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The Equal Rights Amendment: A Case for Rejection 6/8/2007 The Equal Rights Amendment (ERA) endeavors to remove all differences, social, biological and sexual, between males and females. The proposed Amendment gives the courts enormous flexibility in interpreting the Amendment as judges deem appropriate. Several states that have ratified a state ERA have been subject to judicial activism on the most contentious issues. It paves the way for homosexual marriage, federally funded abortion, the inclusion of women in the draft and de-segregated prisons. This Amendment is not about rights; it is about suppressing differences between males and females and promoting a gender-neutral agenda.
The Equal Rights Amendment was first introduced in 1923 by Alice Paul, a leader of the suffrage movement. She began her equality campaign during a time in which women were denied the right to vote. The era in which she lived required a change in the way that women were recognized by the political and legal system. In 1920, the 19th Amendment was passed, giving women the right to vote. Alice Paul, along with many other militant suffragists continued the fight for equality of women in all aspects of social and political life. The intent during that time was to recognize women as equally intelligent and capable of being involved in the political process.
A constitutional amendment requires two-thirds approval by the U.S. Senate and House of Representatives and ratification by three-fourths of the states. Although the ERA was introduced every year in Congress, it did not pass until 1972. In 1971, the House approved the Amendment and the Senate did the same in 1972.1 Approval from three-fourths of the states was the next step and the Amendment carried with it a seven year time limit on passage. If the states did not pass it during those seven years, its approval in Congress would be nullified. The Amendment gained the approval of only 35 of the necessary 38 states. Congress extended the time constraint an additional three years and the Amendment still failed that time extension. During that time, however, five states-Tennessee, Kentucky, Idaho, Nebraska and South Dakota-overturned their ratification votes.
ERA supporters continue to fight for the ratification of the Amendment by states despite court rulings against its legitimacy. The U.S. District Court for the District of Idaho ruled in 1981 that the extension of the seven-year time period was a violation of Congress' powers:
It appears from the legislative history of the proposed twenty-seventh Amendment that the seven-year time period was well considered and found necessary to prevent the Amendment from pending for an inordinate period of time. See S.Rep.No.92-689, 92d Cong., 2d Sess., 1972; 118 Cong. Rec. 9552 (1972). It, therefore, appears compelling that in order to fulfill the purposes for fixing a time limitation for ratification as outlined in Dillon-"so all may know and speculation ... be avoided"-the congressional determination of a reasonable period once made and proposed to the states cannot be altered.2
This case was appealed. The U.S. Supreme Court turned it down stating the case was moot because even the 10 year deadline had passed.
Though the ERA failed ratification in the required number of states by either deadline, and was stamped dead-on-arrival by the U.S. Supreme Court, proponents are introducing it in their state legislatures over twenty years later claiming they just need 3 more states. What is the driving motivation behind the ERA? In America, women are granted equal rights and protection by the law. Even supporters of the Amendment recognize the redundancy. Arkansas Senator Sue Madison, a sponsor of the ERA said, "I mean, think about it. It's largely accepted as a matter of law, and yet it's not in our Constitution."3 Most laws do not require an Amendment to the Constitution; this is one of them. There is no need to introduce an amendment to repeat common-sense recognition of the rights of women that are already enforced politically, legally and socially. There must be deeper reasons why feminists want the ERA ratified.
The 14th Amendment effectively protects women and gives them the same rights of men. Buckley v. Valeo stated that, "The term 'person' in the Fourteenth Amendment has never been limited to men, and fully protects women against denials of 'equal protection.'"4 Roe v. Wade was decided on the understanding that the Fourteenth Amendment included women in its jurisdiction: "State criminal abortion laws…violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy."5 If the Fourteenth Amendment does not include women, pro-abortion feminists must admit Roe v. Wade was decided on a faulty legal basis.
Utah Senator Orrin Hatch recognizes the hidden agenda behind proposing the ERA: "A more flexible view, permitting reasonable differentiation can hardly be regarded as the object of the proposal since the Fourteenth Amendment has long provided that no State shall deny to any person the equal protection of the laws and that Amendment permits reasonable classifications while prohibiting arbitrary legal discrimination."
Organizations like 4ERA and NOW claim that the ERA would not impact laws regarding the draft, same-sex marriage or federally funded abortion.6 Senator Hatch states the irony of their proposal: "It is inadequate for ERA proponents to argue that all sorts of 'common sense' exceptions will be made to the ERA when this is already the law today. The courts will always assume (properly) that the intent of a new constitutional Amendment is to change the law. If the ERA would maintain in force the 'common sense' exceptions of present law, it would not be needed." The most accurate method of discovering how this Constitutional Amendment would impact law is to look at the impact state ERAs have had on state laws.
Maryland passed a state Equal Rights Amendment in 1972. In the Baltimore Circuit Court, Judge M. Brooke Murdock ruled that the ERA made banning same-sex marriage unconstitutional:
The mere creation of a sex-based classification triggers application of the Equal Rights Amendment, under which distinctions drawn based on sex are suspect and subject to strict scrutiny. Because this Court does not find that section 2-201 is narrowly tailored to serve any compelling governmental interests, this Court must conclude that the statutory ban on same-sex marriage is unconstitutional.7
Hawaii's State Supreme Court also ruled in favor of same-sex marriage after activist Bill Woods "proposed that the state's refusal to issue a license presumptuously violates Hawaii's Equal Rights Amendment (ERA) which bars discrimination on the basis of sex."8 Other state courts, such as Washington and Massachusetts, have ruled that the ERA does not guarantee same-sex marriage. This presents a new problem: The issue of marriage would be determined by the opinions of a few judges, not a higher standard or even the will of the people.
Another result proponents of the ERA have enjoyed is taxpayer dollars funding abortion. New Mexico's Supreme Court decided unanimously in New Mexico Right to Choose/Naral v. Johnson that the refusal of the state to fund abortions under Medicaid violated the state ERA.9 In Low-Income Women of Texas v. Bost, the court ruled that Medicaid must fund abortions for women who could not afford them, the same as any other medical procedure.10 Thankfully, this case was overturned. National Right to Life covers the link between the ERA and abortion in greater detail. This issue, as well as same-sex marriage, will be decided in the courts if the ERA is not rejected.
ERA advocates make the argument that the amendment won't force women to be drafted into the military by saying that "Congress already has the power to draft women into the armed services."11 This is true, but Supreme Court cases have made it illegal to draft women in America. In Rostker v. Goldberg, the court held that, "Men and women are simply not similarly situated for purposes of a draft or registration for a draft, and Congress' decision to authorize the registration of only men, therefore does not violate the Due Process Clause."12 This decision would be overturned by a Constitutional Amendment that reads, "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." The current system gives women equal rights, opportunities and protection with common-sense exceptions. These would be eliminated with the passage of the Equal Rights Amendment.
The assertion that the ERA will lead to same-sex marriage, federally funded abortion and the inclusion of women in the draft is not a "scare tactic"; it is a historical fact. Ruth Bader Ginsburg, prior to being on the Supreme Court, wrote a 230-page report entitled Sex Bias in the U.S. Code: A Report of the U.S. Commission on Civil Rights,13 on the societal impact the ERA would have. Ginsburg states that, "Equal rights and responsibilities for men and women implies that women must be subject to draft registration if men are. Congressional debate on the Equal Rights Amendment points clearly to an understanding of this effect on the Amendment."14 She goes on to state that not only should women be included in the draft, they must also serve in combat units: "Implementation of the equal rights principle requires a unitary system…that cannot be founded on a combat exclusion for women."15
Not only will the military be made gender neutral under the ERA; prisons would be desegregated: "If the grand design of such institutions is to prepare inmates for return to the community…then perpetuation of single-sex institutions should be rejected."16 College students involved in the Greek system at their schools will be affected by this amendment. Sororities and fraternities will be integrated, according to Justice Ginsburg: "Replace college fraternity and sorority chapters with 'social societies.'"17 This applies to all organizations separated on the basis of sex including the Boy Scouts, Girl Scouts, 4-H Boys and Girls Clubs and all single-sex schools and college activities and sports.
Not only does the ERA impose unreasonable demands upon the government; it strips women of laws that protect them. Under the ERA, "Current provisions dealing with statutory rape, rape, and prostitution are discriminatory on their face."18 Statutory rape should not be an offense at all because a girl as young as 12 years old should have the right to have sex with whomever she pleases.19 She also believes that legalized prostitution could result from the amendment: "Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions."20 This is an amendment that is allegedly designed to bring equality to women. The result is precisely the opposite: It removes laws that protect a woman's right not to be raped and reduces women to objects that can be sold legally through prostitution.
Advocates of the ERA appear to be blind to what this amendment truly does to the "plight" of women. Feminists have been supportive of government programs to augment the role of women in society and politics. Some of these programs include the Violence Against Women Act (VAWA), the Women's Bureau, the Office of Women's Health and designated days of recognition such as National Women's History Month and Mother's Day. These would all be eliminated under the ERA because they single out individuals on account of their gender. The ERA is as harmful to feminist causes as it is to family and pro-life values.
Opponents of the ERA are often accused of using "scare tactics" to block passage of this amendment. The negative results that opponents cite are historical facts. Justice Ginsburg, one of the most frequently quoted proponents of the ERA, cites these examples as claims of positive impacts the ERA would have on society. The Equal Rights Amendment must be rejected in order to uphold standards of decency and put control in the hands of the people, not judges.
End Notes
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