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.
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"?
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.
-dk
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?
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.
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.
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?
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.
Thanks for this post. Would you say that "as a matter of pure textual construction" that race discrimination is barred by the 14th Amendment?
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.
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.
Seems the courts don't care to let the states play a role in this anymore.
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"?
Sounds suspiciously similar to "separate but equal" to me...
"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.
So... which do you want, a less physically capable military, or one that few females can physically qualify to stay in?
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.
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?
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
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.
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.
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.
LOL! Still in charge so long as we rubber stamp the Court's decisions, you mean?
*if* one is of the mind that there should be no gender discrimination?
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....
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.
Someday, perhaps (unfortunately) people will write the same line concerning same-sex “marriage” and polygamy.
Most sex discrimination in this country is against men and boys. The Equal Rights Amendment should eliminate preferences in favor of women.
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
If the 14th amendment allows that, how can an ERA be considered redundant?
-dk
-dk
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.
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).
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.
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.
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.
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.
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.
Opinions?
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.
Yours,
Wince
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.
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.
Well, that is equality, by definition. But who wants equality? I want man and women to be different, not equal. Celebrate diversity!
Yours,
Wince
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.
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.
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.
The ERA might eliminate the Pregnancy Discrimination Act and the appointments restrictions related to the Office of Women's Health.
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.
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.
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.
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?
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?