Flush with their new Congressional majority, Democrats seem intent on resurrecting one of the worst ideas of the 1970’s. Like a horror film with a monster that just won't die, the Equal Rights Amendment is once again rearing its ugly head.
The ERA, of course, is the feminist cause celebre that had passed the Senate and House overwhelmingly by 1972, before failing to win ratification in three-quarters of the state legislatures – despite repeated time extensions – thanks mostly to the determined leadership of Phyllis Schlafly. The wording of the amendment itself is deceptively simple: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Sounds harmless, doesn’t it? But within that seemingly innocuous statement lies the potential for government to impose radical changes on American society. The ERA’s force comes from its legal effect, which would be to subject legal claims of gender discrimination to the same strict scrutiny given by courts to race-based discrimination.
It’s worth pausing a moment to consider what that means. Surely most Americans agree that there should be some “compelling governmental interest” before the government makes racial distinctions between its citizens. But do Americans really want all-boy or all-girl education (or sports teams), for example, to be deemed as constitutionally suspect as a plan to constitute an all-black or all-white school (or sports team)? Are we ready for gay marriage to be imposed by the courts under a perfectly legitimate interpretation of the ERA – for if sex discrimination is unlawful, how, exactly, can one justify restricting marriage to couples consisting of a man and a woman? And in a country with an Equal Rights Amendment, wouldn’t men be perfectly within their rights to insist that women (even young mothers), be required to register for the draft and, if necessary, serve in military combat?
In fact, couldn’t supporters of the amendment even argue that it enshrines abortion rights in the Constitution? Just last Friday, an LA Times editorial argued that “because only women can get pregnant, denying them contraceptives can amount to discrimination.” The same logic could be applied – with some legitimacy – to abortion rights if a guarantee of “equality of rights” were added to the U.S. Constitution.
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