To the extent that constitutionalizing sex equality would advance stability, it could be done through an alternative ERA that avoids the harms of the current version. The desire for constitutional recognition is certainly important, but the benefit of expressing equality is not worth the cost of undermining actual equality.
The Constitution does not specifically mention any group in the Equal Protection Clause, which has allowed the Court to expand the groups protected, including national-origin groups, women, gays and lesbians, and undocumented schoolchildren.
If women are equal to men only if the Constitution expressly says so, then the message to these other groups and those to whom the Court has not yet extended constitutional protection such as poor and transgender people is that they are not equal until they can amend the Constitution in their favor, a practical and political impossibility.
It is not too late, given that the ERA faces serious constitutional difficulties, as Danaya Wright well explains. Many also have express provisions to support mothers, fathers, and children. America needs to promote sex equality more aggressively.
Kim Forde-Mazrui is the Mortimer M. His scholarship focuses on equal protection, especially involving race and sexual orientation. Sign-up to receive the lastest news from the Gender Policy Report. The Bad: No Application to Private Discrimination A gaping hole in the ERA is that it does not apply to discrimination by private actors, such as companies and individuals. To elaborate, consider three kinds of affirmative efforts to advance sex equality. Center on Women, Gender, and Public Policy Illuminating gender-based disparities through research, teaching, and public engagement.
The amendment should be understood as just one fundamental element of the fight for gender equality, one that provides an extra layer of protection that could make a difference in undoing long-standing discriminatory practices. Thus, it does not supplant the critical role of policymakers to take robust action to combat all forms of discrimination in order to ensure equality and adequate protections for women and people across the gender spectrum.
This work must be done with a deep understanding of the intersectional experiences of women of color and gender minorities, in order to recognize how a combination of factors such as racial and gender biases can erect unique discriminatory barriers. These additional legislative and executive actions—and many more 24 —are needed to hold private entities fully accountable for their conduct. Strong enforcement mechanisms are also essential to ensuring that the ERA is more than just an ideal.
Opponents of the ERA have sought to undermine its passage using a variety of tactics, including by deploying alarmist language to argue that many areas where gender-specific programming exists—such as single-sex educational institutions or high school athletics—would be prohibited. But even without the ERA, specific parameters guided by Supreme Court and other legal precedent have been developed to determine when single-sex programs are permissible, such as when they are used to compensate for the historic, societal, and economic disadvantage of a particular class.
Nothing in the ERA would alter this guidance. If anything, the ERA would provide additional support for this existing legal precedent. Furthermore, opponents point to the military draft as something women would have to contend with if the ERA is ratified. In reality, women are already commonplace in the military and have been allowed to serve in all combat roles since The potential role of the ERA in this setting would simply be to ensure that all people serving in the military are treated equally regardless of sex.
Additionally, government and state officials who oppose the ERA, including a Trump appointee in the U. Department of Justice and three Republican state attorneys general, have argued that continued state efforts to ratify the ERA are moot given the initial deadline.
Advocates also dismiss the attempts of five states to rescind their ratifications, given that such attempts with the 14th and 15th Amendments were considered to lack constitutional authority and were thus ignored.
Notably, the 27th Amendment to the U. Constitution was ratified nearly years after it was introduced in the first Congress. In a moment of unprecedented attacks by the Trump administration and others against women and the programs and policies upon which they depend—and the majority of American adults supporting the ERA—the amendment seems as ripe as ever for ratification.
While often portrayed as a world leader, the United States lags behind the 76 percent of countries around the world with constitutions that guarantee equal rights for women. The ERA has certain symbolic importance, communicating unequivocally that people across the gender spectrum are innately equal and deserving of constitutional protection.
It would demonstrate fundamental respect for the value and support of women and people across the gender spectrum in the way that the country has done for the privileged and powerful since its founding. And yet, it is not a perfect, cure-all solution. The ERA will not immediately garner rights for women and people across the gender spectrum that they do not already have under law—rights that were secured by over years of litigation and activism.
What the ERA could do, however, is provide essential support in litigating sex discrimination by bolstering existing statutory protections that are currently vulnerable to attack by the Trump administration and conservative lawmakers. While the text of the amendment has changed over the years, the gist of it has remained the same. The version approved by Congress in and sent to the states reads:. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Beginning in , lawmakers introduced the ERA in every session of Congress, but it made little progress until the s. In the nearly five-decade span between and , only 10 women served in the Senate, with no more than 2 serving at the same time.
The picture was only slightly better in the House. In , a new class of women lawmakers — including Reps. They had to overcome the resistance of Rep. Faced with increased pressure, Celler finally relented. In March , the amendment passed both chambers of Congress with bipartisan support far exceeding the two-thirds majorities required by the Constitution. Congress promptly sent the proposed amendment to the states for ratification with a seven-year deadline.
Within a year, 30 of the necessary 38 states acted to ratify the ERA. But then momentum slowed as conservative activists allied with the emerging religious right launched a campaign to stop the amendment in its tracks. Phyllis Schlafly, a conservative lawyer and activist from Illinois who led the STOP ERA campaign, argued that the measure would lead to gender-neutral bathrooms, same-sex marriage, and women in military combat, among other things.
The abortion industry has long argued that state-level ERAs guarantee a right to taxpayer-funded abortions. And some state courts, New Mexico and Connecticut among them, have upheld that argument.
That means if the ERA were added to the U. Constitution, it could be used to force Americans to pay for abortions with their own tax dollars—including abortions up to the moment of birth. But the ERA would likely cement a federal right to expanded, taxpayer-funded abortions—going right into the pockets of Big Abortion.
Article V of the U. Constitution lays out the process for ratifying an amendment. According to that process, 38 states must ratify an amendment, and they must do so within a certain timeframe.
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