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.

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.

Another Program that Would be Struck Down Under The ERA:

It so happens that the New York Times recently published an article about an education program that would almost certainly be invalidated by the courts were the Equal Rights Amendment in force:

[S]ome minority students, the black boys at [the] Brookside [School in Westchester County, New York], are set apart, in a way, by a special mentoring program that pairs them with black teachers for one-on-one guidance outside class, extra homework help, and cultural activities during the school day.....

.... school officials said they were not singling out black boys, but after a district analysis of high school students’ grade-point averages revealed that black boys were performing far worse than any other group, they decided to act. In contrast, these officials said, the performance of black girls compared favorably with other students and did not warrant the same concern.

The district calls it a “moral imperative,” and administrators and teachers say their top priority is improving the academic performance of black male students, who account for less than 10 percent of the district’s 4,200 students but disproportionately and consistently rank at the bottom in grades and test scores. The programs are voluntary, school officials said, and some students choose not to take part.

It is far from certain that this program would survive judicial review even under current Equal Protection Clause doctrine. As the NYT article points out, there are lawsuits underway on this issue. Under the ERA, however, the demise of the program would be virtually certain. Even if it is true that, on average, black male students have more severe education problems than whites or black females, under the ERA that would almost certainly not be enough to justify a program that categorically excludes the latter groups. The same is true of claims, mentioned in the article, that black male students need a separate program because they have "special" needs that are not shared by other groups. Again, even if true on average, this claim would not be enough to justify the complete exclusion of other groups under the Equal Rights Amendment, which categorically forbids virtually any legal rule that assigns rights on the basis of gender.

I take no position on the educational efficacy of this program. Perhaps it really will increase the academic achievement of African-American male students, and perhaps not. Either way, however, it and other similar programs would not be permitted under the ERA, and that is something to think about in deciding whether the ERA should be enacted or not.

The Equal Rights Amendment and the Judiciary:

Many conservative critics of the Equal Rights Amendment, as well as some commenters on my previous ERA posts, claim that the ERA would never be used to strike down liberal policies such as affirmative action for women, because liberal judges would interpret it to avoid this result. As evidence, they cite the interpretation of the Civil Rights Act of 1964 to permit affirmative action, despite the fact that racial preferences seem clearly inconsistent with the law.

This argument is not wholly implausible, but it ignores the massive differences between the judiciary today and that of the 1960s and 70s which created the dominant interpretations of the Civil Rights Act. At that time, the judiciary was overwhelmingly liberal and nontextualist. As a result, they were willing to deviate from the text to reach liberal results, especially at a time when Congress and the president largely approved of their objectives (as did even Republican President Richard Nixon, who supported affirmative action). Today, the judiciary is largely made up of judges appointed by conservative Republican presidents Reagan, Bush I, and Bush II, all of whom tried hard to pick judges with strong conservative credentials and (to a lesser extent) textualist approaches to constitutional and statutory interpretation. For example, almost 60% of today's federal court of appeals judges were appointed by conservative Republican presidents. With the replacement of Justice O'Connor (who waffled on the issue) by Justice Alito, the Supreme Court also has a majority hostile to affirmative action. And today's presidency is often held by conservative Republicans. Congress, even under the Democrats, is unlikely to have the kind of strong liberal majority that existed in the 60s and 70s.

It is therefore highly unlikely that the today's judiciary would approach the Equal Rights Amendment in the same way that their predecessors treated the civil rights acts of the 1960s. Unlike in the case of the civil rights acts, where today's conservative judges are to some extent constrained by yesterday's liberal precedents, modern judges will have the chance to interpret the ERA on a blank slate. Even with respect to the civil rights acts, it is worth noting that the more conservative Supreme Court of the 1980s cut back on some of the liberal Warren and Burger Court precedents in this area, only to be swatted down by Congress in the 1991 Civil Rights Act. To paraphrase Donald Rumsfeld, we interpret constitutional amendments with the judges we have, not with those we had decades ago. And that will have a major impact on the judiciary's treatment of the ERA.

More on the ERA:

There are new posts on the subject from John Rosenberg (Discriminations) and Andrew Koppelman (Balkinization). An excerpt from Koppelman's post:

Somin and Volokh are right that conservative Federal judges might seize on the ERA as a reason to invalidate sex-based affirmative action programs and special protections for women’s sports. But those aren’t the effects that ERA proponents have in mind.

When I said that the ERA would make no difference [referring to something Koppelman said to Chicago Tribune columnist Steve Chapman -EV], I was thinking about the difference that its proponents say it will have. Rep. Carolyn Maloney reportedly “noted that women still get only 77 cents for every dollar that men are paid, that only 3 percent of federal contracts go to women-owned firms, and that the poverty rate of older women in nearly twice that of older men.” There is no reason to think that prohibitions on sex-based classifications will ameliorate any of these problems....

I suspect that the real rationale for pushing this now was better stated by Terry O’Neill, executive director of the National Council of Women’s Organizations: “I would love for the American people to see who votes against women's equality.” If one could get Democratic legislators to speak candidly about why they’re supporting a measure that does so little that’s real for their constituents, I imagine that they’d say this:

“Yes, it’s true that this is an empty, symbolic gesture. But there are going to be political costs for Republicans who vote against this, just as there were political costs for Democrats who voted against the constitutional amendment to ban same-sex marriage. Both of them are silly, demagogic measures. But that’s how the political game is played these days....”