Why was the Equal Rights Amendment not ratified?

Factual Questions
61

No, it may not be harmless and could induce the law of unintended consequences and not even be advantageous to females or anyone for that matter. A literal interpretation would mean that there would be no concept of sex under federal or state law. All laws that reference sex could be invalidated and that includes a lot of things including simple record keeping like birth certificates, job qualifications on both sides, all sex-based affirmative action programs, no sex separate sports competitions for any institutions that receive state or federal funding and much more.

If I were a Supreme Court Justice, I would see at as my job to take the amendment to its logical extreme as some of them do in their position. Almost everyone could think of something they find undesirable about the potential consequences of possible Supreme Supreme Court interpretations of the ERA because Constitutional amendments are not simply feel good measures. They will have consequences as cases cases are brought to the Supreme Court based on the wording of the amendment and the ERA is very lacking in that regard.

Don’t discount that idea automatically because that is the way the U.S. Constitution is supposed to work. The 2nd amendment is another example of another very vague amendment and picked up steam over two hundred years later when it was ruled that Washington D.C. had no right to have an effective handgun ban for private citizens and future cases are waiting to overturn similar laws in other cities and states.

62

Can you explain how recording the sex of a newborn could be construed as denial or abridgment of equality of rights under the law?

63

And what would that “something” be except for turning the Constitution into a “let’s talk about our feelings” The problem was not that the Constitution needed to be amended but rather followed. Did Southern states deny Blacks the right to vote? Yep. What did Congress do about it? Not a damned thing even though it could have reduced their Representatives under the 14th Amendment. So did we need a new Constitutional amendment in 1960 or simply enforce the ones we had?

I was too young while ERA was being considered to have a first hand knowledge of why it didn’t pass but I do remember my dad was pissed when Congress extended the deadline and declared that ratification rescissions were invalid (later a federal judge said rescinding prior approval was legal) that he turned against the ERA since the gov’t was shoving down our throats no matter what.

I think it didn’t pass for the same reason that the Child Labor Amendment didn’t pass, that it was considered unnecessary as time went on because the consideration of the amendment itself caused the problem to be resolved.

64

It is a logical extreme sure, but there is no need to record sex at all if there is no reason for the government to ever consider it. It would be recorded as key information about the individual throughout government and private databases for life which never results in pure equality. I am not actually saying that would ever happen but not recording the sex to begin with would be a good place to start if you ever wanted to have a true sex-blind society.

65

Then why do we still record race on documents (like birth certificates and things like this)? :dubious:

66

I think it is important for the Constitution to include fundamental principles, especially if these are principles describing rights that were suppressed in the past, and one shouldn’t be stopped from stating fundamental rights with the fear that “someone might interpret this the wrong way”. You could say that about any fundamental right. The details of legislation are something for legislatures to deal with.

Well, as a I said before, you could apply the same argument to the 15th amendment. Anyway, this view that the ERA is redundant because of the 14th amendment seems to be the minority view, seeing the amount of support (and opposition) it had gathered - those people sure seemed to think it wasn’t redundant. And I hate to call the statement of a fundamental right (one that was not always respected in the history of the USA) as a “feel-good” measure.

67

No, it’s an *illogical *extreme.

68

And like I’ve said before, the 15th amendment was necessary because the right to vote was not considered the same as equal protection of the law. Today in 2011, we may consider them the same but obviously the writers of the amendments did not and I’m assuming there is good case law from women arrested during the sufferage movement that agrees with my point of view.

In addition (or an alternative view if you disagree with the above), nothing in the 14th actually gives anyone the right to vote - hence the need for the 15th and 19th amendment. What the 14th amendment did was allow Congress to penalize a
state for not allowing men over 21 to vote. A southern state could have legally disenfranchise all Blacks or a New England state could have disenfranchised all non-property owners legally and all that could have happened was they lose representatives.

[QUOTE=Section 2]
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
[/QUOTE]

The point you fail to explain is how the wording in the 14th Amendment

along with the 19th

is different than the wording of the ERA

69

I can understand your sarcasm with a view to assholes who discriminate on the basis of race or sex under the pretext of freedom, but direct horizontal application of equality provisions can and does cause trouble if enforced by means of legislation. I think most people agree that private individuals should have the right to choose freely who to contract with when buying or selling goods or services, for instance, and equality provisions make it difficult or at least risky for people to do so - especially if they are coupled with burden of proof rules whereby discrimination is presumed unless proven otherwise, as is often the case in that sort of legislation. Imagine a landlord, for instance, who offers an apartment for rent and has to choose between different candidates of different ethnic origins. Our landlord might not at all care about the tenant’s race, but legal provisions enforceable by other private individuals may make, as a matter of fact, risky for him to exercise his freedom of choice if he faces the risk of being sued by a rejected candidate on the grounds of alleged discrimination.

In the EU, there are now legal provisions prohibiting discrimination on the grounds of a number of criteria (race, ethnicity, sex, religion, age, sexual identity) unless there is sufficient grounds for discrimination (quite a vague benchmark judicially) among private parties, and the prohibition is enforceable by means of actions for damages, or an action forcing the other party to conclude a contract, on the side of the party claiming to have been discriminated against. I’m not advocating discrimination, I’m just saying that as a matter of fact that sort of legislation causes a lot of litigation and legal uncertainty for everyone involved and does, in my opinion, more harm than good. And as a matter of policy, I simply think that the purpose of constitutional rights is primarily and foremost to protect private parties against the states, not to restrict their freedom when dealing with other private parties.

70

And how many other things might be considered in the future as not falling under “equal protection of the law”, and denied to either gender? I don’t know. But if someone can look at “equal protection of the law” and conclude that “obviously, this doesn’t apply to voting”, I don’t put it past someone to argue something like this: “obviously, the writers of the 14th amendment didn’t mean equal protection of the law to apply to women, since many laws discriminating against women existed after the 14th amendment.”

But I’ll tell you what. If you convince the opponents of the amendment to agree that its passage would actually be redundant to what’s actually in the constitution, then maybe you’ll come closer to convincing me. For example, Shagnasty in this thread thinks that passage of the amendment could give rise to bad case law, even though you seem to say that the same thing could happen now because ERA = 14th + 19th. Is Shagnasty wrong?
What you have never explained is why people were so opposed to it, if it was meaningless.

71

Yes I have! I said that the perceived injustices were dealt with with statutes and changing attitudes brought about from considering the ERA. Except for the Bill of Rights, there have only been 17 amendments to the Constitution, 3 of which took the Civil War to pass and method of passage is questionable. Most people do not believe that the Constitution should be amended on a lark but rather as a last resort. Why were people oppsed to the ERA? Because it was viewed as unnecessary and the Constitution is not a feel-good document.

Why didn’t the Congressional Appointment Amendment, Title of Nobility Amendment or probably more germane to the discussion Child Labor Amendment pass?

72

Naw. People were really scared of that amendment. Remember that 3/4 of the states have to pass an amendment which is really, really hard to do.

Imagine around the last national campaign if we had to vote for a constitutional amendment to proclaim that Obama was born in the U.S. and not in Kenya. Could we have gotten 3/4 of the states to even agree with that? Remember that top Republicans were refusing to say that the whole born in Kenya thing was a bunch of garbage.

The same with the ERA. The ERA was supported by both major parties. It was innocuous, and it was pretty much what a vast majority of Americans believed at that time – that we should not discriminated against people because of their sex.

However, the opposition simply spread lies. The ERA, they claimed, would

[ul]
[li] Take away the dependent wife social security benefit.[/li][li] There would be unisex restrooms.[/li][li] It is supported mainly by radical feminists, abortionists, and lesbians.[/li][li] It would abolish the presumption that the husband should support his wife.[/li][li] It would also give federal courts and the federal government enormous new powers to reinterpret every law that makes a distinction based on gender, such as those related to marriage, divorce and alimony.[/li][/ul]

All of this was pure scare tactics. The social security benefit could easily be rewritten to allow for dependent spousal benefits (which it later was). The unisex restroom didn’t occur even in states that passed their own ERA.

I can’t say that abortionists and lesbians supported or didn’t support the ERA, but opinion polls at the time stated that a majority of Americans supported the ERA.

As for the last two, it made no difference in the end. Courts have pretty much on their own eliminated discrimination based upon sex. Much of this is due to interpreting public law and some of it is just the presumption that all citizens deserve the same protection independent of their sex.

The only possibly legitimate claim you can make against this amendment is that you can’t have a male only draft with an ERA. I am not sure what the courts would rule in this case. Maybe they would allow for a draft that excluded women.

However, I believe the American people, now after seeing women in combat in three separate wars, no longer have a concern about women serving in combat. And, that if we as a country ever find ourselves in a position where we must have a draft, I don’t believe that a majority of Americans would object to including women in the draft.

73

The loss of freedom to people who need to worry about poor interpretation of anti-discrimination laws is far, far outweighed by the freedom available to Black people, Jews, women and other groups that were historically denied access to the things that moist of us take for granted.

So yeah, it sucks that a landlord needs to worry about being falsely accused of discrimination, but compare that to the plight of my High School art teacher who could not rent or buy a house in the city that she worked for because she was black.

74

Rostker v. Goldberg. Not sure how the ERA would have affected that ruling.

75

What you’ve been saying is “the amendment is redundant because the constitution already has language equivalent to the ERA, so passing the ERA would not put anything in the constitution that isn’t already there”. I have never heard that from anyone except you. What I have heard before is “we don’t need it, because it already exists in fact, though not explicitly stated in the constitution” or else arguments that it would introduce dramatic (and harmful) changes. I mentioned a link in post 55 showing some of the anti-ERA arguments, let me quote what they say at that page:

As i mentioned before, you seem to be in a very small minority saying that the ERA would do nothing. You may have noticed that posters in this very thread saying that passage of the ERA would give rise to all kinds of bad laws.

If your argument were “we don’t need the ERA because nowadays no one would discriminate based on sex due to changing attitudes” my reply would be “those who do not learn from history are doomed to repeat it.”

76

I’m not necessarily saying that the ERA would do nothing. What I am saying is that what Americans want out of the ERA is already in the Constitution* given current interpretation of “equal protection”*. I agree with Shagnasty that passing a new amendment could open the door for new rulings that were never intended with the ERA. Previous examples:

The 14th Amendment: Some legislators thought it wouldn’t apply to children of illegal immigrants and others did. SCOTUS feels it does.
ICC: Interstate commerce means I can’t grow wheat on my farm in Nebraska for my own private use since it affects the price of wheat in Iowa.
Eminent Domain: Thanks to Kelo, a city can take away your property and give it to someone else if they will pay higher taxes on it.

77

I thought your point was, passage of the ERA would not have affected this ruling, because the meaning of the ERA is already in the constitution? Or are you agreeing now that passage of the ERA might affect court cases? :confused:

78

This post also answers my question from post 77.

If that is what you are saying now, then I’ll give the obvious reply that the current interpretation could change, so it is important to make equality between the genders explicit in the constitution.

To the argument that passage of the ERA might lead to bad laws, I’ll just repeat what I said in post 66, already addressing this point:

79

Beverly LaHaye formed Concerned Women for America in response to NOW–& to oppose the ERA. She’s married to Tim LaHaye, leading light of the religious right & co-author of the Left Behind books. (They met at Bob Jones University.)

CWFA’s current issues include opposition to abortion & homosexuality. They’re also agin’ teaching Evolution in school & the War on Christmas. (In fact, much of that latter fake issue was first publicized by them.)

80

Saint Cad, since you were arguing that the 14th + the 19th is equivalent to the ERA (thus rendering passage of the ERA unnecessary), you may be interested in this new Great Debates thread:
Scalia says the 14th amendment doesn’t apply to women