In The Arena Time for an Equal Rights Amendment

Alexandra Brodsky and Elizabeth Deutsch are students at Yale Law School. Brodsky is an editor at Feministing.com and founding co-director of Know Your IX, a national student campaign to end sexual violence on college campuses. Deutsch holds an MSc in Gender from the London School of Economics.

In response to recent threats to women’s rights, organizers have brought a revived fight for gender equality to the courts, the legislatures and the streets — but we haven’t heard much about the equal rights amendment. The ERA, which would create a constitutional right to sex equality, was introduced more than 90 years ago, and it has been more than 40 years since Congress passed the amendment — but it fell just three votes short of the required 38 states when its deadline for passage came and went. The conventional wisdom now is that the ERA, a topic of live debate for decades, today is dead for good. After all, since the 1970s we’ve seen some significant progress, from the Pregnancy Discrimination Act to the Violence Against Women Act. Isn’t the ERA unnecessary and, as longtime ERA opponent Phyllis Schlafly put it in 2007, “very retro”?

Absolutely not.


Last week, Rep. Carolyn Maloney (D-N.Y.) and Rep. Jackie Speier (D-Calif.) stood outside the Supreme Court to call anew for a constitutional right to sex equality “Equal means equal,” Maloney said. “Not in rhetoric, but in the Constitution of the United States for women and men.”

Amending the Constitution is no easy task — it hasn’t happened in 22 years — but Maloney and Speier are right on: Now more than ever a new movement for the ERA is urgently needed. The Constitution in 2014 still does not so much as mention sex, while women around the country face conservative legislation and Supreme Court decisions — most recently in the Hobby Lobby case — that increasingly impose severe infringements on their rights. An ERA, in requiring courts to probe more deeply into legislation that classifies on the basis of sex, would help to expose the stereotyping and sexist logic lying beneath the surface of many of our federal laws.

Current protections under the Equal Protection Clause of the 14th Amendment aren’t enough to protect women’s opportunities and autonomy from those who wish to restrict them. Since the Supreme Court began to hear sex discrimination suits, it has systematically invoked stereotypes and vague notions of biological difference to dismiss these claims, arguing that men and women are inherently different — and so can be treated differently, too. In the 2001 case Nguyen v. INS, for example, the court held that laws can treat mothers and fathers differently based on a belief that women “naturally” have a closer relationship to their children. The Constitution’s lack of explicit concern for sex equality may also be blamed for recent decisions that gloss over sex equality arguments, including the recent ruling in Hobby Lobby that “closely held” corporations can refuse to cover contraceptives for their employees, and the 2000 decision in U.S. v. Morrison, which rejected the original Violence Against Women Act’s private federal right of action for gender-based violence.

Legal experts have argued that these judgments are incorrect even under current law, but the absence of an ERA certainly opens up more space for judges to shrug off sex inequality. Right now, gender discrimination is subject only to “intermediate scrutiny” under the 14th Amendment, meaning that a law that treats men and women differently only needs a moderately convincing justification to pass muster. For example, in the 1981 case of Rostker v. Goldberg, the Supreme Court upheld a congressionally mandated military recruitment policy that discriminated based on sex, despite a weak rationale that the military (and even Bernard Rostker, the named defendant and director of the Selective Service System) renounced. Intermediate scrutiny, the court explained, meant that Congress did not need a particularly compelling reason to pass a law that discriminated against one sex — it just needed a halfway decent one.

An ERA will not eradicate sexism in America, but it might provide invaluable protections that the Supreme Court has so far declined to extend to women. We already have evidence of this in the success of constitutional amendments to state constitutions modeled off the stalled federal ERA and other constitutional protections against sex discrimination that exist in 22 states.

Consider parental rights cases. In Nguyen, the Supreme Court insisted that supposedly inherent differences between fathers and mothers are grounds for upholding a statute that makes it harder for children born out of wedlock with an American father, as opposed to an American mother, to claim U.S. citizenship. But in 1987, the Texas Supreme Court used its state ERA to invalidate a state statute requiring only fathers — not mothers — to prove that being recognized as a parent during legitimation proceedings would be in the interest of the child.

The protections offered by New Mexico’s state ERA similarly have been found to outmatch those in the U.S. Constitution. In 1998, the New Mexico Supreme Court ruled that the state’s Medicaid funding restrictions for medically necessary abortion amounted to sex discrimination and so were in violation of the state’s constitution. This ran directly counter to the Supreme Court’s 1980 decision in Harris v. McRae, which held that, under the Equal Protection Clause, the same state restrictions on Medicaid funding did not amount to sex discrimination.

While contemporary conservative backlash to women’s progress is very real, the American public today nonetheless might be more amenable to an ERA than it was in the 1970s. When the states last considered the ERA, opponents warned there would be terrible consequences: abortion rights, the end of combat exclusions for women in the military and even the unimaginable — same-sex marriage. Thankfully, these changes have already come to pass, depriving detractors of their vision of a sex-equality doomsday.

Our collective ideas of womanhood have changed, too. In 1980, Schlafly wrote, in congressional testimony, that “[o]ur young women have a constitutional right to be treated like American ladies,” to be delicate mothers and daughters with a singular mission: “the creation of life.” In Schlafly’s vision, the law’s purpose was to maintain women’s place in the domestic sphere, not provide equal opportunities and treatment regardless of gender. Yet women’s progress outside the home, along with the gay rights movement’s challenge to gender expectations, has rendered Schlafly’s image of “American ladies” archaic. If we don’t want our laws to continue to enforce this vision of women’s subservience, the Constitution needs to guarantee our equality. Times have changed, and the law needs to catch up.

Here’s the great news: In response to the women’s crisis in our courts and legislatures, we’ve seen the resurgence of a politically powerful feminist movement — the kind that could pass a constitutional amendment. Fed up, women are mobilizing. Survivors of sexual violence in the military and on college campuses have forced the injustices they have faced behind closed doors onto the nation’s policy agenda in Congress, the Pentagon and the White House. Feminist critics have called out the misogyny of opponents like former Missouri congressman and Senate candidate Todd Akin and columnist George Will, and amplified the voices of advocates to defeat anti-abortion bills in statehouses. Women voters — and particularly women of color — kept a pro-choice president in the White House in 2012.

With that kind of commitment, we could certainly dust off the ERA of the 1970s — and we could pass it this time, too.

Alexandra Brodsky and Elizabeth Deutsch are students at Yale Law School. Brodsky is an editor at Feministing.com and founding co-director of Know Your IX, a national student campaign to end sexual violence on college campuses. Deutsch holds an MSc in Gender from the London School of Economics.