Equal Rights Amendment?

[d4m10n]

But they were entitled to it by the constitution as it was already written at the time.

If you want to make a textual argument that the 14th Amendment, as written, should be interpreted to include protected classes other than race, have at it, but let's not pretend the suffragettes could have gotten that argument through SCOTUS in the early 20th century.

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

Fair enough. It would be clearer, but the judiciary is still going to have to do a fair bit of interpretive work so as to allow for sex-segregated restrooms, prisons, sports leagues, etc.

Baby steps.

The last time we successfully passed a Constitutional amendment, it took over 200 years.

 

[PhantomWolf]

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.

Apart from the fact that it was a consequence of laws preventing women from serving in the armed forces.

 

[psionl0]

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?

But that is just your opinion. It's the opinions of the judges that count and that is often a wild card. They may be persuaded to see things your way or they may not.

If a "sensible" court is one that rules purely on legal grounds then the Supreme Court hardly counts. The aim of both sides of congress is to stack the SC with judges who's opinions coincide with their own.

 

[psionl0]

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.

The same thing could happen with an ERA. It could be interpreted away in the same way that the right to be secure in your possessions has been.

 

[Puppycow]

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 think we may be down to one more liberal justice on the Supreme Court being replaced with another Scalia before all bets are off essentially. Then even Roberts is no longer a potential swing vote. There would only be three liberal justices left so you would need two conservatives to break ranks on any given question.

 

[d4m10n]

There would only be three liberal justices left so you would need two conservatives to break ranks on any given question.

You're not wrong, but I'm still not seeing a load of social utility in passing an Amendment which would protect against things legislatures and courts are not yet trying to do.

Oh and as to the highlighted bit, it would probably be clarifying to talk about a specific case or controversy, whether hypothetical or historical.

 

[dudalb]

I think we may be down to one more liberal justice on the Supreme Court being replaced with another Scalia before all bets are off essentially. Then even Roberts is no longer a potential swing vote. There would only be three liberal justices left so you would need two conservatives to break ranks on any given question.

Which might lead, if the Dems get back the Senate, to an attempt to pack the court.

 

[Trebuchet]

Which might lead, if the Dems get back the Senate, to an attempt to pack the court.

How? Increasing the number of justices? FDR tried that. It did not go well. Impeach a couple on the grounds they were appointed by Trump? Equally unlikely.
A new Dem President will probably be able to nominate a replacement for RBG, but unless they have a solid majority in the Senate Mitchy will just hold to long-established precedent and refuse to bring them up to a vote.

 

[PhantomWolf]

Impeach a couple on the grounds they were appointed by Trump?

Could Impeach Kavanaugh for lying to the Senate, but that's about it.

 

[Stacyhs]

Could Impeach Kavanaugh for lying to the Senate, but that's about it.

In order to successfully convict in the Senate, the Dems would need a 2/3rds majority which is highly unlikely.

 

[Loss Leader]

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

Nope. There is no distinction any more.

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

I think you have that backwards. The laws are constitutional, except under a strict originalist interpretation of the 14th Amendment.

The men who passed the 14th Amendment would largely have had strokes if they knew women were voting and fighting in the military and getting divorced without fear of impoverishment.

Fair point, but do we have any reason to believe the Roberts court is looking to cut back existing jurisprudence on sexual equality?

I think a conservative court would be much harder to convince that women had a right to have their insurance pay for family planning - be it prophylaxis, Plan B, medical abortion, or abortion procedures. They probably wouldn't be convinced that imprisoned women have a right to free sanitary pads or tampons. Those are battles being fought right now that conservative courts have already turned away.

How? Increasing the number of justices? FDR tried that. It did not go well.

On the contrary, it went perfectly. After the threat, the Supreme Court suddenly had a change of heart and upended their previous rulings against unions, workers' rights, the new deal, and monopolies (trusts). It is called the "switch in time that saved nine."

It wasn't a popular proposal among voters, but it only had to sway nine people. And it worked.

 

[Minoosh]

Apart from the fact that it was a consequence of laws preventing women from serving in the armed forces.

I didn't read the whole opinion. I told my dad I would like to read it and he said, "No you wouldn't." His way of saying that if I though SC opinions would be some kind of distillation of principled legal thought, I'd be disappointed, and I believed him.

What I do recall reading went something like this: The draft existed to optimize military readiness and that the mechanics of integrating women into the draft would detract from the prime goal. It was a practical argument. But I read a summary, not the actual reams of verbiage.

What I didn't think fair was that one gender was commanded to register and be subject to a quite real threat of death while the other gender was let entirely off the hook. At least if women had to register, that was one small step to equal protection, even if the armed services could then choose what they saw as the most battle-ready potential soldiers. My point was not really well thought out but IMO neither was Rehnquist's. As someone here has as their sig, justices often cite plausible legal principles to justify their own initial gut reactions. IIRC the justices didn't even do that much.

 

[Minoosh]

l thing a conservative court would be much harder to convince that women had a right to have their insurance pay for family planning - be it prophylaxis, Plan B, medical abortion, or abortion procedures. They probably wouldn't be convinced that imprisoned women have a right to free sanitary pads or tampons. Those are battles being fought right now that conservative courts have already turned away.

I only went to jail briefly but at least in that jurisdiction there were scads of free menstrual pads. I think the point was to fend off legal exposure and probably also a realization that getting blood all over the place was a health hazard. This was is in minimum security, don't know about higher levels.

 

[Loss Leader]

What I do recall reading went something like this: The draft existed to optimize military readiness and that the mechanics of integrating women into the draft would detract from the prime goal.

It hardly matters anymore. The military needs high skill professionals now far more than cannon fodder armed with rifles and hope. Drafting a bunch of unwilling and unskilled children wouldn't work very well.

I wouldn't mind a Serve America kind of thing where everybody had to do two years building houses and teaching disabled adults how to plan grocery lists or strengthening levies and such.

I only went to jail briefly but at least in that jurisdiction there were scads of free menstrual pads. I think the point was to fend off legal exposure and probably also a realization that getting blood all over the place was a health hazard. This was is in minimum security, don't know about higher levels.

Then you were in a very progressive jurisdiction. Here's an article outlining what happens elsewhere.

 

[Puppycow]

I didn't read the whole opinion. I told my dad I would like to read it and he said, "No you wouldn't." His way of saying that if I though SC opinions would be some kind of distillation of principled legal thought, I'd be disappointed, and I believed him.

What I do recall reading went something like this: The draft existed to optimize military readiness and that the mechanics of integrating women into the draft would detract from the prime goal. It was a practical argument. But I read a summary, not the actual reams of verbiage.

What I didn't think fair was that one gender was commanded to register and be subject to a quite real threat of death while the other gender was let entirely off the hook. At least if women had to register, that was one small step to equal protection, even if the armed services could then choose what they saw as the most battle-ready potential soldiers. My point was not really well thought out but IMO neither was Rehnquist's. As someone here has as their sig, justices often cite plausible legal principles to justify their own initial gut reactions. IIRC the justices didn't even do that much.

OK, this made me curious, so I think I found the case in question:
https://en.wikipedia.org/wiki/Rostker_v._Goldberg

Rostker v. Goldberg, 453 U.S. 57 (1981), was a decision of the United States Supreme Court holding that the practice of requiring only men to register for the draft was constitutional. After extensive hearings, floor debate and committee sessions on the matter, the United States Congress enacted the law, as it had previously been, to apply to men only. Several attorneys, including Robert L. Goldberg, subsequently challenged the gender distinction as unconstitutional. (The named defendant is Bernard D. Rostker, Director of the Selective Service System.) In a 6-3 decision, the Supreme Court held that this gender distinction was not a violation of the equal protection component of the due process clause, and that the Act would stand as passed.

That's just the summary part of course. Follow the link for more. Full decision here.

ETA:
Interestingly though, while Rhenquist's reasoning seemed to be valid at the time, given that women were excluded from combat roles in the military, it may no longer apply:

Ruling
In the majority opinion, Justice William Rehnquist wrote "[t]he existence of the combat restrictions clearly indicates the basis for Congress' decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them." Implicit in the obiter dicta of the ruling was to hold valid the statutory restrictions on gender discrimination in assigning combat roles. Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft therefore, there is no violation of the Due Process Clause. The Supreme Court therefore reversed the decision of the district court.

The highlighted basis for the reasoning is no longer strictly true.

 

[Puppycow]

I wouldn't mind a Serve America kind of thing where everybody had to do two years building houses and teaching disabled adults how to plan grocery lists or strengthening levies and such.

I'm against that sort of thing on principle. Those are great things to do of course, for those inclined to do them, but no "peacetime conscription" please, for whatever purpose.

(And as far as wartime conscription goes, I'm basically against that too, unless it's absolutely essential, meaning our homeland is under attack. If we are truly attacked though, you'll probably have plenty of volunteers. But not for another foreign war of choice like Vietnam.)

 

[TragicMonkey]

Why do people always focus on extremes and rare situations? We haven't had a draft in my lifetime. The military hates drafts. It very unlikely we'll have one, so why must the theoretical draft of women play a prominent role in the ERA? Just like how trans rights for ordinary people shouldn't hinge on the arcane rules necessary for Olympic athletes, and government assistance schemes shouldn't revolve around that ONE lady who was a professional scam artist in the 1970s who managed to game the system.

The main body of the thing is what's important, there will always be outliers. If you attempt to handle every conceivable situation no matter how obscure or unlikely you will never get the main work done.

 

[DuvalHMFIC]

"This is gonna be the greatest war you've ever seen! It's gonna be HUGE! And in order to have the most fantastic victory in the history of war, we are gonna have to have the most bigly army EVER! The only way to do this is to bring back the wonderful draft. People are gonna love it."

 

[d4m10n]

I wouldn't mind a Serve America kind of thing where everybody had to do two years building houses and teaching disabled adults how to plan grocery lists or strengthening levies and such.

I'm against that sort of thing on principle. Those are great things to do of course, for those inclined to do them, but no "peacetime conscription" please, for whatever purpose.

Don't we already have a law about involuntary servitude?

 

[BobTheCoward]

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.

That is a good argument for originalism