What was the ERA all about? Isn’t this already covered under the 14th amendment? Why was there a push for another amendment?
Under the 14th Amendment, differential treatment based on sex is subject to “intermediate scrutity”: the classification must be substantially related to an important government purpose. The ERA would make it a suspect classification (same as racial discrimination) which would bump it up a notch to “strict scrutiny”: the classification must be necessary to achieve a compelling government interest, with no less restictive means of achieving that interest available.
pravnik: But in the realpolitick following the Women’s Liberation movement, I don’t think any governmental body could survive a serious sex discrimination charge.
In an environment where the Citadel is forced into accepting female recruits, I doubt anyone could make the statement that sex discrimination is anything lesser than racial discrimination in the eyes of the relevant bodies.
The ERA was first introduced in Congress in 1923, and then at every session after that until it finally passed in 1972. It was then tunred over to the states for ratification. Even thuogh the normal seven-year time limit for ratification was extended to ten years, the amendment still fell three states short of the 38 required.
The text of the ERA reads:
Sounds like a pretty common-sense statement to me.
If you want to read an excellent book on the fight to get the amendment ratified, may i suggest: Jane Mansbridge, Why We Lost the ERA (1990).
It’s the “I don’t think” that’s important. ERA supporters want to remove any room for doubt.
The current administration doesn’t particularly inspire confidence in the Supreme Court’s continuing to make/ uphold Citadel-type decisions, either.
Ah, but there’s always room for doubt. The right to free speech on the Internet was challenged by the CDA, which was only overturned after a Supreme Court battle that could have gone either way. Had some of the Justices been swayed differently, we couldn’t have discussions about certain things on this very message board.
A Constitutional amendment, even if it’s in the Bill of Rights, isn’t a security blanket. It isn’t even an absolute legal guarantee. It’s only a guideline for the Supreme Court to follow in the event of a relevant court case. A Chief Justice of the Supreme Court, for that reason, can have a much more profound effect on the national discourse than any President or member of Congress.
For one thing, that’s why Justices are never up for election and serve until they voluntarily retire.
For another thing, you’ve just torpedoed your own position by reiterating my above point exactly.
No, I think you just misunderstood me. The 14th Amendment (largely) protects women because previous Supreme Court decisions have ruled that it should. Without an amendment explicitly setting out women’s rights, though, those decisions are subject to reinterpretation by future Supreme Courts. And if there are any vacancies during Dubya’s term, I for one do not trust him to appoint justices likely to uphold women’s rights.
The Constitution itself is up for interpretation by future Courts. All parts of it.
That is the Court’s job.
Really, there’s no way to state it more simply. The Supreme Court didn’t overturn Jefferson’s Louisiana Purchase, something wildly beyond his powers as President, so the Purchase is Constitutional. The Court ignores the secret tribunals held by Ashcroft against the so-called `enemy combatants,’ and thus those trials are Constitutional. Future Courts may well (damned well better) rule differently, thereby altering the actual meaning of the Constitution. Such an alteration would bring the meaning in line with the text, but it would still be a variance from its current meaning.
Having an Equal Rights Amendment means diddly-poop if a Court gets a bug up its bum and decides that no, women really shouldn’t vote, or that yes, the military can refuse to issue women rifles. The only limiting factor is the cases that actually come up for review: The Court can’t go out looking for trouble the way Congress can.
Derleth, I’m not talking about the possibility of some really whacko Supreme Court deciding to turn the US into the land of The Handmaid’s Tale. I’m talking about a fairly rational but still conservative court deciding that the 14th Amendment doesn’t prohibit particular types of discrimination against women as it would against, say, blacks or Jews. An amendment which specifically protects women would guard against that possibility.
The ERA was substantially different than the 14th ammendment.
If the ERA wasnt much different from the 14th ammendment , the ERA would have easily passed in 1972, and have been quickly ratified.
Read it again, and think about it some more:
“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
If this proposed right for american women is as innocuous as you suggest, then you obviously didnt live thru it, and you dont know of the heated opposition that it caused all over the country, and why it didnt pass.
You should support the ERA, ONLY IF you believe that there is no circumstance WHATSOEVER where men and women should be treated differently. More female bathrooms in the municipal auditorium, anyone? Yeah, even trivial ones like that.
You’re right, i didn’t live through it (or at least, i wasn’t old enough to understand it, and i wasn’t in the US). But simply saying that it caused “heated opposition” is not a very intelligent or compelling argument–there was plenty of “heated opposition” to the 13th Amendment too. I’m well aware of the debates it caused, of the groups that supported it, of the groups that opposed it, and the many reasons that it didn’t pass. Don’t assume that just because i don’t share your point of view that i am ignorant about the subject.
Herein lies a key problem that dogged the whole debate over the ERA–oversimplification. As Jane Mansbridge shows in her book, which i referred to above, the ERA most likely would not have had the impact that either its supporters or its detractors claimed for it.
For example, many opponents of the ERA argued that it would mean sending women into combat situations on the same basis as men, completely ignoring the fact that the military can choose who does and does not go into combat based on its own criteria and without reference to a consitutional amendment such as this one. Of course, many supporters of the ERA fell into the same trap, agreeing that women would be obliged to go into combat and arguing that this was a good thing. Both sides missed the fact that there are plenty of mechanisms in place for the military to avoid this situation if it wanted to. [I can’t remember right now the exact legal term and mechanism that would have allowed this–i need to go back and read the book again.]
Mansbridge actually argues that, as well as certain practical effects such as enshrining in law the principle of equal pay for equal work, one of the ERA’s main impacts would have been psychological. That is, by placing sex equality in law (the way that free speech, racial equality, etc. are enshrined in the Constitution) the ERA would have caused people to see equal rights as a more desirable and just goal, even in areas that were not covered by the law.
For example, we all realize that the 1st amendment doesn’t cover all speech, and that certain people and institutions can and do circumscribe certain types of speech by their employees, members, etc. But the very fact that the principle of free speech exists in the Constitution leads people to see it as a desirable thing in general, and not just in the areas that are specifically covered by the amendment itself. And personally, i think that’s a good thing. YMMV.
This seems to have turned into a debate, so I’ll move this thread to GD.
bibliophage
moderator GQ
I’m inclined to agree with this. Military regulations recieve very deferential treatment in the federal courts. One of the most noteworthy cases in this regard is Goldman v. Weinburger, holding that the Air Force could tell a Jewish serviceman that he couldn’t wear a yarmulke in uniform, something which would be a constitutional no-no outside a military context. From the opinion: "[T]he military is, by necessity, a specialized society [separate] from civilian society…‘the military must insist upon a respect for duty and a discipline without counterpart in civilain life’ in order to prepare for its vital role…the essence of military service ‘is the subordination of the desires and interests of the individual to the needs of the service’. Also, this from Kennedy v. Mendoza-Martinez: “serving in the military is a privilege and sometimes an obligation, conferring neither the right to serve nor the right to avoid service.” No national interest is more compelling than military strength, and nothing is more important to military strength than combat effectiveness. If the military says that it’s necessary to exclude women from combat service to maintain combat effectiveness, courts aren’t going to second guess them.
I think you are ignoring the fact that if the ERA had passed, we could have no selective service law that drafts men only, thus, the military would be half full of women if women were equal. At that point, the military may or may not be able to decide not to use half of its force in combat, but it would not get to only draft/hire men and exclude women entirely.
You may be right that women might not still be able to go into combat(once in the military), but you are wrong to think that you could still draft only men, and not women if women were truely equal under the Constitution, and if the ERA had passed.
Whatever current priveledges women might have under current law, is not permanent. The “laws” can be changed easily, from one day to the next. Laws are willy nilly and relfect the opinions of those currently in congress. If we were to get in a lot of immigrants from a particular culture, who thought that women should not work, or that women must cover themselves, then the laws would change. It is much harder to change the constitution, even if most of the men wanted to subjegate women again.
Men too, would have been given some equality in our divorce and child custody courts, if the ERA had passed.
If true equality for blacks required a constitutional ammendment, then why cant women get the same equality?
Nothing has changed, most americans still dont want the ERA passed, and opposition groups would fight it again if it were to be proposed again.
The question came up in the 1970’s if women should be equal in america, if women are or should be equal to men, and the answer was no.
Another way to phrase it, is to propose that we repeal the ammendment that gave blacks equal rights, and instead replace that ammendment with some laws. How many blacks would accept that? If you think women are equal just because there are some laws regarding work, then take away the constitutional ammendment making blacks equal, and give them “laws” instead.
If you can get the majority of blacks in america to accept federal laws instead of a constitutional ammendment, then you might have something to discuss, but the fact is , that nothing makes true equality except a constitutional ammendment.
How do you get that? If it’s constitutionally acceptable to limit combat service to men, even under strict scrutiny, it’s a fortiori acceptable to limit a wartime draft to the men it needs to fill combat positions. No federal court is going to say “sorry, military, the Court realizes we’re at war and our nation’s future depends on the choices you make, but if you’re going to draft 100,000 men you have to draft 100,000 women as well, regardless of whether or not they are needed to serve.”
The SOCAS, with two women in it, would drop the ball on equal rights for women? Justice O’Connor is a big reason why sexual harassment statutes are in the books. Conservative women do not like being harassed either.
Women has two things going for them: advanced education, and they are a voting majority in virtually every state. If they can harness the power, as opposed to squabbling among themselves, they would be unstoppable.
Think of it this way: the right to wear a yarmulke is protected by the Free Exercise Clause of the First Amendment, and is a fundamental right. I work for the federal government. If I were told I could not wear a yarmulke on Jewish High Holy days, I could make a constitutional challenge, putting the burden on the government to show why it is necessary to encroach on my fundamental right to the free exercise of my religion. The test is one of “strict scrutiny”: the reason for the governmental regulation disallowing my wearing of the yarmulke must be necessary to protect a compelling government interest, with no less restrictive means of protecting that interest available. Since I’m a civilian working in a courthouse, it is very unlikely that they could make that showing. “Strict scrutiny” is a very high standard.
Change that to a military setting. If I want to wear a yarmulke with my uniform, I’m out of luck. The regulation will pass the “strict scrutiny” test. Maintaining military discipline is a compelling interest, and making military uniforms uniform is necessary to achieve that government interest. It may not seem like that big a deal to let Airman First Class Goldman wear a yarmulke with his uniform, but the courts realize that the military has “special needs” not present in a civilian context, and certain things unacceptable in a civilian context are acceptable in a military context. Judges realize that they’re jurists and not soldiers, and are extremely deferential to letting the soldiers do their jobs.
Now, if maintaining the Military Dress Code is a compelling interest, how much more compelling do you maintaining combat strength and operational readiness is? The ERA would give women the same protection as A.F.C. Goldman’s yarmulke: “strict scrutiny.” If the Supremes aren’t going to tell the U.S. Military how to wear their uniforms, they sure as heck arent going to tell them how to wage wars.
Even in a civilian context, it’s not immediately clear what the ERA would accomplish now. Gender classification already has to pass an intermediate scrutinty test under the Equal Protection, which invalidates things like discriminatory drinking ages (men 21, women 18), women only-alimony, state supported all-female or all-male schools, gender based death benefits, and so on. I can’t think of any borderline cases where a regulation was valid under the present “intermediate scrutiny” standard but wouldn’t have been under a “strict scrutiny” standard.