On Wednesday, Virginia ratified the Equal Rights Amendment and was celebrated by proponents as the 38th state to do so, which they claim meets the required threshold for amending the highest law in the land.
Because of serious legal questions surrounding the unorthodox ratification process, including counting modern ratifications alongside those from nearly 50 years ago — few Americans are even aware of the amendment’s potential consequences.
Many view it as a dead amendment tossed on the ash heap of history by conservative firebrand Phyllis Schlafly in the 1970s.
The ERA promises women that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
That broad language sounds nice, but it will add nothing to the equality under the law women already enjoy in America. Today, men possess no legal rights that women do not, and no one imagines that women do not have the right to free speech, religious liberty, or due process as outlined in the Constitution. Additionally, arbitrary discrimination based on sex is forbidden by state and federal law, as well as by the Equal Protection Clause of the 14th Amendment.
Instead, the ERA will replace this equality under the law with the enforced interchangeability between men and women. While men and women are indeed equal, both common sense and science tell us they are not precisely the same. There are still some situations in which treating men and women precisely alike could harm women or even put them in danger.
The ERA could threaten hundreds of laws that recognize the genuine distinctions between the sexes. For example, women-only prisons, public school locker rooms, and general university sports teams could become illegal, and daughters could be forced into a combat draft alongside sons.
Programs that currently primarily provide benefits to mothers of young children or stay-at-home wives, such as Social Security spousal benefits or the women, infants, and children supplementary nutrition program, could be hauled into court. Even grants for battered women’s shelters or programs to encourage STEM interest among girls could be suspect.
Does this sound like an advancement for women’s equality?
Proponents’ legal theories are suspect as well. Their claim that amendments can be ratified over many decades — or even centuries — and that states can never rescind or change their minds, as five states have done on the ERA, makes a mockery of an Article V process designed to ensure that any changes to the Constitution have extensive support.
And their decades-long ratification strategy risks confusion about the meaning of the amendment’s words; who in 1972 would have imagined that the word “sex” might be viewed as meaning something other than biological females and males?
Even a huge ERA supporter like Justice Ruth Bader Ginsburg had to admit recently that if proponents want to add it to the Constitution, they need to start over and “put [it] back in the political hopper.”
Women in 2020 America are the freest, prosperous, and opportunity-laden group of women in human history. Women make up the majority of voters in nearly all recent elections, earn the majority of higher degrees, and are experiencing a record-low unemployment rate. We are already equal under the law and the Constitution.
Far from being a mere symbolic amendment to crystalize the equality women already enjoy, the ERA will have devastating consequences that this rushed and unlawful process has not given Americans time to consider.