The ERA 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.” Thirty-five of the required 38 states had ratified the amendment between 1972 and 1977. But the ratification drive stalled and several states rescinded their ratifications.
Maloney suggested that a new push for the ERA was necessary because “recent Supreme Court decisions have sent women's rights back to the Stone Age.” That may be pardonable hyperbole but Maloney’s other assertion – that the Supreme Court’s decision in the Hobby Lobby case would have come out differently with an ERA -- is bizarre.
Speaking of bizarre, Phyllis Schlafly, the scourge of the ERA back in the day, crowed that supporters of the amendment “lost and they can't stand it.” But while the campaign to ratify the ERA sputtered, the opponents’ victory was a Pyrrhic one, thanks to the U.S. Supreme Court. The court repeatedly has ruled in favor of gender equality employing the 14th Amendment (ratified in 1868!) which prohibits the states from denying “equal protection of the laws.” (The 14th Amendment applies only to the states, but the court has read an “equal protection component” into the 5th Amendment, which is directed at the federal government.)
Granted, the Supreme Court doesn’t view laws that classify people by gender in exactly the same way it does laws that involve racial classifications. The court imposes “strict scrutiny” on racial classifications, and only “heightened” or “intermediate” scrutiny on laws that distinguish between men and women. But as a practical matter, a law that privileges men over women – or vice versa – is cruising for a judicial bruising.
In a 1996 decision in which the court ordered the all-male Virginia Military Institute to admit women, Justice Ruth Bader Ginsburg reaffirmed that those who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification" for treating men and women differently.
It’s hard to imagine Ginsburg or most of her colleagues being persuaded that any gender-based law passes constitutional muster. The last decision upholding a significant legal distinction between men and women was the 1981 ruling upholding an all-male standby military draft. It’s hard to imagine that decision coming out the same way today.
But what about the argument that the ERA would serve a symbolic purpose by “putting women in the Constitution”? First, the amendment doesn’t mention women; it mandates equality between the sexes and, like the 14th Amendment, could be used to challenge laws that favored women over men.
Second, if we decide to specify in the Constitution that gender discrimination is bad, get ready for demands that other sorts of discrimination be explicitly forbidden by that document. That has been the experience with hate crime laws, which have expanded to target not only crimes motivated by racial hatred but also those driven by bias against women, gays, transgender people, disabled people, the elderly and veterans. Better to let the courts expand the definition of protected classes under the 14th Amendment.
The ERA is a historical artifact as dated as bell-bottom jeans, platform shoes and disco. As for Phyllis Schlafly, let her gloat. She won the battle but lost the war.
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