Are Left-Leaning Supporters of the ERA Confused? Gail Heriot

As many of you know, Ted Kennedy, Barbara Boxer and others are working on reviving the ERA. The ill-fated proposal which stated that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex” was adopted by Congress in 1972 and ratified shortly thereafter by 35 of the 38 states needed. Five of those states later withdrew their ratification. When the 1979 deadline for ratification was about to expire, Congress extended it to 1982, but no additional states could be persuaded to sign on. The ERA was dead–or so everyone thought. Recently, the so-called “three-state strategy” for its resurrection has been put forth by its supporters. This strategy operates on the premise that (1) Congress can extend the deadline for ratification (yet again) after the previous deadline has passed: (2) once a state ratifies, it cannot withdraw its ratification and (3) a state ratification that was obtained on the (explicit) understanding that the ratification process must be completed by 1979 is still good a generation later.  Other strategies are also being proposed. (Kennedy & Boxer are evidently co-sponsoring the ERA’s re-introduction.)

There are lots of fascinating questions raised by all this. For example, with regard to the three-state strategy, if Congress can essentially “withdraw” its original deadline for ratification, why can t states withdraw their ratification? The biggest question, however, has got to be: Why in the world do Kennedy and Boxer and groups like the Feminist Majority want to revive the ERA under any strategy ? Isn t it just as likely to harm their political agenda as help it? What about affirmative action? Won t the ERA hurt the argument for preferential treatment for women in public employment, public contracting and public education? Do they really think that Roberts, Stevens, Scalia, Kennedy, Souter, Thomas, Breyer, Ginsburg, & Alito will always interpret the amendment in a way that will further rather than hinder the so-called feminist agenda?

The Left just poured millions of dollars into unsuccessfully opposing the Michigan Civil Rights Initiative. Among other things, MCRI prohibits the State of Michigan from discriminating on the basis of sex in public employment, public education and public contracting. Self-described feminists howled that such a law would be devastating for women, because it would forbid affirmative action programs. (They were correct that MCRI will prohibit preferential treatment based on sex in public employment, public education and public contracting; on the other hand, their claim that MCRI will prohibit medical researchers from studying breast cancer was deliberate fear mongering.) Now these same people are demanding an amendment that is worded even more strongly than MCRI. Don t they need to stop and think about what they are doing?  Exactly what would ERA do?  Would it elevate sex to the same level as race in equal protection analysis?  Or would it raise it even higher?  Would it affect affirmative action?  Wouldn’t everyone like to know the answers to these questions before they decide whether to support or oppose the ERA?

That s all for now. I hope to elaborate on this theme later.