Ask state and federal legislators if they believethat legal rights should be extended or withheld on the basis of sex. Most wouldprobably say no, and many of them would be lying. Adoption of the Equal RightsAmendment to the U.S. Constitution remains a feminist fantasy. Its simpledeclaration of fairness--"Equality of rights under the law shall not be denied orabridged by the United States or by any state on account of sex"--cannot wincongressional support. The ERA has been introduced in every session ofCongress since 1985, only to be buried in committee. This year's sponsors areDemocratic Representative Carolyn Maloney of New York and Senator Edward Kennedyof Massachusetts; but don't expect passage anytime soon.
Sometimes it's hard to believe that in the early 1970s the ERA wasactually approved by Congress and sent to the states for ratification. (Aconstitutional amendment must be ratified by three-fourths of the states.)Feminists famously failed to win ratification--they lost by three states--after ahysterical public debate that focused on legal absurdities like mandatory co-edbathrooms. At the time, a majority of Americans professed support for theamendment. But as political scientist Jane Mansbridge observed in her astute bookWhy 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 limited.
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 womensend when they decline to identify as feminists but subscribe to feminism'sgoals. According to a recent survey commissioned by American Demographics, only34 percent of adolescent girls call themselves feminists, but 97 percent believethat 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 awoman does not need a man or children to be successful.
Yet support for female independence doesn't necessarily translateinto activism or demands for an ERA. A 2000 Gallup poll that asked women aboutthe challenges they face in their daily lives found that only 4 percent of themare "most concerned" about equality and discrimination. Gallup reported thatmoney, family, and health are women's top priorities--which is hardly surprising.Some feminists will argue that women would have fewer money, family, and healthproblems 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 menand women are treated equally and 69 percent believe that society treats menbetter than it does women. But when people answer a pollster's questions abouttheir daily struggles, they're not thinking theoretically. Equality is anabstract, long-term goal compared with paying the bills.
Besides, the ERA suffers from the common belief that it is nolonger 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, activesupport for the ERA declines. Young women who believe that they already enjoyequality are not inclined to fight for a constitutional guarantee of it.Meanwhile, conservatives who fought the extension of constitutional equalityrights to women and the passage of statutes prohibiting sex discrimination relyon the past progress toward equality to prevent more progress in the future. Nowthat the 14th Amendment has been applied to sex discrimination, they argue, wehave no need for an ERA.
But in fact, the Supreme Court has not applied 14th Amendment guarantees ofequality with equal force in sex and race cases, because a majority of justiceshave always regarded some instances of sex discrimination as "only natural." TheCourt employs a strict standard of review in race-discrimination cases:Essentially, the state must show that any law discriminating on the basis of raceis a "necessary" means of protecting a compelling state interest. Laws subjectedto this standard are doomed. In sex-discrimination cases, the Court uses anintermediate standard of review: A law discriminating on the basis of sex isstruck down only if it lacks a substantial relationship to an importantgovernment goal. Sexual discrimination sometimes survives this test. Recently, inNguyen 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, theCourt relied on gender stereotypes--notably, the belief that men are less likelythan women to form bonds with their children. A majority of the justices foundthe discrimination against men legal because they considered it natural--aproduct of biology, not prejudice. Justice O'Connor--joined by Justices Souter,Ginsburg, and Breyer--forcefully dissented, pointing out that paternity could beestablished by DNA testing if it was in question and that the sex of a parentcannot be relied upon to predict parental affection or responsibility.
Does a case like this demonstrate a need for the Equal RightsAmendment? Not exactly. The ERA, like other constitutional protections, will meanwhat the Supreme Court says it means. There's no guarantee that judges who clingto sexual stereotypes will apply the ERA more rigorously than they apply 14thAmendment guarantees of sexual equality. They can always find that somediscriminatory laws merely reflect the natural order, which law is presumablypowerless to challenge. The Supreme Court once held that prohibitions on femalelawyers were only natural. Culture had to change before courts could acknowledgethat women had the right to practice "male" professions. But law changed too,particularly with passage of the 1964 Civil Rights Act, which imposed a federalban on sex discrimination in employment. Culture and law work in tandem to reviseour visions of what's possible and fair. By itself, an ERA would not deliver fullequality to women, but it would prompt courts and legislatures to reconsider it.
