a bird and a bottle

ERA Now Here to Stay?


I just found out, via Shakespeare’s Sister , that yesterday House and Senate Democrats reintroduced the Equal Rights Amendment.

The ERA, for those of you who are surprised that such a thing is not already part of our Constitution, is centered around this simple but beautiful concept: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Gets right to the point, doesn’t it. The ERA would require the strictest form of constitutional (equal protection) scrutiny for claims of sex discrimination (which now receive what’s called “intermediate” scrutiny). It’d make it clear that sex discrimination is not acceptable in our society. It would make that stance part of the Constitution. It’s a big deal. And not only symbolically. The ERA might have real implications for women’s lives.

The ERA has been on the table before (for a long long time). The ERA came thisclose to passing about 27 years ago, but ultimately failed to gather the support of enough of the states. By the ratification deadline in 1979, 35 states had ratified, out of the necessary 38. Though some have argued that the ERA continued to be before the states even after the 1979 deadline, it hasn’t been taken up in earnest since then.

And now it’s back!

“Elections have consequences, and isn’t it true those consequences are good right now?” Sen. Barbara Boxer (D-Calif.) asked a mostly female crowd yesterday at a news conference, as the audience cheered. “We are turning this country around, bit by bit, to put it in a more progressive direction.”

As Shakes notes, the usual suspects, Phyllis Schlafly chief among them, are already coming out of the woodwork to fight this.

After introducing the ERA yesterday, leaders in both houses vowed to bring it to a floor vote by the end of this session. It needs the support of 2/3 of the Senate to pass. Here’s hoping it leaps over that floor and onto state ballots in 2008.


19 Comments so far
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Long overdue and needed now more than ever before!!

Comment by Swampcracker

Sad but true.

What I’m wondering is if a ratified ERA would allow or even force the Court to take a new approach to its pregnancy jurisprudence. My guess is no…

Comment by bean

All things considered, Scalia, Alito, Thomas and Roberts live a parallel universe where words convey a different reality; you may be right. But there will come a time when future justices come from our Universe and then it might matter.

Comment by Swampcracker

It’s not going to happen, at least not before the Democrats find a way to take out Schlafly’s arguments. The response to the argument about abortion is easy – “Abortion’s already legal even without the ERA.” But the point about unisex bathrooms is a far harder sell, which unfortunately I don’t see a way of getting around.

Comment by Alon Levy

Unisex bathrooms? Silly propaganda unless … especially if you lived in France. Having lived in France for many years, one gets used to unisex bathrooms as one gets used to taking the Metro. Americans are so ridiculously puritanical.

Comment by Swampcracker

It’s very silly, but it’s working.

Comment by Alon Levy

How about same-sex marriage? Elimination of single-sex schools or programmes (ex. WIC), even when such would benefit women? I can imagine a state that gets the bright idea to make, say, an all-women honours engineering college (which, by the way, would kick butt). Whoops! Violates the ERA!

Remember the Mississippi University of Women case? Reverse discrimination cases would move women’s rights back quite quickly, as states would be prevented from making legislation to meet the needs of women and girls.

How about the draft? Even moderates and left-centre types will not stand for women being drafted. Never mind the fact that you couldn’t draft women, but keep them out of combat; that would violate the ERA.

Comment by theobromophile

WIC is a bad example – it’s given to parents with children (as is TANF). Though WIC does stand for “women and infants with children,” the benefits are closely tailored to be given (a) to women around their pregnancies or (b) to their infants and small children. As I stated in an earlier comment, I think that pregnancy jurisprudence should be dealt with separately. Right now, it’s just not even acknowledged (the Court jurisprudence holds that pregnancy discrimination is not sex discrimination; thus benefits based on pregnancy and denied to men are not sex discrimination even under the ERA).

RE: the MUW case – there are already reverse discrimination cases. Discrimination is already not allowed on the basis of sex. Strict scrutiny would certainly make it harder for something like MUW to get by, but if you remember your con law, “strict scrutiny is not strict in theory and fatal in fact.” Certain line drawing is allowed. Would MUW qualify? I don’t know. Frankly, it’s a risk I am willing to take.

And, ah, the draft. Nobody likes the draft. But I do think that women should be eligible for it. I also think that there should be a national civil service requirement, which people could fulfill by entering the armed forces if they wanted to. So you’re not going to get any traction on this one with me. And I am not going to engage in doomsday scenario-ing.

And Alon and Swampcracker – unisex bathrooms might be a better thing in some ways: they’d eliminate a lot of the problems that binary sex systems pose for transmen and transwomen. So I say, bring ’em on (just give me a stall door to close).

Comment by bean

Bean, in France, stalls are for sit-down, both men and women. Its the men’s urinal line one has to pass in order to get to the stalls. As far as reverse discrimination goes, I can’t see ERA negating it. After all, we had affirmative action during and after the civil rights era as a way of making up for lost time. Theo, you are on the right track: studies have shown that chocolate benefits the cardio-vascular system (for those who don’t know, theobroma is the genus name of chocolate – a shade plant that will grow in your apartment providing the temperature does not dip below 55 F).

Comment by Swampcracker

Hm. I have been to France several times but somehow missed the urinal row. I’m not sure if I should be saying “phew” or “thank goodness.” That said – there’s an easy solution to the urinal quandary. All stalls. Perhaps not the most environmentally efficient way to go, though.

Comment by bean

Bean, the French are the most passive-aggressive people on the planet. They are immune to change, suggestions, reform, re-modeling, pooper-scooper laws, or anything else you can toss at them. Be grateful, at least, for the venerable baguette.

Comment by Swampcracker

There’s also some serious racism going on there.

But, oh, those croissants and that cheese (give me chevre and a baguette and I can die happy).

Comment by bean

Serious racism? Remember “J’ Accuse” and the Dreyfus affair? And Jean Marie Le Pen? When lived here, I sometimes visited Cimetière du Montparnasse, and the holocaust memorial behind Notre Dame, and the fingers statues prying the pavement at Wittenberg in memory of my ancestors. But let us not look back; there is still so much work to do.

Comment by Swampcracker

How about the draft? Even moderates and left-centre types will not stand for women being drafted.

The draft’s not coming back.

And Alon and Swampcracker – unisex bathrooms might be a better thing in some ways: they’d eliminate a lot of the problems that binary sex systems pose for transmen and transwomen. So I say, bring ‘em on (just give me a stall door to close).

That, and they’ll get rid of those odious urinals. But the number of Americans who think unisex bathrooms are the new fluoridation of water is just scary enough to make Schlafly’s rhetoric work.

Comment by Alon Levy

Alon, I think Schlafly is too marginal to have a meaningful impact. These days, they keep themselves busy with their Conservapedia (reference material for village idiots).

Comment by Swampcracker

I’m not sure Schlafly is so marginal (she’s like Rasputin). And even if she herself is, she represents the traction of the anti-ERA movement.

Comment by bean

I heartily oppose a national civil service requirement, being a libertarian who really thinks that the LAST thing our country needs is a civil service requirement. I also oppose the draft, but especially a draft of mothers or potential mothers.

It’s quite easy to toss aside legitimate complaints about what may be as “doomsday scenario-ing.” I posit, however, that the ERA could be re-written in such a way so as to avoid the problems that people would have with it. Gay marriage should be a state issue (as states control marriage requirements, from degree of cousins that may wed to age of consent to divorce laws); single-sex education (think Virgnia’s all-women’s schools) can be a great thing for women; and, if women are to be drafted, it shouldn’t be via constitutional amendment. Why not re-write the thing to avoid the (very clear) problems?

As for unisex bathrooms: no. Just no. Do what everyone else does and have three bathrooms: men’s, women’s, and an individual bathroom for families that comes complete with changing tables and allows, for example, a mother to take her 5-year-old son to the restroom. While you might not have modesty concerns about unisex bathrooms, that’s not really a reason mandate them.

Comment by theobromophile

States control marriage requirements, but are still not allowed to prohibit interracial marriage. They control education but a) this is one of the biggest problems with American education, and b) again, they’re not allowed to (overtly) segregate their public schools.

Comment by Alon Levy

I think it’s a little silly to belabor the bathroom point…but I will say one more thing. there are already lots of unisex bathrooms in restaurants around NYC. No one seems to be horrified or in revolt. They just pee, wash, and go. What’s the big deal?

Also, I think Alon’s point is a good one — there are some issues that, though often left to the states, require federal involvement to normalize an anti-discriminatory practice.

Comment by bean

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