How would things be different if the ERA had passed?

March 16, 2013 6:05 AM

In the 1970s and 80s, when I was a kid, an Equal Rights Amendment to the Constitution, barring discrimination on the basis of sex, was passed by Congress and very nearly adopted. How would the United States be different if three more states had ratified the ERA and the Constitution had actually been amended? To make it more precise, what current federal laws or practices would be struck down if the U.S. Constitution included the ERA?
posted by escabeche to Law & Government (9 answers total)

When you change the Constitution, it creates the possibility, not the certainty, of changes in various areas of the law. Here are some possible changes:

Elimination of some prohibitions on women in combat.
Expansion of draft registration obligation to females.
Elimination or contraction of sex-based affirmative action.
Changes in athletic programs, especially ones that don't permit males and females to play on the same team.
Constitutionalization of same-sex marriage rights & civil union rights.
Expanded constitutionalization of abortion rights.
Greater social and legal acceptance of single-sex bathrooms.

There are some who argue that a federal ERA would really change nothing. I think that view is naive. It seems reasonably likely to me, for instance, that someone who wanted to cause trouble could sue a university without coed bathrooms and win; plenty of universities have them now. You could write a law review article about every one of these; nothing is certain in the law.
posted by Mr. Justice at 6:44 AM on March 16, 2013

This question calls for an extremely speculative answer. We really don't know how the changes in the law would have played out. But I'll speculate.

Currently, gender/sex based discrimination is subject to intermediate scrutiny. I would guess that the ERA would have made it so that gender/sex discrimination was subject to strict scrutiny. Note under current Supreme Court jurisprudence, strict scrutiny doesn't just affect invidious discrimination - it affects ALL race-based classifications, including ones in affirmative action programs. Thus, if gender/sex were subject to strict scrutiny, it could potentially affect the constitutionality affirmative action programs for women.

(Of course, some race-based affirmative action is constitutional as of today, but there's a major Supreme Court case this term, we don't really know what's going to be constitutional next year wrt race & affirmative action.)
posted by insectosaurus at 6:56 AM on March 16, 2013 [1 favorite]

Well, I think what it would do would be the equivalent of subjecting sex/gender to strict scrutiny under the Equal Protection Clause. In plain English, what this means is that any law that distinguished between the genders would be struck down unless it served a "compelling state interest" and was "narrowly tailored" to meet that interest by the "least restrictive means." It is conventional wisdom that any statute subjected to the strict scrutiny test most likely will be struck down.

Where it gets a little muddier would be if a law has a disparate impact on women as compared to men -- the distinction is not written explicitly into the law, and there is no intent to discriminate, but in practice, women are affected more than men. So for example, physical fitness tests for certain occupations that men pass at much greater rates than women might be struck down unless it can be shown that they were truly necessary for the job. The Equal Rights Amendment would probably have influenced the course of jurisprudence on this kind of situation and perhaps tilted the balance towards women.

But the world and the judiciary being what it is, what I would expect is that the "strict scrutiny" test would get way watered down, and things wouldn't be that different from what they are today.
posted by yarly at 6:56 AM on March 16, 2013

The current law is that racial disparate impact, without proof of a discriminatory purpose, is constitutional. See Washington v Davis, and note that Title VII is different.

So, generalizing & speculating, if the ERA was part of the constitution, gender/sex based disparate impact (without proof of a discriminatory purpose), would probably be constitutional.
posted by insectosaurus at 7:06 AM on March 16, 2013 [2 favorites]

The ratification of the ERA would have, I think, speeded up the gains of the women's rights movement in both legal and political ways. Agree that some of the legal issues would be the policies of the military. Also equal pay. An unintended consequences following 1980s court decisions would be a contraction of affirmative action for women (which has happened anyways).

Side note: The distinctions among the levels of scrutiny have really blurred over the years. In practice, intentional/facial sex discrimination is subject to a level of scrutiny that's pretty much strict scrutiny although it may not be labeled as such.

Another possible difference might have been in the area of abortion rights. Around the time of the ERA and Roe v. Wade, women's rights advocates were making sex discrimination arguments about access to abortion. (They still are, of course, but in that earlier time the law was not yet developed so the different arguments were still in flux.) Women cannot plan their lives, cannot live as equal citizens compared to men, without control over their reproduction through access to abortion. The ERA might have strengthened the commitment to or the success of this sex discrimination argument.

Throughout the 1970s to the present, gay advocates have argued that discrimination in marriage and in employment and in other contexts is a violation of statutory or constitutional prohibitions on sex discrimination. It is possible that the ratification of the ERA might have strengthened this argument, but in my opinion the public opinion against gay people was too strong (including by some ERA proponents who kept saying that it would not apply to gay people) -- it is only now in 2013 that these arguments are getting traction due to sloooow changes in social and legal understandings so I don't think the ERA would have changed that. But I am only speculating.
posted by ClaudiaCenter at 10:06 AM on March 16, 2013

This question calls for an extremely speculative answer.

The amendment was so broadly written - "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex" - that I recall the opposition saying that, as Mr. Justice mentions above, separate bathrooms for men and women would have been made illegal.

It always seemed to me that this was an unlikely and extreme view, but today I think the opponents were probably correct. Constitutional amendments are powerful things. When one sees how the NRA defends the second amendment - against all reason and logic - I can certainly imagine that ERA advocates would today be pursuing a similarly extreme interpretation of the ERA - against all reason and logic.
posted by three blind mice at 10:30 AM on March 16, 2013

Japan makes for a good comparison.

Japan has an equal rights amendment because the US wrote one into its new postwar constitution. Actually a young woman on the team writing the Constitution wrote the article for the Japanese, Beate Sirota. Anyway, the formal guarantee of equality hasn't done anything to change gender discrimination in the workplace or in education. Without enforcement it's meant very little.

Women did bring a few cases challenging the most egregious forms of workplace discrimination in the 1960s and won them. I can't remember on what grounds they brought their cases. At any rate companies adapted and just created new ways to get around the requirements. See Frank Upham's work if you're interested in how this played out in Japan.
posted by vincele at 10:43 AM on March 16, 2013 [3 favorites]

I would argue that what was contained in the ERA is already the law of the land via the 14th amendment and various other laws.

ERA:

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

14th:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So I guess an argument could be made that the 14th amendment leaves a loophole for Federal law to abridge such rights, but Korematsu v. United States, while an awful decision, didn't bring up that possibilty, which would have been a slam dunk if the law could be interpreted that way.
posted by gjc at 3:22 PM on March 16, 2013

Also, don't forget that if you take the 2013-interpretation of the language in most of the Amendments, we're ignoring the majority of them. Take the Bill of Rights. Off the top of my head, Congress has made lots of laws restricting the practice of free speech, bearing of arms, limitations on search & seizure, due process, jury trials, and cruel & unusual punishment—that's 6 out of the supposedly-most-important ten. I doubt this one would have been much different.
posted by Mayor West at 5:10 AM on March 18, 2013