This October, a post on ISBA listserv sparked spirited debate. There were over 70 comments made in the span of a week—all about the Equal Rights Amendment (ERA), which states in relevant part: “Equality of rights shall not be denied or abridged by the United States or any state on account of sex.” That conversation inspired the following collection of common misperceptions about the ERA and recent efforts to restart the ratification process.
1. Aren’t the sexes equal?
Constitutionally speaking, no.
To quote Justice Antonin Scalia, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that’s what it meant.”1 More troubling, 72% of Americans mistakenly believe there is a constitutional guarantee that women and men must be treated equally.2 While some federal legislation has tackled discrimination, the U.S. Constitution lacks an affirmative declaration of equality between the sexes. And the legislation that does exist is not comprehensive and leaves significant gaps in coverage.3 These gaps help explain why women still make only 77 cents for every dollar earned by a man for the same work.
If read plainly, the 14th amendment would seem to encompass gender discrimination as it mandates no “state shall deprive . . . any person within its jurisdiction equal protection of the laws,” but that is not how it has been applied historically. Despite decades of challenges, the U.S. Supreme Court did not treat sex-based classifications as even quasi-suspect until the 1971 case Reed v. Reed, striking down estate administration laws that preferred men. Justice Ruth Bader Ginsberg spent most of her career trying to get the Supreme Court to see gender in the 14th Amendment, but this goal remains unfinished business.
To read the rest of this article, visit:
https://www.isba.org/committees/women/newsletter/2015/11/mythsabouteradebunked
