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Phyllis Schlafly on the Equal Rights Amendment:

In this column, conservative activist Phyllis Schlafly - who successfully led the fight to defeat the original ERA back in the 1970s and early 80s - expresses her heartfelt opposition to its reconsideration today.

I have several disagreements with Schlafly's arguments. Here, I will note only her total failure to consider those likely effects of the ERA that her conservative political allies might approve of - particularly the abolition of government-sponsored affirmative action programs for women and Title IX rules mandating equal numbers of mens and womens sports teams at universities receiving federal funds.

GMUSL 3L (mail):
Prof. Somin,

The argument against sex-based affirmative action is clear, but how are you sure that passing the ERA would abolish, rather than enshrine, the worst excesses of the Clintonian misapplication of Title IX?
4.9.2007 9:41pm
David M. Nieporent (www):
Prof. Somin: if the absolute language of the Civil Rights Act can be read to be compatible with non-remedial racial preferences in the name of diversity, then it seems unlikely that the ERA will be read to abolish the quotas of Title IX in women's sports.
4.9.2007 10:09pm
tdsj:
It will be especially hard to abolish the quotas since they do not in fact exist.
4.9.2007 10:33pm
Roger Schlafly (www):
There is no consensus that those effects are likely.
4.9.2007 10:39pm
AppSocRes (mail):
Twenty years ago Phyllis Schlafly made predictions about what the proponents of the ERA ultimately sought and was roundly condemned by her "more reasonable" critics for suggesting that anything like, e.g., homosexual marriage would ever be acceptable in the United States. Well, however unreasonable her predictions may have been, they seem to be coming true.

Phyllis has a better track record at predicting what her opponents are up to than anyone else I've run across. I wouldn't dismiss out of hand her concerns that the ERA is a sledge hammer that leftists will use to batter the cultural foundations of American society.
4.9.2007 11:39pm
talboito (mail) (www):

I wouldn't dismiss out of hand her concerns that the ERA is a sledge hammer that leftists will use to batter the cultural foundations of American society.


I would.
4.10.2007 12:19am
Viscus (mail) (www):
Phyllis Schlafly appears to be a wacko. Apparently, it is not enough for her to merely disagree with the amendment. She must assert that those who support it are "outrageously dishonest."

Sometimes, criticizing those you disagree with using over the top rhetoric backfires and damages your own credibility. This is one of those cases.
4.10.2007 12:20am
Ilya Somin:
if the absolute language of the Civil Rights Act can be read to be compatible with non-remedial racial preferences in the name of diversity, then it seems unlikely that the ERA will be read to abolish the quotas of Title IX in women's sports.

First of all, the CIvil Rights Act has NOT been interpreted to justify "non-remedial racial preferences in the name of diversity." You are confusing the Civil Rights Act with the construal of the Equal Protection Clause in Grutter (which is much more vague than the Civil Rights Act). Second, even the construal of the civil rights act to allow remedial racial affirmative action (in the 1979 Weber case), was done by a much more liberal Supreme Court than we have today.
4.10.2007 12:33am
Ilya Somin:
Twenty years ago Phyllis Schlafly made predictions about what the proponents of the ERA ultimately sought and was roundly condemned by her "more reasonable" critics for suggesting that anything like, e.g., homosexual marriage would ever be acceptable in the United States. Well, however unreasonable her predictions may have been, they seem to be coming true.

The problem is that she predicted that these would happen IF THE ERA PASSED. Yet it didn't pass, so these later developments had no connection to the cause she ascribed to them (except to the extent that state ERAs played a small role in helping the gay marriage cause).
4.10.2007 12:35am
Ilya Somin:
how are you sure that passing the ERA would abolish, rather than enshrine, the worst excesses of the Clintonian misapplication of Title IX?

It's hard to be "sure." However, those excesses involve explicit gender classifications and if the ERA means anything, it is a requirement of very tight scrutiny of any and all gender classifications.
4.10.2007 12:36am
David M. Nieporent (www):
First of all, the CIvil Rights Act has NOT been interpreted to justify "non-remedial racial preferences in the name of diversity." You are confusing the Civil Rights Act with the construal of the Equal Protection Clause in Grutter (which is much more vague than the Civil Rights Act). Second, even the construal of the civil rights act to allow remedial racial affirmative action (in the 1979 Weber case), was done by a much more liberal Supreme Court than we have today.
I didn't say "justify"; I said "compatible with." And Grutter (as well as Bakke) did indeed do that. You're mistaken if you think that Grutter was based solely on the 14th Amendment; Barbara Grutter brought a claim under Title VI (and 42 USC 1981, for that matter) as well.

(I'm not even addressing the more liberal court of decades ago which held that the Equal Protection Clause forbid color-blindness in Washington v. Seattle School District No. 1.)
4.10.2007 1:23am
Ilya Somin:
I didn't say "justify"; I said "compatible with." And Grutter (as well as Bakke) did indeed do that. You're mistaken if you think that Grutter was based solely on the 14th Amendment; Barbara Grutter brought a claim under Title VI (and 42 USC 1981, for that matter) as well.

In Bakke, 4 justices held that Title VI banned preferences; 4 others held that it permitted remedial affirmative action. Only one (Powell) said that it permitted preferences for the purposes of diversity. In Grutter, the Supreme Court majority held (on the basis of precedent) that Title VI has exactly the same sweep as the Equal Protection Clause, not more. The ERA, by contrast, could not be characterized as staying within the same bounds as the EPC, since the whole point of the ERA is to go beyond it.
4.10.2007 1:30am
BobNSF (mail):

Phyllis has a better track record at predicting what her opponents are up to than anyone else I've run across.


Yeah, that's why all 20 states with ERAs have been forced to recognize same-sex marriage...

Schlafly is a master distortionist, though I have to give her credit for disclosing her tactics in the fight against the federal ERA. She blazed the trail of anti-gay and anti-abortion hysteria that has so welled served the GOP. That it's all based on bigotry, fear, and dishonesty hasn't gotten in her way. What a proud legacy.
4.10.2007 2:07am
advisory opinion:
Sometimes, criticizing those you disagree with using over the top rhetoric backfires and damages your own credibility. This is one of those cases.


Amusing self-referential. :)
4.10.2007 2:12am
advisory opinion:
Sometimes, criticizing those you disagree with using over the top rhetoric backfires and damages your own credibility. This is one of those cases.


Amusingly self-referential. :)
4.10.2007 2:13am
theobromophile (www):
If Americans are passing a constitutional amendment that would be interpreted by the Supreme Court to mandate same-sex marriage, they should be aware of that. Ditto for an amendment that may be read to mandate abortion should Roe be overturned.

If the ERA would have the effect of eliminating state-run single-sex schools or programmes, no matter how beneficial to both genders, then perhaps the ERA should not be passed in its current form.

It would be hard to imagine that the ERA would do away with women's sports teams, given that coed teams would be an effective bar to female participation in athletics (itsofar as athletic participation would be based on merit), even though said females would be paying student fees for sports teams.

Mrs. Schlafly's issue with the ERA seems to be that she cannot predict how judges will interpret its language, which is an entirely reasonable complaint.
4.10.2007 2:45am
BobNSF (mail):

Mrs. Schlafly's issue with the ERA seems to be that she cannot predict how judges will interpret its language, which is an entirely reasonable complaint.


Ms. Schlafly's issue with the ERA is that its passage would interfere in the career she has built opposing it and all the other advancements women have made that allow her that career in the first place. She also seems to object to laws which would give her son equal rights. Who knows what her "issue" with that is.
4.10.2007 3:16am
David M. Nieporent (www):
Prof. Somin:
The ERA, by contrast, could not be characterized as staying within the same bounds as the EPC, since the whole point of the ERA is to go beyond it.
Is it? I thought the whole point here was uncertainty over precisely what the ERA will do. (Perhaps the "whole point" is simply to codify that sex is protected by the constitution to the same extent race is. But regardless of what the point of the promoters is, we don't know what the courts will think the whole point is.)


Theobromophile:
It would be hard to imagine that the ERA would do away with women's sports teams, given that coed teams would be an effective bar to female participation in athletics (itsofar as athletic participation would be based on merit), even though said females would be paying student fees for sports teams.
Politically, you might be right, but logically, that doesn't follow. Unathletic men are barred from participation despite paying those same student fees, but nobody suggests that there must be teams set aside for them.
4.10.2007 6:08am
J. F. Thomas (mail):
Title IX is a strawman. It is only an issue at those schools where football (not even basketball, because of the small number of basketball scholarships) who are trying to compete in Division 1A football when their programs do not actually make money (which is actually most of them). The problem is the football program sucking up all the resources and scholarships for men's sports, not women's sports taking money from men's.
4.10.2007 9:31am
Ken Arromdee:
Yeah, that's why all 20 states with ERAs have been forced to recognize same-sex marriage...

It's certainly been used in some states, even if not all, to require same-sex marriage. And in the 1970's, anyone who said that the ERA had any chance of leading to same sex marriage was dismissed as a whacko--and yet, here we are today, and that's precisely what has happened.
4.10.2007 10:23am
JosephSlater (mail):
Ken:

State ERAs have "been used in some states, even if not all, to require same-sex marriage"? Given that only one state, Mass., has same-sex marriage, "some" is excessive just to start. And the idea that the ERA led to same sex marriage even in Mass. needs more proof than "one eventually followed the other in one state."

Given that the Equal Protection Clause has been interpreted to provide much of what an ERA might to, would you say medium scrutiny for gender has led to same-sex marriage? Do women's rights generally lead to gay marriage?

Also, BobNSF is exactly right about Schafly.

As to the original post, I join those who predict that courts would allow affirmative action, etc., under the ERA, just as they would under the Equal Protection Clause. Assuming the ERA passes, which I predict it won't.
4.10.2007 11:39am
Randy R. (mail):
BobNSF:Schlafly is a master distortionist, though I have to give her credit for disclosing her tactics in the fight against the federal ERA. She blazed the trail of anti-gay and anti-abortion hysteria that has so welled served the GOP. That it's all based on bigotry, fear, and dishonesty hasn't gotten in her way. What a proud legacy."

Yup. And the fact that her son is openy gay, which she just HATES to acknowledge, is very strange given her antipathy towards gays in general.

Does she really have such a good record? I recall that she said that the ERA would force everyone to have unisex bathrooms. And I also recall that she was entirely against the whole feminist movement. She was 'just a housewife' back then, and believed that the proper role of women was to serve their husbands and families.

Yet even she is forced to drop that canard and focus on other forms of hysteria and emotional arguments to advance her cause.
4.10.2007 12:06pm
Hans Bader (mail):
ERA's passage might well have some effect on the issues of affirmative action and gay marriage.

While courts might continue to allow some affirmative action under the ERA, there is a chance that as a result of ERA, they would apply strict scrutiny -- which currently applies only to race, not gender -- rather than the current intermediate scrutiny, thus reducing the scope of affirmative action somewhat.

(Under intermediate scrutiny, narrow-tailoring is not as required for an affirmative-action plan as it is under strict scrutiny. Moreover, courts currently differ over whether a evidence of governmental, as opposed to societal, discrimination is required for gender-based affirmative action, as opposed to race-based affirmative action).

State courts applying state ERAs have differed widely in their interpretation, subjecting affirmative action either to rational-basis review (the Pierce County case in Washington) or to strict scrutiny (the Crawford and Hiatt cases in California).

If the federal courts, which are not as liberal about affirmative action as state courts, apply the latter, strict scrutiny, under ERA, then gender-based affirmative action programs that currently survive intermediate scrutiny may be struck down under strict scrutiny.

By the way, the pivotal fourth vote for the Massachusetts Supreme Court's 4-to-3 decision declaring the ban on gay marriage unconstitutional came from Justice Greaney, whose special concurrence relied on Massachusetts' Equal Rights Amendment.

So the ERA's passage might ultimately tip the balance in favor of gay marriage.
4.10.2007 12:12pm
Thorley Winston (mail) (www):
Here, I will note only her total failure to consider those likely effects of the ERA that her conservative political allies might approve of - particularly the abolition of government-sponsored affirmative action programs for women and Title IX rules mandating equal numbers of mens and womens sports teams at universities receiving federal funds.


Does anyone really consider that to be a "likely effect[]" of the ERA? It seems to me that since we have any number of judges who have figured out ways to allow affirmative action programs mandating racial preferences and setasides so long as they don't explicitly require a quota to get by the Equal Protection clause, it's just as likely that the courts would come up with some similar bogus rationale with the ERA and programs intended to grant similar preferences to women.

In which case this may not be a "total failure" on Schaffley and company's part so much as it is a belief that the upside you predict isn't quite as "likely" as some would like to believe.
4.10.2007 1:38pm
theobromophile (www):
David,
<i>
Politically, you might be right, but logically, that doesn't follow. Unathletic men are barred from participation despite paying those same student fees, but nobody suggests that there must be teams set aside for them.</i>

Except that there are teams set aside for girly men. ;) Almost all schools have JV teams and intramural teams for people who are not sufficiently athletic as to play varsity. Also, no one has every suggested that being a weakling is a protected class, while the law can acknowledge that women are inherently different from men and thus justify separate protections.

The big issue seems to be whether or not "separate but equal" would stand under the Equal Rights Amendment.

As for Phyllis Schlafly and feminism: "feminism" is a broad term. When Mrs. Schlafly and other conservatives attack it, they are usually referring to second-wave or third-wave feminism, which involves a lot more than allowing women to vote and get an education. The principles of sexual liberation, abortion, vegetarianism, divorce, and gay rights are espoused by modern feminists, have almost nothing to do with legal principles of equal rights, and cause conservatives to reject the entire movement.

<i>Here, I will note only her total failure to consider those likely effects of the ERA that her conservative political allies might approve of - particularly the abolition of government-sponsored affirmative action programs for women and Title IX rules mandating equal numbers of mens and womens sports teams at universities receiving federal funds.</i>

It's likely that she has considered this but sees no reason to use the ERA, with all of its attendant baggage, to reach this result. Title IX and affirmative action can be eradicated through legislation or conservative judicial rulings. Michigan, for example, voted to end the use of affirmative action in its state university system. The ERA is not the only vehicle to achieve those ends, and it's doubtful that it would do so anyway.
4.10.2007 5:09pm
Randy R. (mail):
" The principles of sexual liberation, abortion, vegetarianism, divorce, and gay rights are espoused by modern feminists, have almost nothing to do with legal principles of equal rights, and cause conservatives to reject the entire movement. "

REally? You mean Rush Limbaugh, Schafly, Hannity, Pat Robertson and their ilk built their careers on attacking vegetarians? That so laughable I don't know where to begin! And when did divorce become a feminist issue, especially since so many conservatives are divorced themselves?
Sexual liberation? Well, yes, the Pope is against any sexual liberation. But seeing as how even conservatives like a good woman in bed, I haven't seen that as big issue for them.
Gay rights? Well, considering the fact that the feminist movement was actually against lesbians and prevented them from taking leadership roles in the movement, I'd hardly consider that a big part of feminism. And why would feminists be so concerned about the rights of gay men? Nope -- the only reason you cited gay rights is because of the old conservative canard that if you are a feminist, you must be a lesbian. Not true at all, of course, and offensive to say the least.
Abortion -- sure I'll give that one to you. But that's the only reason conservatives hate feminists? Again laughable. The real conservatives hate feminists, and this includes Schafly herself, is that they want to world back to when women knew their place as wives and mothers. Sorta like Laura Bush.
4.10.2007 7:40pm
theobromophile (www):
My point was that Mrs. Schlafly decries third wave feminism, although being educated and presumably reaping the benefits of feminism, because the Third Wave includes many doctrines that have absolutely nothing to do with allowing women an education and a voice in the public sphere.

I suggest that you spend some time at Feministing or any other feminist web site. Modern feminists explicitly equate the Third Wave with almost any social justice movement, including gay rights and vegetarianism. (I do recall seeing something in which they equated kindness towards animals - i.e. the physically inferiour - with anti-violence and other pro-woman movements.) Either that, or do a nanosecond's worth of research on modern feminism.

When states changed over from covenant marriage to no-fault marriage, it was predicated, at least in part, on the idea that many women were trapped in unfulfilling marriages. The restoration of traditional marriage, including fault divorce, is a not insignificant part of the modern conservative movement.

If conservatives have no problems with sexual liberation, why do they push abstinence-only education? ;)
4.10.2007 9:18pm
BobNSF (mail):

If conservatives have no problems with sexual liberation, why do they push abstinence-only education? ;)


Because they have problems with other people's sexual liberation.
4.10.2007 11:54pm
Randy R. (mail):
bromophile: "I suggest that you spend some time at Feministing or any other feminist web site. Modern feminists explicitly equate the Third Wave with almost any social justice movement, including gay rights and vegetarianism. "

Well, yes, you are quite correct about this. However, your timing is off. This third wave of feminism didn't even start up at least until the 80s or later, when most of the legislative victories were made (or lost, as in the case of the ERA). Schafly and the conservatives were complaining about feminism in the mid-70s, when it had hardly even begun. Schafly herself was a virtual unknown until she found the ERA to be her bandwagon.

My point is that conservatives have hated feminism virtually from the beginning. As the movement morphed into various other ideologies, the conservatives adapted their line of attack to coincide with the shifts. There was never a time in the past, at least not that I can recall, when Schafly and her cohorts agreed with any aspect of feminism. Oh sure, they agree NOW that women should have the same rights as men, but they didn't agree when the debate was still on.

I very much recall conservatives stating that men and women are different, and so should be treated differently, that women should focus on raising children, not national politics, that women in the workforce would only take away jobs from the REAL head of the household, and so on. Women were fought every step of the way. Women had to sue to be police officers, firemen, construction workers, and to be allowed into private clubs. Who do you think were the defendants in these lawsuits? Why, conservatives who didn't think women could do the job, or should even try. These people were influenced by Schafly.
4.11.2007 12:42am
theobromophile (www):
See, I think that feminism started, oh, in the 1840s. You know, Seneca Falls and all.

I don't disagree with the first part of your post; mostly, it underscores my point that "feminism" has really evolved over time.

I do diagree with your last paragraph, which is fairly unsubstantied. Mrs. Schlafly spent the '70s complaining about that which has been embraced by the Third Wave: the gay rights movement, women in the military, destablisation of the traditional family unit, etc. If we're talking about Schlafly, we should at least stick to her own transgressions.

BobNSF: ppptttt :p I thought they just wanted everyone to wait for marriage and then have lots of sex afterwards. That's why UChicago found, in 1994, that the women who most enjoy sex are married, conservative Protestants.
4.11.2007 2:31am
Thorley Winston (mail) (www):
Because they have problems with other people's sexual liberation.

Not surprising considering that consequences of "sexual liberation" carries with it social costs in the form of out-of-wedlock births, broken marriages, and the like. It might be a different matter if it wasn't accompanied with the demand that society act as enablers by subsidizing destructive lifestyle choices in the name of "social justice."
4.11.2007 5:51pm
Randy R. (mail):
You mean subsidizing the lifestyle choices of people like Ted Haggard? Or Newt Gingrinch? I would of course be interested in knowing society 'subsidized' Anna Nicole Smith's out of wedlock births.

To paraphrase Mark Twain, no one's sexual lifestyle needs reforming so much as your neighbor's....
4.11.2007 11:18pm