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Revive ERA

[ 69 ] June 23, 2011 |

I love that Carolyn Maloney and Robert Menendez are reintroducing the Equal Rights Amendment in response to the Supreme Court’s decision in the Wal-Mart case.

I have no idea if ERA could get ratified as a constitutional amendment today, but isn’t it worth a shot? Who today thinks women are not capable of everything men can do and should be treated equally? Obviously, for the Supreme Court this idea isn’t as important as ensuring the corporations can do whatever they want to working people without penalty, but in principle anyway, ERA seems noncontroversial in 2011.

Of course, I’m sure I’m far too optimistic.

Comments (69)

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  1. Malaclypse says:

    Who today thinks women are not capable of everything men can do and should be treated equally?

    You’re making this entirely too easy.

  2. DrDick says:

    I am glad to see the ERA revived, but am considerably less confident that it will go anywhere, given Republican dominance of so many state legislatures. Perhaps it would have a better chance if it were put to a popular vote, though I am skeptical of that as well. On the other hand, it should raise the profile of these issues and hopefully get them back into the popular discourse gain.

  3. Joe says:

    So, in response to a ruling regarding corporate action, an involving state action is reintroduced? The article suggests even these two sorta know this isn’t quite on point. If you are going to do symbolic gestures, at least toss something in involving “public accommodations” or something.

    I think the ERA is not a good idea in this day and age. Women should be treated equally. Thus the value of an Equal Protection Clause. It applies to everyone. Each group shouldn’t have to require an amendment to reinforce the point.

    It is unclear how much different it would be to how the EPC is currently understood. Privacy and other exceptions (the co-ed bathroom issue) would logically be in place. And, any symbolic value again is arguably problematic because it singles out one group.

  4. Uncle Kvetch says:

    I was fairly young at the time but I remember “unisex bathrooms” being one of the most prominent (not to mention bizarre) boogeymen of the anti-ERA campaign. I wonder if they’ll come up with something new or just stick to the tried and true…

    • MAJeff says:

      I expect “gay marriage” would be part of it.

      • cer says:

        Given the number of court rulings that have cited vague notions of gender-appropriate role models as justification for favoring heterosexual marriage I think this is a given. All a part of the dreaded feminization of America where men aren’t manly and women aren’t on their knees.

    • Malaclypse says:

      I was fairly young at the time but I remember “unisex bathrooms” being one of the most prominent (not to mention bizarre) boogeymen of the anti-ERA campaign.

      I remember the same issue. And it seems from the comment above that others do as well. I can’t wait to see how Fox will cover that.

    • Joe says:

      Seemed okay for Ally McBeal. Gays were an issue there too. Oldie but goodie, apparently.

      Honestly, the opposition from certain quarters was a general conservative backlash at the idea of true equality, which would including equality for gays and lesbians as well as things like women in the military and no government assumption women would have traditional roles.

      The latter, for instance, led to a long policy of providing exemptions to mothers but not fathers for jury duty. Many moms liked that sort of thing.

      • Uncle Kvetch says:

        Seemed okay for Ally McBeal.

        It was also OK in the school in France where I did fieldwork — both the students’ and teachers’ facilities were co-ed. I know citing France as a positive example of anything isn’t going to fly with the wingnuts, but still…

    • Davis says:

      I remember ERA-slayer Phyllis Schlafy saying that the military would be forced to provide co-ed barracks.

    • James E. Powell says:

      Schlafly pushed all kinds of buttons in her anti-ERA campaign including that in divorce cases mothers would lose custody and women would get no alimony.

  5. Glenn says:

    Strange response given that it would do absolutely nothing to fix the Wal-Mart decision. And it’s also not clear that passage of the ERA, at least as originally proposed, would really change the Supreme Court’s jurisprudence from what it currently is under the equal protection clause anyway. I guess noble but futile gestures still count for something, but if Maloney wants to do something meaningful, she needs to be working on fixing Title VII and/or FRCP 23.

  6. As a crass political maneuver, making conservatives have to explain their opposition should be a lot of fun.

    The trend in national opinion means they can’t even hide behind opposition to gay rights.

  7. whoah, that’s a trippy flashback kind of thing. The first political march I ever participated in was in support of the original ERA, in Washington.

  8. c u n d gulag says:

    I’m sorry, I’m too lazy today to look this up, but didn’t the Ledbetter legislation cover equal pay, or am I waaaaaaaaaaaaaaaaaaay off base here?
    Which wouldn’t be the 1st time…

    • richard says:

      Title VII covers equal pay. The Ledbetter decision simply overturned the Supreme Court decision regarding interpretation of the statute of limitations for obtaining back pay.

      • c u n d gulag says:

        Thanks. I appreciate it.
        Usually I do my own research, but I slept badly, and it’s a gloomy, rainy, humid day in upstate NY, so I have no energy.

  9. Oscar Leroy says:

    Women should declare themselves corporations–then they would have all the rights of a person.

  10. Stag Party Palin says:

    Women should declare themselves corporations–then they would have all the rights of a person.

    FTW!

  11. richard says:

    Great. An amendment that has nothing at all to do with the Wal-Mart decision and has no chance of getting a 2/3 vote of the Senate or getting out of committee in the House. Brilliant, creative thinking. And outside of this blog and a few others, it will get no media attention.

    • Malaclypse says:

      You are right, it will not clear the House or Senate. And that means that at least 34 Republican Senators, and 144 Republican Congresscritters, will be on record as voting against it. At the margins, it will hurt at least some of them electorally.

      If they can sponsor flag-burning amendments, I don’t see why we should not play the same game.

      • Joe says:

        The last point is of the “two wrongs make a right” school? Also, if it doesn’t get out of committee, all those people need not vote for it. Also, I find this dubious:

        “The Equal Rights Amendment is still needed because the only way for women to achieve permanent equality in the U.S. is to write it into the Constitution,” Maloney said, according to a subsequent press release.

        I thought the 14A (or the 5A/Due Process) did that already. As to the specific matter at hand, as I said above, it doesn’t even “achieve” what it is intended to achieve.

        The Supreme Court has stripped Congress of power over public accommodations in various opinions (e.g., US v. Morrison) including in promotion of sexual equality. If they want to do something symbolic to shame Republicans, they should have put a bit more thought into it.

        • Malaclypse says:

          The last point is of the “two wrongs make a right” school?

          No, it is the “make people who don’t believe women to be fully human go on record” school.

          • Joe says:

            “If they can sponsor flag-burning amendments, I don’t see why we should not play the same game.”

            First, I don’t think opposing the ERA means you don’t think women are “fully human.”

            Second, I inferred the “if” was that both can play some “game,” and since I thought the flag amendment was stupid, I don’t want them to play the “same” game as them.

            • cer says:

              A flag burning amendment is a stupid symbolic limitation on free speech that thus achieves no demonstrable good but does achieve a demonstrable harm. At best the ERA enshrines a principle of equality before the law that has thus far eluded women. At worst it is merely a symbolic gesture demonstrating commitment to gender equality. If you are correct the law already protects women and thus the ERA is meaningless and if you do in fact believe that women are fully human, what is the wrong or the harm in the ERA?

              • Joe says:

                Are women more “human” than other groups without their own amendment?

                The Constitution already protects women. There are certain things it doesn’t protect (or do so totally explicitly, such as “privacy”) if we want to go the amendment route.

                The equality that women need these days is largely against private parties like Wal-Mart. The ERA doesn’t address that. An amendment that bans inequality or gives Congress more power over “public accommodations” would make more sense.

                Singling out one thing in law is inferred to mean others are not protected as much. Singling out women will hurt the claims of other groups.

                • Malaclypse says:

                  The equality that women need these days is largely against private parties like Wal-Mart.

                  Yea, there’s no chance at all of the government involving itself in private medical decisions involving only women.

      • richard says:

        I dont think it will come to a vote in the House, even in committe, so there won’t be ANY congresspresons who have to go on record as opposing it. Even if it comes to a vote in committee, do you have any reason to believe that it will get committee approval to go to the floor of the house? At most, a handful of Republicans in the appropriate committee will vote against it on the record, not 144 Republicans.

        Assuming it goes to a vote in the Senate, a big assumption, I doubt very seriously a no vote will hurt any Senators even at the margins. I’m not aware of any groundswell of support for the ERA.

        • John F says:

          Even if it’s just a political stunt to embarrass Republicans it won’t even achieve that – since it will never get out of Committee- unless the one person who can actually make this a visible issue chooses to do so-

          And I don’t think Obama will (or as my conservative co-workers have taken to calling him, “O’Bambi”) (which is sign that they no longer find him threatening)

  12. James E. Powell says:

    I have never understood why this wasn’t done years ago.

    • David M. Nieporent says:

      Because, as several people explained above, the Supreme Court has already read the essence of the ERA into the 14th amendment, and so the ERA would have no effect.

  13. rm says:

    I think the ERA should be passed, and we should have cradle-to-grave Medicare and a massive stimulus package, and a WWII-like commitment to combat climate change, but none of those things are going to happen, at least not soon.

    If the ERA did go anywhere, yes, they would oppose it, are you crazy? They would use it as an example of why God has removed his protection from His Chosen Nation.

    • BigHank53 says:

      When did we ever enjoy God’s protection?

      • efgoldman says:

        When did we ever enjoy God’s protection?

        Silly Hank! When Saint Ronnie was preznit.
        Everybody knows that.

      • rm says:

        Just ask Jerry Falwell and Pat Robertson and Michelle Bachmann and GW-when-he-was-running-for-office and Haley Barbour and Rick Perry and your average rural white churchgoer. There was once a Golden Age when Murka was Christian and everybody was happy, then the evil liberals, women, and blacks came along and ruined it.

        And it’s naive to expect that they would not fit the ERA into that narrative. I do naively hope, though, that the narrative might lose its appeal sometimes.

  14. richard says:

    Can someone explain this to me? My understanding is that the ERA is routinely introduced (or reintroduced because it once passed both houses of Congress but was not ratified by the states) in EVERY session of Congress and would have already been introduced in this session. Are Maloney and Menendez just chiming in as supporters or claiming that the routine reintroduction has some special significance in light of the Wal-Mart decision (or that somehow this year the routine reintroduction will go farther than it normally goes – which appears to be nowhere)?

  15. richard says:

    The cure for changes in the Wal-Mart decision is to change the federal laws regarding class certification and the standards for proving sexual discrimination (if it is believed that Scalia’s opinion stands for the proposition that statistical evidence cannot be used to prove discrimination-I don’t believe that the decision actually stands for that). That can be done through legislation requiring a majority vote of the two houses of Congress (subject, of course, to a filibuster in the Senate). Since the ERA would require two thirds of both houses plus ratification of 3/4 of the states, it seems a curious fix to propose passage of the ERA (which would adress neither class certification or the use of statistical evidence).

    As far as the publicity value of pushing for ERA passage (as distinct from any effect on Wal-Mart), it seems a very implausible tactic

    • Joe says:

      Scalia suggests at one point that his interpretation is required for due process of law. I wonder — if pressed — if a majority would rest on the constitutional claim. See also, the constitutionalization of punitive damages.

      • richard says:

        My reading is that the Scalia suggestion is just that – a sugeestion and not something that has been decided in this case. It will take another case to raise and decide this issue directly. Scalia may be able to get a majority in a later decision but I don’t think that WalMart establishes that as of now.

  16. Joe says:

    Yea, there’s no chance at all of the government involving itself in private medical decisions involving only women.

    Sure. I’m talking about constitutional amendments here, though, and the Constitution to my mind already protects abortion rights. And, even there, I suggested some “privacy amendment” might be a good idea. OTOH, private discrimination isn’t protected; the USSC even interprets the 14A to give Congress power to block it when the states don’t actually “enforce” equality.

    So, if we want an ERA, we should — instead of just symbolically proposing something already protected in large part by the 14A now — should focus on something that is not. We can you know still embarrass Republicans, if that is desired.

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