1921? I didn’t realize it had quite so many miles on it. I mostly remember it from the early '80s.
I see the argument you are going for with the tie-in between gay raights and ERA, which I had admittedly never thought of before. It would then, reverse such decisions as Bowers Vs. Hardwick unsupportable if that argument were taken as true. It isn’t beyond my reach to imagine that a conservative court could reject that line of reasoning though. Having read Bowers Vs Hardwick as well as the dissensions, it seems to me that it is already a flagrant example of legal maneuvering to support an agenda, so the same mentality might manage to make some other oddball argument stick. Perhaps by saying no one gender is being discriminated against as the sodomy laws apply equally to both male and female homosexual couples.
I would certainly think so. However, in Bowers Vs Hardwick there was a John and Jane Doe who tried to get the court to address the law as it applied to them, and the court refused to do so. I don’t remember the legal terminology, but since they had not actually been arrested the court decided it had no obligation to consider their case. So if the law is only ever enforced against homosexuals, how would this help exactly? The court may simply state that the Constitutional right of privacy does not extend it’s protection to homosexual sodomy without ever addressing the hetero question, just as it did before. When challenged on ERA grounds, it could retreat to the “equally applied to homosexual males and females” argument. I realize that these tactics are both dishonest to the spirit of the law as well as an exercise in unwarranted governmental intrusion without compelling state interest, but I think that the original Bowers Vs Hardwick was all those things as well, and a court comprised of justices with similar attitudes as in the that case might still hand out the same crap they did before, ERA or not.
ERA seems like it would be a good ally in a more centrist or liberal court, but I’m not so sure those courts would need it to hand down a ruling that would be fair. Far better, to me, would be an ammendment that specifically spelled out equality before the law irrespective of gender or sexual preference, but I don’t see the Bible belters letting that through anytime soon.
Look, you’re reducing this to the point of irrelevancy.
If you’re able to back some loophole into some obscure dark corner and find a way to suggest that No, the ERA wouldn’t automatically overnight render all discrimination issues cut and dried, you still wouldn’t succeed in convincing me that it wouldn’t make the playing field a lot more level and, to mix a metaphor, clear cut.
That’s quite a stretch, in my opinion, of the wording of the ERA. If you want homosexuals to be able to marry I wouldn’t count on the ERA to acomplish that.
No lissener, I don’t at all disagree that this would be a good tool to have in the toolbox against discrimination. I am just trying to hammer out how it might apply to the gay rights movement because, as I said, I had never considered it before. You and matt have put forth reasons why it would be of help, so I am trying to see how it might also fail, to see whether it would be help, HELP or HELP to you. I am certainly not arguing against ERA, nor trying to carry the debate to irrelevancy.
The way I see things as they now stand, it is only by “backing the loopholes into some dark obscure corner” that the laws currently talked about in our society regarding gay rights (unevenly applied sodomy laws, homosexual marriage, gays in the military, employment discrimination, etc.) can exist at all. I think it is a very evident stretch of the spirit of the Constituion that allows such discrimination to legally exist now, so I am trying to apply the same stretches to ERA with regards to those issues to evaluate how well it may or may not help your cause. My first reaction is that ERA would be a powerful ally for women, but a very small help for gays. It seems to me, on the face of it, that it may be of help in courts that are predisposed to grant it, or are neutral regarding gay rights, but that it might still be of no help at all with conservative courts, where the help is most needed.
That’s because shuch a concept is unworkable. The reason we have a court system is because it’s not always possible to write laws that apply across the board to every set of circumstances.
Let’s take this one, for example: you run a health club. You need to hire an attendant for the women’s locker room. If it’s illegal under these circumstances to discriminate against a person based on their gender, what right to you have to reject a man who applies?
But I’m getting ahead of myself. Here, enjoy 42 U.S.C. s. 2000e-2(a)(1):
Sounds pretty simple and unequivocal to me. Which brings us back to the locker room example. Obviously, nobody feels that it would be wrong to refuse to hire men to be women’s locker room attendants. So the courts looked at the statute above and decided that there should be an exception where being of a particular sex is a “bona-fide occupational qualification” for the job. It’s pretty rare for a job to have sex as a BFOQ, but it is possible. Several cases involving prisons have found that it was appropriate to declare certain positions “male-only” or “female-only,” primarily because of the privacy interests of the inmates.
One of the problems with the ERA is that it fails to contemplate the fact that there are some (albeit not very many) circumstances where a person’s gender does matter. During the '70s, one of the big rallying cries against the ERA was that it would force everyone to have unisex bathrooms. That may be overstating the situation a bit, but it is equally oversimplfying the situation to suggest that our society should be sex-blind in absolutely every circumstance.
I remember seeing an old television ad in favor of the ERA. It showed a nurse walking to work and the narrator was saying that she had a college education and still made less then a garbage man. Then the narrator then said “That’s why she’s wants the ERA to pass.” When I saw that ad I had no idea what the ERA had to do with her making less then a garbage man.
To be honest I don’t think the ERA is needed. But then I’m super wary about any amendment to the Constitution. I’m sure I’ll be accused of being a bigot. I support the right of homosexuals to marry just as heterosexuals do. And I believe that being a female should not stop someone from enjoying the same rights as I.
In the 211 years since the Constitution was ratified (it was signed by delegates in 1787, but it took 2 more years to get the required 9 out of 13 state legislatures to agree to it), there have been 33 proposed amendments that have received a 2/3 majority in both houses of Congress and been submitted to the states for ratification. Of these 33, 27 were later ratified by the states. Only 6 of the proposed amendments that have been submitted to the states for ratification have failed to be ratified.
And the ERA is one of them.
Getting a 2/3 majority in both houses of Congress is not only hard, it’s damn near impossible. Like I said, it’s only happen 33 times in the last 211 years. And since the ERA had a built-in 7 year time limit, it would have to pass both houses of Congress by a 2/3 majority again before it even had a chance of being ratified.
It could happen, but I’d be more willing to bet on, say, the Chicago Cubs winning the World Series than on the ERA getting submitted to the states again.
[lawyer hat ON]
Criminalization is not at issue here. Making it illegal to discriminate on the basis of sex does not make it a crime to discriminate on the basis of sex. To simplify, sex discrimination after the putative passing of the ERA would have still ended up in civil court.
[lawyer hat OFF]