, which is sorta weird.

I remember men being angry at women for 'taking a man's job.' As recently as 1971, a married woman could not own a credit card in her own name. She couldn't establish credit! Ah, those were the days. (And if you want a cause for the breakdown in marriage, women's lib is a primary cause, since women no longer HAD to stay married for the financial stability. Perhaps opponents of SSM should try to return women to a state of financial dependence to restore the long lost luster of marriage. Depriving married women of credit would be a good start, I'd say.)

And that was the background for the ERA struggle. I'm not sure it's needed nowadays -- proponents will have to show me it's needed, but I'm open minded. Perhaps it is. Or perhaps there are easier ways to accomplish the same thing. But it becomes a national debate, it will be far different from before. Today, women's rights are assumed, back then they were opposed.
3.29.2007 12:56am
msk (mail):
Have none of you ever been responsible for calculating a budget or writing the paychecks?

Requiring every school to add a second-gender coach for every team might financially halve the number of teams. K-12 boys' teams need male coaches, and K-12 girls' teams need female coaches, generally, because the coaches also supervise children's locker rooms, examine children for first aid, teach personal health and hygiene, etc.

No doubt there are rural counties where they'd be happy to take any gender to improve the high school basketball team, or cheerleading squad, but to force every school in New York to admit both genders to every team would be silly. Legally, a student gets the sports, club, music, or art opportunities the local school district has the cash to offer that year. Dollars and sense.

We see gender or age divisions, and playoffs, because the essence of competition is to try to field athletes (or chess players) who are closely matched in ability. Men and women can still compare batting averages, speeds in track, skating, or swimming events, strength at weightlifting, without requiring that every school team be open to both genders.

For fire fighters, equal opportunity still means everyone on the team is tall enough, strong enough, well trained enough to handle heavy equipment, carry unconscious people, run up ten flights of stairs in full safety gear.

When lives are on the line, everyone who holds a key job really must be able to perform that job. Affirmative action can strongly encourage applicants from under-represented groups to give the training program a try, but some physical tasks still require exceptional strength and long arms. "How tall are you?" is not a sneak attack on your gender or ethnicity.

"Comparable pay for comparable work" led in the 1980s to
thousands of instances of pay-rate shifts for gardeners vs. receptionists, painters vs. purchasing clerks (just within staffs of major universities) -- and those changes are reasons the ERA is not such a hot issue now.

At first, it was hard for some private companies to decide what was fair between jobs that require you to own and maintain your own set of precision machine tools, or climb utility poles in harsh weather, compared to jobs that require a high school grad to sit quietly and type. Now, market forces more often set pay and benefits to attract qualified hires, and we no longer hear those old arguments about "male breadwinner" versus "a woman who only works to earn pin money" stereotypes.

25 years of employers gradually losing prejudices (or aging out of management) leaves us thankful for the debates the ERA proposal stirred up, but now most people feel free to enter and leave jobs on the basis of personal goals. Now, reviving ERA would be politicians tripping over their own tongues, trying to craft wording to enforce social conditions which already have seemed natural, fair, efficient and productive for years.
3.29.2007 2:53am
"The boys on girls sports team issue I also have no problem with. Perhaps some kind of weight class would assuage parental concerns over this"

obviously, the differnece is more pronounced post-puberty but...

even given equal weights...

men are
1) faster
2) more powerful
3) stronger
4) more explosive

etc. vs women

women otoh, have superior flexibility . they are also better cold water swimmers (about the only objectively measured sport they exceed men in).

again, i have trained with some of the strongest women in the world, women who can squat over 400 lbs and clean and jerk well over 1.2 times their bodyweight (which most men can't do).

even they would laugh at the idea that the only difference sports wise between men and women has to do with weight.
3.29.2007 12:17pm
Richard Aubrey (mail):
There was a case 'round here recently where the best kicker a football team could get was girl on the girls' varsity soccer team. After a kick-off, the receiver deked the ten guys and then decided to run over rather than around the diminutive kicker. She took him down. Made ESPN. Saved the game. The reason this made the news is that, contrary to the likely outcome, she didn't end up in orthopedic intensive care.
But sports is, so far, free from affirmative action issues. Perhaps athletics wouldn't be requiring two different--gender-normed--levels of preparation, as universities require two separate--racially-normed--academic packages.
I'm getting old, and maybe that's the reason, but I hope I would never have felt free to hit a woman in some sport as hard as I was happy to hit a man. I don't know if it would be a good idea to train men to do that. Attitude carryover into the rest of life, maybe?
3.29.2007 4:14pm
Alan K. Henderson (mail) (www):
More food for thought:

Men pay more than women for automobile insurance.

Women are favored in child custody cases.

Women's health clubs.

Single-gender scouting organizations.

If I advertise for a roommate, do I have the right to discriminate according to gender or sexual orientation?
3.31.2007 1:06am