Do we need the Equal Rights Amendment? | The Tylt

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Do we need the Equal Rights Amendment?
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The Equal Rights Amendment states “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 amendment was ratified by huge margins in the House and Senate in 1972, enjoying bipartisan support. 

While there are broad protections of equal rights in the Constitution, legal scholars state they fall short of what's needed to truly protect all Americans. Per the New Republic

Right now, women who are sexually assaulted or harassed have civil legal recourse in two areas: employment and education. “If we’re sexually assaulted, if it isn’t within the scope of Title VII as it understands an employment relation, or Title IX in education, we don’t have any equality rights,” said Catharine A. MacKinnon, a law professor at the University of Michigan and a pioneer in the field of sexual harassment and sex discrimination law.
That could change under the ERA. “The Equal Rights Amendment makes possible and makes constitutional laws we don’t have now,” MacKinnon said. In 2000, the Supreme Court in U.S. v. Morrison struck down the federal civil remedy portion of the Violence Against Women Act, holding that Congress lacked the power to create it under the Fourteenth Amendment. With an ERA in place, that law would have been on much better constitutional footing, according to MacKinnon. Title VII and Title IX are “islands of equality” in a “sea of inequality,” according to MacKinnon, who said an ERA would “empower Congress to notice that sea of inequality and expand those islands to continents.”
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Despite enjoying broad support in Congress, when sent to the states the amendment faced much stronger opposition, lead by conservative activist Phyllis Schafly. The amendment eventually fell just three states short of the three-quarters it needed to be added to the Constitution. Despite multiple additions to the ratification deadline, the ERA never succeeded in gathering the necessary support.

There has been a recent resurgence in interest in passing the ERA. In January 2019, Republican Sen. Lisa Murkowski and Democratic Sen. Ben Cardin co-authored an op-ed in the Washington Post calling for the ratification of the Equal Rights Amendment. 

Why is this still necessary? During a 2011 interview, Justice Antonin Scalia summed up the need for an Equal Rights Amendment. He said: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”
On the other side of the spectrum, Justice Ruth Bader Ginsburg laid out the rationale for the ERA in simple terms: “Every constitution written since the end of World War II includes a provision that men and women are citizens of equal stature. Ours does not.”
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Republican strategist George Will took the opposite point of view in his Washington Post column, arguing the ERA should never have been ratified by Congress in the first place. Will believes the Constitution already includes protections for women in other amendments and any additions are mere "clutter."

Without seriously considering what this would add to the 14th Amendment’s guarantee to “any person” of “equal protection of the laws,” the House and the Senate passed it 354-24 and 84-8, respectively. The irony of a gallant Congress behaving cavalierly in several senses was surely lost on ERA supporters.
Legislators sworn to “support and defend” the Constitution voted to clutter it with language the meaning of which they did not — could not — know. The meaning was irrelevant to the main purpose, which was to grandstand with an amendment the first, and for many advocates the sufficient, function of which was “consciousness-raising” — to “put women in the Constitution.” Another purpose was to arm liberal judges with language into which they could pour whatever content they wanted. So, the ERA would be either a constitutional nullity or license for unconstrained judicial improvising.
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While many see the ERA as a clear-cut feminist issue, others believe its inclusion in the Constitution is unnecessary. In the classic television show "The West Wing," Republican lawyer Ainsley Hayes argues passionately against the ERA, saying she believes the Constitution already contains all the protection she needs. 

Because it's humiliating. A new amendment 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. I am a citizen of this country, I am not a special subset in need of your protection. I do not have to have my rights handed down to me by a bunch of old, white, men. The same Article 14 that protects you, protects me, and I went to law school just to make sure.
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Activists have recently reignited interest in passing the ERA, working to get the three necessary states to vote in favor of its ratification. In May 2018, Illinois became the 37th state to ratify the ERA. The resolution passed 72-45, with heated debate on both sides. 

While some state legislators claimed the amendment would do nothing more than "expand taxpayer funding of abortion," a claim not supported by the actual text of the ERA, most opposing the amendment were more measured in their reasoning. Per the State Journal-Register

Rep. Jeanne Ives, R-Wheaton, argued federal law already provides women equality, meaning the amendment would accomplish nothing.
“We’ve made a lot of progress in this area, and we have a number of laws on the books already to protect women,” she said. “The fact of the matter is that women will not be protected until men decide to protect them and decide to stop the sexual harassment decide to stop the domestic abuse, decide to stop the sex trafficking, decide in the work places when they are in charge that they will protect the women under their charge. We have the rules on the books.”
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Virginia lawmakers declined to take up a vote on the ERA despite a recent poll showing 80 percent of Virginians supported its ratification. The Republican controlled House of Delegates blocked a bid to force a full vote on the measure by one vote. 

Supporters of the ERA had hoped this increasingly blue state was going to be the 38th state to ratify the amendment. Having 38 states on board would meet the U.S. Constitution's threshold for approval, but it would also likely spark battles in the courts and Congress over a long-passed 1982 deadline and various other legal issues.
...In response to the Thursday vote, Virginia House Democrats issued a statement reading "The ERA would have stated once and for all, that equality between men and women is a fundamental tenet of our society. But although we are disappointed, we’re not giving up. 2019 is an election year here in Virginia. This time next year, when the Democrats have the majority, we will ratify the Equal Rights Amendment."

Activists say they will now move the ratification fight to North Carolina

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