Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Justin Yang
Justin Yang is a sophomore at the University of Pennsylvania studying Politics, Philosophy, and Economics.
It is an indisputable fact that women face more barriers than men in the world. As a man, I cannot possibly understand the full extent of this injustice; as a human being, I can empathize and support efforts to limit and hopefully eradicate it from society. Perhaps the most ambitious effort intended to achieve this aim in the United States has been the Equal Rights Amendment, a proposed constitutional amendment designed to guarantee equal rights for women. By the ratification deadline, 35 states had ratified it, just three short of the required number, meaning the Amendment never became part of the Constitution.  But if three more states had ratified it and it was the law of the land, what would America be like?
The key part of the Amendment reads as follows: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”  It would’ve been only the second time the Constitution ever explicitly mentions sex or gender; the first was the Nineteenth Amendment, guaranteeing women’s suffrage.  It would’ve also been the first guarantee in the Constitution that men and women are truly equal before the eyes of the law.
But doesn’t the Fourteenth Amendment already guarantee equal rights for women? After all, it was the basis for Supreme Court cases like Reed v. Reed, Roe v. Wade, and United States v. Virginia. But this protection is not explicit or complete – Reed v. Reed was the first time the Equal Protection Clause was applied to sex discrimination, and that was only in 1971.  In fact, the Equal Protection Clause, as it applies to sex discrimination, has been interpreted in subsequent Supreme Court jurisprudence to only protect against discrimination by governmental actors where men and women are similarly situated, which fails to address discrimination in areas like reproduction, where men and women are biologically different or are not similarly situated. 
In addition, the standard of scrutiny set by United States v. Virginia (“exceedingly persuasive justification”) is not as stringent as strict scrutiny, the highest level of justification a law would have to face.  And indeed, it goes without saying that Roe v. Wade, an undeniably important case on women’s reproduction no matter your politics, is constantly targeted, and abortion is a right protected by the vaguest legal justification imaginable (“undue burden”). 
What the Equal Rights Amendment would’ve done is to standardize all of this – any and all cases related to sex discrimination would be examined by the same legal standard as racial discrimination cases. Women no longer would have to try to prove to the courts that they have rights worth protecting – their equal status would be explicitly enshrined in the Constitution.
But putting aside the limited protections the Supreme Court has offered women, aren’t there countless anti-discrimination laws protecting women anyway? The Equal Pay Act, the Civil Rights Act, the Pregnancy Discrimination Act, and the Violence Against Women Act are some major pieces of legislation that protect women already. But the key here is that these laws are not immune to attack – laws can be amended or repealed at the discretion of Congress and the signature of the President.
How about provisions in federal and state laws that favor women? Some state laws favor women in child custody and alimony cases, for example.  The Equal Rights Amendment would not put these laws on the chopping block, but instead would make them sex-neutral. The word “mother” in laws might be changed to “primary care-giver,” for example. Men would stand a better chance in custody hearings when laws reflect the fact that being a good parent has nothing to do with gender. Laws explicitly delineating different treatment between sexes because of supposed differing parental attachments to children will no longer be upheld, as one was in Nguyen v. INS.  The military draft would not just target men, recognizing that a woman can be as good of a soldier as a man.
In fact, laws based on gender roles and stereotypes would have no basis in American law. This is not to say that there may be reasons for the law to differentiate between men and women; but this is what strict scrutiny is for, to only allow these exceptions with strong justifications from the state.
In addition, the Equal Rights Amendment might extend constitutional protections to LGBT individuals, too. Yes, much of the jurisprudence extending gay rights has been based on the Fourteenth Amendment already, but there has been little progress on trans rights. It is within the realm of possibility that the words “on account of sex” can encompass trans people, and adding this along with the Equal Protection Clause would just strengthen the constitutional protection for trans individuals.
To many people, sex discrimination is a relic of the past, something society has gotten over and made protections for already. To them, the Equal Rights Amendment might be absolutely unnecessary. But these protections are not built on a sturdy foundation. Supreme Court jurisprudence on sex discrimination is supported by a weak standard of scrutiny and by a constitutional amendment only relatively recently thought to protect women. Legislation can be easily rolled back. What the Equal Rights Amendment would do, then, is to cement into the Constitution the fact that men and women are deserving of equal rights and protections, removing the barriers that women, and sometimes men, face in living a free and dignified life.
 “March 22, 1972 | Equal Rights Amendment for Women Passed by Congress.” New York Times, March 22, 2012. Accessed February 16, 2017. https://learning.blogs.nytimes.com/2012/03/22/march-22-1972-equal-right-amendment-for-women-passed-by-congress/
 “The Constitution of the United States.” United States National Archives. Accessed February 16, 2017. https://www.archives.gov/founding-docs/constitution-transcript
 “Why We Need the Equal Rights Amendment.” Alice Paul Institute. Accessed February 16, 2017. http://www.equalrightsamendment.org/why.htm
 Wharton, Linda. “State Equal Rights Amendments Revisited: Evaluating Their Effectiveness in Advancing Protection Against Sex Discrimination.” Rutgers Law Journal 36 (Summer 2005): 1201-1293. http://www.equalrightsamendment.org/misc/Wharton.pdf
 “United States v. Virginia.” Justia. Accessed February 16, 2017. https://supreme.justia.com/cases/federal/us/518/515/case.html
 “Planned Parenthood v. Casey” Justia. Accessed February 16, 2017. https://supreme.justia.com/cases/federal/us/505/833/case.html
Photo Credit: Mark Fischer
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