Equal Rights Amendment?

[Puppycow]

Back in the 1970s in America there was a big push to add an equal rights amendment to the constitution. It got close, but ultimately failed to make it across the finish line at the time. The opposition was led anti-feminist Phyllis Schlafly who argued that it would lead to outcomes that were actually harmful to women, such as women becoming subject to military conscription and many other things. Now there seems to be some talk about trying again. Is it really needed though? Would it actually change anything?

The amendment gained momentum in the 1960s and ’70s, culminating with passage in the US Senate and the House of Representatives in 1972, which put it on track to become what would have been the 27th Amendment of the Constitution. It was sent to the states for ratification and put on a seven-year deadline.

Support was, initially, bipartisan and broad. In the first year after the amendment was passed, 22 states ratified it.

But opposition began to organize, led by anti-feminist conservative leader Phyllis Schlafly, who argued the ERA would erase legal differences between men and women and would lead to an America where men wouldn’t be required to support their wives, anyone could walk into any bathroom, women could be drafted, and same-sex marriage would be legalized. Schlafly died in 2016 at the age of 92.

“Since the women are the ones who bear the babies, and there’s nothing we can do about that, our laws and customs then make it the financial obligation of the husband to provide the support,” Schlafly said in 1973. “It is his obligation and his sole obligation. And this is exactly and precisely what we will lose if the Equal Rights Amendment is passed.”

Schlafly’s line of attack caught on, as did others — that the ERA’s passage would expand abortion rights, that it would infringe on states’ rights, that it would be costly to businesses. Indiana became the 35th state to ratify the ERA in 1977. Then its momentum stalled.

I'm kind of skeptical of this idea that since 35 states ratified it back in the 1970s, that if only 3 more states ratify it in the 2010s that it would become effective. The "seven-year deadline" has passed, and some of the states that originally ratified it have since "unratified" it. So it seems that it would require starting the process over from scratch. But it's conceivable that could happen. It almost happened the first time.

A lot has changed for women and men since the 1970s.

• The draft isn't really a thing anymore, so I doubt that argument would be very compelling.
• Schlafly argued that husbands have some kind of financial obligation to support their wives (something not reciprocal according to her original argument: the husband was obliged to support his wife, never the other way around, according to Schlafly). If that was ever true, it certainly isn't true any more. So that reason no longer seems to be relevant.
• Same-sex marriage happened anyway, which now enjoys strong majority support, upwards of 60%. No longer a relevant argument.
• Transgender issues are still possibly relevant. If they start an ERA over from scratch, perhaps it would be helpful to clarify what exactly it means when it comes to transgender people.

The original text states:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

Would that mean by the plain letter of the amendment that you can no longer have separate public restrooms segregated by sex?

Is it necessary or desirable to amend the constitution this way?
Would it be necessary to clarify anything or to change the original wording or add anything more to it?

 

[psionl0]

The original text states:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

Would that mean by the plain letter of the amendment that you can no longer have separate public restrooms segregated by sex?

It could have far more reaching consequences than that. It could outlaw "affirmative action" programs and outlaw provisions by employers such as maternity leave or child care facilities (on the grounds that women are more likely to benefit from them).

And that is just in the work place. The lawyers would have a field day on this one.

 

[crescent]

It could have far more reaching consequences than that. It could outlaw "affirmative action" programs and outlaw provisions by employers such as maternity leave or child care facilities (on the grounds that women are more likely to benefit from them).

And that is just in the work place. The lawyers would have a field day on this one.

Maternity leave does not need to impact the sexes differently. When my kids were born I took paternity leave. Same thing, the option would be available to both parents equally. This would be different from sick leave that might be used to recover from the physical aspects of childbirth and pregnancy.

The same goes for child care facilities. Last time I checked, parents come in both types. So long as fathers exist, there is nothing inherently gender-specific regarding child care facilities other than outdated attitudes.

 

[PhantomWolf]

It could have far more reaching consequences than that. It could outlaw "affirmative action" programs and outlaw provisions by employers such as maternity leave or child care facilities (on the grounds that women are more likely to benefit from them).

And that is just in the work place. The lawyers would have a field day on this one.

In most countries, Parental Leave is able to be taken by either parent, and regardless of who might benefit more, child care facilities can be used by member of any gender if they have a child. As such this amendment would not really do any harm to either thing other then enshrine the rights of both parents to have access to them, which they should or do already have.

Ninja'ed by Crescent....

 

[Ranb]

I got leave when my wife delivered; it was never a big deal.

Ranb

 

[crescent]

It could have far more reaching consequences than that. It could outlaw "affirmative action" programs and outlaw provisions by employers such as maternity leave or child care facilities (on the grounds that women are more likely to benefit from them).

And that is just in the work place. The lawyers would have a field day on this one.

This reminds me of the hyperbole I heard when the American Disability Act was first passed.

I was working for the National Park Service at the time, and many employees were certain, very certain, that every hiking trail would need to be made fully wheelchair accessible, and trails which could not be converted would need to be closed. No hiking allowed in any place ordinary wheelchairs could not get to.

It didn't happen that way, I don't think anything overly drastic would happen with this either.

 

[psionl0]

I got leave when my wife delivered; it was never a big deal.

Not prior to ERA. But if the amendment was ratified then it might (or might not) lead to a lot of court cases and if that happens, the statistics used will have a much bigger sample size than one.

 

[Loss Leader]

As a lawyer, I see no reason not to pass the Amendment. Is it necessary? I don't know. Courts have pretty much read it into the 14th Amendment anyway. But courts can and do change. Adding the Amendment would make it inviolable, of which I approve.

 

[PhantomWolf]

Not prior to ERA. But if the amendment was ratified then it might (or might not) lead to a lot of court cases and if that happens, the statistics used will have a much bigger sample size than one.

In the U.S. parents and family are federally protected under The Family and Medical Leave Act of 1993 (FMLA) to go on maternity or family leave after the adoption or birth of a child. Under this law, legal parents are protected for up to 12 weeks of unpaid leave (per year). The FMLA ensures the job security of parents/employees but does not protect employees who go on paid leave with their employers. Receiving the correct payment from being on leave is between the firm and the employee. However, some state laws that do protect and guarantee employees for paid family leave (see State Legislation section). Additionally, the FMLA defines “parents” as biological, adoptive, step or foster parent who stood in loco parentis or “in the place of a parent”.

Care to explain how the ERA would change any of this?

 

[Puppycow]

It could have far more reaching consequences than that. It could outlaw "affirmative action" programs and outlaw provisions by employers such as maternity leave or child care facilities (on the grounds that women are more likely to benefit from them).

And that is just in the work place. The lawyers would have a field day on this one.

It could conceivably outlaw any sex-based affirmative action.

As for maternity leave, just call it parental leave and allow any parent of either sex to take it. Problem solved.

As for child care facilities, whether women are more likely to benefit from them is irrelevant. As long as both men and women are equally allowed to use the facilities, it's not discriminatory. If more women than men actually take advantage of it, it's still not discriminatory in my opinion. If an employer offered free tickets to sports events to employees, more men than women might take advantage of it, but as long as anyone has an equal opportunity to use the benefit, I don't see an inherent problem.

 

[psionl0]

As for child care facilities, whether women are more likely to benefit from them is irrelevant. As long as both men and women are equally allowed to use the facilities, it's not discriminatory. If more women than men actually take advantage of it, it's still not discriminatory in my opinion. If an employer offered free tickets to sports events to employees, more men than women might take advantage of it, but as long as anyone has an equal opportunity to use the benefit, I don't see an inherent problem.

It is questions like these that will have the lawyers raking in money for a long time to come.

The argument has been made in the past that a level playing field discriminates against women. This argument and the counter argument could be raised many times before the whole thing is played out.

 

[Puppycow]

Well of course anyone can make any harebrained argument they want, but I don't think a sensible court would accept that argument.

 

[psionl0]

Well of course anyone can make any harebrained argument they want, but I don't think a sensible court would accept that argument.

What is a "sensible" court?

 

[Puppycow]

What is a "sensible" court?

I'm at a bit of a loss here. Is that word not in your vocabulary? I really don't feel like having one of those back-and-forths over something silly.

I'll try to restate my position in other words:

I don't think an argument based on "one sex benefits from policy X more than the other" would hold water. And I wish people wouldn't see every possible benefit as a zero-sum thing. Why oppose a policy that helps women but doesn't exclude men just because you aren't a woman? If someone else gets something nice but I am unaffected: neither harmed nor benefited, why should I oppose that simply because I am not the person benefiting directly? Maybe we can all have something nice eventually if we don't see every thing as zero sum?

 

[d4m10n]

Is it necessary or desirable to amend the constitution this way?

Unless we can come up with a couple salient examples wherein women are currently and systemically being denied or abridged "[e]quality of rights under the law" in either state law or the United States Code, then I'd be inclined to say this is a solution in search of a problem to solve.

ETA: To the best of my recollection, the only "privilege" given solely to men under federal law is the requirement to sign up for Selective Service, but even that may soon be overtaken by events.

 

[Jungle Jim]

Unless we can come up with a couple salient examples wherein women are currently and systemically being denied or abridged "[e]quality of rights under the law" in either state law or the United States Code, then I'd be inclined to say this is a solution in search of a problem to solve.

ETA: To the best of my recollection, the only "privilege" given solely to men under federal law is the requirement to sign up for Selective Service, but even that may soon be overtaken by events.

The Equal Rights Amendment (ERA) is a proposed amendment to the United States Constitution designed to guarantee equal legal rights for all American citizens regardless of sex. It seeks to end the legal distinctions between men and women in terms of divorce, property, employment, and other matters. - https://en.wikipedia.org/wiki/Equal_Rights_Amendment

 

[d4m10n]

Which "legal distinctions between men and women in terms of divorce, property, employment, and other matters" are still enforceable in 2019?

 

[ponderingturtle]

Which "legal distinctions between men and women in terms of divorce, property, employment, and other matters" are still enforceable in 2019?

Which are constitutionally protected vs being protected by mere federal law?

 

[d4m10n]

Which are constitutionally protected vs being protected by mere federal law?

Even one example where federal or state law formally distinguishes between men and women would be worth talking about, if it hasn't yet been rendered unenforceable by the courts.

 

[ponderingturtle]

Even one example where federal or state law formally distinguishes between men and women would be worth talking about, if it hasn't yet been rendered unenforceable by the courts.

The point isn't that such laws exist, it is that such laws are constitutional, especially under strict orrigionalist interpretations of the 14th amendment.

And which were overturned as unconstitutional vs violating federal law?

You can certainly say it is redundant with the 14th amendment but of course interpretations of the 14th have changed over time, and can certainly change back.