ERA: what is it for
November 2, 2018 3:53 PM   Subscribe

I am trying to understand the ERA (Equal Rights Amendment) and neither the internet nor my feminist sisters are particularly edifying. Can someone please explain, in simple terms, the practical implications of how women's rights will be advanced if the ERA is adopted at the state and Federal level?

To clarify, I am not looking for some broad historical, philosophical or cultural context. Stuff like "the ERA will provide a clearer judicial standard for deciding cases of sex discrimination" or "the ERA will strengthen such and such Act" is just too wishy-washy for me to understand. I need "ERA for Dummies"!

Here is a sampling of the most common pro-ERA arguments that I can't wrap my head around:

1) The ERA will prevent a rollback of women's rights such as Roe vs. Wade. Considering men don't have abortions, how does this work?

2) The ERA will guard against unequal pay and other workplace discrimination against women. Isn't this already covered, directly and explicitly, under the Equal Pay Act, the Fair Labor Standards Act and the Pregnancy Discrimination act?

2a) The ERA will help women who currently have to fight long and hard legal battles against their employers, educational institutions and the like. Won't they still have to fight the same battles if the ERA is adopted?

3) A recent article by a female lawyer (that I can no longer find, would be great if someone could post a link) explained that the ERA will allow women who have been sexually assaulted to sue(?) their assailants on their own behalf, in contrast to how currently these cases are brought forth by the state and therefore can also be dropped by the state (e.g. for "lack of evidence") against victims' wishes. Does this not apply to victims of all genders?

4) Most countries have constitutional guarantees of women's equalities, unlike the US. Isn't this proof that those constitutional "guarantees" are without teeth, considering pay gap and other gender-based discrimination are universal phenomena?

P.S. I did see this Ask but the answers therein are either on the wishy-washy side, or else they seem to make a case against the ERA while I was hoping to hear a case made for the ERA, and besides a lot has changed in the last five years.
posted by rada to Law & Government (8 answers total) 4 users marked this as a favorite
It is impossible to give the sort of clarity that you are asking for, I am afraid. Interpreting and enforcing a provision of the constitution is a political/judicial task, and so is indeterminate. The answers on the previous Ask, which you linked, are good. The 14th Amendment is now already interpreted to prohibit some government-ordered sex (gender) discrimination (thank you Ruth Bader Ginsburg when you were a lawyer), but not all. Would the ERA be more protective than current 14th Amendment interpretation? Hard to say. Depends on who is on the Supreme Court. Would the ERA help prevent against a new interpretation of the 14th Amendment saying it does not prevent governmental sex discrimination at all? Yes.

On your more pointed questions:

1. No. A court determined to overrule Roe v Wade would not be deterred even if the ERA was part of the Constitution.

2. Unless I am wrong, the ERA (like most parts of the Constitution) constrains government action, not private employer action.

2a. Yes they will.

3. That does not make sense to me. Anyone can sue their assaulter now.

4. Having such a provision in a constitution is good because it is one step in changing a society. But having it in the text is only part of a long ongoing battle, which will last as long as any civilization.
posted by sheldman at 4:22 PM on November 2, 2018 [1 favorite]

Women would have to register with Selective Service and could be drafted.
posted by amro at 4:23 PM on November 2, 2018 [1 favorite]

Women would have to register with Selective Service and could be drafted.

This could also happen without an ERA, since women now serve in combat roles.

The conservative pushback against in the ERA in the 1970s and 80s, however, as led by Phyllis Schlafly, did a lot of fear mongering around the issue of women in the military: "They would be drafted by the U.S. military to fight on the front lines in wars, she said, and forced to use unisex restrooms."
posted by bluedaisy at 4:42 PM on November 2, 2018 [5 favorites]

Isn't this already covered, directly and explicitly, under the Equal Pay Act, the Fair Labor Standards Act and the Pregnancy Discrimination act?

A constitutional amendment is much harder to roll back than legislation. Congress would need a simple majority to overturn legislation. And courts can't use constitutional law to limit the scope of an Equal Rites Amendment the same way they can legislation. I believe this is why most employee protection laws are written to only apply to employers of a certain size, because a broader law would be struck down for infringing on the right to interstate commerce.
posted by politikitty at 6:57 PM on November 2, 2018 [3 favorites]

This is what it says:
Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.

Many laws that specify rights for women can be ended; the ERA says women get equal rights. I'm not certain it would protect reproductive choice. I believe women should have the same rights and responsibilities, including military service. The US military gives many women the opportunity to develop leadership skills.
posted by theora55 at 7:08 PM on November 2, 2018

My answer above is kind of abbreviated. The US does not currently have a draft, so women would likely have to register, but would not be required to serve. The US Army is pretty sexist still. But it used to be extremely racist, was ordered to change, and is a pathway to education for many people of color. In the military, many people of color have gotten skills and experience. Stay in 20 years, leave with a pension, maybe go to college, or get a civilian job, and join the middle class. Racism isn't solved in the military, but it's not like the corporate world.

Women are treated with a lot more equality in the military now, and get command experience. Along with the discipline and structure, women gain leadership skills they don't often get in civilian life. I hope to be around in 20 years or so to see how this goes. I'm generally a pacifist, but have had family in the military, and they don't do *everything* wrong. Sorry if this is a derail. I don't want anybody drafted, but women in the military might make a difference in how that institution evolves (or not).

I'm a feminist. I think we need the amendment.
posted by theora55 at 8:02 PM on November 2, 2018

I don't think, and I have not read any solid analysis suggesting, that it would suddenly change the situation on the ground the day it passes (or two years after that, when it goes into effect). That is somewhat by design, since an amendment that actually had a significant material effect would be very difficult to get passed.

It's unclear what effect it would have on Roe v. Wade. Personally, I think it would be an important move: it would create an entirely separate legal argument for abortion rights, not dependent on Griswold and the "penumbra argument" which creates the "right to privacy" that basically all the reproductive-autonomy decisions depend on currently. Even among people who value the effect Roe has had, there's still disagreement over whether Griswold provides an especially sound Constitutional basis for such an important set of rights, and the ERA would eliminate one avenue of attack. That's not to say that a wholly politically-compromised Court couldn't just whip up some bullshit justification or ignore the ERA completely (it's not like there's anyone to appeal a USSC decision to), but it would eliminate the reliance on Griswold. At the very least, it would provide a figleaf allowing an originalist or literalist judge to leave Roe in place without falling back exclusively on stare decisis.

It would also provide an additional bulwark against a reinterpretation of the 14th Amendment in a way that didn't prohibit sex discrimination. This seems important.

The Schlafly (both Jr. and Sr.) scaremongering against the ERA is, in some respects, an interesting checklist of potential (not necessarily likely) effects it might have. Their traditional parade of horribles includes:
  • Gay marriage: it's not exactly clear to me how the ERA would have helped the same-sex marriage argument, but hey, if Schlafly and her cronies thought it would be an argument in favor of it, who am I to argue. Seems like a plus, in the event a Court ever tried to roll back the clock.
  • Women in the military: this ship, too, seems to have sailed already. The ERA isn't needed for women to be drafted; that would just take regular-session Congressional action, and it's not clear there's anything in the Constitution that would prohibit it. It doesn't seem to me that the ERA would force Congress to include women in the Selective Service System, particularly given a conservative Court, but I guess it's a possibility. But, more importantly, the ERA could protect women currently serving against suddenly being forced out of the military and their jobs by a change in the political winds. This scenario seems far more likely than a return to the draft; over time the trend has been to smaller, more highly-trained, better-paid, professional armies. If the economy suddenly tanked, it's not implausible that men might try to push women out of those jobs, and the ERA could help.
  • Abortion: Already discussed above. Schlafly liked to get the revanchist masses fired up by railing about "taxpayer-funded abortions", which sounds awesome, but it's not clear to me how the ERA would help eliminate the Hyde Amendment or similar rules. (The law, in its majestic equality, forbids men as well as women from having taxpayer-funded abortions.)
  • Unisex bathrooms: Yeah, bathrooms again. It's always f–ing bathrooms. I'm not really sure why the ERA would lead to unisex bathrooms, the details were always a bit sketchy. It seems like it could help some trans people with bathroom access, but it would depend on how "sex" in the ERA was interpreted, and it could easily be interpreted in a trans-exclusionary manner, so I wouldn't hold my breath.
  • Widows' benefits under Social Security: This one came up a bunch back in the 70s, but since SS currently pays out benefits to a widow or widower (male or female) on equal terms, I don't think it would have much of an effect today. Maybe the rules were different then and were written with an explicit gender preference towards widows, I dunno. Anyway, seems like a wash.
  • "Destroy families" / end civilization as we know it / etc.: The anti-ERA arguments always worked up to claims that it would destroy the traditional nuclear family, where John Salaryman goes out every morning and earns a paycheck, such that he can support Sally McHomemaker and their passel of children. Honestly I can't even evaluate this with a straight face. I think we'll chalk it up as yet another ship that sailed.
Anyway, I wouldn't view the ERA as having a positive move-the-ball-forward effect, as I would view it as solidifying the gains already achieved over the past few decades, and creating a potentially-useful defense against having them rolled back.
posted by Kadin2048 at 8:49 PM on November 2, 2018 [9 favorites]

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