Does an Equal Rights Amendment make a difference?

• Author: Hirczy de Mino, Wolfgang P.
• Position: Texas - State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

Because the proposed Equal Rights Amendment (ERA) to the United States Constitution was never ratified, one cannot know what its impact might have been. At the state level, however, the consequences of a constitutional gender equality guarantee can be assessed empirically. This Article employs several analytical approaches to ascertain what difference an ERA has made in the largest state that adopted one in the 1970s, Texas. The record of appellate decisions establishes that the Texas ERA has proven effective as a weapon to fight sex discrimination, and that it has benefited men as well as women.

As interpreted by the Texas Supreme Court, the state's ERA elevated sex to a suspect classification subject to strict judicial scrutiny. Discriminatory laws, subject to the strict scrutiny test, can only pass constitutional muster if they serve compelling state interests that cannot be protected in any other manner. Nor do unique physical characteristics of men or women necessarily bar application of the sex equality guarantee. This standard is much more exacting than that used by the U.S. Supreme Court in its equal protection analysis of gender-based discrimination and has led to the invalidation of statutes that would have withstood attack under federal doctrine.

1. Introduction

   The campaign to amend the U.S. Constitution to provide that "equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex" was defeated in 1982, giving rise to much soul searching as to why the cause was lost.(1) On one level, the quest for equal rights was a matter of fundamental values, an effort to break formally with the separate spheres doctrine, which assigned men and women different roles in public and private realms of social life. Ratification of the ERA was intended to supplant antiquated stereotypes and ideas about the appropriate place of men and women with the principle of equality and individual choice. At the same time, however, the pursuit of the ERA was more than a matter of symbolic politics. It had a pragmatic rationale as well. The ERA was meant to "spark overdue change in laws and in the perspective of public officials,"(2) and to establish a better constitutional basis to fight sex discrimination in the courts than that available under the existing Equal Protection Clause of the U.S. Constitution.(3) In Frontiero v. Richardson,(4) Justice Powell explicitly stated that the Court should not usurp the democratic process by making sex a suspect classification while the states were considering ratification of the ERA.(5) The clear implication was that with the ERA in place the Court would apply the highest level of scrutiny in cases involving complaints of unconstitutional sex-based discrimination. According to Herma Hill Kay, author of a leading casebook on sex discrimination, "the failure to ratify the equal rights amendment in 1982 was not only a crushing symbolic defeat, but also a very real loss of advantage in the courtroom.(6)

   In the course of the ratification debate, the anticipated consequences of the ERA were a major bone of contention. Uncertainty about the ERA's effects was compounded by the controversial nature of some of the claims about the societal changes it would entail. The question of impact (and by extension that of beneficiaries and losers) mattered not only to activists in the campaigns for and against ratification; it is also a key concern of any political analysis and assessment, whether prospective or retrospective. Because the campaign for the national ERA failed, any effects it might have had are mere conjecture. In many states, however, ERAs were successfully adopted in the 1970s. Their impact can thus be assessed retrospectively, based on empirical evidence.

   Texas is the most populous and important ERA state. Having adopted its own version of the constitutional equality guarantee in 1972, this key state allows us to gauge its impact over a time span of more than two decades.(7) With 386 district courts, 14 courts of appeals with a total of 80 justices, and two courts of last resort with 9 justices each, Texas has the largest judicial system of all ERA states.(8) As of 1993, the state had approximately 53,000 licensed attorneys. The annual caseload in district courts was 450,758 civil and 210,968 criminal cases in 1992, of which 10,722 were appealed.(9) These numerical indicators are not inconsequential. The larger the jurisdiction, the greater is the likelihood that relevant controversies will result in court action. Coupled with the availability of more abundant legal, judicial, and scholarly personnel and resources, one would thus expect a higher volume, a wider range of cases, and more extensive efforts to develop case law and doctrine in this area. All of this facilitates the judicial application of the ERA and creates a better opportunity to explore and assess the potential of ERA litigation more generally.

   The focus on Texas in this Article is also warranted because of the surprising nature of the findings, which have implications for other states considering adoption of an ERA, for the federal ERA, and for the significance accorded the MRA as a political goal of the women's movement generally. As will be seen, the findings of this study call for a reevaluation of the conventional wisdom concerning the ERA's meaning and impact.

   Finally, given the Texas judiciary's bold foray onto new legal ground in its interpretation and application of the state ERA, the precedents set in Texas may well affect the judicial methods of analysis and disposition of sex discrimination cases in other states. In the absence of in-state case law authority, many courts and litigators rely on (or at least consider) precedents, theories, approaches, and analytical models developed by courts outside their jurisdiction.(10) This is especially true of novel legal claims and issues arising under state constitutions. Texas may thus assume the role of a leader among the ERA states and a standard-bearer for judicial federalism in regard to sex equality nationwide.

   As long as the prospects for revival and ratification of the federal ERA do not improve and the U.S. Supreme Court does not treat sex discrimination as seriously as discrimination on account of race and other suspect classifications, the evolution of state constitutional jurisprudence in this area of law will continue to be of great importance. Federal constitutional supremacy means that the U.S. Constitution provides a minimum of individual rights that cannot be restricted by the states. State constitutions and courts, however, can give their citizens more extensive individual rights than those required by the U.S. Constitution and can thereby compensate for the absence of a national ERA.

2. The Texas Equal Rights Amendment

   1. Historical Background

      A comprehensive constitutional amendment addressing sex discrimination was first introduced in the Texas legislature in the late 1950s, following a series of failed attempts to reform laws that discriminated on the basis of sex through legislative action.(11) It was drafted by Hermine Tobolowsky, a Dallas attorney and women's rights advocate, and was strongly supported by a coalition of women's groups.(12) The bill was controversial and failed to garner sufficient support in a series of legislative sessions. Eventually, however, the push for the Texas ERA came to fruition in 1971 when both the House and the Senate finally passed it. It was placed on the November 7, 1972 ballot and approved by the voters, as required for constitutional amendments in Texas. The ERA was one of 14 constitutional questions on the ballot in that election. Of the 11 that passed, the ERA won by the largest margin -- 2,156,536 to 548,422.(13) Article I, Section 3a of the Texas Constitution hence provides that "[equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative."(14) In 1973, the Texas legislature also ratified the proposed ERA to the federal constitution.

      In Texas, as throughout the nation, the ERA was regarded as a tool to promote women's equality and to eliminate discriminatory laws that had proven resistant to the women's movements piecemeal efforts to achieve legal and policy change. Texas' experience with its own ERA therefore has implications for states that do not presently have equivalent provisions, as well as for feminists pondering the wisdom of launching another national effort to add an ERA to the U.S. Constitution. Efforts to revive the federal ERA, such as by the ERA Summit -- a consortium of women's rights organizations;(15) the recent ERA campaign in Iowa; the (albeit unsuccessful) attempt to ratify the federal ERA "by stealth," following the example of the 27th Amendment;(16) and the fact that Emily's list and similar political action groups use the ERA (along with abortion) as at litmus test for campaign funding decisions(17) demonstrate that the ERA remains very much alive as a cherished symbol and political goal of the women's movement.

   2. Assessing the EPA's Impact: Data, Method, and Caveats

      This Article examines the judicial disposition of sex discrimination complaints invoking the Texas ERA from 1972 to 1993. Its purpose is to evaluate the effectiveness of the state ERA as a weapon to fight sex discrimination. Since the research is based on the record of appellate decisions of ERA claims, it cannot answer all the questions about the state of sex discrimination and equality in Texas. For a more comprehensive treatment of bias in the legal system relying on different methods and types of evidence, the reader is referred to the recently issued final report of the Gender Bias Task Force of Texas.(18)

      In this Article the terms sex and gender are used interchangeably. This reflects usage in the relevant case opinions, although the use of gender has become more...