Question For The Class: Wouldn't This Be The Perfect Moment To Re-Introduce The ERA ???

[WillyT]

The Equal Rights Amendment (ERA) was a proposed amendment to the United States Constitution. The ERA was originally written by Alice Paul and, in 1923, it was introduced in the Congress for the first time. In 1972,it passed both houses of Congress and went to the state legislatures for ratification. The ERA failed to receive the requisite number of ratifications before the final deadline mandated by Congress of June 30, 1982 expired and so it was not adopted.

Text

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

Link: http://en.wikipedia.org/wiki/Equal_Rights_Amendment

[The Blue Flower]

1. I couldn't agree more

Where to start?

[ingac70]

2. ......

http://www.huffingtonpost.com/roy-speckhardt/equal-rights-amendment_b_1415951.html

[AndyTiedye]

3. The ERA Would Not Even Get Through Congress Today

All the Repiglickins would oppose it.

Even if it did somehow get 2/3 in each house, most of the state legislatures are controlled by teabaggers now.

[jeff47]

5. That's the point.... (nt)

[Johonny]

4. politically it would seem like a winner

Love to keep hanging their anti-women comments around them all through the election cycle.

[bradberger29]

6. Done

The ERA is already in this session of Congress as bills SJ Res 21 and HJ Res 69. The Senate bill only has 14 cosponsors. The Democrat leadership is not cosponsoring the bills. Each person reading this should contact their US Senators and urge that they cosponsor the bills and urge that the full Senate be allowed to vote on the ERA bills. These bills have been introduced since 1985 but the men do not let the bills out of committees. These men are from both parties and liberals and conservatives. It is the men ruling Congress who do not allow the ERA bills to come to a full vote of either house of Congress. Women and men who believe in sex equality under the Constitution should join with others and millions of people should march on Washington and demand the ERA be voted on by the full Congress. 230 years and still no guarantee of Constitutional equality for women. This is a violation of human rights. We are not a real democracy until women have equality under the Constitution. If the men do not allow and vote for the ERA then they all should be voted out in Nov 2012. The President and Gov Romney should both be asked to support the ERA bills - so far neither of them supports the ERA bills.

[KG]

7. rec.

[Jim Lane]

8. What would be the practical effect of passage?

Many of the laws that the ERA would have invalidated have fallen by the wayside anyway.

It wouldn't affect things like whether Georgetown gets a religious exemption from a requirement to include contraceptives in any health care plan, or whether Texas can demand an invasive vaginal sonogram from a woman seeking an abortion.

My offhand reaction is that passing the ERA today would involve a great deal of work and, if successful, would change very little. Tactically, it's probably better to invest that time and money in other fights.

The only advantage would be if there are people who would otherwise be apathetic but who would be mobilized to fight for the ERA in the mistaken belief that it would solve many of our current problems. I don't think that group would be significant, though.

[dflprincess]

10. Scott Walker signed the repeal of the Wisconsin Equal Pay enforcement act just last week.

We still need the ERA.

[Jim Lane]

11. I disagree, on two counts

First, sex discrimination in employment is still illegal in Wisconsin. It violates federal law, and anyone aggrieved by a violation can seek redress through the federal Equal Employment Opportunity Commission and, if unsuccessful there, in federal court. As I understand the Wisconsin situation, there was formerly an additional avenue through state courts, which some people would find quicker and easier than the federal process. Walker's action merely removed the latter option. This will presumably make enforcement of nondiscrimination more difficult, and is yet another reason to recall Walker, but women in Wisconsin shouldn't think that they're no longer protected against employment discrimination.

Second, the ERA wouldn't change any of this. It would apply only to discrimination by the government, not by private employers. By analogy, consider the history of the law relating to racial discrimination. In 1954, the Supreme Court held that racial discrimination by government, in the form of segregation in public schools, violated the Equal Protection Clause of the Constitution. Nevertheless, it was still legal for private employers to refuse to hire blacks, for restaurants to refuse to serve them, etc. That didn't change until the enactment of the Civil Rights Act in 1964.

The bottom line is that sex discrimination in employment is statutory, not constitutional. It's prohibited by the Equal Pay Act and the Civil Rights Act, with or without an ERA. If the ERA were enacted but those statutes were repealed, the repeal would not violate the ERA, and sex discrimination by private employers would be legal even with the ERA as part of the Constitution.

[WillyT]

20. How About... It's The Correct Thing To Do... AND... It's Fucking About Time...

So you'd leave women OUT of the Constitution...

AND... you'd leave the majority (Women), at the whim of the minority (Men) ???

[Jim Lane]

26. No, I would NOT leave women out of the Constitution

You might see, for example, the Supreme Court decision in United States v. Virginia, 518 U.S. 515 (1996), in which the Court, interpreting a Constitution that did not include the ERA, nevertheless held by a vote of seven to one that the policy of excluding women from Virginia Military Institute, a state-supported college, was unconstitutional. The lone dissenter was, not surprisingly, Scalia. The only unusual feature of the case was that, for once, Thomas didn't vote with him; Thomas, whose son was attending VMI, recused himself.

I agree with the majority's decision that the Constitution, as currently written, protects women. If Scalia's view had prevailed in United States v. Virginia, there would certainly be a stronger argument to be made for prioritizing the ERA -- but Scalia lost, and would probably lose again even in today's more conservative Court. (The 1996 majority included Kennedy, Ginsburg, and Breyer, who today would surely be joined by Sotomayor and Kagan. The majority also included Rehnquist, and it's possible that Roberts, who clerked for Rehnquist, would emulate his old boss and vote against the discrimination.)

As for women being at the whim of men, I confidently predict that, should the ERA be adopted, there would still be heavy majorities of men in both houses of Congress for the foreseeable future. My point is not to defend discrimination, but to ask what practical difference would be made by the adoption of the ERA.

[CTyankee]

18. sorry to say, this is a typical American response: GIVE UP.

There is nothing to be done. really impossible. No can do. Sorry. Too bad. Cudda, shudda, wudda....

Well, that's the spirit that won WW2...

[Jim Lane]

25. You're mischaracterizing my position

I didn't say "GIVE UP." Here's what I actually wrote:

Tactically, it's probably better to invest that time and money in other fights.

If you want a World War II analogy, it's as if the Allies had assembled the D-Day invasion force and then sent it to attack Antarctica instead of Normandy. My point is that one should direct one's effort toward the strategic target most likely to further one's goals, and I'm not convinced that the ERA meets that standard.

At a minimum, ERA proponents should be prepared to identify the federal or state laws that are currently in effect but that would become unconstitutional upon the passage of the ERA. I think there would be a few, but not many. It might be that the only major practical change wrought by the ERA would be subjecting women to Selective Service registration, and to the draft if conscription is ever reinstated. If that's the goal, it could be achieved through simple Congressional majorities plus the President's signature, rather than trying to win over Congressional supermajorities plus numerous state legislatures.

[CTyankee]

30. After experiencing the ERA defeat in the late 70s, I must say that I became pretty cynical.

Sorry I was testy with you, but it stems from remembering all that bitter disappointment and when I realize that my granddaughters have, if anything, a tougher time than those days when at least you had some mainstream Republicans in favor of the ERA. Your reply has touched a nerve in me. Let me explain what I mean.

I got my wake up call when I read about an observation made by Ruth Bader Ginsburg last year, altho the context was the uprising in Egypt. She was asked if the new government should model their proposed Constitution on ours. She said she wouldn't recommend ours and that she would recommend South Africa's for emulation. There was a story in the NYT recently about how emerging democracies are doing just that: avoiding the U.S. Constitution because it is outmoded in today's world and it is inflexible. So I Googled the S.Africa Constitution and was impressed with all of the references to women and women's rights.

What you have identified is just that inflexibility. And I think the right wing that was just emerging in their newer form with Phyllis Schlafly was fearful that the Constitution HAD to be kept inflexible in order to limit the government from bestowing largely social benefits on women and children, as the claim for those benefits would then be rooted in the Constitution. That would turn the uber conservatives world upside down.

This is a sad realization on my part.

[Jim Lane]

31. The defeat of the ERA wasn't as complete as it might have been

You characterize our Constitution as inflexible. In fact, because of the role of judicial interpretation, it's more flexible than might appear from its bare text.

In 1896, the Supreme Court approved "separate but equal" facilities, at a time when racial discrimination was common. By 1954, with society's attitudes changing, the Court overruled itself and outlawed "separate but equal" in state action.

The change with regard to women wasn't that dramatic but it's been evident. When ERA ratification was a live issue, and since then, there've been Supreme Court decisions (like the one I discussed in #26) holding various forms of sex discrimination to be unconstitutional. That's why I question the importance of the ERA today. The sadness about the defeat of the ERA should be tempered by the realization that a great deal of the objective has already been achieved. (The push for the ERA may have had something to do with that. As was observed decades ago -- maybe Finley Peter Dunne? -- "The Soopreme Court follows th'iliction returns.&quot

[CTyankee]

32. Yes, I was politically active in that ERA fight back in the late 70s. I was working in D.C. at

the legislative office of the ACLU at the time. You have described one of the two main reasons ERA was defeated, e.g., that it wasn't needed because gains had been made by using the 14th amendment. The response to that was that the 14th amendment does not always prove to have such utility. It was tried unsuccessfully by suffragists as a means of getting the vote for women, and the arduous amendment process had to be undertaken instead. (BTW, the other major argument against the ERA at that time was the issue of women in combat. People freaked out thinking about their daughters fighting in the jungles of Vietnam).

I think it is worth discussing why our constitution is viewed as inflexible by the emerging democracies. Here is the NYT article: http://www.nytimes.com/2012/02/07/us/we-the-people-loses-appeal-with-people-around-the-world.html which you may have read. It is an intriguing article.

I'd like to hear what you have to say about it!

[Jim Lane]

33. Thanks for the interesting article

I'd heard that the trend in constitution-writing is toward spelling out a more detailed array of rights. In the U.S., by contrast, the same result has often been accomplished judicially. For example, if you just read the text of the Constitution, you wouldn't necessarily conclude that it protects reproductive rights.

The flip side is what Scalia pointed out in the quotation in the article you linked: Some countries have very fine-sounding constitutions, which are largely ignored in practice. (Before Scalia gets to feeling superior to such countries, though, he might reconsider some of his own votes on matters like habeas corpus.)

[CTyankee]

35. Scalia's argument is monumentally stupid, IMO. To argue, in effect, that you somehow have

a better shot at securing rights when they aren't written into the Constitution just doesn't make sense. Any constitutional rights can be trampled upon if not strongly defended through the political system. Aryeh Neier, my boss at the ACLU, has observed that the Wiemar Republic did not fail because it granted too many rights (a fashionable argument in some quarters back in the 70s), but because those rights were not enforced through the rule of law.

I see the effects of Bush v. Gore and Citizens United as major threats to our constitutional democracy. If your vote essentially doesn't count and elections are simple bought and sold to the highest bidder, it probably doesn't matter what the Constitution says. However, that is no reason to not have a Constitution that can build on the rights of the people, rather than whittling down what we do have, because we somehow give legitimacy to the notion that every decision about Constitutional rights must be decided in light of the era in which it was written.

You might want to do what I did and read some of the Constitutions of other countries mentioned in the NYT piece. I read the one from South Africa and will study the Canadian next. It would be my pleasure to discuss them with you. But if not, it does at least get one to thinking about the possibilities.

Again, my question is WHY the democracies mentioned in the NYT were deciding NOT to model their constitutions on ours. They must have had their reasons...

[WillyT]

9. Kick !!!

[HooptieWagon]

12. Yes.

[loyalsister]

13. 3 more states...

35 states have ratified the ERA. We need 3 more.

http://www.equalrightsamendment.org/strategy.htm

[WillyT]

14. Wouldn't We Have To Start All Over Again ???

Not that I'm opposed to that... In fact...

I think this year would be the perfect year to do just that.

[CTyankee]

19. Maybe not. There is a movement afoot to start where we left off...with 3 more states to go!

However, I think it is a very long shot...

BUT it should'nt keep us from trying!

[loyalsister]

21. Not necessarily

Starting over would require a new congressional act and ratifications in at least 38 states.

The 3 state strategy is based on previous passages of amendments.....

This strategy is based on the fact that the "Madison Amendment," concerning Congressional pay raises, became the 27th Amendment to the Constitution in 1992, after a ratification period of 203 years. Therefore, the ERA's ratification period of less than three decades would surely meet the "reasonable" and "sufficiently contemporaneous" standards required by several Supreme Court decisions. Time limits were not imposed on amendments before 1917 (beginning with the 18th Amendment, Prohibition), and the 19th Amendment affirming women's right to vote had no time limit. Congress demonstrated its belief that it may alter a time limit in a proposing clause by extending the original ERA deadline. Thus it is likely that Congress has the power to adjust or repeal the previous time limit on the ERA, determine whether state ratifications subsequent to 1982 are valid, and accept the ERA as part of the Constitution after three more states ratify. The 35 existing ratifications should stand because precedent regarding state rescissions shows that such actions have not been accepted as valid.

More...
http://www.equalrightsamendment.org/viability.htm

It's definitely long overdue!

[WillyT]

22. Thank You For That !!!

[Jim Lane]

27. Difficulties with the three-state strategy

A key difference between the "Madison Amendment" and the ERA is that, in approving the ERA and sending it to the states, Congress set a deadline for ratification. The deadline was extended but still came and went without ratification having been completed.

At a minimum, there would have to be a new (and retroactive) extension. The three-state strategy thus becomes a three-state-plus-two-Congressional-majorities strategy, even assuming that such a retroactive extension would be valid.

In addition, there are four states that ratified the ERA and then rescinded their ratifications. AFAIK, the capacity of a state to rescind a ratification has never been conclusively decided. If the rescissions are given effect, then ERA adoption requires seven states plus two Congressional majorities.

And, on a side note, why does the DU spell checker accept "ratification" but red-line "ratifications"?

[Zorra]

15. Another great idea from WillyT.

Several plus positives in that idea.

[WillyT]

16. :)

[WillyT]

17. And Another Thing... The Current Democrats Are Too Stupid/Afraid To See This As An Advantage...

But... that's the hand we are dealt.

[slampoet]

23. Not bad. I like.

[JVS]

24. Not yet. Wait until the repubicans are trying to patch things up with women, then spring it on them

[Ship of Fools]

28. I asked myself this same thing just the other day.

[HappyMe]

29. It would never make it through.

It should include LGBT rights.

[Little Star]

34. Why yes it is the perfect time! k&r

[BlueIris]

36. I am actually predicting that this will happen soon.

2014 would be my guess.

[loyalsister]

37. Done!

And call your senators!

On March 22, 2012, nine Senate Democrats proposed that states be given another chance to ratify the Equal Rights Amendment. This is the 40th Anniversary of the Senate's passage of the ERA and the first time the Senate has ever considered an ERA bill other than the "Start-over."

http://myemail.constantcontact.com/URGENT--From-Veteran-Feminists-of-America---Historic-Breakthrough-for-the-ERA---.html?soid=1101707198155&aid=0Nx7r3xxTRM


For anyone who questions whether or why it is necessary.......

"certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't." --Supreme Court Justice Antonin Scalia

[WillyT]

38. Thank You For That !!!