What Effect Would the Equal Rights Amendment Have if Enacted?

In this recent article, columnist Steve Chapman considers the possible impact of the Equal Rights Amendment, which has been reintroduced in Congress by a group of primarily liberal Democratic supporters. He concludes, that it will likely have little or no impact because:

As Northwestern University law professor Andrew Koppelman puts it, Phyllis Schlafly and other opponents [of the ERA] won the battle but lost the war: "The ERA was defeated, but its rule against sex discrimination was incorporated into constitutional law anyway, by judicial interpretation of the 14th Amendment...."

In fact, says Koppelman, "it's hard to imagine it making any difference at all."

Andy Koppelman knows a lot more about antidiscrimination law than I do, but I have to disagree with him here. Although it is true that the much of what ERA proponents wanted back in the 1970s has been adopted by courts under the Equal Protection Clause since then, there are a number of current laws that could be ruled unconstitutional if the ERA (now called the "Women's Equality Amendment") to be enacted. The ERA's text mandates that "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." This language suggests that laws classifying people by gender must either be invalidated automatically or - at the very least - subjected to stringent "strict scrutiny" of the sort applied to racial classifications today.

Eugene Volokh discusses some potential effects of the ERA in this post, including affirmative action for women, limits on the use of female troops in combat, and bans on same-sex marriage. Of these, I think that affirmative action programs for women would be the most vulnerable because they already encounter strong political opposition on the right, and judges would not be as hesitant to strike them down as, say the ban on same-sex marriage, which has broad popular support in most states.

In addition to Eugene's list, I would add a few others:

1. Male-only draft registration.

This is vulnerable for the same reason as are restrictions on women in combat (discussed in Eugene's post). Although the Court upheld male-only draft registration under the 14th Amendment in the 1981 case of Rostker v. Goldberg, it is unlikely to do so under an Equal Rights Amendment that clearly forbids virtually all gender classifications. This may not matter much as long as there isn't a draft. But might matter a great deal if the draft were ever reintroduced.

2. Single-sex bathrooms.

It may seem obvious to most people that rules mandating single-sex bathrooms in public buildings would pass even a very stringent "strict scrutiny" test of the sort that would probably be required to uphold a gender classification under the ERA. It is not so obvious to me. I attended a college that had coed bathrooms; the school was all-male until the 1970s, and many buildings still had only one set of bathrooms, which necessitated making them coed. Coed bathrooms may well be less convenient and more unpleasant than single-sex ones. But one thing I learned from my college experience is that they can function without major violations of privacy, outbreaks of sexual assault, and other severe harms. And the Supreme Court has repeatedly held that convenience and pleasantness are not enough to overcome the strict scrutiny standard in other contexts, such as racial discrimination. I suspect that courts will be initially reluctant to strike down laws requiring single-sex bathrooms in public facilities. But that reluctance might break down over time, as judges become more aware of the fact that coed bathrooms won't necessarily lead to the sorts of massive harms that we might imagine.

3. Civil unions limited to same-sex couples.

As co-blogger Dale Carpenter has pointed out, civilian union laws recently enacted in some states limit this status to same-sex couples. Heterosexual couples are not permitted to enter into civil unions. It is easy to argue that this restriction is a gender classification for exactly the same reasons that one could contend that a law restricting marriage to opposite-sex couples is a sex classification. Under these civilian union laws, Adam can enter into a civil union with Steve, but could not do the exact same thing with Eve - even if Eve and Steve are identical in every way other than gender. A variety of arguments could be made to justify the restriction of civil union status to homosexuals, especially in a context where heterosexuals can marry, but gays cannot. However, I am skeptical that these arguments will be enough to pass strict scrutiny. Moreover, it is more likely that federal judges will use the ERA to strike down laws restricting hetersexual access to civil unions than that they would use it to strike down legislation restricting homosexual access to marriage - even though the latter has already happened in two states with ERA provisions in their state constitutions (Massachusetts and Hawaii). Civil unions for heterosexuals are a less politically charged issue than marriage rights for gays. Judicial decisions requiring the former are less likely to generate a major political backlash than ones mandating the latter; it would be naive to expect that judges won't take this difference into account as they decide cases.

4. Title IX rules on womens' sports teams.

As currently interpreted by courts and federal administrative agencies, Title IX essentially requires universities to have equal numbers of male and female sports teams, regardless of the amount of interest that male and female students have in athletics. This is a fairly obvious gender classification and one that probably won't survive strict scrutiny under the ERA. Eugene suggests in his post on the ERA that it might lead to the complete abolition of all-female sports teams at state universities and public schools. Perhaps so, but in my view the dismantling of this aspect of Title IX is a more likely scenario.

The Bottom Line.

If enacted today, the ERA would have a number of effects that many political liberals will deplore, including abolishing affirmative action for women and cutting back on key aspects of Title IX. It might also have some results that they would approve of, such as potentially undercutting bans on same-sex marriage. To my mind, the effects that liberals dislike are more likely to arise - at least in the short term - than those they will applaud. Affirmative action for women and Title IX gender balancing have considerably weaker political support than the restriction of marriage to opposite sex couples, and are therefore more likely to be struck down by politically savvy judges interpreting the ERA. A possible exception is the abolition of restrictions on women in combat, the one likely effect of the ERA that could occur soon after passage, that liberals would approve of.

Personally, I support nearly all the projected results of the ERA, with the possible exception of eliminating single-sex bathrooms in public buildings (which I don't feel strongly about either way). ERA advocates can count on my staunch backing! Others, including many on the left, might feel differently, however.