Monday, April 02, 2007

Update: ERA reintroduced in Congress

The Equal Rights Amendment (ERA), as mentioned in an earlier post, was approved by Congress and 35 of the 38 states necessary for adoption back in the 1970's. On March 15th it was reintroduced with a new title, the "Women's Equality Amendment" (WEA). There are 194 co-sponsors in the House and 10 in the Senate. Supporters, including Ted Kennedy, have apparently conceded that the earlier ERA "lapsed" because it failed to gain approval by 1982. So the process begins all over again, in the face of predictable misrepresentations from the right (as revealed here and here).

Though George Will argues that the new WEA is constitutionally "redundant," the reality is very different. While courts must apply a high standard of "strict scrutiny" to "suspect classifications" such as race, religion and ethnicity, they will only apply the much lower standard of "intermediate scrutiny" in cases involving gender discrimination. Passage of the WEA would elevate gender to a "suspect classification" comparable to the others.

The strict scrutiny standard is applied to the existing "suspect classifications" like race and religion as follows:

"Strict scrutiny is the most rigorous form of judicial review. The Supreme Court has identified the right to vote, the right to travel, and the right to privacy as fundamental rights worthy of protection by strict scrutiny. In addition, laws and policies that discriminate on the basis of race are categorized as suspect classifications that are presumptively impermissible and subject to strict scrutiny.

"Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result."

Without the WEA, gender classifications won't receive this level of scrutiny. The "intermediate scrutiny" standard means that gender classifications, in order to be valid, need only "serve important governmental objectives and must be substantially related to the achievement of those objectives" (1). The presumption of unconstitutionality only applies to cases involving suspect classifications.

Bottom line: gender is not a suspect classification like race or voting rights. Laws creating gender classifications will not be presumed to be invalid. Legal equality for women still doesn't exist in the U.S.


(1) Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976).

(2) Brief discussions of rights tend to get abstract. For more specifics on the evolution and application of "intermediate scrutiny," see the cases discussed in here and here.

PHOTO: Some of the 194 congressional sponsors of the WEA outside the capitol.


Anonymous said...

must be all democrats - i mean it's not enough that women have all that they have nowadays - they got to push it further and further.. funny how " one nation under god " wound up being one nation where people can do whatever they want , engage in numerous sexual immoralities , murdering their unborn and taking life for granted.. all because of one freakin right. this is coming from a woman who would rather be just a woman than someone who could choose the fate of the unborn. It's disgusting..this whole bit is disgusting and either fueled by cold heartless murdering b*tches or a bunch of butch lesbians .... disgusting.

SC Eagle said...

I am surprised to see myself categorized as "predictable misrepresentation".

If anything, I think my stance is very pro-women. My argument is that women ARE equal, AND that the Constitution already says so.

Thanks for the link.

Geaghan said...

To Anon.

A friend suggested we not allow anonymous comments, and now I'm reminded why. And why we need the WEA.

Stil, as someone once wrote: "I may disagree with what you say, but I'll defend to the death my right to ridicule you."

M.J. O'Brien said...

I appreciate SC Eagle's comment and don't mean to suggest a deliberate misrepresentation by his blog.

If you look at the bare text of the 14th amendment's guarantee of equal protection, SC Eagle would be right: the WEA/ERA wouldn't be necessary. But (as this post tries to explain) the courts have narrowly construed the 14th and haven't deemed gender to be a "suspect classification" like race or religion. The legislative history of the 14th contains no evidence that it was intended to prohibit gender discrimination. The WEA/ERA would correct that historical "oversight."

To be completely accurate here, there's one notable exception to my statement that the courts have "narrowly construed" the 14th. That came in 2000, when the conservatives on the Supreme Court shocked legal observers by relying on the 14th in deciding Bush v. Gore.