The Equal Rights Amendment Could Still Do Some Good
(Bloomberg Opinion) -- Since Virginia voted to ratify the Equal Rights Amendment in January, there’s been lots of speculative talk about the future of the long-stalled constitutional amendment. The House voted Thursday to remove the deadline for ratification (which came and went decades ago), and the technical questions about that deadline are intriguing — the deadline itself has elicited opinions from, among others, the Office of Legal Counsel and Justice Ruth Bader Ginsburg. But more important is an underlying question: Would it make any real-world legal difference if the ERA were enacted today? Or would the consequences be symbolic at most?
The answer turns out to be more complicated than you might think. When the ERA was sent by Congress to the states for ratification in 1972, its passage would certainly have effected immediate change in constitutional doctrine. But in the years since, the Supreme Court has interpreted the Constitution to provide a set of protections against sex-based discrimination that come close to what ERA supporters hoped the amendment would achieve.
Most prominently, in 1976, the Supreme Court adopted the doctrine that when a law treats people differently on the basis of sex, the court would apply what constitutional lawyers call “intermediate scrutiny” to that law. Although intermediate scrutiny has been expressed differently at different times, the basic idea is that the court will ask (1) whether the discriminatory law furthers an important governmental interest and (2) whether it does so by means that are substantially related to that interest. If the law satisfies both of these conditions, it stays on the books. If it doesn’t, the law will be struck down as unconstitutional.
Using these criteria, the justices struck down laws that treated men and women differently on the basis of what the court deemed to be outmoded stereotypes. Ginsburg herself argued and won a number of these cases.
Reva Siegel of Yale Law School, the leading legal historian of the period, has argued convincingly that these Supreme Court decisions must be understood in the light of the feminist social movement’s focus on the ERA. To over-simplify Siegel’s interpretation, pro-ERA activists got most of what they wanted in the courts, even though the ERA didn’t pass.
Does that mean that enacting the ERA today would make little or no legal difference? Not necessarily. There are at least three ways that the ERA’s adoption could have some effect on current constitutional law.
For one thing, if the ERA were passed, the Supreme Court would come under significant pressure to apply a higher, more rigorous standard to laws that discriminate the basis of sex — what constitutional lawyers call “strict scrutiny” rather than the intermediate kind. Under strict scrutiny, the court asks whether the law serves a compelling governmental interest and whether it does so by means that are narrowly tailored to achieving it. This standard is meant to strike down more laws than intermediate scrutiny. In a 1971 decision, four liberal justices voted to apply strict scrutiny to discrimination based on sex; but they lacked the decisive fifth vote, which is how they ultimately ended up with the compromise on intermediate scrutiny.
Moreover, a ratified constitutional amendment prohibiting discrimination “on account of sex” would potentially cast new light on an issue that is currently before the Supreme Court: Whether the statutory prohibition on discrimination “on the basis of sex” found in the Civil Rights Act extends to discrimination against gay people and transgender people. Some justices seem inclined to assess the meaning of the law in the context of its 1964 passage, and to conclude that the drafters at that time could not have meant to extend protection to gay or transgender people. That sort of focus on intent would be more complicated if the issue instead was whether a newly ratified ERA could be read to incorporate these protections. Although it is far from certain that even a newly passed ERA would be read to prohibit homophobic or transphobic laws, the case for doing so would surely be stronger with the ERA than without it.
Last, it’s not implausible that a newly ratified ERA could be used by pro-choice advocates to make a fresh constitutional case for abortion rights. If the current Supreme Court reverses Roe v. Wade — a possibility that must be taken very seriously — then new constitutional arguments will be needed. Some scholars have long argued that it would have been better for the Supreme Court to ground abortion rights in the 14th Amendment’s guarantee of the equal protection of the laws than in the notion of fundamental privacy. The ERA could provide the basis for an updated version of that argument, because anti-abortion laws can be said to target women in particular.
Of course, a Supreme Court prepared to reverse Roe would probably not be very sympathetic to this different pro-choice argument. But it would be available to pro-choice advocates going forward, and might provide a basis for a future Supreme Court to move the pendulum back towards abortion rights.
Constitutional amendments are like planets in the constitutional solar system: they exert gravitational pull over the law. Adding the ERA would be like adding a new planet to the system. In the end, that would probably affect the existing constitutional balance — and for the better.
To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net
To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net
This column does not necessarily reflect the opinion of Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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