There are new posts on the subject from John Rosenberg (Discriminations) and Andrew Koppelman (Balkinization). An excerpt from Koppelman’s post:
Somin and Volokh are right that conservative Federal judges might seize on the ERA as a reason to invalidate sex-based affirmative action programs and special protections for women’s sports. But those aren’t the effects that ERA proponents have in mind.
When I said that the ERA would make no difference [referring to something Koppelman said to Chicago Tribune columnist Steve Chapman -EV], I was thinking about the difference that its proponents say it will have. Rep. Carolyn Maloney reportedly “noted that women still get only 77 cents for every dollar that men are paid, that only 3 percent of federal contracts go to women-owned firms, and that the poverty rate of older women in nearly twice that of older men.” There is no reason to think that prohibitions on sex-based classifications will ameliorate any of these problems….
I suspect that the real rationale for pushing this now was better stated by Terry O’Neill, executive director of the National Council of Women’s Organizations: “I would love for the American people to see who votes against women’s equality.” If one could get Democratic legislators to speak candidly about why they’re supporting a measure that does so little that’s real for their constituents, I imagine that they’d say this:
“Yes, it’s true that this is an empty, symbolic gesture. But there are going to be political costs for Republicans who vote against this, just as there were political costs for Democrats who voted against the constitutional amendment to ban same-sex marriage. Both of them are silly, demagogic measures. But that’s how the political game is played these days….”