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.

As a technical matter of legal doctrine, Somin and Volokh are correct. It is still puzzling, however, why all of these sex-based classifications are not already constitutionally suspect. The Court held in United States v. Virginia, the 1996 case in which it struck down the exclusion of women from the Virginia Military Institute – here quoting and amplifying on earlier case law going back more than two decades -- that "the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an 'exceedingly persuasive justification' for the classification." “The burden of justification is demanding and it rests entirely on the State.” Any such justification “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” “[G]eneralizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”

Doctrine, however, doesn’t always decide cases. Courts have shown no inclination to accept arguments that challenge restrictions on women in combat or single-sex bathrooms. The sex discrimination argument for gay rights is a strong one, as I’ve argued in the past. But I’ve also argued that courts are unlikely to accept it, precisely because it’s too strong: it entails uniform recognition of same-sex marriages throughout the United States, and courts are understandably reluctant to enter that political minefield. It’s hard to imagine the ERA changing any of this.

Somin and Volokh are right that conservative Federal judges might seize on the ERA as a reason to invalidate sex-based affirmative action programs and special protections for women’s sports. But those aren’t the effects that ERA proponents have in mind.

When I said that the ERA would make no difference, I was thinking about the difference that its proponents say it will have. Rep. Carolyn Maloney reportedly “noted that women still get only 77 cents for every dollar that men are paid, that only 3 percent of federal contracts go to women-owned firms, and that the poverty rate of older women in nearly twice that of older men.” There is no reason to think that prohibitions on sex-based classifications will ameliorate any of these problems.

As I note in a recent reflection on Phyllis Schlafly’s career, even though the feminists won the sex-based-classification fight in the Supreme Court, it turned out that they were fighting the wrong war. Despite their judicial victory, women’s economic disadvantages persist, partly because of their disproportionate responsibility for child-rearing and partly because the structure of workplaces disadvantages those who have such responsibilities. Most high-paying jobs are designed with the expectation that the worker has someone at home taking care of the children. Sex-based classification was never the heart of the problem. And whacking away even harder at those classifications, which is all that the ERA would do, is not part of the solution. As Somin and Volokh capably show, it might even hurt women.

I suspect that the real rationale for pushing this now was better stated by Terry O’Neill, executive director of the National Council of Women’s Organizations: ''I would love for the American people to see who votes against women's equality.'' If one could get Democratic legislators to speak candidly about why they’re supporting a measure that does so little that’s real for their constituents, I imagine that they’d say this:

“Yes, it’s true that this is an empty, symbolic gesture. But there are going to be political costs for Republicans who vote against this, just as there were political costs for Democrats who voted against the constitutional amendment to ban same-sex marriage. Both of them are silly, demagogic measures. But that’s how the political game is played these days. What would really help my constituents in a tangible way would be to enact national health insurance. There are now 47 million Americans with no coverage at all, and they’re not going to get any help unless there’s a Democratic president and large Democratic majorities in both houses of Congress. In order to deliver that, we have to play these stupid games. Don’t blame me. Blame the voters, who are too dumb to support us if we just talk honestly about the issues that really matter. If demagoguery is what they demand and reward, then that’s what they’ll get, even from responsible and public-spirited politicians.”
Posted 3:43 PM by Andrew Koppelman [link]