Cardozo law prof Kate Shaw and author Julie Suk have resurrected the Equal Rights Amendment as a cure for many of the contentious culture war battles in a New York Times op-ed. Recognizing, no doubt, that there is no chance whatsoever that the ERA, if approved by Congress today, a far-fetched notion, would receive the approval of three-quarters of the states, they argue that it should be deemed approved by glossing over the insurmountable argument that, by its own terms, it failed to achieve approval.
The debate today is over who decides how to treat both deadlines and rescissions. The Constitution’s provisions on amendment are silent on these questions. What Article V of the Constitution does say is that Congress is in charge of proposing amendments that it deems necessary. It also empowers Congress to choose the “mode of ratification,” a power that is understood, even by the Supreme Court, to include control over time frames. If the deadline power belongs to Congress, shouldn’t the power to change any deadlines it imposes — as well as the power to refuse to recognize rescissions — also lie with Congress?
To the extent there was a debate, it’s over. The answer is that the ERA was not ratified and post hoc efforts to challenge its terms to revive this zombie amendment make only for an academic curiosity. The argument has been tried and gone nowhere. So why, then, does this amendment keep rearing its unsaveable head?
The E.R.A. would protect the fundamental rights necessary for women to live as equal citizens in America. Properly applied, it would guard against pregnancy and motherhood discrimination; it would also protect women’s control over their reproductive lives. It would authorize laws remedying gender violence, like domestic violence and sexual assault. It might even require government to reduce the gender pay gap.
The phrase “properly applied” is doing a lot of heavy lifting in there, as it would seem that the ERA would achieve none of these “solutions.” Indeed, logic suggests that the ERA would either mitigate against these goals or have no bearing on them whatsoever. There is no inequality in discriminating on the basis of pregnancy and motherhood, as it’s a condition that only applies to women. Pregnant men are treated no better or differently, even if one accepts the premise that pregnant transgender men are men. It may well be wrong to discriminate on the basis of pregnancy, but its hardly unequal and the ERA would have nothing to do with it.
But the inane war created by the Dobbs ruling seems to be the most valuable hook needed to revive interest in the ERA. But would the ERA create some right to an abortion that the Supreme Court has ill-advisedly rejected under substantive due process? Are men permitted to get abortions while women are not? If not, then what does the ERA have to do with anything?
As for gender violence, the entirety of that issue relies on sex discrimination.
If women are equal, there is no such thing as sexual violence. Just violence. It would be no different if a man struck a woman than if a man struck a man, or a woman struck a man. Violence was wrong, and it was neither more nor less wrong based on the sex of the attacker. Laws like the Violence Against Women Act would be facially unconstitutional, as well as rejected by all women seeking equality. After all, there would be no justification for such a law if women weren’t fragile and helpless. This was tantamount to a confession that women weren’t at all equal, and no true feminist would want a law that was grounded in their frailty.
Equal pay? Maybe, but likely not in the way most think.
There would be no economic inequality, as equal pay for equal work was not only a matter of law, but a matter of functional reality. If women didn’t like the salary offered, they could go elsewhere or start their own business and become magnificent successes, just like a man. But that would mean the persistent arguments in favor of women being treated differently under law wouldn’t fly.
A man working fewer hours than another man will be paid less. An employer will pay an employee a salary based on the same factors that apply to any employee, mostly a matter of what an employer needs to pay in order to hire an employee capable of doing the job. If a guy doesn’t like the deal, he walks. If a woman doesn’t like the deal, she sues for discrimination. That’s not how equality works.
This is a curious time, where words are held out to mean the opposite what they mean, and only when “properly applied” do the Orwellian twists in meaning produce the desired outcomes which are invariably the polar opposite of what the amendment would require. So why do smart people who should certainly know better put in the effort to try to get this zombie amendment to walk again? And why would the New York Times give it real estate?
Two factors that have grown in popularity and popular acceptance seem to have changed the argument sufficiently that the ERA is not merely marketable again, but a potential wedge to achieve goals that have otherwise eluded its proponents because they defy reason. The first is the pop willingness to latch on to any claim, no matter how baseless or vapid, that creates some plausible argument in favor of a desired goal. There may be no attempt to explain how the ERA would accomplish any of the goals Shaw and Suk include in their op-ed, but those who want and support those goals aren’t going to question that gaping hole.
The second shift is away from cause to effect, focusing solely on disparate outcomes and presuming, irrebuttably, that discrimination is the cause because what else could it possibly be?
Ironically, the one thing missing from this stunningly assumptive op-ed is the most significant social change since 1982, that “on account of sex” is unrecognizable today from what it was back in 1972 when Congress passed the ERA. If there was any chance that the ERA could be slipped through as approved, the consequences would likely bear no resemblance to anything feminists sought back then or what Shaw and Suk try to claim now.
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