A sincere query about the still unratified Equal Rights Amendment

[Stinky The Clown]

This was initially proposed in 1923 and was finally approved by the Congress in 1972. It requires 38 states to ratify it in order to become enshrined as a part of our Constitution. Between 1972 and now only 35 states have done so.

The amendment itself is beautiful in its simplicity:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

With no small amount of irony, given the personages of our day, the author's last name was Paul. Alice Paul wrote those words in 1923.

The 15 states whose legislatures have not ratified the Equal Rights Amendment are Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia. Wyoming is not on this list as it is the *only* state that has an equal rights amendment in its constitution.

At least two national constitutions crafted by US occupation forces also contain such a provision: Japan and Afghanistan.

The last champion of this amendment left us this month one year ago: Senator Ted Kennedy. True to form, he introduced the bill into the last Congress. I am unaware of anyone else having taken up the cause and no such bill has been introduced in the current Congress.

And so to my question:

What protections would women get after passage of the amendment that they do not now have?





Please note: I fully support women's rights and respect women as full equals in society. That statement is without qualifications and is unequivocal.

[saracat]

1. It is my understanding that this allows us to be a "protected class" under the law

the same way race is considered a "protected class". Women are currently not a "protected class".

[dflprincess]

2. Actually we are per the 1964 Civil Rights Act

which prohibits discrimination based on sex. -- Some southern senator insisted on sex being included in the bill because he thought it would weaken the entire bill. The joke was on him.

[Stinky The Clown]

4. In some ways, that's why at least some of the unratifying states felt it unecessary.

Others say, in rebuttal, that the Civil Rights Act of 1964 can be messed with by the Congress or the Supremes. Screwing with the Constitution is much harder.

But that's broad. My question was more about the specifics, the details. What protections would women gain by this?

[Unvanguard]

6. That's incorrect. They are separate things.

The Civil Rights Act protects against private sector discrimination. The Equal Rights Amendment would protect against government discrimination. Currently, the constitutional scrutiny given to statutes that discriminate on the basis of sex is "intermediate scrutiny." The ERA would raise that standard to the highest level of scrutiny, "strict scrutiny."

[dflprincess]

18. But the Civil Rights act did give women "protected class" status

as it outlawed discrimination based on sex and gave women the ability to sue when their their rights were violated. Years ago I was on a local Human Rights Commission and gender was included in the "protected classes" we could hear cases from.

The points you and Stinky make are correct and explain why the Civil Rights Act wasn't enough and the ERA is still needed. I was responding to the poster who thought women currently weren't considered a protected class.

[dsc]

8. actually that is slightly misleading

gender is a quasi suspect class. You need a reason stronger than rational basis but weaker than compelling to discriminate against women.

[LostinVA]

3. It makes it an actual Constitutional right,a nd not just a Federal law

Also, laws can be changed at the whim of Congress or an EO.

[Stinky The Clown]

5. I just posted exactly that right above!

:)

[LostinVA]

7. lol -- great minds!

[uncommon]

37. Exactly. Laws can be changed based on pressure from a frighteningly fickle

public. I'd rather not be in a position for my rights to change based on the whim of the masses.

[LostinVA]

50. Exactly

[LostinVA]

51. Exactly n/t

[Unvanguard]

9. It would make the courts apply the highest level of scrutiny to sex-discriminatory statutes.

Something they should do already, but don't.

[Stinky The Clown]

12. I'm not a lawyer, but those sound like terms with legal definitions and consequences

Someone upthread also mentioned "levels of scrutiny". What does that mean?

[Unvanguard]

15. It's how the Supreme Court applies constitutional provisions.

Specifically with respect to the Equal Protection Clause, different kinds of differential treatment get different kinds of scrutiny. So, for instance, if you have (as we do) a policy that makes rich people pay a higher taxation rate than poor people, all that policy has to meet is the weakest standard of scrutiny, what's called a "rational basis" test. Statutes generally survive a rational basis test.

Conversely, if you have a policy that grants a benefit to white people but denies it to blacks, then such a policy has to meet a higher standard, what's called "strict scrutiny": it has to be justified with reference to a sufficiently important government interest, and has to be narrowly-tailored to the achievement of that interest. Statutes generally fail strict scrutiny.

According to present doctrine, legal discrimination (not private discrimination, which is a wholly separate area of law) on the basis of sex is subject to a standard in between, what's called "intermediate scrutiny." It took a lot of effort to get even that from the courts. The ERA is an attempt to get legal sex discrimination treated the same way that legal discrimination on the basis of race is.

[Stinky The Clown]

16. Thanks. That was a good, clear explanation.

[underpants]

10. The Harry Byrd machine prevented the passing (or even voting on it) in Virginia

what a shame.

A complete disgrace.

This is the state of "massive resistance". Farmville Va still has private schools for whites and public schools for blacks- for the most part.

[Warpy]

11. That amendment had a burden no other amendment in history had

It had a ten year time limit. No other amendment had that burden as all had an open ended ratification period.

As for the equal treatment, women would no longer find their reproductive health singled out by health insurance companies as not being covered, or being covered at three times the cost that men pay.

That's one right off the top of my head.

[dsc]

13. in fairness

men pay more for auto and life insurance to name two examples. I think they should end gender discrimination in insurance but it won't be all gravy for women.

[Warpy]

14. Men don't pay THREE TIMES what women pay

like women do if they want routine care during pregnancy and childbirth covered. Women are forced to buy full family policies when they're just THINKING they might get pregnant at some point in the future, an absolutely ridiculous burden.

Gender discrimination in the other policies would likely be ended. Age discrimination would be not, with actuarial tables plaguing both sexes equally.

[dsc]

21. I would like a link to that

I know my insurance doesn't work that way. First the difference between adding a spouse and a family (and we pay the entire cost of that in both cases) is nowhere near 3 times as much for adding the family. Secondly, we can add a spouse, cover preganancy, and child birth without adding family coverage. Depending on the tier to add a spouse (no gender specified) is 460 or 547 while adding both a spouse and unlimited numbers of children is 490 or 580. Adding just children is 179 or 238. That isn't anything like 3x.

[Warpy]

24. I'm sure you would

Just go to any major insurer and compare the individual rates to the family rates.

[dsc]

25. I just did and gave you the numbers which were nowhere near what you claimed

I am insured by Blue Cross of NC. So yes, I would like a link for you to prove your assertion since I just provided numbers which are completely and utterly different that yours. Again, even leaving out the notion that you have to have family insurance to cover pregancies, which I don't think is even true, family insurance isn't even close to 3x as expensive.

On edit I went to Cigna in NC and got a quote for a male and then a female at age 42 non smoker most expensive policy 324 female, 263 male. Then I went down ten years in age to 32 male 184 female 251. That isn't remotely 3x as much nor does it say a word about having to have a family plan. So yes, I would like a link because right now it looks like you are just plain not accurate at all.

[DURHAM D]

17. With regard to life insurance -

I don't think that "men pay more" is exactly accurate. The cost difference is pretty much gone. It also depends on which type of life insurance your are talking about.

[dsc]

19. I just tried your theory on term insurance and I wouldn't call it gone

As a woman I would pay between 57 and 83 for 500k of term insurance while as a man I would pay between 70 and 108 for the same 500k. that is 22% more at the low end and 30 percent more at the high end.

[DURHAM D]

20. I know there are many variables and

I am not really vested in this argument. However, I have several family members in the insurance business (sales, adjusting, policy) and I have heard them say that the difference is pretty much gone. Guess I will need to pin them down at the next family reunion.

thanks

[Statistical]

32. Why would the difference be gone?

Life insurance is based on actuarial tables. The life insurance companies sets rates so that over the long run ( millions of policies over the course of a century) the amount paid into the policy will be more than the death benefit.

Given men live shorter lives the monthly premium collected needs to be higher. As long as women have a longer life exptentency (all other factors being the same) they will have lower monthly premiums for life insurance.

In another way of looking at it men pay more PER MONTH but don't pay more over the course of their lives.... because they don't live as long.

See dying younger has it's advantages. :)

[Pab Sungenis]

23. Is the ten year time limit, by itself, unconstitutional?

It was presented by Congress to the States. There are a number that haven't acted on it one way or another, it's not like it was rejected and reconsidered.

I think the 27th Amendment sort of established that there can't be a time limit for acting on an amendment. After all, that one was under consideration for 200 years before it was ratified!

[Jim Lane]

26. I disagree. The ERA would not affect insurance rates offered by private companies.

The ERA by its terms would apply only to action "by the United States or by any state".

As an analogy, consider that the Fourteenth Amendment clearly prohibited racial discrimination by government. That was the basis for the Brown v. Board of Education decision in 1954 that declared school segregation to be illegal. At that time, however, and for ten years thereafter (until passage of the Civil Rights Act), it was perfectly legal for private (nongovernmental) employers to refuse to hire blacks, and for private restaurants to refuse to serve them.

There might be an argument for applying the ERA (if ratified) to health-insurance plans offered by governmental employers. It might be, however, that different rates, if based on actuarial tables of actual experience with people of different sexes, could survive the strict scrutiny that the ERA would impose. I don't know if that issue has been litigated with regard to race.

[Statistical]

33. I agree with your interpertation.

Broadly speeking the bill of rights (and further protective amendments) exists as a LIMIT on federal power. Nothing more, nothing less.

Thus the 1st amendment prohibits the Federal govt from shutting down DU however (not saying this would happen) if Skinner was offered an ungodly amount of money he could sell DU to a 3rd private party whos intention was to shut it down. If/when DU shuts down you would have no 1st amendment case against the new owner.


Likewise the moderators of DU can (and do) censor & ban members.

[sl8]

36. Lots of proposed amendments had ratification deadlines.

http://www.au.af.mil/au/awc/awcgate/crs/97-922.pdf

<...>
The practice of limiting the time available to the states to ratify proposed amendments began in 1917 with the 18th Amendment (Prohibition). All amendments proposed since then, with the exception of the 19th (Women's Suffrage) and the proposed child labor amendment, have included a deadline either in the body of the amendment proposed to the states, or in the joint resolution transmitting the amendment to the states to be ratified.
<...>

[Lorien]

48. Pay discrimination is still a huge problem in America, often within some of our

largest corporations. Women were routinely paid $25 an hour and men $45 an hour for the exact same job at one corporation that I worked for-but the company barely ever lost a lawsuit, so no one dared to challenge the system.

[yodermon]

22. Wouldn't Section 1 automatically legalize gay marraige? n/t

[eShirl]

29. That was one of the Right's biggest arguments against it back in the 70s,

that it would guarantee equal rights to homosexuals.

(Way, way back when it still actually looked like it might pass.)

[CTyankee]

35. You know, I was working in Washington D.C. at the time and I don't recall that

argument at all. It could have been, but as I recall gay rights were just not talked about the way we do now. The two main arguments (aside from unisex bathrooms) were the draft and fear of excessive litigation. Among the less rabid opponents, it was said that the amendment wasn't needed, that the 14th amendment had pretty much rendered the need for the ERA moot.

The draft was the biggie. Remember, this was right after the Vietnam War and before women started pouring into the military and we no longer had "conventional warfare."

[Stinky The Clown]

39. In fairness ......

.... wasn't the battle fought on several disparate fronts? In DC, it was about getting it through the Congress. Out in the states, it was about getting it ratified. The tactics employed by opponents in one location may not have been the same as used by opponents elsewhere. I don't know that as fact, but it seems logical.

[CTyankee]

42. I was working at the League of Women Voters national HQ at the time. I don't recall

hearing that from local leagues across the country. The LWV was working hard for the ERA (ironically, it had opposed the earlier version in the 1920s, fearing it would erode hard won labor laws to protect women and children in factories). What we did hear about at the national office was the situation in Illinois and VA, two states crucial to the 3/4 of the states needed. Evidently, there were virtual brawls in Springfield (not so much Richmond).

It's an interesting historical subject. I wonder how much the ERA was really on people's minds outside of the New York-D.C. ambit, excepting the state leges that were affected...

[Stinky The Clown]

43. I recall it as a big deal, but honestly don't recall some of the details

I was a product of the Northeastern Liberal Establishment where it passed and were angry at the amorphous notion of it not passing.

[Hannah Bell]

27. we're all equal in our serfdom before the ruling class.

[Jim Lane]

28. Very little would change, but some vestiges of governmental discrimination would be eliminated.

For example, in , 416 U.S. 351 (1974), the issue was a Florida statute that provided an annual $500 property tax exemption for widows but not widowers. The Supreme Court held that the statute was constitutional. It stated that "the financial difficulties confronting the lone woman in Florida or in any other State exceed those facing the man." Accordingly, the statute had a "fair and substantial relation" to the objective of reducing this disparity.

When I was in law school, one of my professors opined that ratification of the ERA would mean overturning the result in Kahn v. Shevin.

Currently, young men are required to register with the Selective Service System, so that a military draft can be resumed quickly, but young women face no such requirement. That's another example of a law that might (but then again might not) be held unconstitutional if the ERA were the law of the land.

[Stinky The Clown]

31. Its odd that you chose to cite those specific examples.

Both could be interpreted as showing harm would befall women upon the ERA's ratification.

[Jim Lane]

40. Why those examples....

I thought of Kahn v. Shevin just because one of my professors -- a strong supporter of the ERA -- had cited it as an example when she was asked a question similar to that you posed in your OP.

I then tried to think of other instances in which there are still sex-based differences written into the law (as opposed to the practices of private entities like insurance companies that set different rates, or religious organizations that won't ordain women). The good news is that there aren't all that many of them left. Selective Service was the first that I could think of. A related example, that would show a benefit to women from ERA, might be the armed forces' policy that women can't be assigned to combat roles. I'm sure some women in the military consider that a detriment to their careers. My guess is that the ERA would overturn the rule.

Some sex-related rules would be defensible on other grounds. For example, if there's an OSHA regulation saying that pregnant employees can't be assigned to do a particular task, because it involves exposure to chemicals that threaten the fetus, that would probably pass muster under the ERA. Even though only women get pregnant, that fact wouldn't prevent governmental efforts to protect fetuses. (For that reason, I think that the ERA would not invalidate all existing restrictions on abortion rights.)

Bottom line: There's a good reason you don't hear much agitation about reviving the ERA these days. Its ratification would effect only comparatively small changes in the law. It's true that, as other DUers have pointed out, its ratification would prevent some hypothetical future laws that discriminate on the basis of sex. Evidently, however, feminists and other activists consider it unlikely that any American legislature would try to prohibit women from driving or the like, so they (rightly in my opinion) devote their time and energy to other issues.

[Stinky The Clown]

41. Good explanation. Fair enough.

Thanks!

[uncommon]

49. There is good reason for women to fear future curtailing of freedom --

it has happened, here and abroad, numerous times throughout history. Freedoms granted can be revoked. A constitutionally guaranteed freedom is harder to take away.

[Statistical]

34. I think the draft would be likely found Uncsontitutional if ERA was ratified.

The wording of the amendment is very clear and simple.

The draft (and as a result Selective Service Registration) clearly discriminates on the basis of sex. This discrimination spills over into other areas. A male can not get federal educational financial aid unless they have completed SS registration. Also an job requiring a security clearance will result in an automatic denial is SS registration search comes back negative.

Thus a male education and future employment as based on compliance with this law. Barriers/burdens not faced by females.

Not saying women SHOULD be in the draft just saying that the ERA as written would likely mandate that.

[CTyankee]

38. This was a HUGE issue during the ratification struggle in the 70s.

People were still getting over the trauma of Vietnam and body bags being sent home. The idea our daughters should be drafted and put in harm's way really made lots of people shudder.

Of course, warfare today has changed. Lots of women drive trucks in Iraq and Afghanistan and that is a very dangerous activity because of roadside bombs.

It would be interesting to know exactly what WOULD change in the military with passage of the ERA...

[eShirl]

30. Would you rather have your rights guaranteed by the Constitution or by Federal Law? n/t

[havocmom]

44. BINGO! Are we equal or are we subject to whims in any given era?

I would prefer my daughter be protected from temporary political insanities which may change federal laws.

[uncommon]

45. That is exactly it --

equal rights for women have come and gone in various societies for thousands of years. What we have achieved can be taken away.

[havocmom]

46. The Idiot Kyl wants to repeal the 14th and I doubt kids of immigrents would be the last of it

People need to wake up to the fact that a very powerful group of people wants to rub away rights of workers, children born here, GLBT, people of shades other than rinso white, and so on. How long after a repeal of the 14th before 'federal law' start chipping away at other group's birthright?

If some of us aren't free and equal, NONE of us are. Equality needs to be encoded in the Constitution, which is a tad more difficult to tamper with than federal law; which Idiot Kyl seems not to understand.

Equality for all or equality is a lie.

[uncommon]

47. Repeal of the 14th Amendment

would be the final straw for me. I would be ready to join a legit revolution at that point. I think a lot of people wouldn't care, wouldn't understand what it meant, though.