Thursday, April 02, 2015

Reviving the Fight For the Equal Rights Amendment

Weirdly long for not particularly good, really...
Does the ERA do anything that the equal protection clause doesn't do? My old Con Law prof used to say that the protections were already built into the 5th and 14th Amendments, ergo that this was a waste of energy.
True or false?
Anybody? Anybody?


Blogger The Mystic said...

I mean, if you read the 14th amendment, it seems pretty clear that it applies to the situation described in the article.

The counter-argument given:

"People often assume women's rights are secure thanks to the Equal Protection Clause in the 14th Amendment, Neuwirth says. That amendment was adopted in 1868. The mere fact that it took another five decades for women to get the right to vote, she says, proves the clause wasn't about them."

Seems obviously wrong-headed. Isn't the correct interpretation here that the law as written does afford them equal protection, regardless of whether or not the law was actually properly enforced? The problem, it seems to me, is that our ancestors spoke more loftily than they acted.

If this:

"One had been raped in college, only to see an admitted attacker go unpunished. Another took out a restraining order against her violent husband, who went on to kill their three daughters. In both instances, the women sued authorities for failing to act and took their cases all the way to the U.S. Supreme Court, only to be told there was no constitutional basis for their protection."

is true as portrayed, I don't see how anyone would think these cases acceptable. It is likely that there are deficiencies in the legal system leading to these tragedies (I don't know to what cases specifically she's referring), but not necessarily are they the consequences of sexism. If they are, I don't see how they would fail to violate the 14th amendment.

It gives me pause that Ginsberg agrees with the idea of an Equal Rights Amendment, but I really am interested in why she thinks the 14th amendment is inadequate. If I had to hazard a guess, it would be that this is more a rhetorical strategy. While I'm sympathetic, it strikes me as a bad move if not solely for the reason that one ought not to spearhead a reasonable position with an argument that seems in any way deficient.

Have you read the proposed amendment? What do you think?

9:48 PM  
Blogger Winston Smith said...

Yeah, I agree.
If it's the same text as the old ERA (which is what I'm led to believe), then it just says something like "equality of rights under the law shall not be abridged by the United States or by any state on account of sex," plus some stuff about enforcement.

I'm not against it--I'm just led to believe that it doesn't do anything we can't already do.

That stuff about the wage gap in that CNN piece is of some concern, as they're still pushing that 70 cents on the dollar myth...

1:22 PM  
Blogger tehr0x0r said...

I don't see why it would be necessary today, its been established that the 14th Amendment protects women. That said, I recall discussing this issue in a con law class (and then again in an employment law class) during law school and if I recall correctly it wasn't until the ERA failed the first time that anyone came up with the idea of using the 14A for women. At the time the first cases were brought everyone more or less expected them to fail, which would then give another impetus for the ERA. Which is just to say, I think its clear that the the 14A wasn't initially intended to cover women when it was passed. Today there is no way that the Supreme Court would roll back that protection, so I think its safe to say the ERA isn't necessary.

7:40 PM  
Blogger Winston Smith said...

Actual knowledge! Thanks, teh-r0x.

8:15 AM  

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