THE EQUAL RIGHTS AMENDMENT REVISITED.

• Author: Murphy, Bridget L.

[I]t's humiliating. A new amendment we vote on declaring that I am equal under the law to a man. I am mortified to discover there's reason to believe I wasn't before. I am a citizen of this country. I am not a special subset in need of your protection. I do not have to have my rights handed down to me by a bunch of old, white men. The same [Amendment] Fourteen that protects you, protects me. And I went to law school just to make sure. --Ainsley Hayes, 2001 (1) If I could choose an amendment to add to this constitution, it would be the Equal Rights Amendment.... It means that women are people equal in stature before the law. And that's a fundamental constitutional principle. I think we have achieved that through legislation. But legislation can be repealed. It can be altered.... I would like my granddaughters, when they pick up the Constitution, to see that notion, that women and men are persons of equal stature. I'd like them to see that that is a basic principle of our society. --Ruth Bader Ginsburg, 2014 (2) INTRODUCTION

A woman who has been discriminated against on the basis of her sex has several options for relief. If the discrimination was a result of state action, her attorney might first advise her to bring a claim that the state has failed to provide her "equal protection of the laws" as required by the Fourteenth Amendment to the Constitution. (3) Yet her lawyer might inform her that the Supreme Court did not understand that Amendment to contemplate protection against sex-based discrimination until more than 100 years after its adoption. (4) She might be informed that the focus of that Amendment at the time of adoption was discrimination on the basis of race; state action discriminating on that basis is subject to the most exacting of scrutiny on review. In contrast, her claim will be reviewed through the lens of a lower level of scrutiny, what has been judicially classified as intermediate review. (5) Her attorney might also inform her that at least one prior Justice has argued that intermediate review is too burdensome, and that the lowest standard of review of sex-based discrimination by the hand of the state would be more appropriate. (6)

Somewhat discouraged by this information, the woman might seek alternative channels of relief. Her attorney might propose an option rooted not in the Constitution but in the legislative process--a process representative of all things American: pluralistic debate, democratic disagreement, and efficient resolution. If her claim arose in the context of her employment, she might be advised to bring a claim under Title VII of the Civil Rights Act of 1964. (7) This route seems promising; the legislation was passed by the elected representatives of our nation as part of a great and lasting civil rights bill. Her lawyer might tell her the common story of how the word "sex" was added to the legislation. The Democratic Chairman of the House Rules Committee, Howard Smith of Virginia, proposed the addition in an attempt to delay the vote and retain the reign of Jim Crow laws. (8) Indeed, her lawyer might tell her that the "prank" addition "stimulated several hours of humorous debate, later enshrined as 'Ladies Day in the House.'" (9)

While the woman might decide to follow her attorney's advice and bring both of the above-mentioned claims, the history could, and perhaps should, give her pause. Is a late-in-the-day judicial interpretation of a watered-down post-Reconstruction amendment, and an Act born as a joke rooted in the inherent second-class nature of an entire sex really the best that fifty percent of the nation can hope for? The absence of normative and legal support for the critical notion that men and women are equal can and should be eliminated: the United States should ratify and adopt the Equal Rights Amendment to the United States Constitution.

This Note proceeds in three Parts. Part One chronicles the history of the Equal Rights Amendment, from the original attempt at passage through the various reiterations thereafter. Part Two describes the legal background, including constitutional and legislative protection against discrimination on the basis of sex. Part Three of this Note then demonstrates that a faithful understanding of the existing constitutional and legislative protections reveals inherent weaknesses. Specifically, the original understanding of the Fourteenth Amendment did not contemplate protection from sex-based discrimination, and the word "sex" as a prohibited basis for discrimination in Title VII was added as a last-minute attempt by southern lawmakers to kill the legislation. These sources of law provide a shaky and wholly inadequate foundation for a norm as critical as sex equality. As the makeup of the Supreme Court shifts, judicially engrafted protections are susceptible to attack, and legislation can always be repealed. The solution, therefore, to ensuring equality of the sexes in a thoughtful and long-lasting manner--and in a manner that gives weight to the importance of the principle of equality--is through the passage of the Equal Rights Amendment.

1. HISTORY OF THE EQUAL RIGHTS AMENDMENT

   The first draft of the Equal Rights Amendment was drafted and introduced in Congress in 1923 by suffragist leader Alice Paul. (10) The Amendment as drafted stated that "[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." (11) The Amendment also provided that the "Congress shall have the power to enforce, by appropriate legislation, the provisions of this article," and that the provisions would enter into effect two years "after the date of ratification." (12) The introduction of this text was followed by decades of relative silence in Congress on the matter. But the silence in the halls of Congress stood in sharp contrast to the noise of the feminist movement in the 1960s and 1970s. In 1971, the Supreme Court determined that unequal treatment of women could violate the Equal Protection Clause of the Fourteenth Amendment. (13) Yet this was only an interpretation of what was implicit in the constitutional text by the Burger Court. The case declared that "the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways." (14) The Court's much narrower holding was that the Clause denies states the power "to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute." (15) While this was a powerful holding, it left many advocates wanting a more secure foundation than that provided by judicial interpretation for limits on state ability to discriminate on the basis of sex.

   In a similar vein, legislation such as Title VII of the Civil Rights Act of 1964 includes "sex" as a prohibited ground for discrimination, (16) but legislation is easily repealed. Indeed, two political researchers recently studied the repeal of federal legislation by documenting all available repeal data from 1877 to 2012. (17) The authors argued that "shifts to the left or right in Congress's membership... are an important cause of repeals." (18) Leaving the security of sex equality to the whim of political ebbs and flows is concerning. At least eighty-nine partial or complete repeals of federal legislation occurred between the years of 1877 to 2012. (19) While this is a staggering figure, it fails to reflect the amount of power that Congress may exercise over legislation through alternate avenues that may require less political influence than does a full repeal. Congress could reallocate resources, redirect agency policy, or alter appointments within critical executive agencies in order to fundamentally change the import of legislation. (20) The advocates of the Equal Rights Amendment sought a more secure foundation.

   As a result of these weaknesses, momentum grew in favor of passing an Equal Rights Amendment to the Constitution. Given the judicial and legislative backdrop, reasons to oppose the proposed amendment were arguably shrinking as more and more rights were being solidified for women. (21) In 1972, both houses of Congress were in favor of an amendment reading in pertinent part: "Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex." (22) The Equal Rights Amendment passed with more than the necessary two-thirds votes in both the House and the Senate. (23) This early momentum continued with ratification by over twenty states within months. (24) Then came Phyllis Schlafly.

   Schlafly was an Illinois resident who rose to national prominence as the face against the Equal Rights Amendment. (25) In 1975 she founded the Eagle Forum, a conservative organization committed to advocacy against issues such as communism, abortion, and the Equal Rights Amendment. (26) Schlafly was, by all accounts, a woman of formidable energy. (27) Although a self-described housewife who became representative of the traditional image of wife and mother, she attended and graduated near the top of her class from Washington University Law School in 1978, well before law school classes had the gender balance seen today. (28) When asked about why she became a lawyer, Schlafly promptly joked that she "only went to law school to irritate the feminists." (29) At her wedding ceremony, "she did not promise to obey, only to cherish." (30) Moreover, she enjoyed opening her speeches by thanking her husband for allowing her to be present. (31) In many ways she was representative of the traditional woman, and in many ways she defied that image altogether.

   Schlafly successfully led the revolution against the Equal Rights Amendment as an attack on traditional family values and the privileges of the wife. (32) Among other things, she argued that the Equal Rights Amendment was dangerous for the American family, would...