A Feminist Critique of the ERA

Everyone has stories from the “good old days” that tend to get repeated over and over again—my group of college friends certainly has our greatest hits list that gets rolled out whenever we reunite. There’s one college anecdote about a bad date that everyone in my life has heard ad nauseum, but I just keep bringing it up-—not out of nostalgia or wistfulness, but because, four years later, I still have trouble believing it happened, and because it still informs my view on a popular liberal issue: ratifying the Equal Rights Amendment.

Here’s the story. I was at a coffee shop and—as pretentious, academic 20-somethings do on dates—discussing various legal and political issues that had been in the campus discourse recently. Apropos of something, I don’t remember what, my date offered this contention: “Technically, women don't have equal rights under the constitution, because they aren't specifically enumerated.” (He works at the White House now, which tracks completely with this worldview. We never went out again.)

His argument, interestingly, is nearly analogous to the one at the heart of the left’s effort to approve the ERA. The line of reasoning is baffling in its literality: women aren’t mentioned in the Constitution; therefore, the Constitution does not protect women’s rights. Currently, the protected classes of  race, religion, and country of origin are treated with “strict scrutiny,” whereas cases of gender discrimination are considered only with “intermediate scrutiny.” The former three classifications are granted the “strict scrutiny” standard by the authority of the fourteenth amendment, which guarantees that all people will be treated equally under the law. Those in favor of the ERA contend that adding the amendment, which says, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” will further protect the rights of women and empower the legislature to pass more rigorous anti-discrimination laws without fear of challenge in the courts.

Ruth Bader Ginsburg has in the past defended the idea of an Equal Rights Amendment, arguing in a 1988 journal article that while laws can be passed to protect women’s rights, those laws can be repealed more easily than an amendment can be overturned. Ginsberg repeatedly restates the harm caused by considering women as a separate class of people—saying that historically, laws meant to “protect” women largely relied on harmful stereotypes of women as weak, fragile or less capable than men, and that these laws relegated women to second-class status rather than uplifting them as equal. To my mind, however, isn’t this just what the ERA does? How can the 14th amendment apply to white men, African-Americans and religious minorities, but not to women? Why do we need our own amendment? I don’t think we do, and although it’s hackneyed to quote a scene from The West Wing, I will.

In an episode that was unduly impactful on me as a teenager, a female lawyer explains to her male colleagues why she is opposed to the ERA, saying, “It's redundant. I've got the 14th amendment, I'm fine … [I’m against it] because it's humiliating. A new amendment that we vote on declaring that I am equal under the law to a man? I am mortified to discover there's reason to believe I wasn't before. The same article 14 that protects you, protects me." Call me a sucker for some well-constructed Sorkin dialogue, but I find that argument convincing. I resent the implication that my equality is up for debate. I resent that I am not considered, as a citizen of this country and a contributing member of society, already worthy of defense by legislators or the courts.

Another aspect of Supreme Court jurisprudence that Ginsburg outlines in her article is this: judicial standards can change over time, often due to the influence of changing societal norms, and these standards are largely semantic. In the courts, laws protecting the rights of women were often upheld due to ever-heightened levels of scrutiny. As Ginsburg outlines: “The word changes in the Supreme Court's formulation of doctrine - from "rational" to "substantial," and from "permissible" to "important" - may seem trivial, the kind of fine distinction only a lawyer could love. But judicial application of a closer look test in gender-based classification cases has real significance.”

My takeaway being, of course, that we don’t need a new amendment in order for the courts to decide to adopt “strict scrutiny” for cases of alleged gender discrimination, or in considering the constitutionality of laws protecting women. Justices are empowered to unilaterally make that judgement in response to circumstance, or “facts on the ground,” as a college professor of mine used to say.

Finally, let’s return to the anecdote with which I began. Here’s my fear: If we, the people, pass an Equal Rights Amendment with our foundational argument being that sex discrimination needs explicit prohibition in the Constitution, isn’t the logical end to that argument that protections for other classes of marginalized people also require further codification? My concern is that an ERA weakens the 14th amendment, and makes historical legal decisions about equal protection less compelling. As the conservative argument goes, rights must be specifically enumerated. Do we not think Republicans and conservative-minded citizens will exploit liberal support of the ERA to dismantle protections for people of other gender identities? How about people who aren’t cisgender or heterosexual? People with disabilities? Aged people? Will we have to pass “Equal Rights Amendments” for each protected class in order to remain philosophically consistent? I fear we will, and that will not be easily accomplished.

I live in Virginia, the state leading the charge to ratify the ERA—activists in my state are convinced we will be the crucial 38th state needed to approve the amendment. It makes me nervous, and makes me wonder whether I’m missing a key point or Virginia Democrats really haven’t thought this issue through.