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Pros and Cons of the Equal Rights Amendment
1975
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Introduction
The Equal Rights Amendment to the Constitution was
passed by Congress in 1972, at the height of the women's
lib movement. But the drive to get the amendment ratified
became a protracted one as opposition began to gather
steam. By the end of 1975 thirty-four of the requisite thirty-
eight states had voted in favor of ERA. Nonetheless,
prospects for approval by the March 1979 deadline seemed
to be growing more remote. Ratification was defeated in
Florida, Illinois, Missouri, South Carolina, and North
Carolina. Some states in fact retracted their previous
ratification. The following selection reprints arguments for
and against the ERA by two women state legislators.
Writing in favor of the amendment is Elaine Gordon of the
Florida House of Representatives. She is opposed by former
Arizona state senator Trudy Camping.
Source:
State Government, Spring 1975.
Elaine Gordon: For the ERA
Historically, the United States has defended people's rights
to liberty, freedom, and equality around the world at great
personal sacrifice and enormous cost in money and lives. It
appears inconsistent that we refuse to insure the same lofty
ideals for over 51 percent of our own citizenswomen.
Women, as a class, enjoy only one guaranteed right under
the Constitutionthe right to vote. In all other respects
they are governed by state statutes, codes, and rules and
regulations. In a report to the U.S. Supreme Court, the
Solicitor General revealed that 876 sections in the U.S.
Code contained sex-based references. States have turned
up hundreds of state statutes in need of revision.
Discrimination on the basis of sex affects property and
inheritance rights, guardianship rights, management of
earnings, access to education and employment, and even
the right to retain one's own name. Denial of a woman's
right to establish a domicile affects a broad spectrum of
legal rights and duties, i.e., eligibility to register to vote,
to run for office, pay taxes, serve on a jury, or be employed
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by a municipality.
Since there are more discrimination cases filed against the
federal government than all of the cases against state
statutes combined (most of which are challenges to federal
codes and administrative rules and policies rather than
statutes), the immediate impact of the addition of the
Equal Rights Amendment to the Constitution would be on
the federal government. It becomes evident, therefore,
that merely changing state statutes will not be a solution to
discrimination against women.
Opponents of the ERA choose to ignore the legislative
history embodied in the majority report of a congressional
committee which serves the purpose of legislative intent,
a term well recognized in the State Legislatures. It is this
legislative intent, not the oft quoted and distorted Minority
Report, that will guide the Supreme Court in its decisions.
The argument that the courts could interpret present laws
to include women is specious since they have historically
refused to take such a position. The Supreme Court has
been slow to move and has consistently chosen not to apply
the Fourteenth Amendment to discrimination based on sex
with the same vigor it applies the amendment to
distinctions based on race.
Perhaps if the Court had held that discrimination based on
sex is inherently suspect, its rulings on sex discrimination
cases would have been sweeping and could have applied
nationwide to similar laws in other States. However, the
Court has never held that sex, unlike discrimination based
on race, is inherently suspect, and therefore subject to
close judicial scrutiny.
Furthermore, the present Court, in its decision in the
Fronterio case, stated it is unnecessary for the Court in
this case to characterize sex as a suspect classification,
with all of the far reaching implications of such holding. By
acting prematurely, the Court [will assume] decisional
responsibility at the very time when state legislatures,
functioning within the traditional democratic process, are
debating the proposed amendment. It is apparent,
therefore, that the Court will not render decisions of
sweeping implications that would strike down discriminatory
statutes and regulations because it is anticipating the
ratification of the ERA.
The argument that men would no longer be required to
support their families is one that proponents reject because
one would have to believe that, upon ratification of ERA, all
husbands would suddenly decide to withhold support from
their families, thus forcing wives to go to work. More than
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40 percent of the labor force is women and most of them
have to work to supplement shrinking family purchasing
power. It is not law, or lack of law, that forces womenor
meninto the job market, but rather sheer economic
necessity.
The draft is a moot question inasmuch as Pentagon officials
continue to support a volunteer army. If the draft were
reinstituted, women would have the same deferments
available to them as men. Present policy of the armed
forces is for no more than 2 percent of the military to be
women. While the legality of that might be questioned, as
long as the armed forces have powers to regulate troop
makeup, those policies could remain the same.
Laws relating to homosexuality would not be construed to
deny or abridge equality of rights on account of sex since
the classification of persons as homosexuals is not a sex-
based classification. Homosexuality is not a characteristic
unique to one sex; thus statutes relating to homosexuality
would apply to males and females equally. The ERA would
prohibit discrimination between males and females on the
basis of sex, and not among males and females on the basis
of sexuality.
Equality does not mean sameness. Thus, the ERA would
not prohibit reasonable classifications based on
characteristics unique to one sex. For example, a law
providing for payment of the medical costs of child bearing
could only apply to women. In contrast, if a particular
characteristic is found among members of both sexes, then
under the ERA it is not the sex factor but the individual
factor which would be determinative. Since the child-
bearing characteristic is unique to one sex, regulations
concerning that characteristic are not based on sex and are
not reached by the ERA.
The question of unisex toilet facilities was clearly
resolved when the Griswald v. Connecticut case, relating to
rights of privacy, became part of the legislative intent of
the Congress.
Rather than ERA undermining the family unit, ratification
of the amendment would serve to reaffirm the contribution
made by the woman working at home who chooses to invest
her time in the creation of family life. The additional
sharing of responsibility might free men to spend more time
with their children.
The amendment itself will deal only with laws which
discriminate between the sexes. Its effect will be a
reexamination of the attitudes and lifestyles of both men
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and women which have made many marriages in 20th
century America less than rewarding.
Section 2 of the resolutionthe Congress shall have the
power to enforce, by appropriate legislation, the provisions
of this articleraises the question of States' rights.
Articles 13, 14, 15, 19, 23, and 24 of the Constitution all
contain similar wording and do not change the power of
States. This wording grants Congress authority to act in the
area of sex discrimination. Article 10 of the Bill of Rights
empowers the States to legislate, and the ERA will not
supersede that right just as the other articles did not deny
the States their power to legislate appropriately.
Only if we fail to do our job as legislators will all jurisdiction
over women's rights, domestic relations, property laws,
family support, and privacy be transferred to the federal
government. States, rather than the federal government,
should control the fate of these laws. The legislative
process then will not be weakened, the judicial system will
not be undermined, and the citizens of each State will be
able to retain home rule.
Proponents cite several reasons for the necessity of a
constitutional amendment. First is the guarantee that the
issue of equality will not be subject to the whim of the
Legislatures from year to year and that full equality before
the lawfirst-class citizenshipwill be assured across state
boundaries.
Second, state statutes cannot provide legal authority to
correct inequities in federal laws, i.e., the 40-year-old
Social Security Act which is dooming a disproportionate
number of women to poverty in their old age. Third, once
the Equal Rights Amendment is ratified, the burden of
proving the reasonableness of disparate treatment on the
basis of sex would shift to the United States or the State.
Presently the burden is on the aggrieved individuals to show
unreasonableness.
It is true that litigation will be required to resolve many of
the knotty issues that will arise. But it was litigation that
developed much of the discrimination at which the
amendment is aimed.
The inherent right of all citizens to receive equal protection
and equal treatment under the law should not be subject to
the will or whim of even the majority. In almost all cases,
civil liberties of minorities are protected by the law.
Virtually all of the civil liberties now held by racial and
religious minorities and others cannot be modified or
abridged by the caprice or desire of even an overwhelming
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majority. Certainly, considerations of conscience and right
compel and demand that these liberties be extended to all
men and women.
Trudy Camping: Against the ERA
Only four more States remain before the necessary 38 will
have ratified the Equal Rights Amendment, possibly making
it the 27th addition to the United States Constitution.
Before the remaining Legislatures undertake ratification,
perhaps it would be best to determine if the Nation
presently would not be better off with just 26 constitutional
amendments, and supportive state and federal legislation.
Is the Equal Rights Amendment needed, or will it bring even
more problems to be solved?
The most important point to remember is that when the
State Legislatures ratify the ERA, they are not merely
agreeing with the symbolic and philosophical issues of
women's rights, they are establishing legal language which
must be strictly adhered to. If the U.S. Constitution
contained the sentence, Equality of rights under the law
shall not be denied or abridged by the United States or by a
State on account of sex, the language itself would admit to
no exceptions. It would be an indiscriminate amendment,
forcing completely equal treatment of the sexes when that
is not particularly advantageous or desired. Such a rigid
requirement of equality would be unworkable and would lead
to greater injustices for women and men.
To examine the consequences of ratification, Virginia
established a task force to study the effects of the ERA on
that State's laws. The final report concluded that women's
position would be extensively damaged by the ERA because
it would all but destroy the protective legislation that has
been enacted to help them. Statutory rights or exemptions
now given women concerning employment, marital and child
support, alimony, rape, seduction, and military draft would
be completely invalidated rather than being extended to
men. Separate sleeping and toilet facilities would not be
legally justified if the ERA were ratified. Women cannot
afford to lose these laws which have given protection in
special areas of need. The far-reaching effects on family
life and the status of women must not be passed over
lightly.
However, I think the argument has been not so much over
the desired equal status for women but rather the method
for achieving this goal. The U.S. Constitution has a special
purpose in that it must apply to all successive generations
and it would be foolish to tinker with its provisions just to
satisfy a philosophical desire for equality. Proponents of the
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ERA apparently think it would be easier to insert a small
sentence in the Constitution than to identify specific wrongs
and enact legislation to correct them. This has been of
extreme concern to legislators because of the vagueness
inherent in the ERA and also because of Section 2 of the
proposed amendment.
Section 2 says that Congress shall have the power to
enforce, by appropriate legislation, the provisions of this
article. If the ERA was ratified, it would preempt the
present right of individual States to legislate in this area
and that should not be allowed. It is essential that the
States retain their right to enact laws for women. A federal,
congressionally influenced set of equal rights for the sexes
is not in the best interests of the States or the women and
men living in them. In some instances, a national law has
been useful, such as in civil rights, employment, or other
legislative areas, but women's rights should be kept to the
States. The ERA is a misdirected effort in the important
work toward women's equality.
State legislation has many advantages, the most significant
being that it could relieve a known problem without
producing any undesirable side effects. It is difficult to
predict all the repercussions of a constitutional amendment,
but it is much easier to do so for legislation because it is
necessarily more specific. The Nation should not gamble
with the effects that could be produced by the Equal Rights
Amendment. Specific legislation appears much more
desirable.
The private sector would also come under the jurisdiction of
legislation, thus granting additional benefits to working
women in every area of private employment. Working-hour
limitations, rest periods, disability leave, and weight-lifting
regulations could all be handled by state legislation, but in
this manner the laws would be tempered with rationality,
not included in a one-sentence cure-all.
Some progress has been made with state action and court
decisions. Litigation has expanded and will continue to
expand definitions for women's occupational and marital
rights and several States have enacted equal rights
legislation. For example, the Arizona Legislature in 1973
enacted two bills dealing with employment, providing equal
pay for equal work and allowing an employee to collect triple
damages for wages wrongfully withheld. Another measure
was an extensive piece of legislation providing equality
under the law for both sexes. In 1975, several bills were
introduced to amend the state constitution to conform with
the antidiscrimination laws previously passed.
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Other States should follow this example and enact positive
equal rights legislation. The danger in the ERA is its
potential to radically change established, time-proven
family and sexual relationships. Something as basic as the
American family cannot be altered without some
expectation of profound disturbances of the Nation's
foundation. No one can deny the need for equality between
men and women, but the ERA is not the way to achieve it.
To cite this page:
" Pros and Cons of the Equal Rights Amendment," Annals of American
History.
<http://america.eb.com/america/print?articleId=387485>
[Accessed June 1, 2014].
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