The Odd Revival Of The E.R.A.

The current iteration of the Equal Rights Amendment was proposed in 1972, with a seven-year deadline for ratification by three-fourths of the states. It fell short by three states, but never really died. Its operative language was a sign of the times, and provides a sign of our times in retrospect.

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Note the word “sex.” Not “gender,” as has become the substitute description, as sex was a binary descriptor, male and female, and today we have 31 flavors. Had the ERA passed, would it have protected transgender people? Gay people? There is nothing about the word “sex” that’s intersectional. But as Susan Chira points out, women have achieved much of the nightmare Phyllis Schlafly cautioned would come to pass.

When Phyllis Schlafly crusaded against the Equal Rights Amendment in the 1970s as a threat to all-American motherhood, she handed out freshly baked bread and apple pie to state legislators. She warned of a dystopian post-E.R.A. future of women forced to enlist in the military, gay marriage, unisex toilets everywhere and homemakers driven into the workplace by husbands free to abandon them.

Schlafly’s list of horribles has become our normal, without the ERA to destroy all-American motherhood. This raises two questions. First, were these changes as horrible as they were perceived in the 70s? Second, if they came about without the ERA, why would we still need it?

Some of the very arguments Mrs. Schlafly deployed decades ago resurfaced in the recent state legislature debates. In Nevada, Illinois and Virginia, conservative women denounced the amendment. Women already have equal rights, and an amendment would take away remaining privileges, they argued. It would make it illegal to separate the sexes in bathrooms, college dormitories or school sports, they claimed. Women would lose programs like food subsidies aimed at mothers and female-only scholarships.

With equal rights comes equal responsibilities, or so it would seem. We can argue whether half-priced drinks on Tuesdays for the ladies would be a constitutional violation, but that’s such a petty example. There are very serious examples of privileges being doled out on the basis of sex under cover of deprivation of rights, such as “Believe The Woman.” This cry is the gender version of “Believe The White Guy,” although the set-up to challenge the analogy is that women are oppressed and marginalized so they’re entitled to discriminate whereas white men are not.

If the ERA had passed, would this rhetoric have been sufficient to overcome the constitutional mandate against discrimination on the basis of sex? Would “don’t discriminate on the basis of sex” be understood to mean “don’t discriminate against women, but discriminate against men all you want”?

Justice Ginsburg, speaking at the Aspen Institute in 2017, said that while women had come “almost as far” under the 14th Amendment as they would have under the E.R.A., she still believed an amendment had practical and symbolic value. “I would like to be able to take out my pocket Constitution and say that the equal citizenship stature of men and women is a fundamental tenet of our society like free speech,” she said.

Symbolism is huge these days. MAGA hats are now symbols of white supremacy and violence, justifying punching children who smirk. Justice Ginsburg suggests we should amend the Constitution for symbolic value. Ironically, as women push their demands to silence men so they can speak without anyone questioning them, Justice Ginsburg compares “the equal citizenship stature of men and women is a fundamental tenet of our society like free speech.” Except free speech isn’t doing well at all under the current regime. She should aim higher.

I fully supported the ERA back in the old days, but then I was an old-school feminist who believed in actual equality. That meant there were no excuses that allowed a woman to enjoy the benefits of equality without the responsibilities and burdens that went with it. That wasn’t a negative to women back then, who willingly acknowledged that they would have to give up some of the pleasures of being the dainty sex for the rights of being the equal sex. Then there were the dissemblers who wanted it both ways.

Catharine A. MacKinnon, whose legal theories laid the basis for sexual harassment being defined as a form of sex discrimination, has championed the revival of the amendment as a weapon against what she sees as the continuing subordination of women through sexual violence and economic inequality. “You go after sexuality and economics, you’ve gone to the heart of misogyny,” she said.

If women are equal, there is no such thing as sexual violence. Just violence. It would be no different if a man struck a woman than if a man struck a man, or a woman struck a man. Violence was wrong, and it was neither more nor less wrong based on the sex of the attacker. Laws like the Violence Against Women Act would be facially unconstitutional, as well as rejected by all women seeking equality. After all, there would be no justification for such a law if women weren’t fragile and helpless. This was tantamount to a confession that women weren’t at all equal, and no true feminist would want a law that was grounded in their frailty.

There would be no economic inequality, as equal pay for equal work was not only a matter of law, but a matter of functional reality. If women didn’t like the salary offered, they could go elsewhere or start their own business and become magnificent successes, just like a man. But that would mean the persistent arguments in favor of women being treated differently under law wouldn’t fly.

Attempts to remedy the persistent pay gap between men and women have also fallen short because of rulings saying that gaps must be the result of intentional discrimination in order to violate the law and that many differences in pay are the result of factors “other than sex,” advocates say. If a woman doing the same work as a man is hired at a lower salary because her previous salary was lower, courts have ruled that is not pay discrimination, said Jessica Neuwirth, a co-founder of the E.R.A. Coalition. She believes an equal rights amendment would strengthen Congress’s ability to remedy unequal pay.

A man working fewer hours than another man will be paid less. An employer will pay an employee a salary based on the same factors that apply to any employee, mostly a matter of what an employer needs to pay in order to hire an employee capable of doing the job. If a guy doesn’t like the deal, he walks. If a woman doesn’t like the deal, she sues for discrimination. That’s not how equality works.

I remain as much a supporter of the ERA today as I was in the 70s, and I believe that women deserve to be treated equally with men. The difference is that today, the ERA will do more to end unwarranted privileges women enjoy than burdens they claim to suffer, and equality will restore balance to the law that has suffered in the wake of the woke, to compensate for claims of oppression by becoming the new oppressor.

Ask any divorced father seeking custody of his children how the presumption favoring the mother works. There is no more zealous a feminist than a man who has faced sex discrimination. Let the radicals like Catherine MacKinnon get exactly what they demand, except for real rather than equal when it serves them, privileged when it doesn’t. I’m all for equality, and that includes calling out the lies even if it makes women angry to face the harsh reality that they don’t get their ERA and eat it too.

18 thoughts on “The Odd Revival Of The E.R.A.

  1. Hunting Guy

    Robert Heinlein.

    “Whenever women have insisted on absolute equality with men, they have invariably wound up with the dirty end of the stick. What they are and what they can do makes them superior to men, and their proper tactic is to demand special privileges, all the traffic will bear. They should never settle merely for equality. For women, “equality” is a disaster.”

  2. Bear

    I’m afraid many without legal training confuse sexual violence with the act of sex involving violence, e.g. rape, molestation. Politicians and others have been known to conflate the two.

  3. Richard Kopf

    SHG,

    On Equal Protection grounds, the 10th Circuit just held that women have the Constitutional right to walk about in public without covering their breasts, and particularly their nipples. See Free the Nipple-Fort Collins v. City of Fort Collins, No. 17-1103 (10th Cir., February 15, 2019). The reasoning of the majority is flawed as the dissent points out, but, based upon a modest extension of Supreme Court precedent, it is not crazy.

    A wag might call this case titillating but not me. Rather it is proof positive that the ERA is as unnecessary as a man’s nipples.

    All the best.

    RGK

      1. Patrick Maupin

        I used to think it was the purple hair, but now I’m leaning toward the arm tat. Or maybe that subversive bracelet.

  4. RedditLaw

    I just re-read your post. If I didn’t know better, I would say that you had a thing for Phyllis Schlafly back in the day.

  5. B. McLeod

    “I would like to be able to take out my pocket Constitution and say that the equal citizenship stature of men and women is a fundamental tenet of our society like free speech.”

    Well, that’s terribly ironic in the present day.

  6. Casual Lurker

    “…today we have 31 flavors.”

    You must be thinking of Bathroom-Robins?

    Speaking of which, I was told of an incident at a Queens Junior High school, shortly after various dictates came out of the Obama White House regarding gender and restrooms. There was much confusion as to who could use which restroom, and under what conditions. There were discussions with the SCA (School Construction Authority), about building “gender neutral” restrooms, that were to be in addition to the existing boys and girls restrooms.

    When most of the existing infrastructure was determined to be unsuitable for modification or expansion, at a school meeting of parents, the Principle joked about having to add urinals to the girls restrooms to bring them into compliance. Several parents didn’t see the humor of the remark, and after many complaints to the city’s Board of Ed, the request to the SCA was withdrawn, pending further review. Yep, an off-the-cuff remark killed it in its tracks. That, plus a budget reality check.*

    *The City was prepared to use the same set of delaying tactics it had used, and is still using, with the subways, which are still not in compliance with the ADA after almost three decades. Why? It cost $30 million to put in just one elevator at one station. You do the math.

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