Time for an Equal Rights Amendment
By ALEXANDRA BRODSKY and ELIZABETH DEUTSCH
July 29, 2014
An ERA will not eradicate sexism in America, but it might provide invaluable protections that the Supreme Court has so far declined to extend to women. We already have evidence of this in the success of constitutional amendments to state constitutions modeled off the stalled federal ERA and other constitutional protections against sex discrimination that exist in 22 states.
Consider parental rights cases. In Nguyen, the Supreme Court insisted that supposedly inherent differences between fathers and mothers are grounds for upholding a statute that makes it harder for children born out of wedlock with an American father, as opposed to an American mother, to claim U.S. citizenship. But in 1987, the Texas Supreme Court used its state ERA to invalidate a state statute requiring only fathers — not mothers — to prove that being recognized as a parent during legitimation proceedings would be in the interest of the child.
The protections offered by New Mexico’s state ERA similarly have been found to outmatch those in the U.S. Constitution. In 1998, the New Mexico Supreme Court ruled that the state’s Medicaid funding restrictions for medically necessary abortion amounted to sex discrimination and so were in violation of the state’s constitution. This ran directly counter to the Supreme Court’s 1980 decision in Harris v. McRae, which held that, under the Equal Protection Clause, the same state restrictions on Medicaid funding did not amount to sex discrimination.
While contemporary conservative backlash to women’s progress is very real, the American public today nonetheless might be more amenable to an ERA than it was in the 1970s. When the states last considered the ERA, opponents warned there would be terrible consequences: abortion rights, the end of combat exclusions for women in the military and even the unimaginable — same-sex marriage. Thankfully, these changes have already come to pass, depriving detractors of their vision of a sex-equality doomsday.
Our collective ideas of womanhood have changed, too. In 1980, Schlafly wrote, in congressional testimony, that “[o]ur young women have a constitutional right to be treated like American ladies,” to be delicate mothers and daughters with a singular mission: “the creation of life.” In Schlafly’s vision, the law’s purpose was to maintain women’s place in the domestic sphere, not provide equal opportunities and treatment regardless of gender. Yet women’s progress outside the home, along with the gay rights movement’s challenge to gender expectations, has rendered Schlafly’s image of “American ladies” archaic. If we don’t want our laws to continue to enforce this vision of women’s subservience, the Constitution needs to guarantee our equality. Times have changed, and the law needs to catch up.
Here’s the great news: In response to the women’s crisis in our courts and legislatures, we’ve seen the resurgence of a politically powerful feminist movement — the kind that could pass a constitutional amendment. Fed up, women are mobilizing. Survivors of sexual violence in the military and on college campuses have forced the injustices they have faced behind closed doors onto the nation’s policy agenda in Congress, the Pentagon and the White House. Feminist critics have called out the misogyny of opponents like former Missouri congressman and Senate candidate Todd Akin and columnist George Will, and amplified the voices of advocates to defeat anti-abortion bills in statehouses. Women voters — and particularly women of color — kept a pro-choice president in the White House in 2012.
With that kind of commitment, we could certainly dust off the ERA of the 1970s — and we could pass it this time, too.
Alexandra Brodsky and Elizabeth Deutsch are students at Yale Law School. Brodsky is an editor at Feministing.com and founding co-director of Know Your IX, a national student campaign to end sexual violence on college campuses. Deutsch holds an MSc in Gender from the London School of Economics.
Alexandra Brodsky and Elizabeth Deutsch are students at Yale Law School. Brodsky is an editor at Feministing.com and founding co-director of Know Your IX, a national student campaign to end sexual violence on college campuses.
Deutsch holds an MSc in Gender from the London School of Economics.