Sunday, April 23, 2017

The Equal Rights Amendment is a good idea that won’t change much

I support the recently re-initiated Equal Rights Amendment and I’m happy it has momentum again, but we shouldn’t get our hopes up thinking it’s more of a game-changer than it really is.  Even if the deadline could be retroactively nullified and enough states voted to pass it, most federal justices already interpret the constitution in much the same way as they would were the ERA made part of it.

The current conservative majority on SCOTUS or lower federal courts would certainly not interpret the ERA in the same ways the left is hoping for.  They would likely interpret it the same way they already interpret the 14th amendment, which has basically the exact same wording except with gender-neutral “persons” in place of women.  The ERA would not force them to change their votes on anything in recent memory.

Even liberal judges would have few new tools to advance gender equality than the 14th amendment already provides them.  The best argument for it is that it might prompt courts to treat sexually discriminatory laws with “strict scrutiny” under due process doctrine (instead of the “intermediate scrutiny” they’re currently afforded), which could expand LGBTQ protections as well.  That’s important enough to warrant passage – but still an arbitrary, non-binding, extra-constitutional doctrine subject to judicial whim.

And beyond that singular, technical field of constitutional law, the ERA is largely symbolic.  Both domestic abuse and pay discrimination are already illegal, and the laws making them illegal have already been upheld by the courts.  Meanwhile, the ERA would neither mandate stronger enforcement of equal pay, nor mandate maternity leave, nor prohibit differential pricing of healthcare, nor prohibit abortion restrictions except under the loosest of liberal interpretations (and those inclined to loosen the law in that way have no shortage of elastic clauses with which to do so today).


We’ve already seen those legal fights play out.  A vague affirmation that men and women should have equal rights – which massive majorities of Americans and American judges have agreed on for decades now, in the abstract – does not much simplify nor hasten the in-practice solution to such complex and polarizing legal debates.