Washington's Equal Rights Amendment: it Says What it Means and it Means What it Says

• Jurisdiction: Washington,United States
• Citation: Vol. 8 No. 02
• Publication year: 1984

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 2WINTER 1985

COMMENT

Washington's Equal Rights Amendment: It Says What It Means and It Means What It Says

I. Introduction

More than twelve years ago the voters of Washington State approved the addition of article XXXI to the Washington State Constitution.(fn1) Article XXXI, most commonly known as the Equal Rights Amendment (ERA), provides that legal rights and responsibilities shall not be denied or abridged on account of sex.(fn2) In the twelve years since its adoption, few cases have turned on an interpretation of the ERA.(fn3) The existence of the ERA, however, has strengthened Washington laws(fn4) that protect persons from sex discrimination.

The drive for state equal rights amendments began in the 1960s, as legal and political activists started discussing the need for changes in the nation's legal structure that would guarantee equality for all persons.(fn5) The United States Supreme Court was not viewed as the forum in which sexual equality would be achieved. Historically, the United States Supreme Court's application of the equal protection clause(fn6) to sex discrimination claims has been characterized by a strong belief in women's "separate place"(fn7) and by casual review of state legislative classifications based on stereotypical views of women.(fn8) Consequently, the equal protection clause has not always prohibited sex discrimination.(fn9) Unable to fight sex discrimination adequately under the federal Constitution, advocates of women's rights sought revision of existing discriminatory statutes.(fn10) Such efforts proved frustrating, however, because of the difficulty of mobilizing the national and state political machinery.(fn11)

Proponents of equal rights thus turned to a third approach for creating a system of sexual equality: passage of a constitutional equal rights amendment at the federal or state level or both.(fn12) At both levels of government, proponents and opponents of constitutional amendments have debated the merits of an ERA.(fn13) The fundamental debate over the issue has focused on how the courts would and should interpret an equal rights provision.(fn14)

The state courts have dealt with equal rights provisions in a variety of ways. These general approaches can be categorized as follows: (1) avoid the constitutional question; (2) find that any rational relationship between the classification and the legislative goal satisfies the constitutional guarantee; (3) apply the suspect class/strict scrutiny standard used by the United States Supreme Court to review racial classifications; and (4) apply an absolute standard by which all sex-based classifications are prohibited.(fn15)

The Pennsylvania Supreme Court is the only state court that has adopted an absolute standard of review.(fn16) When the Washington Supreme Court first applied the ERA, it held that the ERA prohibited all sex discrimination.(fn17) Since then, however, the court has eroded this absolute prohibition by allowing sex-based classifications intended to promote equal treatment of the sexes.(fn18) The court thus has modified an absolute prohibition of all sex-based classifications into one that merely prohibits harmful discrimination based on sex. The Washington Supreme Court should follow the Pennsylvania court's example by adhering to the absolute standard and the electoral mandate. Only then will article XXXI have its intended force and meaning.

This Comment begins with a discussion of the ERA's legislative history and the legislature's attempt to bring state statutes into compliance with the ERA upon its passage. Next, judicial interpretations of the new constitutional guarantee are compared to the interpretation of the Washington Constitution's privileges and immunities clause.(fn19) Finally, the Comment compares Washington's standard of review with a similar standard used by the Pennsylvania Supreme Court and argues that the Washington Supreme Court should adopt the absolute standard applied by the Pennsylvania courts.

II. Legislative Background of Washington's ERA

Representative Lois North introduced a constitutional amendment(fn20) into the Washington State House of Representatives on January 11, 1972.(fn21) The proposed amendment simply provided that equality of rights and responsibilities could not be denied or taken away from anyone because of his or her sex.(fn22) The resolution embodying the amendment also stated that at the next general election Washington voters would decide whether equal rights should be constitutionally guaranteed.(fn23) The proponents of the ballot measure(fn24) believed that the ERA would require equal treatment of the sexes under the law; the state could no longer pass laws conferring benefits or placing obligations on one sex and not on the other.(fn25) Supporters of the ERA assured Washington voters that discriminatory education requirements would become illegal, that the ERA would not require unisex restrooms, and that the ERA would not disrupt family life.(fn26)

Opponents of the ERA(fn27) agreed that women should have equal employment opportunity, should be paid equally for equal work, and should receive equal credit consideration.(fn28) They argued, however, that the ERA would result in unintended societal consequences such as elimination of preferential insurance rates, integrated high school athletic teams, homosexual marriages, elimination of divorce, welfare, and child custody preferences for women, and mandatory combat duty for military women.(fn29)

The differences in viewpoints expressed by the proponents and opponents of the Washington ERA reflect the widespread and fundamental debate over how equal rights provisions should be interpreted.(fn30) Advocates in the Washington Legislature wanted the courts to interpret the ERA subjectively.(fn31) Under such interpretation, the ERA would permit differentiation between the sexes based upon unique physical characteristics(fn32) and would also permit laws protecting an individual's constitutional right to privacy.(fn33) The ERA's opponents, on the other hand, believed that the courts could only interpret the ERA objectively.(fn34) Under this theory of constitutional interpretation, the courts would construe all sex-based classifications as unconstitutional.(fn35)

An absolute standard of judicial review embraces both of these theories of interpretation. Even though the absolute standard prohibits all sex-based classifications, the standard must be applied in a manner consistent with other constitutional rights, including an individual's right to privacy.(fn36) Additionally, classifications based on the unique physical characteristics of one sex are not discriminatory as long as the characteristics are found in all members of one sex and in no members of the other sex.(fn37)

The Washington electorate narrowly adopted the new constitutional amendment.(fn38) Acting upon this rather weak mandate, the state legislature amended existing laws so that all statutory language was sex neutral.(fn39) However, the rules of construction(fn40) already explicitly stated that "words importing the masculine gender may be extended to females also."(fn41) Passage of the act, therefore, was unnecessary.(fn42) The legislature wanted to show Washington citizens that it was serious about protecting equal rights for women, but its attempt was of little real consequence.(fn43)

The implementation of the amending act was equally ineffective. The act(fn44) amended statutes dealing with domestic relations, criminal definitions (such as rape and prostitution), marriage, employment, and pension benefits. Unfortunately, the revisions merely changed words; they did not address the underlying policies or assumptions of the laws.(fn45) In some instances the sex-neutral language did not necessarily result in equal rights for women because implicit sex-role assumptions were retained from the original legislation.(fn46) In domestic relations, in particular, the language changes had little impact on statutory purpose and effect.(fn47) The man continued to be regarded as the family's primary breadwinner and the person responsible for his wife's and children's financial support.(fn48) The woman continued to be considered the family's primary caretaker and homemaker, regardless of the family's actual needs and support.(fn49)

The legislature attempted in good faith to right these wrongs, but the attempt fell far short of addressing the problem that the ERA was adopted to solve. Since this first attempt, however, the legislature has revised existing laws and has passed new laws that strongly protect sexual equality.(fn50) The ERA expressly states that laws cannot discriminate on the basis of sex. A statute containing sex-neutral language, however, does not end discrimination. The ERA requires that all discriminatory purposes and effects be abolished.

III. The Effect of the ERA on State Equal Protection Analysis

The legislature's immediate attempt to conform state statutes to the ERA did little to achieve true sexual equality. Soon after passage of the ERA, however, the Washington Supreme Court applied a strict standard to sex-based classifications(fn51) by using the state's privileges and immunities clause.(fn52) By applying such a standard, the court took a large step toward promoting the sexual equality that the ERA was designed to achieve.

...