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.
Certainly, any assurances coming from amendment proponents about its likely interpretation or effects are meaningless – as empty as Hubert Humphrey’s sincere pledge that the Civil Rights Act of 1965 would never be used to justify race quotas or preferences. And it’s disquieting to realize that many ERA supporters are being deeply disingenuous in their arguments for why the amendment is allegedly necessary.
In an effort to broaden the ERA’s appeal, its proponents often insist that it’s designed simply to secure basic rights to economic fairness and protection under the law. Yet equal pay has already been mandated by existing legislation, including the Equal Pay Act of 1963; the Civil Rights Act of 1964; and the Equal Employment Opportunity Act of 1972, among others. Likewise, the topic of equal protection under the law has been addressed by federal legislation such as the Fourteenth Amendment; the Comprehensive Health Manpower Training Act of 1971; the Higher Education Act of 1972; and the Federal Equal Credit Opportunity Act of 1975.
To the extent that true injustices still exist, they result from a failure to enforce existing laws, rather than the absence of them. Even alleged inequities in education have been addressed by Title IX of the Education Amendments of 1972 – much to the detriment of men’s college athletics across the United States.
In truth, despite their ringing perorations on gender equality, many of the ERA's supporters are pursuing a much broader, pernicious agenda. In an effort to force the restructuring of American society at a fundamental level, they’re seeking to use the heavy hand of government to eradicate even natural, wholesome and appropriate distinctions between the sexes. Indeed, many amendment supporters are loath to admit that even the most obvious differences exist, or that they’re worthy of recognition.
At the moment, the newly revived Equal Rights Amendment – now renamed the Women’s Equality Amendment – has 194 House cosponsors, with 10 in the Senate. Unlike its hoary predecessor, it contains no deadline for ratification. It will be interesting to see whether feminists will succeed in their newest efforts to impose unnecessary and largely unwanted gender-equity measures on the rest of the country or whether Americans will drive a stake through the heart of the ERA once and for all, rejecting it as a bad idea whose time will never come.