Posted by: bridget | 28 March 2007

Bride of Frankenstein Rises From the Dead

The Equal Rights Amendment is back. After Phyllis Schlafly helped to defeat it in the late 1970s, lawmakers are reviving the corpse. The same amendment, now named the “Women’s Equality Amendment,” recently passed Congress. The Senate will take it up; if it passes by a super-majority vote, it will go to the states. If two-thirds (i.e. 38) of the states ratify the Amendment, it would be law. There is the open question of whether or not the thirty-five states that ratified the ERA in the early 1970s would have to re-ratify it, or if there is really any deadline on ratification.

While this pachyderm is all for women’s rights – and would love to have an actual Constitutional basis for court decisions that mandate equality – she cannot stand behind the ERA as written. Twenty-five years ago, the indomitable Mrs. Schlafly argued that the ERA would result in women being drafted and unisex bathrooms. With calls by Charles Rangel to draft women (previously blogged here), interpretations of ERAs that mandate government funding for abortions, and a slew of decisions that erode single-sex education (even where it benefits women), it is plain that the amendment, as worded, should not pass.

If the wording of it was problematic twenty-five years ago, why not work around the problems and re-write it before voting on it again? Why make a second attempt at well-intentioned but poorly conceived legislation?



  1. The ERA amendment is in the long line of other “special amendments” which should be well covered by the Constitution as it stands, and were rightfully addressed by the Civil Rights Acts of the 1960’s.

    Further amendments seem to specify almost special treatment, which candidly I find odious to the ideals of egalitarianism afforded by Constitutional equality.

  2. Thanks for stopping in! :)

    Actually, it depends. If you are a strict constructionist, there is no constitutional basis for preventing discrimination against women. As it stands, discrimination is subject only to intermediate scrutiny under the Fourteenth Amendment, as it was originally intended to eliminate racial discrimination. Susan B. Anthony lost her battle to gain the woman’s vote under XIV, which is why there had to be a separate amendment (XIX) for women’s voting rights.

    The Civil Rights Acts of the 1960s likewise are not necessarily binding on states and have limited scope. There is a HUGE difference between legislation and constitutional protection; women lack the latter.

    There’s no much that specifies special treatment, which is actually why I have a problem with it. It could be read to prohibit ALL single-sex education – even if it benefits women. It could be read to prohibit any special programmes for women or girls (WIC, for example). The language is pretty explicit in that it would be gender-neutral. The problem that Mrs. Schlafly has with that is it means you would be sending women off to war and there would be a Constitutional right to same-sex marriage. Read the text – no special rights, for either men or women. The question is whether or not we want that ruthless non-discrimination.

  3. Isn’t it interesting the corporations have bootstrapped on their quasi legal activities based on an inane interpretation of the XIV Amendment, but that the constructional intent of the legislation was to equalize people.

    If the amendment had to go through the states again, I think it would fare worse than it did in the 70’s/80’s.

  4. Hi, Theresa! Thanks for stopping in and commenting. :)

    I do agree that inane interpretations of XIV have allowed for some pretty unusual things… which, problematically, makes people unwilling to pass more amendments through, as their interpretation will be taken far beyond the intended scope.

    I hope the states reject it – and quickly.

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