When Justice Antonin Scalia's strange assertion that women are not protected under the 14th Amendment was published in California Lawyer earlier this month, feminist organizations immediately hit on one simple solution: the Equal Rights Amendment. "Nothing less will do," declared Terry O'Neill, president of the National Organization for Women. In a small event on the steps of the Capitol to reintroduce the ERA, Rep. Gwen Moore of Wisconsin warned that "women's rights are at the whim of the Court and will remain that way without the Equal Rights Amendment."
First drafted in 1923 to explicitly prevent legal discrimination on the basis of sex, the ERA came close to ratification in the 1970s, but the process expired when ratification fell short by three states. The ERA was revived again in the 1980s, briefly in the 1990s, and again in 2007. Each attempt was weaker than the last.
Scalia's recent statement sent shivers down feminists' spines, but his interpretation of the 14th Amendment is seriously outdated. Equal protection is no longer the elusive goal it once was, and feminists need not be fooled by his remarks. Women's equal protection has outgrown the need for the ERA; the continuing inequities women face would be far more easily addressed through targeted, legislative action.
"That women are firmly protected under the 14th Amendment is undisputed," says Lenora Lapidus, director of the Women's Rights Project at the American Civil Liberties Union. "Scalia's [ideas] are really out of step with common understanding among lawyers, academics, and the public." That hasn't always been the case. Throughout the 1970s, the Supreme Court established sex as a protected class under the 14th Amendment, with other federal laws complementing the Court's actions: Title VII of the 1964 Civil Rights Act prohibited employment discrimination, Title IX of the 1972 Education Amendments protected against discrimination in schools, and other laws such as the 1978 Pregnancy Discrimination Act strengthened those measures. By 1982, when the deadline Congress set for ERA ratification expired, women's equal protection was the law of the land.
"The 14th Amendment didn't create racial equality; it took over a century," warns Felice Batlan, a professor at the Chicago-Kent School of Law who specializes in women's legal history. "Law is not static. The ERA would have to be interpreted, just as the 14th Amendment was." Moreover, as the University of Pennsylvania Law School's Serena* Mayeri, who has written extensively about the ERA, points out, "its interpretation would still be in the hands of a (fairly conservative) judiciary." The argument against Scalia's "originalist" reading -- that the law is always evolving -- also undermines the premise of a magical ERA with the power to instantly create equality.
The ERA would, however, provide more avenues for pressing women's equality. In theory, the ERA would give women broader powers to challenge laws with a discriminatory effect on women. In legal terms, this would mean applying a "strict scrutiny" standard to such cases, as opposed to the current "intermediate scrutiny." Though not perfect, "for the most part, the standard that the court applies today protects women, and the courts look carefully at gender discrimination," Lapidus says.
However, a number of discrimination issues might still persist, even with ratification of the ERA. Batlan points to requirements that women wear makeup in the workplace as well as to cases concerning breastfeeding and maternity leave that are not currently addressed by the 14th Amendment. Because such discrimination is the result of unjust policies and attitudes rather than explicitly discriminatory laws, the ERA could have a relatively small effect on these more subtle forms of discrimination. "I don't see it as a cure-all," Batlan says. "I see it as a strategy to open up other strategies."
If the first question in weighing an Equal Rights Amendment campaign is assessing the benefits of its success, then the second is assessing its practicality. Passing a constitutional amendment requires ratification in both houses of Congress followed by ratification in 38 states. In 1997, three law students at the University of Richmond constructed the "three-state strategy," arguing that only three more states need to ratify the ERA to complete the 1970s ratification effort.
"It could work legally," says Danielle Stager Zoller, who co-authored the three-state argument as a law student but admits she hasn't stayed on top of the issue since. "Work politically," she adds, "is another ball of wax." John Paul Jones, the law professor who helped guide the project, thinks it's plausible but that more than three states may still have to ratify it.
Passage, if possible, would require enormous mobilization and resources that could be directed toward more issue-specific legislation. With the impact of the ERA on women's equality less sweeping or predictable than activists would lead you to believe, it makes more sense to look for other more practical -- if less politically symbolic -- solutions for ending discrimination against women.
Consider the pay gap. In 2009, women earned 77 cents for every dollar men earned; that number was 62 cents for African American women and 53 cents for Hispanic women. Passing the Paycheck Fairness Act would give women another tool to petition for equal wages under the Equal Pay Act. The PFA died in Congress last November, but it enjoys more than an 80 percent approval rate and should remain a priority for feminists; passage will be an up-hill battle in this Congress, but 2013 will be another story.
Women's economic inequality is also a result of inadequate family-leave policies, which place the responsibility of parenthood on women. The federal Family and Medical Leave Act provides a minimum of 12 weeks unpaid leave to women who qualify, but the FMLA badly needs updating. According to Forbes, the law applies to only about half of American companies.
In the past, the Supreme Court has been loath to interpret violence against women as an equal-protection issue. But in reality, violence inhibits women's equal participation in society. Every 15 seconds, a woman is battered in the United States; every two minutes, a woman is sexually assaulted. The 1994 Violence Against Women Act has gone a long way to improving law-enforcement and criminal-justice procedures as well as funding support programs for victims. But Republicans in Congress are threatening across-the-board spending cuts (President Obama also endorsed a spending freeze in his State of the Union address on Tuesday), which "would be devastating" if they affected these provisions, according to a spokesperson for the National Network to End Domestic Violence; resources for the programs already fall short of growing demand.
The cause of reproductive choice and access to care, which many consider the ultimate women's rights issue, does not directly fall under the purview of equal protection, either. Meanwhile, laws intended to limit abortion access are cropping up across the country. Title X of the 1970 Public Health Service Act, which provides federal funding for family planning, is currently one of the most effective federal policies, preventing almost 2 million unintended pregnancies in 2008. Yet the program hasn't been re-examined in 25 years; a big funding boost would be a nice start. Predictably, Republicans are currently trying to place restrictions on which organizations can receive Title X funding.
The truth is that every year, the ERA is introduced in Congress, with dozens of co-sponsors and the support of dozens of organizations. Yet no significant movement has come of it since the early 1980s. "The history of the ERA repeats itself," says Batlan, with fights over what the ERA would do, because the debate never looks closely at what the ERA would mean, legally, for women. This month's resurgence in activism fits that description. Rather than push for a tough win that will bear disappointing rewards, it might be time to learn from the history of the ERA and then move on without it.