Why the Equal Rights Amendment Would Endanger Women’s Equality: Lessons from Colorblind Constitutionalism
Duke Journal of Constitutional Law & Public Policy, Forthcoming
Virginia Public Law and Legal Theory Research Paper No. 2021-07
63 Pages Posted: 25 Jan 2021 Last revised: 4 Apr 2022
Date Written: January 24, 2021
The purpose of the Equal Rights Amendment (ERA) to those who drafted it and those who worked for nearly a century to see it ratified, is women’s equality. The ERA may be on the cusp of ratification depending on congressional action and potential litigation. Its supporters continue to believe the ERA would advance women’s equality. Their belief, however, may be gravely mistaken. The ERA would likely endanger women’s equality.
Consider race. The purpose of the Equal Protection Clause (EPC) to those who drafted and ratified it was racial equality. In the late twentieth century, however, the Court began interpreting the EPC in a way that prevents further progress toward racial equality. Through its “strict scrutiny” test, the Court has essentially imposed on states and the federal government a constitutional rule of “colorblindness,” a rule that prohibits state-sponsored decisions that take account of race even when aimed at reducing racial inequality and even when pursued through laws that employ race-neutral means. As race equality scholars know all too well, colorblind constitutionalism tends to lock in racial inequality.
This article argues that the ERA likewise threatens to lock in women’s inequality. Currently, the Court applies “intermediate scrutiny” to sex-based classifications under the EPC, a scrutiny that prohibits virtually all state-sponsored sex distinctions that harm women. Intermediate scrutiny, however, allows sex distinctions that promote women’s opportunities or otherwise advance women’s equality. Under the ERA, the Court would likely apply “strict scrutiny,” which essentially amounts to a constitutional rule of “sex-blindness,” prohibiting state-sponsored decisions that take account of sex even when designed to enhance women’s opportunities and even when pursued through laws that employ sex-neutral means. Furthermore, the ERA would endanger single-sex settings, especially educational and extracurricular programs.
Moreover, the ERA would not prohibit any state-sponsored discrimination against women that is not already unconstitutional under the EPC. Nor does the ERA apply at all to the private sector in which most of the concerns of ERA supporters occur, such as unequal pay, sexual harassment, and violence against women. It is also doubtful that the ERA would have any impact on reproductive rights. What is needed is an alternative ERA that would explicitly require, or at least authorize, proactive efforts to advance women’s equality.
Keywords: Equal Rights Amendment, Equal Protection, Sex Equality, Gender Equality, Gender Justice, Feminist Theory
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