With the election of President Joe Biden and Vice President Kamala Harris, we enter into a critical time for the achievable passage of the Equal Rights Amendment (ERA). With the House controlled by Democrats and the Senate split with a tie-breaking vote by VP Harris, the ERA can finally have its day for consideration. However, the overdue passage of an amendment that would write women’s equal rights into the Constitution has some hurdles to leap before becoming law.
A quick update
During the Trump administration, first Nevada in 2017, then Illinois in 2018, and then Virginia in 2020 all ratified the ERA, giving the amendment the 38 states needed for becoming the 28th Amendment to the Constitution. However, Congress had put a timeline for passage of the amendment that expired in 1982. The Department of Justice’s Office of Legal Counsel (OLC) directed the National Archivist to not publish the amendment because the OLC had determined that the amendment was dead due to the expired deadline. Additionally, five of the states that had ratified the amendment have decided that they want to rescind their ratification, although there are legal questions around whether or not this is allowed.
Aren’t women already granted equal protection under the law by virtue of the 14th amendment?
The truth is that the 14th amendment does not address discrimination based on sex. And while there have been piecemeal laws like the Equal Pay Act, the Pregnancy Discrimination Act, Titles VII and IX of the 1964 Civil Rights Act that address specific areas of law, there is nothing that prevents these laws from being changed or overturned altogether. Only a Constitutional amendment can truly protect women’s rights.
The level of scrutiny a case receives from the Court is based on who is involved in the cases. If the case involves those in a “suspect class”, meaning “discrete and insular minorities”, the case will receive the highest level of scrutiny called “strict scrutiny” to ensure that the needs of the suspect class are taken into account. “Strict scrutiny” requires that the law must promote a compelling government interest and be narrowly tailored to achieve that interest. Suspect classifications include race and national origin, and religion. Because discrimination based on sex is not a protected class, the Supreme Court uses what is called “intermediate scrutiny” for these cases. The Court uses the intermediate scrutiny status for cases involving sex because sex is considered a “quasi-suspect class.”
Why is the ERA Necessary?
If the failure to reauthorize the Violence Against Women Act (VAWA) and the #MeToo movement doesn’t tell us that women need further protection under that law, I am not sure what might move the needle. When VAWA was originally passed, it contained a provision allowing women to sue the accused in federal court. However, in the United States v. Morrison Supreme Court case in 2000, the Court struck down the section of VAWA allowing women to sue saying that it exceeded the government’s powers according to the Commerce Clause and that according to the 14th Amendment, the states must provide the remedy, not the federal government. So we see that although Congress intended for women to obtain protection through the 14th amendment with VAWA, the Court struck it down.
In 2011, the late Supreme Court Justice Antonin Scalia, when arguing that the 14th amendment does not protect discrimination by sex, blithely stated in an interview, “If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.” What he left out of that statement was the fact that the Supreme Court might come behind Congress and invalidate the law as they did with VAWA.
On January 21, 2021, Rep. Jackie Speier (D-CA) introduced her bill removing the time limits imposed by previous Congresses again in the House with bipartisan support of more than 195 co-signers, including Republican Congressman Tom Reed (R-NY.). Senators Ben Cardin (D-MD.) and Lisa Murkowski (R-AK) introduced an identical bill in the Senate. With Senator Schumer as the Majority Leader now, the bill will get a hearing. While there is some question regarding the states who want to rescind their support, it is unlikely they will succeed based on Supreme Court precedent.
Supporters of the ERA, many of whom have been working toward passage since 1972, are holding their collective breaths in the hope that we will finally see passage of this important amendment in 2021.
What Can You Do to Help?
First, check this link to see if your state has ratified the amendment. If so, then you can write to congressional members of states that have not done so. Let them know that the ERA has public support with 78% of all adults surveyed by the Pew Research Center in 2020 in favor of passage of the amendment.
If you live in a state where the ERA has not been ratified you have two jobs. First, write to your congressional representatives immediately to let them know that you are a constituent and want them to vote for Representative Spieir’s resolution in the House and Senator Cardin’s in the Senate. Then, contact your state representatives, senators, and the governor and let them know that you want your state to ratify the ERA as well. You don’t want to live in a state that has not acknowledged that women deserve equal protection under the law.
And if you live in North Carolina, know that a new ERA bill is being introduced into the legislature today, so get those fingers dialing. I am looking at you hard!