Equal Rights Amendment?

[ahhell]

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.

Having done some engineering for the National Parks, some of their employees still seem to be under that impression.

 

[d4m10n]

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

We would need to look at an existing law (or at least the language of a bill) before we could attempt to judge whether it is constitutional or not.

Consider United States v. Virginia^WP (518 U.S. 515) for example. In that case, only Justice Scalia was willing to say that sex-based exclusion is acceptable in the context of state supported military training, the rest were persuaded that the equal protection clause forbade such a system.

Would the ERA have led to the same result? Probably, though perhaps it would've brought even Scalia over to the majority.

At any rate, I've yet to see an example (even a hypothetical example) of a law that needs to be struck down but which would likely withstand a 14th Amendment challenge.

 

[acbytesla]

Having done some engineering for the National Parks, some of their employees still seem to be under that impression.

Sure they do.


I do one hell of a lot of hiking in State and National parks and I don't know any employees who think that.

 

[ahhell]

Sure they do.


I do one hell of a lot of hiking in State and National parks and I don't know any employees who think that.

It was a joke,

Based in part on reality because I have had to design accessible facilities in some pretty absurd locations in the national parks. Literally, a handicap accessible toilet for where the materials needed to be flown in or carried on donkey. To be fair, it never got built because someone realized how silly it was.

Also, a wheel chair lift for a building that was not itself accessible and only meant for use by the park rangers. I'm not sure if that got built.

 

[acbytesla]

It was a joke,

Based in part on reality because I have had to design accessible facilities in some pretty absurd locations in the national parks. Literally, a handicap accessible toilet for where the materials needed to be flown in or carried on donkey. To be fair, it never got built because someone realized how silly it was.

Also, a wheel chair lift for a building that was not itself accessible and only meant for use by the park rangers. I'm not sure if that got built.

Sure.

 

[Belz...]

It was a joke,

Based in part on reality

Schrödinger's joke!

 

[Pope130]

It was a joke,

Based in part on reality because I have had to design accessible facilities in some pretty absurd locations in the national parks. Literally, a handicap accessible toilet for where the materials needed to be flown in or carried on donkey. To be fair, it never got built because someone realized how silly it was.

Also, a wheel chair lift for a building that was not itself accessible and only meant for use by the park rangers. I'm not sure if that got built.

What people thought the ADA required initially had this effect. The requirement for handicapped parking spaces at government buildings had an odd effect in the Air Force. The number of spaces specified was based on the number of employees, and customers the building served. Our Aircrew Life Support building, where our helmets, oxygen masks and so forth were cared for, served about four hundred flyers, and flight qualled support personnel. On that basis it had it's parking lot rearranged with most of the first two rows handicapped spots (the rest were VIP or Alert Crew). There are no handicapped active duty flyers. Later they got a reinterpretation of the requirement and fixed the parking.

 

[Dr. Keith]

We would need to look at an existing law (or at least the language of a bill) before we could attempt to judge whether it is constitutional or not.

Consider United States v. Virginia^WP (518 U.S. 515) for example. In that case, only Justice Scalia was willing to say that sex-based exclusion is acceptable in the context of state supported military training, the rest were persuaded that the equal protection clause forbade such a system.

Would the ERA have led to the same result? Probably, though perhaps it would've brought even Scalia over to the majority.

At any rate, I've yet to see an example (even a hypothetical example) of a law that needs to be struck down but which would likely withstand a 14th Amendment challenge.

The point being that courts change. While the majority of the current court is happy to apply the 14th to cover most things that would be covered by an ERA, later courts may not feel so bound. As evidenced by Scalia's dissent.

 

[ahhell]

Sure.

So believe I am a liar. Fair enough, I guess. I haven't got any evidence I'm willing to give you. I'm sure your experience as a hiker provides more incite into how the national parks facilities are designed and construction than my experience as a design engineer working for the national parks.

What people thought the ADA required initially had this effect. The requirement for handicapped parking spaces at government buildings had an odd effect in the Air Force. The number of spaces specified was based on the number of employees, and customers the building served. Our Aircrew Life Support building, where our helmets, oxygen masks and so forth were cared for, served about four hundred flyers, and flight qualled support personnel. On that basis it had it's parking lot rearranged with most of the first two rows handicapped spots (the rest were VIP or Alert Crew). There are no handicapped active duty flyers. Later they got a reinterpretation of the requirement and fixed the parking.

There were similar things in the Navy, most of the piers my ship tied up to had handicap spots. For an aircraft carrier this would mean the infirm could park next to the two stories of stair and 30 or so feet of gang plank made mostly of tripping hazards or I suppose use a crane.

@belz, its a joke mostly because in 10 or so years of doing projects with the National Parks, I dealt with that maybe 3 times, so they aren't really indicative of how the parks as a whole operate, just a few west coast parks. A more common failing was assuming that if something is old it most be valuable. Lots of designs trying to save old New Deal era out houses and what not. There was also one project that my boss was involved with. After the maintenance manager of a park retired it was discovered that he'd built a building with the surplus budget. He kind of knew what he was doing in terms of construction but not so much in terms of design. The task my boss an our architects had was in figuring out how to bring the thing into compliance with the building code. I also don't know what happened with that building either.

 

[d4m10n]

The point being that courts change. While the majority of the current court is happy to apply the 14th to cover most things that would be covered by an ERA, later courts may not feel so bound. As evidenced by Scalia's dissent.

Fair point, but do we have any reason to believe the Roberts court is looking to cut back existing jurisprudence on sexual equality? I know they are further right than their predecessors on many issues (e.g. corporate rights) but have we seen any indication that they want to lower the bar from intermediate scrutiny to something more like rational basis when it comes to systematically discriminating based on sex?

 

[Babbylonian]

Fair point, but do we have any reason to believe the Roberts court is looking to cut back existing jurisprudence on sexual equality? I know they are further right than their predecessors on many issues (e.g. corporate rights) but have we seen any indication that they want to lower the bar from intermediate scrutiny to something more like rational basis when it comes to systematically discriminating based on sex?

You say "fair point" then ask questions that completely disregard that point.

The point being that courts change. While the majority of the current court is happy to apply the 14th to cover most things that would be covered by an ERA, later courts may not feel so bound. As evidenced by Scalia's dissent.

Only a fool would suggest a constitutional amendment as a solution that is only intended to deal with a problem that will go away by itself (e.g., the current configuration of the US Supreme Court). The purpose of the amendment is to prevent mis- or re-interpretation of the Constitution in a way that limits the rights of women (or men), forever or until very bad people take control of the government and eliminate the amendment. As a bonus, the ERA should also protect the rights of transgender people.

That said, it won't pass anytime in the near-future precisely because too many people claim it's not necessary.

 

[d4m10n]

The purpose of the amendment is to prevent mis- or re-interpretation of the Constitution in a way that limits the rights of women...

What proposed laws (or dead letter laws) are currently threatening the rights of women but would clearly be unconstitutional (to folks like Scalia and Thomas, because courts change) under the ERA as proposed in the OP? Can you demonstrate the ERA would solve even one legal problem here in the United States? If not, I just don't see why we should pour loads of activist energy into this project, given that we've a few other fairly pressing issues currently on our plates (e.g. abolishing the electoral college in favor of one person, one vote).

 

[Babbylonian]

What proposed laws (or dead letter laws) are currently threatening the rights of women but would clearly be unconstitutional (to folks like Scalia and Thomas, because courts change) under the ERA as proposed in the OP? Can you demonstrate the ERA would solve even one legal problem here in the United States? If not, I just don't see why we should pour loads of activist energy into this project, given that we've a few other fairly pressing issues currently on our plates (e.g. abolishing the electoral college in favor of one person, one vote).

Here's a better question for you: Why should such an obviously benign amendment require "loads of activist energy?"

 

[Dr. Keith]

Fair point, but do we have any reason to believe the Roberts court is looking to cut back existing jurisprudence on sexual equality? I know they are further right than their predecessors on many issues (e.g. corporate rights) but have we seen any indication that they want to lower the bar from intermediate scrutiny to something more like rational basis when it comes to systematically discriminating based on sex?

I'm not worried about the Roberts Court. I don't think these fundamental rights should be left up to the discretion of any court. They should be concrete, not subject to the whims of even an august body such as the Supreme Court. Recent history shows that revered institutions sometimes fall on rough times.

 

[ponderingturtle]

What proposed laws (or dead letter laws) are currently threatening the rights of women but would clearly be unconstitutional (to folks like Scalia and Thomas, because courts change) under the ERA as proposed in the OP? Can you demonstrate the ERA would solve even one legal problem here in the United States? If not, I just don't see why we should pour loads of activist energy into this project, given that we've a few other fairly pressing issues currently on our plates (e.g. abolishing the electoral college in favor of one person, one vote).

We really should have told all those foolish suffragettes that they didn't need a constitutional amendment to vote they already had their voting rights in the 14 amendment, hence the 19th amendment was totally redundant and pointless.

 

[d4m10n]

We really should have told all those foolish suffragettes that they didn't need a constitutional amendment to vote they already had their voting rights in the 14 amendment, hence the 19th amendment was totally redundant and pointless.

This is obviously disanalogous to our present situation, since the suffragettes did not already enjoy equal treatment under law.

Here's a better question for you: Why should such an obviously benign amendment require "loads of activist energy?"

I'm just going off last time around, when conservatives found (or fabricated) several things to moral panic about.

I'm not worried about the Roberts Court. I don't think these fundamental rights should be left up to the discretion of any court.

In that case, you're bound to be troubled by the vague and open-ended wording of the ERA, which is going to require plenty of judicial interpretation in specific cases—probably even more than Title IX has.

 

[ponderingturtle]

This is obviously disanalogous to our present situation, since the suffragettes did not already enjoy equal treatment under law.

But they were entitled to it by the constitution as it was already written at the time. Clearly they just needed the right court case and not any mess around with amendments.

 

[Dr. Keith]

In that case, you're bound to be troubled by the vague and open-ended wording of the ERA, which is going to require plenty of judicial interpretation in specific cases—probably even more than Title IX has.

It is far more clear than the 14th is on this issue. Baby steps.

 

[Minoosh]

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.

I've always thought the draft laws were blatantly discriminatory against men, and was not impressed at a 1982-ish opinion written by Bill Rehnquist saying it wasn't. At the least I thought women should have to register just like men.

 

[mumblethrax]

It might raise the level of scrutiny applied to sex/gender discrimination.

Beyond that, I don't know.

I'm in favor simply because this seems like the sort of thing that ought to be constitutionalized.