Equal Rights Amendment: How do you think this is going to play out now?

When has equal protection law been applied to women? There are hundreds of laws that would be immediately invalidated.

But is that “beneficial”. They can certainly volunteer, they just can’t be drafted – not that anyone is being drafted right now, but who knows when they might start again.

Pretty much all the time since the 1970s.

So you don’t have an example?

How could you justify preferential treatment in the military if equal protection was now being applied across gender?

US v VA

Intermediate Scrutiny was created specifically to handle gender discrimination cases.

Much better

I think your choice to mention intermediate scrutiny however is actually contrary to your interests, if gender were considered a primary attribute protected by the 14th then strict scrutiny would apply. By instead using intermediate scrutiny they are effectively saying that protection across gender is weaker than say protection across race.

You asked when Equal Protection was applied to women, and I gave you the correct answer-- starting in the 1970s.

No. Because the levels of scrutiny are specifically a 14th amendment, Equal Protection, issue.

So what.

So what? Are you fuzzy on what the definition of equal is?

No, I’m not fuzzy at all on the legal definition of the term “Equal Protection”. That is the term that you brought up. As a term of art, the SCOTUS gets to make that definition, not you or I. And they have done so, per their jurisprudence on 14th amendment. They noted that it is virtually* never appropriate to discriminate by race, religion or national origin, but it is sometimes appropriate to discriminate by gender. For instance, men don’t get pregnant; there might be times when it is inappropriate to house men and women together.

In fact, I seem to be teaching you quite a bit about the meaning of the term. You’re welcome, btw. :wink:
*never say never

Your link in no way explains that it is scotus who is responsible for defining equal protection, this is a poor education! In fact that’s a highly controversial view. In a functioning democracy, the voting public or their duly elected representatives are responsible for defining laws and legislation. If you have an amendment that is widely known to mean “X”, and everyone who is voting on that base their vote on that meaning. When you let 5 people later change the meaning of that amendment to “Y”, you’ve completely invalidated the Democratic power of the voters.

It wasn’t meant to. For that, I refer you to Judicial Review. The link I gave you was just to define “term of art” in case you were unfamiliar with it (as you seem to be about the term “Equal Protection”).

I disagree, but if you really think so, consider that you get what you pay for.

Judicial Review is “highly controversial”? Perhaps you can provide a cite for that unusual claim?

This cite is even worse. Judicial review as stated in the first statement of your own link, the ability of the court to examine a law or action to determine if it violates the constitution. This in no way states that it is the courts job to define the terms found in said constitution, nor is it a review of the constitution itself.

Equal protection is not a term of art, a term of art is a name given to some concept the courts have created to formalize the methods of the court, Eg. strict scrutiny. Equal protection is actually lifted from the text of the law itself, it is defined by the law itself. Your argument would allow the court to define what slavery means, or race.

Seriously youre just ignorantly throwing terms around.

P.s. the link you provided contains an entire section dedicated to controversy with judicial review, do you even read this shit?

There has to be some limit to the term “equal protection” lest every law violate it. If not, a law against speeding is a violation because it only applies to that class of persons who desire to drive their cars very fast, while not having any application at all to the class of more moderate persons who drive their cars slowly/reasonably.

How do you draw the line? Race is probably pretty easy since it was the primary motivation of the drafters. Gender? There is substantial evidence that those drafters didn’t intend for it to apply to gender at all. So what is a court to do?

How do you think they determine if a law violates the constitution without determining what the the wording of the constitution means? Yes, the wording itself can be changed by the amendment process, but only the SCOTUS is the ultimate arbiter of what that wording means. The Court gets to decide what Equal Protection means. Are you actually going to claim otherwise? If so, we’re going to need a cite for that. Because the fact is they have already done it. They have defined what it means, and they have struck down laws based on that definition and those laws have become nullified. If I say that a law has been found to violate the Equal Protection clause of the constitution, it means that it has found to be contrary to the meaning that the SCOTUS has given to “Equal Protection”. It does not necessarily mean that the law fails to treat each individual exactly equally, in the colloquial sense of that term (which is what you tried to claim earlier).

Here’s another surprise for you: They’ve decided what “Establishment of Religion” means. And a whole host of other things in the constitution.

Yes, it is. You are trying to separate “equal” from “Equal Protection” and pretend that if something is not exactly equal, then it does not afford “Equal Protection”. And you’ve not provided a single cite in this entire exchange, btw. Your posts are not exactly fonts of factually correct statements.

Then perhaps you can quote the part that supports your claim that it is “highly controversial”. I’ll give you some help-- it’s not the very first sentence of that section (emphasis added):

I’m afraid you are well into “gold fringe on the flag” territory here by claiming that Judicial Review is “highly controversial”.

I never said judicial review was controversial, you fabricated that.

Ok so I see now where some of the semantic disconnect is. We’re now talking about two different meanings of defining in use here. When I thought of defining the text I was thinking you meant court applies the meaning they wish, not that they are responsible for determining what the original intent of the law was. In that case I’d say the court is determining what the lawmakers defined the law to mean. A lot of people think the court should redefine the meanings of the amendments to fit the evolving sense of decency of society. I apologize if I erroneously put you in that bucket.

The fact of the matter is that Judicial Review does mean the court gets to change the meaning of words if it wishes to do so. They are not constrained to “original intent” when interpreting the constitution, and they often stray from that. Lots of people think they should stick to original intent, but lots of people think otherwise. It would be hard to argue that the folks who ratified the 14th amendment intended “Equal Protection” to cover Same Sex Marriage, for example. Whether or not the courts should have interpreted the 14th in that way is a separate argument. I’m just saying that they did. And most everyone in the US accepts that they had the last word on that, until and unless we explicitly change the constitution otherwise or a different SCOTUS reverses that ruling. SSM is the law of the land, and gays get married in every state of the union.

There is a pretty famous quote from a Supreme Court judge that is similar to “99% of all laws violate the constitution”

The primary purpose of the court isn’t to determine if the law violates the constitution, that’s usually a foregone conclusion. Rather it’s up to the court to determine if the govt has sufficient reason to do so. If a law is brought into question the second step is to determine how severe the violation is, the case ends up in one of three categories. In the lowest category it is presumed that the people, through the electoral process, have decided on representatives that can be trusted to not step too far. This is where speeding would fall. If a case is to be made it is the burden of the petitioner to show the legislaters didn’t act in good faith. Btw, speeding wouldn’t likely be an equal protection issue.

However if the law violates a “first class” protection of the constitution, then strict scrutiny is applied; which requires that the govt show just cause. This where a race case ends up, like affirmative action. Race is specifically mentioned in the fourteenth amendment, sadly driving is not :stuck_out_tongue:

But what youre asking is the heart of the controversy. Believers in original intent would say that the classes of people protected are based on what the intent of the lawmakers and voters were in 1865. If you don’t like it, amend it. The other side believes that the court should be empowered to add additional classes to match what the judges think the current will of society is. Thus adding gender and more recently homosexuality. The primary reason usually boils down to the amendment process is too hard.

I think we’re pretty close to synced up now.

The meaning of “any person” never changed. It was simply ignored until it was no longer possible to ignore it.

That statement is wrong on 2 levels:

  1. “Any person” would include children, so are you arguing that we’re ignoring the rights of 2-year-olds to vote, and that some future court will, correctly, fix that error?

  2. The discussion was centered on “original intent”, not “what is the dictionary definition”. What were the people thinking who wrote the amendment. Now, it’s true that we can’t actually know with absolute certainty that the framers of the 14th amendment do not intend (note the use of the word “intend”) it to apply to SSM, but I think we can be about as certain of that as any type of historical analysis. If you want to argue that it was their intent, have at it. But saying that you looked the word up in the dictionary and found it to mean “X” is more of a textualist argument than one based on original intent. In fact, I doubt that the men (and they were all men) who drafted and voted on that amendment intended it to apply to women. If they did, they did a hell of job hiding that intent since it took another amendment, some 60 years later, to ensure that women were allowed to vote in all the states.