Issue Position: Focus: Equal Rights Amendment

Issue Position

I am often asked whether I support passage of the Equal Rights Amendment. The best answer I can give is, "Would you give a Supreme Court controlled by Anthony Scalia and Anthony Kennedy a way to strike down any law they think treats women better than men?" I do not, which is why I would rather work toward the passage of new laws that actually will benefit women, and why I promise to introduce into Congress a constitutional amendment guaranteeing the reproductive freedoms of all people in America.

First, a little preface. You probably do not know this, but after the 19th Amendment was ratified in 1920, guaranteeing women the right to vote in all states (but not all U.S. territories), it took the Supreme Court JUST 3 YEARS to use the 19th Amendment to invalidate laws protecting female workers.

In 1905, the U.S. Supreme Court had prohibited states from limiting the number of hours that workers could be made to work--on the grounds of "Liberty of Contract." In those days, many employers demanded over 60 hours a week, from Monday to Saturday. Then in 1908, the same Court allowed states to limit the hours worked by women "to protect their health," accepting claims that women were more delicate than men.

As galling as that argument was to women, the Muller rule protected women from exploitation and over-work, and also men who worked in the same workplaces. However, even that protection was struck down in 1923, on the grounds that the 19th Amendment "made women equal" to men, even though granting women the right to vote definitely did not change women biologically!

Not only could a similar process work against women if the ERA were passed, but advocates have never submitted one case or issue that the would be decided differently if the ERA were in effect. The ERA would not affect private companies and individuals. The ERA would not affect laws that affect women differently from men--for example, abortion laws--but not actually name women. The benefits of the ERA would be symbolic, but the ills created by the ERA would be real, and heavy.

Four reasons why the ERA should not be passed are:

1. We don't need it.

2. It won't create changes we need.

3. It may create changes we don't want.

4. There are more important things to spend time and money on.

To start with the first point, the reason why the ERA is unnecessary is that nearly all possible actions by governments--not corporations, churches, individuals, etc.--that discriminate on the basis of sex have been prohibited since at least 1976. The only way a law that discriminates on the basis of sex can be enforced is if the Government--not the person challenging the law--proves that the law has a "substantial relation" to an "important" Government objective. Although this "intermediate scrutiny" standard is theoretically easier to pass than the "strict scrutiny" standard used for laws involving race, ethnicity, and national origin, it has been rarely, if ever, satisfied.

For example, the U.S. Supreme Court ruled in 1996 that Virginia and South Carolina could not prevent women from entering their publicly-funded military academies, "Virginia Military Institute" and "The Citadel." Even though both schools had been all-male for over 150 years, neither could satisfy the "intermediate scrutiny" standard, and both had to admit women. All this has happened without the ERA.

If the ERA were passed, the only change would be that laws that discriminate on the basis of sex would have to overcome the "strict scrutiny" that face racially discriminatory laws. Under "strict scrutiny," a discriminatory law is invalid unless the Government proves that it is "necessary" to achieve a "compelling" interest. These "compelling" interests essentially mean things like protecting us from enemy countries during a war. However, since Governments consistently fail to meet the "intermediate scrutiny" standard, raising sex discrimination to a "strict scrutiny" standard would have no real effect.

Moving on to the second point, consider Ms. Lily Ledbetter (1938-), who retired from Goodyear Tire Co. in 1998 after working there for 20 years. Unfortunately, because of possible discrimination when she was one of the first female non-clerical employees, when she retired, she was earning thousands of dollars less per year than male employees like her.

Ms. Ledbetter sued Goodyear after she retired, and even though her case went to the U.S. Supreme Court in 2007, she did not win. However, Ms. Ledbetter did not lose because the ERA isn't in effect; Goodyear is a private company and would not be affected by the ERA. Even though most sex discrimination is committed by corporations, churches, and individuals, the ERA would not prevent those acts of discrimination.

As for the third point, remember that the ERA would hold acts of sex discrimination by Governments to the same strict scrutiny standard applied to racially discriminatory acts of Government. That means that under the ERA, a law that favors women is just as likely to be invalid as a government policy that favors men.

This could be a problem for owners of the 11,000 small businesses that have been certified by the Women's Business Enterprise National Council as "women-owned businesses," and gain preferential treatment from many government agencies and many corporations when they try to get contracts. Under current law, these "set-aside" programs have helped thousands of women get the initial boost they needed to show that they can do work as well as established companies. Under the ERA, this door that helps women advance could be closed forever.

Another possibility is that, forced to apply "strict scrutiny" on gender-based classifications, "women-only" colleges and other schools could be prevented from accepting federal education aid, or worse. We have evolved a delicate balance on the issue of gender in education and athletics, and the ERA would upset that.

Cases like that of Lily Ledbetter illustrate how many obstacles face women that the ERA will either not help or will make worse. That's because women need "justice" and "fairness" more than something as theoretical as "equality." For example, in 2009--two years after the Supreme Court ruled against Ms. Ledbetter--Congress passed and President Obama signed the "Lily Ledbetter Fair Pay Act" which helps overcome the injustice faced by women and girls who are working or will be entering the workplace in the future.

Laws like the Ledbetter Fair Pay Act only become law when women and men join together to persuade Congress and state legislatures to pass these laws. Since all of us have a limited amount of time to push for new laws and get the existing laws enforced, we can't afford to work on something like the ERA that won't fix what is wrong and may even create more problems. This is why the ERA should be left as a piece of history that lasted over 50 years, a campaign that can help inspire us to do the work necessary to really give women and girls fairness and justice in America.

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