Why Do We Need the Equal Rights Amendment?

Most Americans think there is a provision in the Constitution protecting women from discrimination, but that does not exist.

Ironically, we have insisted that other countries, such as Afghanistan, include such a provision.

The Equal Rights Amendment will guarantee equal status under the law and provide bedrock legal protection when women—or men—face sex discrimination.

Equal Protection would cover:

• Lack of equal pay for equal work
• Pregnancy discrimination
• Violence against women
• Other forms of sex discrimination These are widespread, but those facing sex discrimination don’t have effective legal relief.

  • Without the ERA, the Constitution does not explicitly guarantee that the rights it protects are held equally by all citizens without regard to sex. The first — and still the only — right specifically affirmed as equal for women and men is the right to vote.

Uniform Laws, with no Rollback:

State laws are not uniform. and federal laws are not comprehensive.
These laws can be, and often have been, weakened or repealed by a single vote.

  • The ERA would provide a clearer judicial standard for deciding cases of sex discrimination, since federal and state courts (some working with state ERAs, some without) still reflect confusion and inconsistency in dealing with such claims. It would also clarify sex discrimination jurisprudence and conclusively invalidate the claim of the late Supreme Court Justice Antonin Scalia that the Constitution, specifically the 14th Amendment, does not protect against sex discrimination (reported in California Lawyer, January 2011).
  • The ERA would provide a strong legal defense against a rollback of the significant advances in women’s rights that have been achieved since the mid–20th century.

 Reduced Proof of “Intent to Discriminate”

  • The equal protection clause of the Constitution’s 14th Amendment was first applied to sex discrimination only in 1971, and it has never been interpreted to grant equal rights on the basis of sex in the uniform and inclusive way that the ERA would.
  • Without the ERA, women regularly and men occasionally have to fight long, expensive, and difficult legal battles in an effort to prove that their rights are equal to those of the other sex.

Today Women have to prove “intent to discriminate”, a much higher legal standard than the “strict scrutiny” required if we have #ERA equal rights under the constitution.

Equal Standing on the World Stage

  • The ERA would improve the United States’ standing in the world community with respect to human rights. The governing documents of many other countries affirm legal gender equality, however imperfect the global implementation of that ideal may be.

The solution? Put the ERA into the US Constitution.

Guarantee equal rights under the law for all Americans. Amending the US Constitution requires that ¾ of state legislatures ratify the amendment.

Why We need ERA

Why not the 14th Amendment  

“Strict Scrutiny”

The Equal Rights Amendment is needed to affirm constitutionally that the bedrock principles of our democracy — “all men are created equal,” “liberty and justice for all,” “equal justice under law,” “government of the people, by the people, and for the people” — apply equally to women.

 

It was not until as recently as 1971 that the 14th Amendment’s equal protection clause was first applied to sex discrimination. Even today, a major distinction between the sexes is present from the moment of birth — the different legal standing of males and females with respect to how their constitutional rights are obtained. As demonstrated in 1996 by the last major Supreme Court decision on sex discrimination, which dealt with admission of women to Virginia Military Institute (VMI), we have not moved beyond the traditional assumption that males hold rights and females, if treated unequally, must prove that they hold them. The Equal Rights Amendment would remove that differential assumption.

In practice:

The practical effect of this amendment would be seen most clearly in court deliberations on cases of sex discrimination. For the first time, “sex” would be a suspect classification requiring the same high level of “strict scrutiny” and having to meet the same high level of justification — a “necessary” relation to a “compelling” state interest — that the classification of race currently requires.

The VMI decision now tells courts to exercise “skeptical scrutiny” requiring “exceedingly persuasive” justification of differential treatment on the basis of sex, but prohibition of sex discrimination is still not as strongly enforceable as prohibition of race discrimination. Ironically, under current court decisions about sex and race discrimination, a white male claiming race discrimination by a program or action is protected by strict scrutiny, but a black female claiming sex discrimination by the same program or action is protected by only skeptical, not strict, scrutiny.

We need the ERA to clarify the law for the lower courts, whose decisions still reflect confusion and inconsistency about how to deal with sex discrimination claims. If the ERA were in the Constitution, it would in many cases influence the tone of legal reasoning and decisions regarding women’s equal rights, producing over time a cumulative positive effect.