Equal Rights Amendment pops up in Virginia

This post was published Jan. 25, 2020 in the Wilson Times.

Here is a question for public policy fans: What is more amazing: that the Commonwealth of Virginia, which had transformed into a reliably Republican state in the 1970s, has now passed the Equal Rights Amendment; or that the Equal Rights Amendment still has some slim chance of ratification 48 years after being sent to the states?

Virginia is the 38^th state to ratify the ERA, but this late 1970s hot-button issue and presidential campaign platform plank, faces legal challenges before it can become part of the Constitution. Congress sets deadlines for ratification of amendments, and the ERA’s deadline ran out in 1982. So Virginia is too late. Five states that had initially ratified the amendment have rescinded their vote to ratify, leaving ERA advocates well short of the three-quarters majority of the states, even if the deadline had not lapsed.

The excitement over the ERA has dissipated, in part because most of the goals of the amendment have been realized without the need for changing the Constitution. The 1964 Civil Rights Act made it illegal to discriminate on the basis of sex, establishing federal penalties for discriminating against women. Title IX of the education amendments of 1972 prohibits sexual discrimination in education. This prohibition has been interpreted to require equality in secondary and collegiate athletics. Title IX was largely responsible for the emergence of modern-day women’s sports. It also has forced colleges to establish sexual misconduct rules, trials and punishments to protect female (and, presumably, male) students from sexual assault or harassment. Discrimination in hiring and pay has been outlawed since the 1963 Equal Pay Act.

So what’s the need for the ERA, that relic of 1970s feminism? One actress appearing on a TV talk show four decades ago expressed her support for the ERA by saying, “I’m not in the Constitution; I should be in the Constitution, too.” The show host did not tell her the Constitution begins by saying, “We the people”; if she’s a people, she’s in the Constitution. She is also in the 14^th Amendment, which assures the rights of “all persons born or naturalized in the United States.” That amendment also guarantees “any person” the “due process of law” and “equal protection of the laws.” That covers equal rights for every person.

Would an amendment make discrimination laws more secure against challenges? Perhaps, but discrimination laws are well established and solidly affirmed by the courts.

Opponents of the ERA in its early days warned of negative consequences if it became part of the Constitution. Critics warned that public bathrooms would have to be unisex and that girls and boys would have to compete against each other in high school sports rather than fielding gender-separate teams. Some protections

for pregnant workers, for example, could be overturned under the ERA as discriminatory.

Critics also claimed that the ERA would lead to same-sex marriage, but the Supreme Court has found such marriages to be legally valid without a new amendment. ERA advocates failed to anticipate the expansion of gender options in 21^st century society. The ERA uses the word “sex” where today’s laws focus on gender, leaving the ERA’s protections against bias “on the basis of sex” a vague term.

People seeking more protection for U.S. citizens would be wiser to put their efforts behind the proposed 28^th amendment, which makes clear that corporations are not people and do not have the same rights as “we the people.” It also declares that money is not “speech” protected by the First Amendment, so using money to “buy” elections could be strictly limited. (I have written about this “Move to Amend” effort before.)