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:
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."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."
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.
