The Equal Rights Amendment: then and now.

• Author: Davis, Martha F.

Far from a dead letter, the Equal Rights Amendment (ERA) is currently pending in both houses of Congress. (1) When Senator Edward Kennedy (D-MA) reintroduced the ERA in the Senate on March 27, 2007, he particularly stressed the economic disparities faced by women and the importance of a national effort to address them. (2) Likewise, the principal cosponsor in the House of Representatives, Representative Carolyn Maloney (D-NY)--a proud relation, through marriage, of feminist Alice Paul who drafted the original ERA in 1923 (3)--stated that "[w]omen are underrepresented in government and business, earn less than men, and are nearly twice as poor in old age. It is time to stop stalling and finish what we started 84 years ago." (4)

The data cited by Representative Maloney are well known. Women make up a small fraction of government positions relative to their absolute numbers in the population. As of January 2008, there were sixteen women in the U.S. Senate, seventy women in the U.S. House of Representatives, and seventy-four women holding statewide elective executive offices. (5) These figures include, among others, eight governors, four attorneys general, eleven state treasurers, and one railroad commissioner. (6) Less than one-quarter of state legislators are women. (7) Women also lag behind men in corporate representation, as women held only 14.8% of all Fortune 500 board seats in 2007 and only 15.4% a decrease from 2006--of corporate officer positions. (8) Not surprisingly, the gender wage gap persists. According to the most recent analysis, the median weekly earnings ratio of women's to men's wages was 80.2 in 2007, and the ratio of women's to men's annual earnings was 76.9 in 2005. (9) The Institute for Women's Policy Research observed that the median weekly earnings ratio has "hovered around 80.0 since 2003," the median annual earnings ratio has remained "virtually unchanged from 2001," and "[p]rogress in closing the gender wage gap has slowed considerably since 1990." (10) Finally, the institute also observed that "older men outearn older women almost two to one," and "[o]lder women are almost twice as likely to receive Supplemental Security Income (SSI) government assistance as older men." (11)

The U.S. Supreme Court is yet another institution with considerable power where women are underrepresented. Justice Ruth Bader Ginsburg's lone female voice on the Court is a further testament to the fact that equality efforts, which rely on goodwill and voluntary inclusion rather than legal mandates, have fallen short. (12) Ever a feminist strategist, Justice Ginsburg has used her recent opinions to show just how things might be different if a few more women shared in the power of the Court. (13) For example, in Gonzales v. Carhart, a constitutional challenge to the intact dilation and extraction method of performing late-term abortions, Justice Ginsburg decried Justice Kennedy's paternalism; Kennedy had suggested that because some women might come to regret decisions to terminate their pregnancies, the decision should be taken away from them entirely. (14) According to Justice Ginsburg, the Court's majority opinion reflects "ancient notions about women's place in the family and under the Constitution ... that have long since been discredited." (15) Justice Kennedy's majority opinion, she wrote, "deprives women of the right to make an autonomous choice, even at the expense of their safety." (16) Similarly, in Ledbetter v. Goodyear Tire & Rubber Co., a case upholding a rigid application of a 180-day statute of limitations for filing a wage discrimination claim with the Equal Employment Opportunity Commission under Title VII, Justice Ginsburg's dissent stressed the "real world" factors facing women workers who likely remain unaware as their wages slip further and further below their male colleagues'. (17)

Regardless of how many women sit on the Court, an ERA could make a difference in the approach that both male and female justices take in cases where women suffer discriminatory treatment because of sex. (18) The text of the proposed ERA is simple, with its operative language set out in a single sentence: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." (19) By adding a specific reference to sex equality to the Constitution, the amendment would result in strict scrutiny for governmental policies that discriminate based on sex and lead to a greater consideration of the particular impact of decisions on women even in the private sector. (20) Inclusion of the amendment would also, over time, put women's constitutional rights on a more stable footing. As the National Organization for Women (NOW) President Kim Gandy put it, "[w]ith such an amendment to the Constitution, our fundamental rights and liberties would no longer be subject to the ever-changing political cycles." (21)

However, like all constitutional provisions, much of the ERA's ultimate meaning will depend on the legislative debate leading up to the provision's enactment and on the particular construction it is then given by the executive and the courts. As this Article discusses below, there are some important issues, such as the role of women in combat, which an ERA alone will likely not resolve. Rather than provide a definitive endpoint to these debates, the federal ERA will be part of an iterative process that continues to slowly move national policies away from sex-based inequalities.

It is perhaps because the ERA itself will not resolve sex-based inequality but will simply open the doors to more debate, that its supporters sometimes have difficulty articulating what an ERA will accomplish in the Twenty-First Century. What follows is an effort to assess what the near-term impact of an ERA would be, based on evidence from state ERAs, federal case law, and other sources. This Article's conclusions may disappoint some ERA supporters who cling to more revolutionary visions of what an equality amendment can accomplish. These observations, originally prepared with a conservative audience in mind, may help focus the debate on exactly what is now at stake in this law and why, even taking these lowered expectations into account, conservative objections to the amendment are ultimately unpersuasive.

1. THE ERA THEN: PREDICTIONS ABOUT THE ERA'S IMPACT IN THE 1970S AND '80S

   In 1971, the Yale Law Journal published an important article by Barbara Brown, Thomas Emerson, Gail Falk, and Ann Freedman: The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women. (22) Written while the ERA was being actively debated in Congress, the article set out a framework for legal analysis of sex discrimination under the proposed Constitutional amendment. Far from sitting on a dusty shelf with other academic writings, Equal Rights for Women became a key part of both the Congressional and public ERA debate and was incorporated into the Congressional Record as part of the federal ERA's legislative history. (23)

   Equal Rights for Women began with the premise that discrimination against women in American society is "deep and pervasive." (24) Examining the legal structure sanctioned by the common law and the Constitution, the authors rejected the claim that women's legal equality can be attained through expansive jurisprudence under the Equal Protection Clauses of the Fifth and Fourteenth Amendments or through piecemeal reform. Instead, they concluded that a new federal constitutional amendment, the ERA, was needed. (25) The basic principle of the ERA, they stated, was that "sex is not a permissible factor in determining the legal rights of women, or of men." (26) Focusing on specific applications of the ERA, the article asserted that "[t]his principle, however, does not preclude legislation (or other official action) which regulates, takes into account, or otherwise deals with a physical characteristic unique to one sex." (27) Moreover, the authors went further than current race discrimination jurisprudence, which rejects a disparate impact theory under the Constitution, and argued that strict review of "indirect, covert or unconscious sex discrimination is essential to supplement [this] absolute ban." (28) They rejected separate-but-equal doctrines, but noted that this may be modified by privacy concerns and limited by the ERA requirement of state action. (29) Affirmative action measures, they speculated, would be available in certain narrow remedial circumstances, consistent with absolute scrutiny. (30) Finally, the authors reviewed the specific impacts of these heightened constitutional equality principles in four areas affecting women--protective labor legislation, domestic relations law, criminal law, and the military--concluding in each case that an ERA would have significant effects on the law. (31)

   Equal Rights for Women included a number of clear-eyed predictions of how the ERA would be applied. For example, the authors observed that "[t]he Equal Rights Amendment would bar a state from imposing greater liability for support on a husband than on a wife merely because of his sex," (32) leaving "couples free to allocate privileges and responsibilities between themselves according to their own individual preferences and capacities." (33) In the criminal justice arena, the authors noted that the ERA "would require invalidation of laws specially designed to protect women [but which do not equally protect men] from being forced into prostitution." (34) Likewise, the authors averred that sex discrimination in military registration and assignment, as well as access to the military academies, "will have to be brought into conformity with the [ERA's] basic prohibition of sex discrimination." (35) As discussed in greater detail below, some of these predictions have been confirmed under state ERAs. However, a number of these anticipated effects have not come to fruition, but not because of...