In December, the Maryland Court of Appeals heard a case that will determine whether a state law denying gay couples marriage licenses violates the state's Equal Rights Amendment. Pro- and anti-ERA groups were at the ready -- and both prepared their best arguments to punt gay marriage to the other side.
The argument that the ERA supports gay marriage relies on the fact that bans on same-sex marriage employ gender as the sole reason for approving or denying a marriage license. While many other factors went into the famous Massachusetts decision that legalized gay marriage in that state, one of the concurring justices cited the state's ERA, saying that the "prohibition [to marry] is based solely on the applicants' gender" and "may offend Massachusetts equal rights amendment."
Gay marriage is a reliable bogeyman that conservative groups can use to scare their constituents into mobilizing against the ERA in states across the country. The arguments in the Maryland case vindicated their long-held (and no doubt profitable) claim that the ERA would inevitably result in hordes of family-hating homos rushing the altar and bringing our great moral nation to wrack and ruin. Here is proof, they cried, that Phyllis Schlafly was right; give women equality and soon everyone will be asking for it.
The National Review was jubilant: "Mrs. Schlafly not only had the right idea when she fought the Equal Rights Amendment during the 70s, but predictions she made back then are still accurate today," they crowed. They went on to quote Schlafly herself, saying that the "ERA would legalize the granting of marriage licenses to same-sex couples and generally implement the gay and lesbian agenda."
Pro-ERA groups, meanwhile, had anticipated being on the receiving end of the gay grenade and were quick to distance themselves from equal marriage proponents. Idella Moore of 4ERA, penned a Women's E-News column titled "The ERA has nothing to do with Gay Marriage" in which she wrote, "...[T]oday we must battle not only long-time opponents of the amendment, but defend this amendment against misinterpretation by those whom most would consider our natural allies."
Moore goes on to cite legal logic eerily similar to that of miscegenation opponents before the Supreme Court shot them down, saying, "... a ban on gay marriage does not constitute sex discrimination because the ban applies equally to women and men." Substitute "mixed," "race," "blacks," and "whites" and you get the idea.
Gay marriage and the ERA have a long, tangled history. Hawaii was the first state to test the waters back in 1993, when the state's Supreme Court ruled that denying same-sex couples marriage licenses violated the state's equal protection clause. But before the case could reach its conclusion, the decision was mooted when voters adopted a constitutional amendment banning gay marriage.
A decade passed without significant movement on the issue. Then in 2003, Massachusetts became the first -- and as yet the only -- state to allow gay marriage. The court decision relied partly on the state's constitutional commitment to equal protection.
But an equal protection clause does not always guarantee the passage of laws expanding gay rights. Six couples in Washington sued for the right to marry in 2004, and briefly won the case based on, among other laws, the state's ERA -- before the Washington Supreme Court in July reversed the decision and narrowly decided against allowing equal marriage. However, the ERA argument was not directly addressed.
There is no saying how federal courts would ultimately decide on gay marriage if the ERA were finally amended to the Constitution. But that is the point. No one -- on either side of the debate -- can say for certain how it would affect the battle over gay marriage if and when it was passed.
This uncertainty over the ERA effect has had the strange result of putting equal marriage advocates in the same political boudoir as anti-feminist, anti-gay groups like Schlafly's Eagle Forum and the Family Research Council. The errant cupids behind this most unfortunate match are the "single-issue" ERA advocates who seek to cast themselves as non-partisan champions of equality, such as 4ERA, The Alice Paul Institute's Equal Rights Amendment project, and individual states' ERA campaigns like ERA Florida. (The federal ERA was ratified by only 35 of the requisite 38 states by the congressionally imposed deadline in 1982. Still, some legal scholars and politicians believe that it can be saved by the "three state strategy" and are campaigning in states that have never signed on to the amendment to garner the remaining ratifications.)
According to some single-issue ERA proponents, same-sex marriage lawyers who say that denying equal marriage violates the state ERA are essentially "teaming up" with anti-ERA conservatives. "Our campaign is seeking to add these simple words to our constitution: 'Equality of rights under the law shall not be denied or abridged because of sex,'" 4ERA's Moore says. She and others argue that the word "sex" in the ERA and in many states' anti-discrimination clauses, is meant strictly in the adjectival sense, and that the amendment does not imply that any verb or noun form of sex -- sexual orientation or sexual acts, say -- should be exempt from discrimination. We can ratify the Equal Rights Amendment, the argument implies, and still feel free to keep discriminating against gays.
This line of reasoning, according to Jennifer Pizer, senior council at Lambda Legal, is fundamentally flawed. "The Hawaii Supreme Court accepted that [denying marriage licenses to same-sex couples] is sex discrimination on the face of it," she says. "Sexual orientation is a relational term that incorporates sex into it. An individual person can receive a [marriage] license or not based on their sex."
It's not the first time that feminists bent on pursuing a particular issue have eighty-sixed (or been eighty-sixed by) their philosophical and political allies. Feminists worked tirelessly for the Union during the Civil War, putting aside their own nascent agenda. But at the end of the war, feminists found themselves split against one another and their erstwhile allies, male abolitionists, over the 14th Amendment, which on the one hand promised "equal protection" to all citizens, while on the other introduced the word "male" into the Constitution and established certain legal rights based solely on gender -- namely the right to vote.
Several decades later, suffragists did not take such chances with their agenda, and were all too happy to segregate race issues from gender in their fight for equality.
Likewise, with gay rights, that approach persisted. Although the National Organization for Women now fully embraces gay and lesbian rights as part of its platform, it was not always so. In 1970, lesbian author Rita Mae Brown was expelled from NOW for insisting that more recognition be given to its lesbian members.
Today NOW remains supportive of efforts to pass the ERA, but officially removed the amendment from its platform in 1995. It instead adopted one called the Constitutional Equality Amendment that explicitly includes sexual orientation and reproductive rights.
But the rhetoric of staunchly pro-ERA feminists such as Moore has done as much as Schlafly's fear-mongering to ensure that the once-promising prospect of a federal ERA has foundered. For Moore and other ERA groups to sharply disavow any interest in full equality for all is seen by some as a divisive and disingenuous move. "Lesbians and gay men are in the crosshairs together with feminists immigrants and others because we represent change and diversity," says Pizer. "It's very disappointing to see champions of women's equality failing to understand that we are stronger together than apart, and failing to understand the core equality principals that led to success on feminist issues."
Unfortunately, history is a poor teacher, and it appears that this is a lesson hard learned. Cutting your political allies loose to further your own short-sighted goals is a recipe for disaster -- if not immediately, then by weakening the movement over the long haul. Rifts inevitably develop within it, between those who would call themselves "pragmatists" and those who would call them "hypocrites".
Pro-ERA groups, in their hurry to distance themselves from equal marriage advocates, have alienated not just the gay minority, but feminists who want equality for all.
Keely Savoie is a freelance journalist and science writer. She lives in Brooklyn, NY.
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