Jacques: The era for ERA has passed
The Equal Rights Amendment is getting some renewed traction, with many Democrats working hard to make sure it becomes a permanent part of our U.S. Constitution.
That should concern you.
While it has an innocuous name — even one that sounds pretty reasonable — the nearly 50-year-old amendment is trying to solve problems that no longer exist for women, and may even make women’s lives harder, despite good intentions.
Here’s a little history. Congress approved the ERA in 1972 and sent it to the states; 38 states needed to ratify it.
The language is straightforward: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
By 1982, the deadline Congress had set for ratification, only 35 states had signed on, which left the measure to flounder. Since 2017, however, three additional states have ratified it — most recently Virginia.
The #MeToo movement is the likely catalyst for the resurgence.
While the 38-state mark has been reached, the long-passed deadline has thrown the legitimacy of the amendment into question. The Trump administration’s Office of Legal Counsel has said the ERA “expired.” Even Supreme Court Justice Ruth Bader Ginsburg, a proponent of the amendment, argued Congress should start over, given the deadline quagmire and the fact some states have since withdrawn their support.
The Democratic-controlled House attempted to address the deadline roadblock earlier this month by voting to remove the ratifying deadline. The Senate would also have to agree, and that’s not likely to happen while it remains under Republican control. But it’s an election year, and Democrats are going to make this a selling point. At its heart, the debate over the ERA is political.
Women already have plenty of protection under the law. For instance, the courts have made it clear the equal protection clause of the 14th Amendment applies to women. And for decades, women have enjoyed protection under the Equal Pay Act and the Civil Rights Act.
“There are no rights in America today that men enjoy and women do not,” says Jennifer Braceras, director of the Independent Women’s Law Center.
Braceras says that if the ERA were added to the Constitution, it would actually have negative consequences.
“It would prohibit the government from ever distinguishing between the sexes,” says Braceras, noting the ERA would apply to government employers only.
That means women could face registering for the draft, for instance, and sports teams comprising only one gender, as well as single-sex bathrooms, would be constitutionally suspect.
States around the U.S. have passed laws that purport to help women, but in the end have pernicious consequences. In California, the Pacific Legal Foundation is challenging that state’s 2018 “woman quota” law, the country’s first mandate for female board membership at publicly traded companies.
PLF senior attorney Anastasia Boden says measures like the quota law and the ERA ultimately disempower women by creating the impression that women are constantly subject to discrimination and other negative treatment.
And even worse, as in the case of creating quotas, it furthers stereotypes that women need special treatment to get ahead (not true) and is in fact condescending to women — something Ginsburg has also acknowledged about such laws.
“The upshot is that discrimination is already illegal,” Boden says.