Phyllis Schlafly Said It Would Be Like This:

As I note below, a California trial court has just held that the California opposite-sex-only marriage requirement is unconstitutional; and part of its argument — though only part — was that it violated the ban on sex discrimination in the state constitution, since the opposite-sex-only rule necessarily discriminated based on sex. (Eve can marry Adam, but Steve can’t; the only difference between the two is that Eve is a woman, the opposite sex from Adam’s, and Steve is a man.)

This leads me to repeat a point that I raised when one of the Massachusetts Supreme Judicial Court judges made a similar argument in 2003. Consider these quotes:

1. “What foes of ERA contend were valid arguments and what advocates claim were emotional scare tactics also seemed to sway sentiment among the women against the amendment [in North Carolina]. Opponents, for example, suggested passage of ERA would mean abortion on demand, legalization of homosexual marriages, sex-integrated prisons and reform schools — all claims that were hotly denied by ERA supporters.” U.S. News & World Report, Apr. 28, 1975.

2. “Discussion of [the ERA] bogged down in hysterical claims that the amendment would eliminate privacy in bathrooms, encourage homosexual marriage, put women in the trenches and deprive housewives of their husbands’ support.” N.Y. Times, July 5, 1981 (excerpt of a book by Betty Friedan).

3. “The vote in Virginia [against the ERA] came after proponents argued on behalf of civil rights for women and opponents trotted out the old canards about homosexual marriages and unisex restrooms . . . .” Wash. Post, Feb. 19, 1982 (column by Judy Mann).

There are many more examples from that era, including, if I recall correctly a quote from leading constitutional law scholar Larry Tribe. (By the way, I have no reason to doubt the sincerity of these claims; my post refers solely to their inaccuracy.)

Yet it now looks like the “hysterical” “emotional scare tactic” “canards” may well have been quite reasonable predictions: It looks like courts are indeed treating opposite-sex-only marriage rules as involving sex classifications, and as thus being presumptively unconstitutional. Had the ERA been enacted at the federal level, it would have further raised the bar against sex classifications, and thus made decisions like the California and Massachusetts one more likely.

True, the U.S. Supreme Court has itself interpreted the federal constitution as presumptively prohibiting sex discrimination, even without the ERA. Federal courts may still use that as an argument to reach the same result as the California trial court did, again even without ERA. (The California trial court’s decision was based on California constitutional law, which is largely based on a general “equal protection” provision of the state constitution — one whose text is similar to the federal Constitution’s, though California courts have interpreted the text in a more demanding way.) Still, the ERA would have strengthened the “no sex classifications” rule, and would thus have made it more likely that courts would adopt broad “the government must be sex-blind” positions.

Now I think it would have been good had the ERA been adopted, though perhaps with a few modifications. (For instance, I don’t think the coalition that supported the ERA knew that it would be helping resolve the same-sex marriage question; had they known this, they should presumably have carved out an exception for this. It may also have been worthwhile to carve out exemptions, perhaps to specifically protect certain privacy rights, protect girls-only sports teams, and probably allow the exclusion of women from combat, though that’s a tough question.) I also think it’s good for same-sex marriages to be allowed, though I don’t think this should be enacted by courts.

But the California decision — and the Massachusetts decision, and a similar Hawaii decision that has since been reversed by the Hawaii voters — shows us that we shouldn’t lightly dismiss plausible, facially valid textual arguments (the text bars discrimination based on sex, and the marriage laws do treat people differently based on their sex) as “canards,” “scare tactics,” or “hysteric[s].” The anti-ERA forces, much as I probably disagree with most of them on many things, have proved prescient.