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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The difference the ERA won't make
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Friday, April 13, 2007
The difference the ERA won't make
Andrew Koppelman
In a recent interview with Steve Chapman of the Chicago Tribune, I was briefly quoted as saying about the Equal Rights Amendment, which is being pushed again by Congressional Democrats, that "it's hard to imagine it making any difference at all." Ilya Somin of The Volokh Conspiracy has challenged this claim, noting that it could potentially be construed to prohibit male-only draft registration, single-sex bathrooms, civil unions limited to same-sex couples, Title IX rules that protect women’s sports teams. He also cited an earlier post by Eugene Volokh that noted the possible invalidation of limits on women in combat, sex-based affirmative action programs, exclusion of boys from girls’ sports teams, and the limitation of marriage to opposite-sex couples.
Comments:
Nice post.
You are very correct in that the ERA likely won't do much to change the fact that women earn 77 cents to every dollar a man earns. But, doesn't this illuminate why it would be so bad? It isn't going to help with what is (probably?) the main goal. Who the heck really knows what sort of otherwise reasonable policies or programs by the government will be struck down under the ERA. Unlike race, there are in fact real sex-based differences. The law should be allowed to recognize them as long as it isn't used to artifically restrict or subordinate men or women. Now, the Court could sidestep this with the invidious/benign distinction, but that seems to me an even more problematic system of scrutiny going forward.
It's not the pay issue. It's the respect and consideration issue. And if there is just the potential to sue someone because you are discriminated against, it often stops the discrimination. Women are still considered 2nd class citizens in the U.S. I don't know of a single woman who does not think it would be a good thing to pass the ERA. Sometimes you have to legislate respect, unfortunately.
There seems to be implicit distinction drawn in this post between "real" things like money and "unreal" things like feelings. But no foundation for such an ontological conclusion has been laid. The kind of upper middle class women (Ruth Bader Ginsburg is a perfect example) who supported challenges to statutory sexual discrimination weren't trying to earn as much as their husbands; they just didn't like being told that they couldn't do something because of their sex.
Using to law to send symbolic messages seems perfectly appropriate to me, if that's what people want to do.
citizen shelly,
Umm, I hate to be the one to have to tell you this, but you can't legislate respect--at least not very well. On of the big issues with this amendment, is that the most prominent example (wage gap) of a divide between men and women is largely (if not mostly) explained by the career choices between men and women. For example, women far more often than men stay home to raise the children. This stalls their career for years. And many do not return or return in different capacities. This is but only one example. 2nd class citizens? Things may not be perfect, but that's just a joke.
On[e] of the big issues with this amendment, is that the most prominent example (wage gap) of a divide between men and women is largely (if not mostly) explained by the career choices between men and women. For example, women far more often than men stay home to raise the children. {emphases mine}
Someone, I'm sure there is, at some levels of employment, a causal link between women 'choosing' to stay home and raise children and the wage gap. I'm fairly certain, however, that it doesn't move in the direction you think it does, and doesn't work at all in some classes. For instance: - Almost every woman I know who 'chose' to stay at home listed as a reason that her income wasn't high enough to support childcare, or support the family while her husband stayed home. Her husband's income COULD support the family, and so her career is stalled, by her 'choice.' - Um, the whole world isn't middle class. Poor women have worked for sustenance for...ever. Her children don't eat if she doesn't work, and that work is STILL paid at a lower level than work requiring similar effort,training, and danger that a man would be expected to do. And, someone, I'm glad you think 2nd class citizenship is a joke. Now, let's imagine that you and I are both accosted today by someone we know. And let's imagine that we're both hurt badly enough that someone calls the police. Which of our attackers do you think is going to prison? Or, let's not even go that far down the road. How will you explain to the police that you didn't voluntarily offer your alleged attacker the right to beat you? How does the policeman know that you didn't want to be beaten? Maybe the policeman's buddy only understands if he beats him, too, and you are all ugly, bruised, and snivelly which is unattractive of you and therefore against the social code. And, no, sadly, you cannot legislate respect, but you CAN legislate equal protection under the law. And that's kind of the point.
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