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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.

Guest12345:
On the subject of bathrooms (and I'm not sure what it says about me that this is the point that is inspiring me to post):

Why aren't there already four different sets of public restrooms? Your first bathroom would be for the ladies who don't want to be checked out by either men or lesbians. Your second bathroom would be for the misandrist lesbians who the first group doesn't want to share with and who don't want to share with men. The third bathroom would be for the homosexual men. Finally the fourth bathroom is home to the homophobic men who don't want their instruments handled by the gays next door. Now that I think about it, you may need a fifth coed bathroom.
4.9.2007 9:16pm
Waldo (mail):
Ilya:

What do you think the effect of the ERA will be on divorce law (and the Violence Against Women Act) as well as child custody?
4.9.2007 9:20pm
Ilya Somin:
What do you think the effect of the ERA will be on divorce law (and the Violence Against Women Act) as well as child custody?

A good question. VAWA, despite the name, is mostly gender neutral (treating violence against men the same as violence against women), so it would probably be unaffected. To the extent that some provisions of divorce law and/or child custody law favor one sex over another, they might be imperiled. As I understand it, child custody law as currently written is gender-neutral, but some judges favor women in practice, and that might well be illegal under the ERA.
4.9.2007 9:24pm
tdsj:
"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."

False.

Title IX has three possible ways to achieve compliance: (1) substantial proportionality, (2) history and continuing practice of expanding opportunities for women, or (3) meeting the demonstrated interest of women.

Most schools comply by using the third prong -- thus they don't have to have an equal number of male and female sports teams. (To be more precise, it's actually roster spots that count for proportionality, not the number of teams.) And the Bush admin recently made it easier still to comply with the third prong by allowing schools to use a standardized interest survey that counts non-responses as "no interest."

Yes, I am aware that there is some case law saying that Prong One is a "safe harbor," and that anti-Title IX folks complain that if you're not in Prong One, you risk lawsuits. But it remains true that most schools don't use Prong One, and neither OCR nor private suits are really doing much right now to push them into Prong One.

If you don't believe me, pick a random school, go to their athletics website, and count the number of men and women on varsity rosters. Very few schools achieve substantial proportionality, and Title IX is apparently just fine with that.
4.9.2007 9:30pm
Dick King:

To my mind, the effects that liberals dislike are more likely to arise - at least in the short term - than those they approve of, with the possible exception of the abolition of restrictions on women in combat.


You are claiming this point as a possible exception, one of the few ERA results that might not make liberals unhappy. Logically there are two kinds of exception to your rule. Are you claiming that abolition of restrictions of women in combat is a change that liberals would dislike and that would be unlikely to arise in the short term, or that this is a change that liberals would like that would be likely to arise in the short term?

-dk
4.9.2007 9:41pm
obi juan (mail):
I'd imagine the unequal application of retraining orders would be an issue.
4.9.2007 9:53pm
PaulB (mail):
Why would the ERA abolish affirmative action for women? If affirmative action for racial or ethnic minorities passes constitutional muster in most cases currently, why should the ERA be a deterrent for gender oriented "diversity" or other policy goals?
4.9.2007 9:54pm
PaulB (mail):
Having just read Professor Volokh's previous post after writing above, I am skeptical as to his argument. It seems to me that Professor Volokh is projecting his own views as to the desirability and admissibility of affirmative action as it relates to race or ethnicity onto gender based affirmative action.

Nothwithstanding a few minor swipes by the Supreme Court as currently composed, does anyone here believe that the massive edifice of race influenced decisions in hiring, promotion, college admissions etc. has been even dented?
4.9.2007 10:00pm
Constantin:
This was mentioned in some quarters on the day the ERA was re-introduced, but it seemed to me to be a fairly transparent attempt to drum up "Grrrl Power" fervor for Hillary Clinton's presidential campaign. That it came about on the very same day as NOW's endorsement of Senator Clinton, in the middle of a self-described effort, online and otherwise, aimed at engaging girls and young women in the political process, only furthers my suspicion.

So I don't think this thing has a prayer of passing, and I don't think it ever was intended to pass. If it did, though, I'd be most interested to see its effects in the athletic arena. I've often wondered what the formal feminist rationale is for allowing sports teams comprised entirely of women to function at public institutions.
4.9.2007 10:02pm
Ilya Somin:
Why would the ERA abolish affirmative action for women? If affirmative action for racial or ethnic minorities passes constitutional muster in most cases currently, why should the ERA be a deterrent for gender oriented "diversity" or other policy goals?

Actually, it is not true that affirmative action for racial or ethnic minorities "passes constitutional muster in most cases currently." It does (sometimes) in the educational context, but not in any other context so far considered by the SUpreme Court. Moreover, the 14th Amendment, as written, does not explicitly ban all racial classifications. Thus, it is possible to argue that racial classifications can sometimes be used to benefit disadvantaged groups. The ERA, by contrast, would explicitly ban gender classifications, making it VERY hard to argue that any of them will "pass muster."
4.10.2007 12:23am
Ilya Somin:
You are claiming this point as a possible exception, one of the few ERA results that might not make liberals unhappy. Logically there are two kinds of exception to your rule. Are you claiming that abolition of restrictions of women in combat is a change that liberals would dislike and that would be unlikely to arise in the short term, or that this is a change that liberals would like that would be likely to arise in the short term?

I have rewritten this passage to make it a bit clearer.
4.10.2007 12:25am
Stefan (mail):

Christina Hoff Sommers claims that "Religious institutes that do not allow ordination of women would lose their tax exempt status." Anything to this?

link
4.10.2007 12:50am
PaulB (mail):
Ilya,

You need to read fewer law books and spend some time out in the real world. Does the university where you work have a race blind policy for hiring and tenure decisions? Do you know of any law firm of any size that has such a policy? And do you know of any large corporation that does not have explicit references to concepts such as "diversity" and manager reviews that include hirings and promotions by gender and race of that manager?
4.10.2007 1:05am
PaulB (mail):
Ilya,

You need to read fewer law books and spend some time out in the real world. Does the university where you work have a race blind policy for hiring and tenure decisions? Do you know of any law firm of any size that has such a policy? And do you know of any large corporation that does not have explicit references to concepts such as "diversity" and manager reviews that include hirings and promotions by gender and race of that manager?
4.10.2007 1:05am
Ilya Somin:
Does the university where you work have a race blind policy for hiring and tenure decisions? Do you know of any law firm of any size that has such a policy? And do you know of any large corporation that does not have explicit references to concepts such as "diversity" and manager reviews that include hirings and promotions by gender and race of that manager?

The fact that such policies go on does not mean that they are legal. It is a case where the law is underenforced. Moreover, many such policies are undertaken to avoid litigation under the "disparate impact" prong of Title VII jurisprudence and are for that reason winked at by the courts. But both disparate impact and Weber's endorsement of remedial affirmative action are products of an era when federal courts where much more liberal than they are today. The ERA would be interpreted by today's more conservative judiciary from the start, and thus would be unlikely to evolve in a more liberal direction than the text permits.
4.10.2007 1:23am
BobNSF (mail):
Civil unions, domestic partnerships, spousal unions, and, now!, "civilian unions".

If two gay veterans tie the knot, do they get a "military union"?
4.10.2007 1:56am
logicnazi (mail) (www):
A couple thoughts:

Child Custody:

I don't see how the statistical inequality in the way judges treat men and women could possibly be abolished by such an amendment. After all no individual case could be overturned based on the statistical results for all judges and how could you ever prove it wasn't the case that the judges were applying a gender neutral rule (who had the stronger bond with the child) that happened to favor women.

Affirmative Action:

If the 14th amendment and the plain language of the anti-discrimination laws haven't been able to get rid of it I don't see why this would succeed. I suspect the same judges who have upheld affirmative action would use the same reasoning (neutral rule about correcting past injustices/balancing current discrimination) to weasel out of striking the laws down. Hell they would probably use the very remarks by the amendment's supporters in congress as legislative history to avoid striking down affirmative action.

Civil Unions:

This argument only flies if and only if it would also force states to recognize gay marriage. Either men and women are both treated equally by civil unions because they are both free to marry someone of the same gender or, more likely, they are not in which case marriage doesn't pass the test either. Frankly it's absurd to think that once strict scrutiny is triggered the lack of gay marriage could survive. Even if you believe the arguments about it's harm to straight marriage the harms are pretty week and the evidence is certainly not rock solid.

Male Draft:

Thank God. This is a law that certainly needs to be changed. There may be reasons not for putting women on the front lines but their is no valid reasons for not drafting them at all. At a minimum they could do work on the home front even doing coastal defense and the like (if the enemy is on our shores they can rape our women whether they are soldiers or not). Frankly, I think they should be drafted into combat roles on ships if not in the front lines.

Coed Restrooms:

I found these to be (unexpectedly) perfectly fine. The issue with showers is a bit less convenient (have to cover yourself to leave the shower) and I would vaguely prefer not to have to be in a stall next to someone I might want to date but overall it isn't a big deal despite my early worries.

In short I'm afraid that this isn't how the amendment would be applied in practice.
4.10.2007 2:11am
Bruce Hayden (mail) (www):
One thing that has to be remembered here is that the Equal Right clause of the 14th Amdt. does not apply to the federal government. Maybe a little through reverse incorporation via Due Process, but not really. The ERA would apply.

Having waited out the draft and being 1A during the Vietnam War, I always resented that women were not so burdened. Nearing forty years later, I still don't see any justification for only requiring males to register for the draft.

How about the fact that female cancers and the like get a lot more funding than their male counterparts?

Being a guy, I have always seen the discrimination in favor of women and against us in the laws, esp. at the federal level. Here in CO, we already have a state level ERA, so the affect will, I presume, be de minimis.
4.10.2007 2:18am
Bruce Hayden (mail) (www):
As to bathrooms, something is going to have to change, regardless. When I was in Phoenix at the first of the year, there was a scandal in Scottsdale. Apparently, a bunch of tranvestites were hanging around the women's rest rooms at one of the clubs, making the genetic women uncomfortable, and these guys/gals were banned from the club.

So, if you have males becoming female, at what point can they start using the women's rest rooms? It almost defeats the purpose when they have to use the men's room. But while they still are physically more male than female, as these were, many of the genetic women were getting quite uncomfortable.

Of course, this is more a public accomodations than an ERA issue, as these restrooms were in private businesses. Nevertheless, I see society having to grapple with this more and more in the future.
4.10.2007 2:24am
Ilya Somin:
If the 14th amendment and the plain language of the anti-discrimination laws haven't been able to get rid of it I don't see why this would succeed. I suspect the same judges who have upheld affirmative action would use the same reasoning (neutral rule about correcting past injustices/balancing current discrimination) to weasel out of striking the laws down.

Possibly, but there are 2 problems with this argument. First, the ERA is much more explicit and clear than the Equal Protection Clause of the 14th Amendment. Second, we no longer have "the same judges." We have a much more conservative federal judiciary than that which approved racial affirmative action in the 1970s and 80s.
4.10.2007 2:27am
theobromophile (www):
How about the fact that female cancers and the like get a lot more funding than their male counterparts?

First of all, a lot of the funding is from private donors or fundraising drives (think of all that obnoxious pink during Breast Cancer Awareness Month). It is not necessarily government funding, so it would be difficult for someone to argue that the ERA prohibits private donations to a cause that benefits one gender disproportionately.

Second, medicine is not gender-neutral nor necessarily in favour of women. For example, more women than men die of heart attacks, largely because the "classic" symptoms are male symptoms (i.e. chest pain, tightness, pain in the left arm that radiates up to the jaw). Women generally have entirely different symptoms of cardiac distress (I was an exception) that include extreme fatigue and mild tightness in the chest: such symptoms are largely ignored by medical personnel. As laudable as the idea of an amendment to mandate equal protection is, it would not change such ingrained problems with our society, thus rendering the bulk of remaining gender discrimination out of its reach.

What about all-female prisons? Would the ERA mandate integration of those?

On a side note, as a woman engineer, I would be happy to see affirmative action eliminated. It is impossible to be seen as having legitimately earned one's place when everyone "knows" that women were only accepted on account of their gender and not of any stellar qualifications.
4.10.2007 3:00am
pipino:
"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."

I'm thinking that maybe—just maybe—your college co-ed bathroom environmen operated with fewer and far different variables (i.e. callow college kids) than will be present in what is oftimes referred to as "real life" (i.e. drunks, criminals, crazy street people, and predators).
4.10.2007 4:25am
Shawn-non-anonymous:
Bruce Hayden says:


When I was in Phoenix at the first of the year, there was a scandal in Scottsdale. Apparently, a bunch of tranvestites were hanging around the women's rest rooms at one of the clubs, making the genetic women uncomfortable, and these guys/gals were banned from the club.


This situation is interesting in that I'm not sure current law is sufficient to deal with this well. Most "transvestites" are heterosexual males, for example. You may have meant "drag queens" but probably meant "transsexuals". I think only the latter should be admitted to the women's bathroom. Yet how is that handled in states like Florida that don't recognize gender reassignment surgery as changing your legal gender?

Co-ed bathrooms eliminate this issue, though it's rare enough that other considerations for or against will have more effect on the outcome.
4.10.2007 9:14am
occidental tourist (mail):
Public bathrooms are probably better discussed under the tragedy of the commons / common action tenets, or maybe the new theory of guerilla public choice. It is not as if they are exactly a haven now as a result of glyphics on the door.

I tend to agree with Logicnazi that what you really get from an ERA is not heterosexual access to civil unions, but gay marriage.

This presumption is based on my belief that the Supreme Court is not well composed to withstand an expansive entertainment of the meaning of such a broad constitutional provision. Maybe if Bush got a third appoint and it was Janice Rogers Brown, right. Well I can dream can't I.

As long as the interpretation that privileges or licenses are rights (at least those that are purported to be cultural or civic with indirect or surrogate economic consequences, of course you can't get strict scrutiny if it is an economic right you are trying to vindicate), I see no hope whatsoever that an ERA wouldn't simply propell the runaway train of government.

I don't know if the original proponents of the ERA were thinking about gay marriage when they proposed it -- as the proponents of say the Endangered Species Act who know that it was an attack on capitalism and development but cloaked it as concern for symbolic megafauna. But its reconsideration can only take place in the context of these latter developments.

I don't view the court as currently or likely ever composed in a manner to blunt the phenomenon that people believe the thing to do is grow government programs to include them rather than to shrink government. Only the recognition that policy is discriminatory by its very nature (a point made aptly in the artistic context by former Clinton administration SG Walter Dellinger speaking to the Federalist Society last year about defending curbs on NEA funding in the wake of the Republican Revolution -- one of the single best panel discussions of culture and public policy I have ever seen, do yourself a favor and set aside an hour to listen to it http://www.fed-soc.org/publications/pubID.217/pub_detail.asp )and thus a wider abstention of courts from the role of egalitatarian knights in black robes could lead to this new ERA not meaning much, with the possible exception that the long horizon might get us to the exact same place without it, in which case,longer term, I might agree with Ilya.
4.10.2007 9:46am
occidental tourist (mail):
Sorry,

I meant to disagree with Chapman and the school of those who say it wouldn't mean much. Ilya seems to strike a middle ground on some examples, and in the marriage context I think he comes up short as detailed above.

As to Ilya's conclusory contention that there is enough man bites dog results to expect from an ERA that he enthusiastically endorses it, I remain agnostic. Seems to me to be more law to be twisted to progressive purposes rather than applied in a detached manner.

I have lost track of who made the comments that the current composition of the court would likely prevent early expansionist doctrine under a newly adopted ERA, and it may be in another contemporaneous thread on this topic, but whoever it was, that is who I'm disagreeing with.
4.10.2007 9:57am
markm (mail):
Co-ed bathrooms are already creeping into public accomodations in two guises:

1) Gas stations, rural convenience stores, and other small businesses are often now opting for just one coed bathroom, with a door lock on the inside. I think partly this is driven by the increased size required for handicapped access; a space that used to allow two tiny rooms with a toilet and sink in each, is now one room with a toilet, sink, and room to maneuver a wheelchair. Also, it must be easier to clean one room than two. I haven't heard of any problems with these.

2) To accomodate single or unaccompanied parents with opposite sex children, large establishments often have three bathrooms now: mens, womens, and "family". That even includes showers at the local swimming pool.
4.10.2007 10:06am
alan (mail):
I haven't had a chance to read all this, but I hope someone has discussed the effect it would have on the current policy of screwing men regarding child custody in divorce proceedings.
4.10.2007 11:10am
Houston Lawyer:
As my law prof Lino Graglia used to say, the ERA is really just an empty vessel into which judges may pour their own particular prejudices. He proposed an alternative amendment that "All laws shall be fair". Sure, we don't know what that means either, but how can you be against it.
4.10.2007 11:50am
Mark Buehner (mail):
I have the feeling the bathroom issue would work itself out via society. Laws might be struck down making entering the wrong bathroom illegal, but social morays are likely to keep them quite seperate. This is a good libertarian issue- just because the Federal Government doesnt mandate gender specific bathrooms doesnt mean they wont de facto exist. Even if federal buildings were required to remove the label from the door it would be simple enough just to paint them different colors or something of the like. I think this one will take care of itself, and any creeps that feel like exploiting the situation will likely end up dealt with the same way society deals with all kinds of miscreats who arent technically breaking the law but are still out of line.
4.10.2007 12:03pm
Randy R. (mail):
If George Will is correct -- that equal rights for women have been enshrined in hundreds of statutes passed over the past few decades at local, federal and state levels, then we are already reaping the benefits of equal rights for women. That would also mean that any detriments are out there already.

The fact that affirmative action, separate bathrooms, hetero marriage only, and so on exist in these states is evidence to me that the ERA, if passed, will likely have very little effect on our society.

However, as a tool for filing lawsuits, it will create a whole new class of such lawsuits, and that will make lawyers very happy.
4.10.2007 12:17pm
Ramza:
Wouldn't it be allowed to have two bathrooms, one men "preferential" and one "woman" preferential. You can use either bathroom but you are expected to use your own sex bathroom.

Or to rephrase it, one bathroom will be urinals+stalls+sinks (the mens one) the other bathroom will be just stalls+sinks (the womens one). Men are expected to use the first bathroom for they can make uses of urinals easily due to anatomy while women can not make use for the entire facility easily.
4.10.2007 12:18pm
Mark Buehner (mail):
Not to put too fine a point on it, but would it be legal to use federal money to build urinals?
4.10.2007 12:32pm
Op Ed. (mail) (www):
From reading the comments, it appears there is consensus that the author's initial point, that little or no good will come of the ERA, is accepted. The only discussion seems to be on the probability of anything bad coming of it. Is that accurate?
4.10.2007 1:00pm
occidental tourist (mail):
Since this thread seems to be sinking in the scatilogical let me add to the trend by asking how anyone thinks it possible the government would allow separate but equal bathrooms?

Add in the self evident 'public accommodation' rubric and you couldn't have them in a good deal of the private contexts in which they currently exist.
4.10.2007 1:03pm
JosephSlater (mail):
Occidental Tourist:

As has been mentioned already, a decent number of states already have state ERAs, yet they continue to allow separate-gender bathrooms. And the other parades of horribles (mandated gay marriage!) haven't happened either (or, as in the case of Mass., haven't happened because of the state ERA).
4.10.2007 1:46pm
Mark Buehner (mail):
My thought is- ok lets say you have an architectual committee for a federal building. You have X amount of money to spend on washrooms. Now whether or not you are allowed seperate gender washrooms, the composition is going to be an equality issue. It costs more in square footage to build stalls than urinals, hence mens rooms usually have more 'accomidations' than ladies rooms (unless they are build smaller). If the ladies rooms are always crowded at lunchtime, isnt there an equal rights argument? You are spending money on items that provide convenience for one gender over another.
4.10.2007 1:51pm
jvarisco (www):
It seems to me that this is a case of desirable results for the wrong reasons. Similar to Roe v. Wade for those who support abortion. As I am pro-choice but want Roe v. Wade overturned (because it's wrong, not because I dislike it), I don't see that the ERA deserves any better treatment.
4.10.2007 2:20pm
occidental tourist (mail):
josephslater,

the michigan supreme court just reversed itself on the Poletown case, and that semantically critical reflection on public choice failures in eminent domain had no effect whatsoever on the US Supreme Court

There are occasional salutary developments in the states and you are correct that it was not an ERA that brought about the Massachusetts decision, nor have state ERAs at this point been the lever for every bit of mischiefous madness I can conceive.

But when I look at the state of federal civil rights law, it is only a matter of time, with or without an ERA, but that just offers new uncharted territory to muck with -- yes, along with a few surprises for leftists as well.

While I was kidding a bit about separate but equal bathrooms, I'm not kidding about gay marriage. And I have no particular personal opposition to that institution, but I do see the campaign for its adoption as a pattern of illegitimizing traditions that we have no business throwing overboard, in fact they are the very traditions by which we contrarians understand ourselves to be contrarians.

In any event, I don't like getting culture dictated by the court so I wouldn't give them any more pretexts.

Brian
4.10.2007 9:43pm
markm (mail):

Wouldn't it be allowed to have two bathrooms, one men "preferential" and one "woman" preferential. You can use either bathroom but you are expected to use your own sex bathroom.

Or to rephrase it, one bathroom will be urinals+stalls+sinks (the mens one) the other bathroom will be just stalls+sinks (the womens one). Men are expected to use the first bathroom for they can make uses of urinals easily due to anatomy while women can not make use for the entire facility easily.

Mens = urinals+stalls+sinks
Womens = stalls+sinks+mirrors

Seriously, I'm not that benighted, but I very much doubt that the reason women spend so much time in the bathroom is that it takes them that long to pee, and I've noticed that some women don't wear makeup and get through the bathroom just as fast as me.
4.11.2007 5:37pm