The proposed Equal Rights Amendment has a storied history in America. It has, at times, been through brutal political wars, and has seen resistance from prominent women’s groups.
For much of its existence, it has fallen three states short of the threshold for ratification. In 2017, three became two, and a year later two became one. Currently, the members of an organization called VAratifyERA are pushing for the Equal Rights Amendment's ratification in Virginia to make one become zero.
The ERA reads, “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.” The rationale of supporters of the amendment’s ratification is that it would make huge strides toward diminishing, and eventually ending, discrimination against women.
The problem with an ERA is that it would not go far enough to protect women from discrimination by private entities and would create issues for other vulnerable groups by introducing the idea of “protected classes” into the Constitution.
Although supposing that the ERA would not go far enough to protect women is not in itself a reason to oppose it, it does remove a lot of the amendment's appeal. Although it may not affect discrimination from private entities, it would prohibit discrimination by the government, which has value for obvious instances of gender discrimination such as lower pay for women in government jobs. It also potentially would introduce recourse for more subtle instances, such as insufficient enforcement of regulations against gender-based violence.
The real reason to oppose an ERA is that it would formalize the concept of “protected classes,” essentially requiring enumeration of what types of attributes the government is and is not allowed to discriminate against. Currently, according to the Equal Employment Opportunity Program's website, the protected classes include “men and women on the basis of sex, any group which shares a common race, religion, color, or national origin; people over 40; and people with physical or mental handicaps.”
The existence of an ERA that protects only against sex-based discrimination opens up an interpretation that the Constitution does not prohibit government discrimination against a certain group unless it has its own ERA.
One argument for the ratification of the ERA is that the idea of protected classes is already present in common law through the levels of scrutiny applied to 14th Amendment cases. The levels of scrutiny are strict scrutiny, intermediate scrutiny and rational bias.
Strict scrutiny is applied in cases regarding “a protected liberty (like procreation or marriage) or a protection action (like political speech), or when [government regulation] unfairly discriminates against a protected class (like race or national origin),” and a law that is under strict scrutiny must serve a compelling government interest, according to information on legal resource website Subscript Law.
Intermediate scrutiny is applied in cases regarding classes such as gender or speech such as commercial speech, and a law that is under intermediate scrutiny need only serve an important state interest.
Rational bias is applied in cases regarding common government regulation that does not relate to any "particularly sensitive issue," and a law under rational bias need only be reasonable, according to the website.
Like proponents of the ERA, I believe that gender discrimination cases should be evaluated using strict scrutiny rather than intermediate scrutiny, and that an ERA would bring the needed increased scrutiny to gender cases. My fear, however, is that rather than elevate gender to the equivalent of race and national origin, the ERA would catapult gender past other protected classes into a level of scrutiny all its own. In doing so, it would elevate gender at the cost of devaluing race.
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Currently, which protected classes slot into each scrutiny category is decided by common law — the unofficial law that is decided by custom and precedent, rather than enumerated in the Constitution. I believe that the distinctions for scrutiny categories should remain in common law and that the solution to governmental discrimination against women lies in changing common law instead of amending the Constitution.
In summary, the Equal Rights Amendment would simultaneously harm groups at risk of discrimination while doing an insufficient job of protecting women from discrimination. Thus, it would be irresponsible for Virginia, or any state, to vote to ratify this amendment.
By no means is this a call to stop the campaign for equal rights. It is simply an insistence that it be carried out responsibly. Equal rights advocates can still lobby the legislature to pass tougher discrimination laws that affect private entities, and voters can still elect executives who will appoint judges who understand that the 14th Amendment provides equal protection under the law regardless of sex, race or any other factor. This is the best route to secure equal rights for all.
Contact opinions writer Cal Pringle at firstname.lastname@example.org.
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