Virginia has recently become the 38th state to ratify the Equal Rights Amendment (ERA) guaranteeing equal protection for women. This ratification means that the ⅔ majority needed to ratify an amendment has been met, however now a legal battle will be waged over whether too much time has elapsed for the amendment to be added to the Constitution (Congress enacted a 1982 deadline for ratification).
Many Democratic attorney generals are preparing to fight for passage of the ERA in the courts. They argue that because the deadline was merely in the preamble of the amendment, it isn’t legally binding.
While ERA advocates push for the ERA on the grounds that it would guard against sex-based discrimination and allow Congress to pass more anti-discrimination laws, opponents argue that the ERA would end commonsense protections for women, such as workplace accommodations during pregnancy, under the premise of equal treatment. Opponents also fear that the ERA would be leveraged by pro-choice advocates to eliminate abortion restrictions on the basis of discrimination.
In terms of civil liberties, the idea of equality is only invoked once in the 14th Amendment of the Bill of Rights. It makes no mention of being specific to guarding against gender-based discrimination, and is instead more broad to include “any person.” The abortion battle waged on the grounds of the right to privacy is also something the Constitution does not explicitly outline and is an implied right. Such parts of the Bill of Rights have played major roles in civil liberties cases that the ERA presumably would have dealt with had it passed long ago. The ERA would, therefore, elevate aspects of the Constitution and make rights either implied or merely mentioned to be more explicit, and perhaps not bring anything wholly new, per se, to the Bill of Rights. Do you think the ERA should be added, or do you think the issues it deals with are sufficiently protected under the current Bill of Rights?
2 comments:
I honestly cannot say if I do or do not think the ERA should be added. On one hand, YES EQUALITY YESYESYES but also I can see how people are worried about the outcomes and how it might negatively affect women (the thing with maternity leave, etc). It is upsetting to me that simply including the fact that women have equal rights in the Constitution (the very document our nation stands on to function) would cause so many problems and may actually hurt women in the long-run. If people are arguing against women's rights because they are equal to men, there is clearly discrimination going on. I think that women and men should be treated as equals, yes, and that gender shouldn't be a basis for jobs, pay, etc, as we see it now (much less than in the past, but still). But we can't all of a sudden decide that there are NO DIFFERENCES between men and women; physically they are different. Reproductively, they are different. Chemically, they are different. If men had babies and got pregnant then they should also receive maternity leave, but they don't. It's frustrating to me, because it doesn't seem like people are really thinking about the equality thing as something that would allow for PEOPLE as a whole to be treated equally, and that people are looking for ways to turn it around and hurt people and things they may need.
As this is a confounding Constitutional question, the Supreme Court will probably eventually hear this case. Assuming the make-up of the Court remains the same by the time it hears this case, the solid conservative majority will likely rule against passing the ERA. However, since the ERA has survived this long, I have a feeling a defeat in the courts won't kill the amendment; its staunch supporters would resort to starting the entire ratification process over again, maybe this time with a longer time frame for state ratification.
Personally, I see no reason why not to make the ERA an official amendment. The fear that women would suddenly be denied maternity leave or other pregnancy accommodations seems wholly implausible. And with regards to abortion restrictions, I think the ERA, if it is passed, should be used to make sure all women have access to a safe abortion. Another counterargument against the ERA is that the equal protection clause of the 14th Amendment already protects against gender discrimination. Well, "equal protection" was supposed to also protect against racial discrimination. Does that mean the Civil Rights Act of 1964 was unnecessary? Since the 15th Amendment existed since the 1870s, does that mean we didn't need the Voting Rights Act of 1965? Moreover, laws that discriminate based on gender need only pass the courts' "intermediate scrutiny" test, while the ERA would raise the bar to "strict scrutiny," so the ERA would do more for gender equality than the 14th Amendment alone. Since I brought up the Civil Rights laws, do you think the ERA would be better as a law, rather than an amendment? A law is certainly more attainable; however the ERA as a law would be subject to judicial review and could be more easily repealed.
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