Virginia’s vote to ratify the Equal Rights Amendment (ERA), which aims to end legal distinctions between men and women, is being celebrated by many as a milestone. But as a constitutional law scholar and a liberal supporter of women’s equality, I hope the ERA is ultimately defeated.
The ERA is unnecessary, useless and harmful to women’s equality. It is unnecessary because the ERA would only prohibit sex discrimination by the government, which the Constitution already prohibits against women. It is inconceivable that the U.S. Supreme Court would return to its pre-1970s view that the Constitution does not protect women from government discrimination, just as it is unimaginable that the court would again interpret the Constitution to permit “separate but equal” racial segregation.
The ERA is useless for many reforms that its supporters seek. Because the ERA doesn’t apply to the private sector or in American homes, it would not prevent violence against women, unequal pay or sexual harassment in the workplace, to name a few systemic problems.
The ERA also doesn’t empower Congress to address such issues either, because Congress cannot prohibit private discrimination that is not part of commercial activity. In 2000, the Supreme Court held that Congress cannot prohibit gender-motivated violence because such violence is not economic, and in 2018 a federal court held that a federal law banning female genital mutilation exceeded Congress’ power to regulate interstate commerce. The ERA would not change this.
Nor would the ERA protect pregnancy or abortion rights. The Supreme Court holds that laws regulating pregnancy and abortion are not sex-based under the Constitution, and there is no reason to believe that the court would interpret “sex” any differently under the ERA.
Most importantly, the ERA would harm sex equality by prohibiting government policies designed to improve opportunities for women. The ERA would generally require government to ignore sex or be “sex-blind,” just as the Constitution virtually always requires government to ignore race or be “colorblind.” The court’s colorblind interpretation prohibits government policies designed to improve opportunities for racial minorities. The ERA would likewise invalidate government policies designed to improve opportunities for women, such as affirmative action in employment and higher education in areas where women are underrepresented, including corporate management, business ownership, police and fire departments, the military and STEM fields.
All-female settings would also be in greater jeopardy than under current law, including single-sex schools and educational programs, sports, dormitories, jails and prisons, and possibly locker rooms and restrooms. The ban on government policies to promote sex equality would, moreover, extend to sex-neutral policies if the purpose behind the policy were to support women. For example, legislation requiring paid parental leave, not just maternity leave, would be legally vulnerable under the ERA if that law were intended at all to support women.
The ERA would also undermine, through existing civil rights laws, private companies’ ability to promote sex equality voluntarily. The courts’ cases about race have prohibited business from engaging in race-based affirmative action and from changing policies that have a discriminatory effect against racial minorities. The Supreme Court reasons that such actions violate civil rights laws by discriminating against whites. Courts applying the ERA would likewise prohibit private companies from engaging in affirmative action for women and from changing policies that have a discriminatory effect against women by holding that such actions discriminate against men.
The symbolic value of the ERA is important, but not worth the cost. Formal recognition of sex equality is not worth freezing the status quo of actual sex inequality. In addition, the ERA would legitimize the idea that only explicitly protected groups are entitled to constitutional protection. That would reinforce the position of “originalist” judges that the only groups protected by the Constitution are those originally intended to be protected.
If women need an ERA to be constitutionally equal to men, then the message to the courts would be that other groups — such as people who are mentally or physically disabled, elderly, gay, transgender or impoverished — are not protected until they can get the Constitution amended to explicitly protect them, a political impossibility for such groups.
The ERA still faces legal and political obstacles to enactment because a 1982 ratification deadline has long since passed. We still have an opportunity for a fresh start. Scholars and legislators, including U.S. Rep. Carolyn Maloney, D-N.Y., have proposed alternative amendments that would better promote women’s equality. In the immediate term, we need to defeat the ERA.