The Meaning of the Equal Rights AmendmentMike Rappaport

Ilya Somin (and to a lesser extent Eugene Volokh) have been arguing, more or less, that the text of the Equal Rights Amendment would be likely to be interpreted by the Supreme Court to bar various policies that draw distinctions on the basis of sex.  While there is much to be said for their view, there is also much to be said against it.

Let me just keep it simple, and focus on affirmative action by government for women.  We are now familiar with the argument that equality and antidiscrimination provisions operate much more strictly against “invidious” discrimination than against “benign” discrimination.  This is certainly the view under Title VII.  It seems obvious that a majority of the Supreme Court could easily hold that the Equal Rights Amendment adopts that same line.  This interpretation would be supported by the fact that many of those who promote the amendment appear to hold this view. 

I am not saying that this would be the correct interpretation or that Scalia, Thomas, Roberts, or Alito would follow it.  But I do think it is extremely likely that  Ginsburg, Souter, Stevens, and Breyer would follow something like that interpretation.  And I think it is entirely believable that Kennedy would. 

Can one really imagine Justice Ginsberg interpreting the Equal Rights Amendment to forbid affirmative action for women?  I can’t.

Now, Ilya Somin responds to something like my argument by saying that, it is true that the 1964 Civil Rights Act was mangled to allow affirmative action, but that was in a different age, with more liberal judges and a more liberal Congress.  True, but Ilya’s point misses something important.  It is one thing for the Court to invent the invidious/benign discrimination distinction — that did require quite a bit of chutzpah or strident liberalism if you will.  But a modern court would not be inventing it; it would simply be applying an existing interpretation of similar (statutory) language that the Court adopted in the 1970s, held by liberals generally, to constitutional language adopted today, in an amendment promoted by liberals.  This is a far less aggressive position.  One can certainly argue with a straight face that something like this meaning (the invidious/benign distinction) is what is meant by many people who use the language “Equality of rights under the law.”   One might even argue that this is the correct interpretation, although I don’t think so. 

Whether liberals, conservatives, or libertarians should be for the Equal Rights Amendment, as previously drafted, is another matter.  But I certainly think there is a good chance it would be interpreted to allow affirmative action for women.