Proposed Equal Rights Amendment Is Still a Bad Idea

On March 22, 1972 Congress passed a proposed Equal Rights Amendment (ERA) to the Constitution. It read:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after date of ratification.

The amendment was supported by overwhelming bipartisan majorities: 354 to 24 in the House (with 51 not voting) and 84-8 in the Senate (with 7 not voting). This was well more than the two thirds of each house required by the Constitution. Although constitutional amendments don't require the president's signature, President Nixon endorsed the proposal.

The ERA was opposed by some conservatives, including women fearing that it would rule out legislation designed to protect women and might require that women be subject to the military draft. There were also some claims that the ERA would endanger the privacy of both men and women in public restrooms.

Though it came fairly close, the proposed amendment failed to get the required ratification by three fourths of the states, Even after Congress extended the period when ratification would be possible, it couldn't get the necessary number of states to endorse it. The time period for ratification expired in 1982.

We are now seeing a renewed drive to enact the ERA, capitalizing on the attention and interest generated by the "Me Too" movement and legitimate concerns about rape and sexual harassment. Unlike 1972, interest so far is mainly among Democrats. Since bipartisan majorities will be needed to propose it, the ERA probably will not be going anywhere soon. But there is a danger it might catch on, and I believe that Democrats need to reconsider their enthusiasm for this project.

Adding the ERA to the Constitution could seriously undermine the Equal Protection clause of the Fourteenth Amendment (applying to state governments) and the equal protection "component" of the Due Process clause of the Fifth Amendment (applying to the federal government). These clauses, properly interpreted, make it clear that Congress and state legislatures are authorized to enact genuine laws and are not authorized to enact pseudolaws.

A genuine law must be a general rule of action enforceable by sanctions (deprivations of "life, liberty, or property" as the Constitution puts it). To be a general rule, it must apply to the actions of all people without any exceptions, that is, to all members of the public. Any sanction-enforced rule that does not apply to everyone or that is not a rule of action is a pseudolaw.

A genuine law, the only kind the Constitution authorizes, therefore cannot treat women differently than men. This is already true, despite the absence of an ERA. The ERA is therefore not needed in order to protect women from legal discrimination.

If redundancy were the only problem with the ERA, adding it to the Constitution would do no harm except wasting some time and money promoting and ratifying it. The real problem with the ERA is the bad side effects it could have on future court interpretations of the Constitution's existing Equal Protection provisions.

A genuine law must apply to everyone, period. If the ERA were added to the Constitution it would imply that the Equal Protection clauses do not prohibit pseudolaws, since the distinction between men and women is a major one. If securing equal protection for women required an amendment, it could be argued, the Equal Protection clauses should not be interpreted to forbid many other distinctions between people, and do not mean that Congress and state legislatures are authorized to enact only genuine laws.

Such an interpretation of the Equal Protection clauses would be very unfortunate, virtually destroying the meaning of the only language in the Constitution which, properly interpreted, distinguishes between genuine laws and pseudolaws and implicitly forbids the latter.

The courts have not always interpreted the existing Equal Protection clauses this way, but they have been groping their way towards this interpretation and making considerable progress. Adding the ERA to the Constitution could undermine this progress and possibly reverse it. We should not allow this to happen.

The Equal Rights Amendment is still a bad idea.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published 1981 and his most recent book is "The Case of the Racist Choir Conductor: Struggling With America's Original Sin." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.