Ask state and federal legislators if they believe
that legal rights should be extended or withheld on the basis of sex. Most would
probably say no, and many of them would be lying. Adoption of the Equal Rights
Amendment to the U.S. Constitution remains a feminist fantasy. Its simple
declaration of fairness--"Equality of rights under the law shall not be denied or
abridged by the United States or by any state on account of sex"--cannot win
congressional support. The ERA has been introduced in every session of
Congress since 1985, only to be buried in committee. This year's sponsors are
Democratic Representative Carolyn Maloney of New York and Senator Edward Kennedy
of Massachusetts; but don't expect passage anytime soon.
Sometimes it's hard to believe that in the early 1970s the ERA was
actually approved by Congress and sent to the states for ratification. (A
constitutional amendment must be ratified by three-fourths of the states.)
Feminists famously failed to win ratification--they lost by three states--after a
hysterical public debate that focused on legal absurdities like mandatory co-ed
bathrooms. At the time, a majority of Americans professed support for the
amendment. But as political scientist Jane Mansbridge observed in her astute book
Why We Lost the ERA, support for equality itself was rather shallow. Polls
demonstrated that a majority of Americans who endorsed the ERA also embraced
traditional gender roles: A 1977 survey showed that more than half of those in
favor of the ERA agreed that it was more important for a woman to support her
husband's career than to enjoy her own. Almost two-thirds believed that a wife
should not work outside the home if her husband could support her and jobs were
Equality has become much more respectable in the past two decades,
even as feminism itself has fallen out of fashion. That's the message young women
send when they decline to identify as feminists but subscribe to feminism's
goals. According to a recent survey commissioned by American Demographics, only
34 percent of adolescent girls call themselves feminists, but 97 percent believe
that men and women should be paid equally, 92 percent believe that a woman's
"lifestyle choices" should not be limited by her sex, and 89 percent agree that a
woman does not need a man or children to be successful.
Yet support for female independence doesn't necessarily translate
into activism or demands for an ERA. A 2000 Gallup poll that asked women about
the challenges they face in their daily lives found that only 4 percent of them
are "most concerned" about equality and discrimination. Gallup reported that
money, family, and health are women's top priorities--which is hardly surprising.
Some feminists will argue that women would have fewer money, family, and health
problems if they enjoyed full equality; and in theory, many women might agree.
According to a 1999 poll by Gallup, only 26 percent of Americans believe that men
and women are treated equally and 69 percent believe that society treats men
better than it does women. But when people answer a pollster's questions about
their daily struggles, they're not thinking theoretically. Equality is an
abstract, long-term goal compared with paying the bills.
Besides, the ERA suffers from the common belief that it is no
longer necessary, given the growth of civil rights law in the past 30 years.
That's one irony of progress: As acceptance of sexual equality grows, active
support for the ERA declines. Young women who believe that they already enjoy
equality are not inclined to fight for a constitutional guarantee of it.
Meanwhile, conservatives who fought the extension of constitutional equality
rights to women and the passage of statutes prohibiting sex discrimination rely
on the past progress toward equality to prevent more progress in the future. Now
that the 14th Amendment has been applied to sex discrimination, they argue, we
have no need for an ERA.
But in fact, the Supreme Court has not applied 14th Amendment guarantees of
equality with equal force in sex and race cases, because a majority of justices
have always regarded some instances of sex discrimination as "only natural." The
Court employs a strict standard of review in race-discrimination cases:
Essentially, the state must show that any law discriminating on the basis of race
is a "necessary" means of protecting a compelling state interest. Laws subjected
to this standard are doomed. In sex-discrimination cases, the Court uses an
intermediate standard of review: A law discriminating on the basis of sex is
struck down only if it lacks a substantial relationship to an important
government goal. Sexual discrimination sometimes survives this test. Recently, in
Nguyen v. Immigration and Naturalization Service, the Supreme Court upheld a
federal law that discriminates between men and women who wish to pass on American
citizenship to foreign-born children. The offspring of American women who give
birth abroad enjoy automatic citizenship. Men whose children are born abroad to
foreign-born women must take legal steps to establish paternity before the
children turn 18 in order to confer citizenship on them.
In upholding these distinctions between the rights of fathers and mothers, the
Court relied on gender stereotypes--notably, the belief that men are less likely
than women to form bonds with their children. A majority of the justices found
the discrimination against men legal because they considered it natural--a
product of biology, not prejudice. Justice O'Connor--joined by Justices Souter,
Ginsburg, and Breyer--forcefully dissented, pointing out that paternity could be
established by DNA testing if it was in question and that the sex of a parent
cannot be relied upon to predict parental affection or responsibility.
Does a case like this demonstrate a need for the Equal Rights
Amendment? Not exactly. The ERA, like other constitutional protections, will mean
what the Supreme Court says it means. There's no guarantee that judges who cling
to sexual stereotypes will apply the ERA more rigorously than they apply 14th
Amendment guarantees of sexual equality. They can always find that some
discriminatory laws merely reflect the natural order, which law is presumably
powerless to challenge. The Supreme Court once held that prohibitions on female
lawyers were only natural. Culture had to change before courts could acknowledge
that women had the right to practice "male" professions. But law changed too,
particularly with passage of the 1964 Civil Rights Act, which imposed a federal
ban on sex discrimination in employment. Culture and law work in tandem to revise
our visions of what's possible and fair. By itself, an ERA would not deliver full
equality to women, but it would prompt courts and legislatures to reconsider it.