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

[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.