The ERA got 35 of the neccesary 38 States voting in the affirmative to ratify it. Should there be another movement to get it to pass?
**Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.**
What exactly does this add to the constitution that isn’t already present under the 14th amendment’s equal protection clause?
Gender based classifications are still not held up to the same “Strict Scrutiny” standards that race based classifications are.
I’d almost like to see this passed just to see the unintended consequences that would ensue. My guess is that it would harm women more than help them.
In reality, though, I agree with Dewey. Saudi Arabia might need such an ammendment (if they even have a constitution), but I hardly see women as an oppressed group in the US. I’ll save ammending the constitution to much more weighty matters.
In name only. Pretty much the only time gender-based classifications survive is when they inure to the benefit of females (see, e.g., Kahn v. Shevin, 416 US 351 (1974), allowing Florida to have more favorable homestead exemptions for widows than for widowers on grounds that the economic impact of a spouse’s death falls more heavily on a widow).
Can you name any situation where applying the “strict scrutiny” standard would have led to a different decision than heightened scrutiny where you find the disparity to be unjust?
Can’t really think of any, maybe child custody cases. The custody usually defaults to the mother, doesn’t it?
Of course, this is about equality, not about special rights for women or men. So perhaps a few areas where women would have had the advantage the playing field becomes more leveled fo rmen.
There are a number of areas where men and women are treated differently, such as[ul][li]Women are a protected class for certain discrimination laws.[]Different roles in combat[]Different treatment in divorce in alimony payments, child support payments, and child custody.[]Different treatment in cases of alleged rape.[]Separate bathrooms, locker rooms, etc.[]Sex is used as a rating factor for life insurance and auto insurance. Women pay less than men.[]Men-only and women-only athletic events. [/ul]If the ERA were to pass, nobody knows what the courts would do with respect to these areas. IMHO it’s just wrong to pass an amendment without any idea of what the consequences would be. E.g., if the court ruled that the ERA prohibited women being a protected class, then some people would be disappointed. [/li]
A better approach would be for Congress to look at these areas one and a time and make a considered judgment about what federal laws might be useful and appropriate.
I agree… the ERA looks good… but frankly, I hope it’s a frivilious admendment that we can all ignore.
I’ll admit I have no cite for this other than a 30-year-old Doonesbury cartoon, but the point of this cartoon is that the failure of ERA had more to do with women fearing it than men trying to keep women down. Can anyone clarify or enlighten me?
(BTW, the strip I’m talking about is when Howie and Ellie are discussing the ERA at their elementary school. Howie says something like, “And I suppose it’s mens’ fault that ERA hasn’t passed.” Ellie says “No, Howie, actually a lot of women feel threatened by it.” Howie says, “Ha! Then ERA is a farce, right?” Ellie’s friend says, “He’s got you there…” and Ellie asked if she can have a minute. Howie says “No WAY! I’m onto something here!”)
It is also questionable that many current laws against homosexuality or same sex marriages would be able to remain if the ERA passed.
If true equality for women was obtained, then all of the “male-female” differences would disappear the same way as the old “colored - white” differences and treatments went.
At this point in time, many older women would not like the changes that would come about from true equality. Look up the old Phyllis Schaffley arguments that she made back in the 1970’s. Phyllis Schaffley was the leader of the movement to defeat the ERA.
The biggest problem with laws is that laws are not permanent and can change from year to year, depending on the whim of the electorate, and the composition of the electorate(e.g if enough immigrants come into our country who hold male superiority views, many laws protecting women and their ability to work, etc. would be easily repealed)
As I recall, I think the biggest reasons the ERA did not pass back then, was because so many “men” did not want women to be drafted, and because of it was unclear to many if we could still have separate but equal bathrooms for males and females.
The largest opposition today are the homophobics who dont want any changes in the “sex” requirement of our marraige laws, and spousal benefits.
Nope. The point of that exchange is that Howie’s attitude toward Ellie (not giving her time to think, pressuring her toward a position) is intimidating, preventing her from arguing properly. Howie is suggesting that since women often feel intimidated, ERA is farsical; the point of the cartoon is that ERA is needed for women to feel equal.
This would only be possible if all of these immigrants were to become naturalized citizens; non-citizens are not entitled to vote in this country.
And I don’t know about you, but it’s Congress that makes and passes laws, with the signature of the President. And since Congress is elected every two years, and the composition rarely undergoes radical change, there’s no way legislation can change “from year to year.”
Moreover, a Constitutional amendment is more permanent. It would require another Constitutional amendment to repeal it, which means 38 states have to ratify it. Not always an easy task.
In any case, most laws that subjugated women in the first place have been repealed or are rarely enforced. Any improvement in the status of women has to be on a societal basis.
Robin
I certainly agree that the constitution would be harder to change, and thus, if women were to gain equality and have Constitutional rights, it would be difficult to eliminate those rights.
Any rights that women now have, are not Constitutionally guaranteed rights, but rather, are just laws currently on the books, which might change tomorrow if a majority of legislators in any state wants to.
To argue that women do not need equal rights under the Constitution, is the same as saying that we should not have given blacks equal rights with a Constitutional amendment either. If women do not need Constitutional rights, then black people do not need it either. Agreed?
There were several states where women “had” the right to vote, and then it was taken away from them - but that was before the constitutional amendment guaranteeing the right to vote was given to women. Since the constitution was amended giving women the right to vote, no state has since taken away that right.
Employment laws regarding women, have changed many times over the past 100 years, both at the federal and state level, there is no reason to suppose that all the laws currently in force, will remain unchanged for the next 100 years.
Furthermore, if the draft is resumed, it would be immoral and impractical to draft women who do not have equal rights, just as it was immoral and impractical to draft black slaves back when they did not have equal rights.
Except that laws shouldn’t be permanent. As our society and culture change, laws have to be flexible to stay up with that change. For example, the Founding Fathers could not foresee the Internet. Does this mean that laws can’t be adapted and/or written to cover the Internet?
Same with women’s rights. While there was a push for some rights for women in the 18th century, the FFs did not foresee that women would someday have the franchise, the right to own property, sit on juries, and so forth. As the role of women grew over the course of time, new laws had to be enacted to give them some protection. The most dramatic of these is the 19th Amendment, which guaranteed women the right to vote. Other laws are in effect to protect women, especially since we’re the ones who get pregnant and are expected to raise children. (The Pregnancy act of 1976 is a good example of this. I don’t have the exact name of the act, but I will find it.)
So, in a manner of speaking, women do have equal rights. We are allowed to vote, own property, work outside the home and keep our wages, work in an environment free of harrassment, marry whom we choose, raise children or not. I just don’t know that we need any more legal protection.
The parallel to blacks is interesting. Yes, it’s true that there had to be legal protections in place, but over time, society changed to reflect their equality. Granted, in both cases, there is still a significant ways to go before we can consider the past undone.
Susanann, in what ways are women unequal?
Robin
The Doonesbury archive is searchable, praise God, but the closest I could find was this one. Not exactly what you were thinking of. But some of the lines you quote ring a bell. I’ll be flipping through Doonesbury’s Greatest Hits tonight.
Wrongo- women DO have equal rights- and it isn’t just Laws that have granted this- it is SCOTUS decisions that such rights are part of the Constitution, even if so directly expressed by an Admendment.
However, please tell us all a “right” that women do not currently have that men do?
Actually, it would seem that somethings that are assumed as “rights” by women (such as the “right” to not be drafted) would be overturned by such an Admendment.
The first case that popped into my mind was Michael H. v. Gerald D., 491 U.S. 110 (1989) (establishing parental rights), which might well have turned out differently if strict scrutiny for equal protection had been available. Of course, that was primarily a due process case, so I’m speculating here.
Michael M. v. Superior Court, 450 U.S. 464 (1981) (statutory rape) certainly would have turned out differently. I would also point to Rostker v. Goldberg, 453 U.S. 57 (1981) (draft registration); Parham v. Hughes, 441 U.S. 347 (1979) (wrongful death); Kahn v. Shevin, 416 U.S. 351 (1974 (tax breaks for widows); and Schlesinger v. Ballard, 419 U.S. 498 (U.S. 1975) (Navy promotions).
Possibly also Geduldig v. Aiello, 417 U.S. 484 (1974) (discrimination based on pregnancy), although that’s such a weird case because they decided that pregnancy didn’t have anything to do with gender.
Er…minty, there was a second component to my question, namely “where you find the disparity to be unjust.”
I recognize there are cases where the outcome might be different; in fact, I specifically cited to Kahn in the same post where I asked the question.
All this talk of the ERA makes me want to get out my polyester bell bottoms and look up that old girlfriend with the floppy hat, big eyeglasses and long, straight hair. Maybe I’ve been living under a rock, but is this even an issue any more? When was it that the last state voted to ratify this ammendment?
I bet if you polled a group of 20 something women and asked them how they felt about the ERA, they’d mostly say “I’ve always felt that we should protect the environmnet”, or “I’m against it. Why do we need all those guns anyway?”