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Don’t Revive the ERA

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Don’t Revive the ERA

American women already enjoy full constitutional rights, and a new Equal Rights Amendment would bring them no benefits—but it could do significant harm. February 27, 2020
Politics and law
The Social Order

The House of Representatives voted this month to begin the process of reviving the Equal Rights Amendment, a constitutional effort dating to 1923 and first passed by Congress in 1973. The vote—removing a 1982 deadline for state ratification—begins a legislative initiative to enshrine equal legal rights, regardless of sex, in the Constitution.

Though supported unanimously by House Democrats, the law remains procedurally suspect. The Department of Justice has stated its intent to prevent the U.S. Archivist from including the ERA in the Constitution, should it secure enough votes, because of the expired ratification deadline. Meantime, Supreme Court Justice Ruth Bader Ginsburg—despite her support for the ERA, in principle—said that proponents need “a new beginning” beyond the 1982 deadline. “There’s too much controversy about latecomers,” she added, urging proponents to start the process over. Yet supporters keep contorting laws and flouting precedent to defend their cause, arguing, in effect, that America can never actually reject a constitutional amendment. In late January, Virginia joined Nevada and Illinois to support the ERA, in theory securing the required number of states needed to adopt the proposed Twenty-Eighth Amendment.

More troubling is the substance of the amendment. Women and men already enjoy equally protected constitutional rights. State and federal law—in addition to the Equal Protection Clause of the Fourteenth Amendment—already bar discrimination based on sex. The ERA adds nothing to protections for American women, who enjoy privileges, prosperity, and freedom unparalleled in human history.

In addition to ignoring the full equality that already exists, the ERA would stop recognizing sex distinctions between men and women—even when erasing such distinctions can cause harm. Separating men and women in prisons, for example, makes obvious practical sense, but under the ERA, state governments could be summoned to court for doing so. Similarly, the ERA could invalidate hundreds of laws that benefit one sex or the other, including separate restrooms and locker rooms in public schools; the military draft for males; Social Security spousal benefits; the Department of Agriculture’s Women, Infants, and Children program; the Violence Against Women Act; grants for girls’ STEM training; and more.

Proponents point to the “wage gap” and the #MeToo movement as evidence that women need special protections under the Constitution. But the ERA won’t change criminal-assault laws or do anything additional to stop sexual predators. Federal and state law already prohibit pay discrimination based on sex. Social science, moreover, has repeatedly shown that any remaining salary gap is largely the result of women’s choices. Following activists’ logic, the ERA is needed to override women’s career and family decisions.

Demands for special constitutional “rights” will only diminish women. The ERA is not needed.

Photo by Tasos Katopodis/Getty Images

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