Yobispo wrote: ↑Wed Dec 04, 2019 11:02 am
I've done a bit of googling this morning but I think I'm finding mostly one-sided arguments on both sides, with a fair amount of fear and disgust for the other side. I barely remember this fight from childhood - can anyone share a good source on the actual legal ramifications, pro and con, for this amendment? I admit to having a deep distrust of politics and government officials (who act more like celebs these days) but I'd like to hear some honest legal analysis.
There are some technical legal ramifications to the passage of the Equal Rights Amendment, but I say 'technical' to distinguish it from 'practical' legal ramifications. The passage of the Equal Rights Amendment would not have broad-reaching consequences; it would result in changes of interpretation in certain edge cases, but I'd say its passage would largely be a symbolic victory, not one that changes the sate of play on the ground in any material way. Of relevant comparison are the following:
14th Amendment wrote:No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.
Equal Rights Amendment wrote:Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
During the pendency of the ratification of the Equal Rights Amendment, the Supreme Court has already determined that discrimination on the basis of sex is constitutionally suspect under the Equal Protection Clause of the 14th Amendment (note that, while the 14th Amendment by its terms only applies to state and local governments, the Equal Protection Clause also restricts the ability of the federal government to discriminate on the basis of sex via the Due Process Clause of the 5th Amendment--the 'reverse incorporation' principle).
Now here comes the technical distinction--when a particular discrimination in the law is subject to judicial review, the court applies one of three standards: (i) strict scrutiny, (ii) intermediate scrutiny, or (iii) rational basis review. Each of these standards speak to how narrowly the law must draw a discriminatory distinction, and how important the government interest that is being served by drawing that distinction. The first standard, strict scrutiny, is a very high bar to pass and, in practice, very few laws that are subjected to strict judicial scrutiny are ruled to be constitutional--either because the law is not sufficiently narrowly tailored, or because the government interest being served is not compelling enough to override other concerns (typically infringements on constitutional rights, or because the law is discriminating on an inherently suspect basis, such as race or religion, among other things). Rational basis is, conversely, a very low bar to pass, and almost every law subjected to rational basis review is considered constitutional because the law need only be rationally related to a legitimate government purpose (note: this was one of the interesting facets of the gay marriage cases, in that the courts found the anti-gay marriage limitation to fail even rational basis review).
As you may have guessed, 'intermediate scrutiny' falls somewhere in the middle. Intermediate scrutiny also happens to be the standard on which discrimination on the basis of sex is evaluated (requiring a 'substantial relation' to an 'important' government purpose). Interestingly, one of the reasons why discrimination on sex is subject to the lower standard is that, when it was first applied, the justices took note of the fact that the ERA would, by its terms, make discrimination on the basis of sex subject to the strict scrutiny standard. Since the resolution of that question was currently in the 'political' realm, they declined to apply it as a matter of constitutional interpretation.
So, very long way of saying that the ERA would mean discriminatory laws on the basis of sex would be held to a higher standard of judicial review. Practically, this would only impact a subset of yet-to-be-determined laws that would pass intermediate scrutiny, yet would fail strict scrutiny.
Also of note is that either amendment (14th or ERA) only restrict governmental action, so to the extent private businesses or employers or whatever want to draw discriminatory distinctions between men and women the amendments will not reach those behaviors except in very very very limited circumstances, which I will omit here for brevity. If women want, say, equal pay at a private employer, they have to rely on other laws to get that, which implicates a very different set of constitutional powers in terms of Congress having the ability to legislate in that space (e.g., the Commerce Clause).
Anyway, so not a lot on the ground will change simply by passage of the ERA. There are some people who think it may result in a net harm, in that subjecting sexual distinctions to strict scrutiny may actually make certain programs which benefit women unconstitutional (e.g., government affirmative action programs benefiting women). Not sure I buy that argument given that affirmative action has been upheld as constitutional in other contexts, but its a risk that some people like to highlight.
