ERA Is Back, with the Usual Furor from the Usual Suspects
Did you hear about the revived Equal Right Amendment?
You probably didn’t. It was six months ago that I saw the news that a new ERA was introduced in Congress, this one called the Women’s Equality Amendment. I started writing a blog entry about it on March 28, 2007, which I never finished, but thanks to Blogger’s wonderful “draft” feature, I have the luxury of picking it up, dusting it off, and finally getting it posted.
My first reaction when I read about the new proposed amendment was, Why are they calling it the Women’s Equality Amendment? By definition, equality of the sexes means that it doesn’t pertain just to women. The name “Equal Rights Amendment” was much more accurate. That’s a minor point, though.
My second reaction was, It’s about time. I supported an equal rights amendment years ago, and I support it now.
I was in elementary school in 1972, when the ERA passed out of Congress. As a child, the idea of equal rights—nothing more, nothing less—made eminently good sense. By the time the ratification period expired with only 35 of the required 38 states ratifying (and five of those subsequently rescinding their ratification votes) I was on my way to college. And I didn’t understand why the amendment went down.
Now that it’s back, I’m hearing the same objections I heard back then, some from the same old sources and some from new opponents. Conservative blogger Michelle Malkin posted about it on March 27 under the headline, “Because one walloping defeat was not enough.” Then she linked to Phyllis Schlafly’s “Short History of E.R.A.” which I don’t want to link to here (no sense in giving the anti-feminist Eagle Forum more traffic than I think they deserve). Instead, at the risk of violating U.S. copyright law, I am reproducing a few of the “many harms” Schlafly claims ERA will cause, along with my rebuttal.
ERA would take away legal rights that women possessed – not confer any new rights on women.
A. ERA would take away women’s traditional exemption from military conscription and also from military combat duty. The classic “sex discriminatory” laws are those which say that “male citizens of age 18” must register for the draft and those which exempt women from military combat assignment. The ERAers tried to get around this argument by asking the Supreme Court to hold that the 14th Amendment already requires women to be drafted, but they lost in 1981 in Rostker v. Goldberg when the Supreme Court upheld the traditional exemption of women from the draft under our present Constitution.
B.ERA would take away the traditional benefits in the law for wives, widows and mothers. ERA would make unconstitutional the laws, which then existed in every state, that impose on a husband the obligation to support his wife.
To discuss these objections, one first must recognize the mindset of those who raise them. There remains a segment of American society that believes in inherent differences between the sexes that render gender roles not only preferable but necessary. Man’s role is outside the home, earning a living, supporting his family, and taking care of more physical home pursuits such as yard and handyman work. Woman’s role is inside the home, raising for the children, doing the cooking and cleaning, and taking care of her husband. Men are better suited to the perils of the outside world, women need the protection of hearth, home, and husband. Men are strong, women are fragile. Men are logical, women are emotional. From that foundation, it becomes impossible to imagine women serving effectively in the military in dangerous combat situations. Indeed, military combat is often the first reason I hear given for opposing an equal rights amendment. Yet now as never before, women are serving in dangerous roles in the military, even (unofficially) in combat situations. Indeed, women have been among those taken prisoners of war and killed in action. They have also faced the enemy and fought valiantly and successfully alongside their brothers in arms.
As for the benefits traditionally afforded to women, those benefits became necessary in a society that did not allow women to take care of themselves financially. Women were barred (practically if not theoretically) from certain professions, paid less than men in professions where they did perform the same work as men, and frequently discriminated against if they were married or had children. Young men were encouraged to become doctors, truck drivers, lawyers, factory workers, business owners, salesmen, police officers, fire fighters, soldiers, politicians, bankers, architects, taxi drivers, accountants, carpenters, or whatever they were good at and could do well. Young women were encouraged to become secretaries, nurses, teachers, social workers, or other service professionals, but only until they got married. Most banks would not loan money to women, even those who had their own assets and incomes. Consequently, it was virtually impossible for women to support their families if they were divorced or widowed. To praise society for providing protection and special benefits for women is, therefore, analogous to praising slave owners who provided food and shelter for their slaves.
ERA would take away important rights and powers of the states and confer these on other branches of government which are farther removed from the people.
A. ERA would give enormous power to the Federal courts to decide the definitions of the words in ERA, “sex” and “equality of rights.” It is irresponsible to leave it to the courts to decide such sensitive, emotional and important issues as whether or not the language applies to abortion or homosexual rights.
Without getting into the topics of abortion and gay rights too deeply, I will merely point out that abortion and gay rights are issues in spite of, not because of, ERA. I favor language that would explicitly render ERA abortion-neutral, something that makes sense if the amendment’s proponents are more interested in equality than they are about abortion. A large enough majority of Americans remain either ambivalent about or downright opposed to abortion that an ERA that could be used to guarantee unrestricted abortion forever more may very well be doomed to failure. That may be one of the major reasons why the last one failed.
But the bigger question, about giving “enormous power” to the federal courts, is no more an issue with an equal rights amendment than it is with any other part of the Constitution. The courts hear first amendment cases all the time, for example, as well as cases dealing with criminal due process, voting, eminent domain, and a host of other issues already addressed in the Constitution. Interpreting the law in light of the Constitution is the very role of the judiciary, not something that should be avoided.
There are but two of the seven points in Schlafly’s objections. I will delve into them over the coming days.