Potential Consequences of Enacting the Equal Rights Amendment:

The Legal Times just published my op ed analyzing the potential effects of enacting the Equal Rights Amendment, which congressional Democrats resuscitated in March, after a 25 year hiatus. An excerpt:

In March, congressional Democrats resuscitated the Equal Rights Amendment, which fell just short of ratification in 1982. Renamed the Women's Equality Amendment, the ERA is now up for consideration again after a 25-year hiatus...

The conventional wisdom among jurists and legal scholars is that the ERA will make little difference . . .

In reality, the ERA may well have a considerably greater impact than many imagine. Perhaps predictably, some effects will be welcomed by supporters and will upset social conservatives.

What is surprising, however, is how many of the ERA's probable effects will come as an unpleasant surprise to the amendment's predominantly liberal supporters. If enacted, the ERA will likely curtail governmental affirmative action for women and invalidate public school programs that provide targeted assistance to African-American boys, results that many liberals are likely to deplore.

The article focuses on predicting the likely consequences of the ERA. It does not address the question of whether those consequences are desirable or not. However, for what it's worth, I personally support the ERA because I think that most of the likely effects discussed in the article are good ones.

David M. Nieporent (www):
Well, I'm still not convinced by your argument, any more than when you last made it here on the VC; you argue that because the judiciary has changed since 1979, courts will no longer interpret non-discrimination to allow preferential treatment. But it's not "since 1979"; as recently as in the Michigan affirmative action cases, the Court upheld race preferences against explicit statutory textual provisions which forbid them.

True, Alito replaced O'Connor, and it's very possible that Grutter would have come out differently with him on the Court, but until the issue gets to the Supremes and they explicitly overrule Grutter, I don't think it's reasonable to think that the courts will interpret the New ERA any differently than they interpret the Equal Protection Clause and Title VI, as well as other civil rights statutes, with respect to race.
6.5.2007 7:43pm
frankcross (mail):
This has been studied with an empirical analysis of state constitutions

Baldez, Lisa, Lee Epstein, &Andrew D. Martin. 2006. Does the U.S. Constitution Need an ERA? JOURNAL OF LEGAL STUDIES 35 (January): 243-283.
6.5.2007 7:45pm
We have the option, if we want, of carving out some specific exceptions. There's no need to speak in vague generalities and leave all the specifics up to courts.
6.5.2007 7:58pm
James B. (mail):
Courts in eight of these states now subject gender classifications to strict scrutiny. Two others have interpreted their state ERAs to ban virtually all gender-based laws,

So what is life like in these 10 states?
6.5.2007 8:14pm
"because I think that most of the likely effects discussed in the article are good ones."

If that's the case, work to support passage of laws that impliment those "good ones." Don't go down a road that foists the "bad ones" on us simply because you don't think you'll get your preferred outcomes if you use the legislative process.

Handing the judges an open ended mandate to make sexual policy for us is an abdication of our right to rule ourselves. And once they have decided this or that point, it will be virtually impossible to change it.

Half the voters in this country are women. They are not an oppressed minority who need extra Constitutional protection. And we don't need unelected judges deciding that they do.
6.5.2007 9:34pm
ThePartyoftheFirstPart (mail) (www):
Interesting that the name has changed to the Women's Equality Amendment. Is this a simple political calculation that the reference to "Women's Equality" will boost its popularity?
There's no doubt about it: what you call a law can have a profound effect on the public's support for it. A law with a name like USA PATRIOT ACT, for example, is more likely to garner votes than the Let's Subpoena Your Library Books Act.
Having said that, legislators do sometimes have a tin ear for statute names: over the years they've passed the Anti-Beer Act, the Non-Intercourse Act, and even (in 3 states) the Chuck E. Cheese Law.
6.5.2007 9:51pm
Ilya Somin:
as recently as in the Michigan affirmative action cases, the Court upheld race preferences against explicit statutory textual provisions which forbid them.

Those cases dealt with the extremely vague Equal Protection Clause, not with "explicit statutory textual provisions." To the extent that they briefly addressed Title VI, they were influenced by 25 years of precedent interpreting Title VI to allow affirmative action (going back at least to the Bakke case). It's unlikely that today's Court would interpret a new statute or constitutional provision the same way.

It's also worth noting that O'Connor provided the 5-4 margin of victory for AA in Grutter, and she has been replaced by Alito.
6.6.2007 10:50am
Deoxy (mail):
"Those cases dealt with the extremely vague Equal Protection Clause, not with "explicit statutory textual provisions." "

Really? I'd like to see any part of the Michigan case that was "extremely vague":

1. Everyone involved agreed to the point that public schools are bound to allow Constitutional rights as a branch of the government - this is the area that might be "vague", and it had consensus on very side

2. SCOTUS has previously held (and it was also uncontesteed by any side of the case) that preferential treatment of one group is prejudice against the other groups (that is, if you make a special program just for men, it is a violation of the 15th Amendment because it discriminates against women.

3. "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."

Pretty simple. Had this been a case where whites were getting the preferential treatment, it would have been struck down. Since that was not the case, it wasn't struck down.

There's nothing "vague" about the case.

And, for a better example of SCOTUS ignoring plain language, see the - arg, name escapes me! The rcent proprty rights case where SCOTUS said that the govrnment could take people's property and give it to another private entity, and this was "public use".

SCOTUS has provn repeatedly that they can get the result they want, text be d---ed.
6.6.2007 12:06pm
Deoxy (mail):
Uh, sorry - grabbed the text from the wrong amendment, there.
6.6.2007 12:07pm
Bruce Hayden (mail) (www):
I am a bit ambivalent here. On the one hand, I do believe that there are fundamental differences between the two sexes. On the other hand, I am more than happy to eliminate affirmative action for women and their exemption from the draft. Indeed, having waited out my 1A during the last year of the active draft, with the chance of being sent to die in a rice paddy in SE Asia, this later rank discrimination against males still rankles, some 35+ years later. As for GI Jane, most women won't have the physical strength for most of those combat jobs in the first place, and those combat jobs that don't require a lot of strength should probably be open to women anyway.

But the idea that an amendment can die, and then decades later be given a new leash on life, where only those states that failed to ratify count, is a bit beyond me. What happens if one state that voted yes before votes no this time? It becomes quite hard to argue that the deck wasn't stacked if you start only counting the votes you like.
6.6.2007 12:09pm
Bruce: Agreed. Resurrection of amendments doesn't make sense. Too bad the time limit for ratification is not in the Constitution.

(That itself would be a good amendment, and I can't see a reason for a partisan fight over it. Ten years or five seems sensible to me).

I am rather sure the ERAish amendment won't be put througth by counting the previous ratifications. When Congress proposes an amendment it surely must be able to limit the proposal. They did. And it timed out.

A counter argument might be that Congress merely drafts text and the states are the sole amenders. But if that were true then why is the supermajority required to send a draft to the states? And why can the states not amend w/o Congress?
6.6.2007 3:13pm
Can't the states propose amendments without Congress by calling a constitutional convention?
6.6.2007 7:03pm
Aces: Yes a convention can be called. But that just shifts matters to the convention. The individual states are still stuck - they can only ratify or reject proposals.

Congress is to call the Convention. Does that make it a creature of Congress and totally controlled. I don't know? A quick rereading left me believing Congress always has the upper hand.

It isn't clear that existing state governments can't be bypassed altogether in ratifying the proposed amendments.

The Convention option looks like nuclear jello - unshaped but dangerous. Nothing as to how it might be run or how delegates would be chosen. It might even decide to run indefinitely - ala ERA or special proscutors - and send out amendment proposals as it sees fit.
6.6.2007 7:55pm
Tim Fowler (www):

Re: "Among the most likely to advance are the abolition of restrictions on women in the military..."

Well the amendment would require that restrictions on what MOSs women can serve in would be removed.

OTOH it might also be interpreted to outlaw the different PT standards for men and women, so women who wanted to be in the military might have to figure out how they are going to do a lot more pushups. A score on that event that would max for young women, doesn't even pass for young men.
6.6.2007 10:20pm
Owen Hutchins (mail):
Frankly, this sounds like the old "ERA will mandate uni-sex bathrooms" nonsense, with fancier vocabulary.
6.7.2007 12:23am
Randy R. (mail):
But wasn't there an amendment that was proposed in the 19th century and finally got passed just a few years ago when the final state approved it? If so, then there is no time limit.

I agree that thery should be one -- but if we read the 'plain text' of the amendment's language, we can conclude that if congress wanted there to be a time limit, they could have easily put it in there.

Hey, that's Scalia and Thomas would read it, no?
6.7.2007 1:18am
David M. Nieporent (www):
Randy: there was no time limit on that one (the 27th, about Congressional pay) because there was no time limit on that one. There was a time limit on the ERA.

Prof Somin:
It's unlikely that today's Court would interpret a new statute or constitutional provision the same way.
In your opinion. In my opinion, it's unlikely that today's Court would interpret it in such a way as to eliminate women's sports entirely.

Also, I mentioned Alito replacing O'Connor in my post, but you assume that an ERA case would come before the Court's current lineup. Scalia may not be as old as Stevens, but there's no guarantee he'll still be around when a case does reach the Court, nor that a Republican president would be the one nominating his replacement.
6.7.2007 3:18am
markm (mail):
Randy, I think you're talking about the amendment requiring that Congressional pay increases take effect only after an election has intervened between the enabling legislation and the increase. That was earlier than the 19th Century; it came out with the original Bill of Rights, but it and one other were not ratified by the states at the time. However, the Constitution failed to put any time limit on ratification of amendments. So, over a century and a half later, with Congress far less well regarded than it was in the 1790's, it was possible to start a drive to collect state ratifications.

It's not going to happen with more recent proposed amendments because at some point Congress became aware of this loophole and found a way to close it on a case by case basis. They add language to every proposed amendment to the effect that, if not ratified within X years, the amendment is void.
6.8.2007 9:53am