This week, we’re sharing a constitutional conversation from our archives in honor of Women’s History Month. This program, hosted live at the National Constitution Center in Philadelphia, traces the history of the Equal Rights Amendment and explores the question of whether we need the ERA to ensure gender equality in the United States. National Constitution Center President and CEO Jeffrey Rosen was joined by University of Texas at Austin School of Law professor Cary Franklin, an expert in anti-discrimination law, and University of Pennsylvania Law professor Serena Mayeri, an expert on how social movements impact legal and constitutional history, to discuss that question and more.
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PARTICIPANTS
Cary Franklin is W.H. Francis, Jr. Professor at The University of Texas at Austin School of Law. She studies constitutional law, antidiscrimination law, and legal history. She is particularly interested in the history of antidiscrimination law in the areas of sex and sexual orientation, and how this history influences legal conceptions of equality today. Her work has appeared in numerous publications and her article, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law (N.Y.U. Law Review 2010), was awarded the Kathryn T. Preyer Prize by the American Society for Legal History.
Serena Mayeri is professor of law and history at the University of Pennsylvania Carey Law School. Her scholarship focuses on the historical impact of progressive and conservative social movements on legal and constitutional change. Her book, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (Harvard University Press, 2011) received the Littleton-Griswold Prize from the American Historical Association and the Darlene Clark Hine Award from the Organization of American Historians. Her current book project is tentatively titled The Status of Marriage: Marital Supremacy Challenged and Remade, 1960-2000.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
This episode was produced by Jackie McDermott, Tanaya Tauber, and Lana Ulrich. It was engineered by Greg Scheckler.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jackie McDermott: [00:00:00] Welcome to live at the National Constitution Center. I'm Jackie McDermott, the show's producer. This week, we're sharing a constitutional conversation from our archives in honor of women's history month. This 2015 program traces the history of the Equal Rights Amendment and explores the question of whether we need the ERA to ensure gender equality in the US. Jeffrey Rosen was joined by law professor Cary Franklin and law and history professor, Serena Mayeri. Here's Jeff, to get the conversation started.
Jeffrey Rosen: [00:00:32] So lots to talk about. Cary let's start with the ERA. It was passed by Congress in 1972, but there were earlier versions of it embraced as early as 1923. Can you give us a sense of what the 1923 version was and then take us up to the, to- to the current version?
Cary Franklin: [00:00:48] Great. So the ERA was first proposed in 1923 after the 19th amendment passed, and 19th amendment passed in 1920, and it gave women the right to vote. And then feminists who had been advocating the right to vote, decided that we should go one step further. We've amended the constitution to give women the right to vote. We should amend the constitution to give them equal rights across all areas of the law. So it was proposed in 1923, it was proposed in every Congress for the next 50 years. It never passed, obviously.
Interestingly, for most of the 20th century, feminists were very divided on the ERA. Not all participants in the women's movement, supported the ERA. In fact, many, many feminists were against the ERA because what the ERA said was no state shall ... no state, no federal government shall deprive people of equality under law on the basis of sex. And this large strand of the women's movement was afraid that courts would implement this amendment in such a way that all of the legislation that had been passed over many decades to protect women would be eradicated, right?
So there were labor laws saying employers can't force women to work more than 12 hours at a factory, or can't make them stand up for this men ... amount of time, or can't make them work more than six days a week. This kind of protective legislation historically was seen as beneficial to women to not let employers run them into the ground. And feminists were very concerned that an Equal Rights Amendment would say, nope, men and women need to be treated exactly equally in all of that helpful legislation would be out the window.
So it wasn't really until the late 60s that the women's movement coalesced around um, the the ERA. And at that point, the protective legislation had started to be struck down anyway, because Congress passed in 1964 civil rights Act, which prohibited discrimination in employment. So protective legislation was on the way out once that was on the way out, the women's movement could coalesce around this idea of the Equal Rights Amendment got through Congress on the coattails of all of that enthusiasm. But then petered out.
Jeffrey Rosen: [00:03:00] Great, not great [inaudible 00:03:17] [laughing]. Great as a discussion, as a summary of- of the history. Serena, what can you add to that history? Cary reminds us at the turn of the century. Progressive's like Louis Brandeis, my hero, we're defending a protective legislation for women maximum hour laws that the Supreme court upheld for women, even though it struck them down for men. So tell us more about the division among feminists in the first wave or- or starting in the 19th century through the 1920s about whether or not protective laws were a good thing and how they began to coalesce around the ERA by the second wave of the 70s.
Serena Mayeri: [00:03:36] Sure. Well one thing that I think surprises a lot of people today is the odd coalitions who are in favor of the ER- ... the first ERA, the one that was proposed in the 1920s. Prior to the unification of feminists around the ERA that Cary just- just described feminists in organizations like the national woman's party, which were very focused on winning an Equal Rights Amendment and opposed to the argument that protective labor legislation for women needed to be saved often ally themselves with racial segregationists in Congress in order to build upon those legislators belief that protective labor legislation generally was bad. And and their efforts to carry favor with of course, white women and oppose civil rights legislation for this pretty small group of- of feminists were willing to- to ally themselves with anyone who would support the ERA.
That all changed as Cary mentioned starting, I think in the early 1960s with a- a strategy proposed by an African-American civil rights lawyer named Pauli Murray, who thought that one way of getting around both of these problems, both the split between the civil rights movement and feminists and the split among feminists about whether an ERA was desirable or not. She thought that one solution to this problem would be to advocate for a new interpretation of the 14th amendment and a litigation strategy that would interpret the equal protection clause to include sex discrimination and women's rights. And over the course of the 1960s, as Cary mentioned, when the ... after the Title VII was passed in 1964 Title VII, in- in some sense, solved both of the problems that were dividing feminists. It- it enabled feminists to ally with the Civil Rights Movement to push for the enforcement of Title VII for both race and sex discrimination. And at the same time, as Cary mentioned it obliterated sex, specific protective labor legislation removing the other obstacle to feminist unification around the ERA.
So really beginning in the late 60s and early 70s feminists were pursuing at the same time the enforcement of existing legislation, like Title VII which of course attacked employment discrimination. And we're also pursuing a constitutional strategy involving both advocacy for an Equal Rights Amendment and also litigation under the 14th amendment to accomplish some of the same goals.
Jeffrey Rosen: [00:05:47] That is also very helpful in reminding us of this unsettling history where feminists made common cause with opponents of civil rights for African-Americans and how that changed moving forward. Let's focus on the debates about the ERA. I think the audience will wanna know, do we need any ERA today and why did supporters of the ERA think it was needed when it passed? I love during these panels to bring out our NCC pocket constitution with its thrilling new introduction by yours truly, David Rubinstein about the relationship between the constitution, the declaration and the bill of rights.
And the 14th amendment, which Serena mentioned does a guarantee to all persons, the equal protection of the laws. But section two of the amendment seems to contemplate that if states deny the vote to African-American males, then they're a portion and the Congress will be proportionately reduced feminist objected to that by acknowledgement that the 14th amendment wasn't intended to protect women for injecting a note of cast into the constitution. Was that relevant in the debates over the ERA, what did its proponents think it would achieve? And why did they think it was necessary?
Cary Franklin: [00:06:54] Great. So the 14th amendment was passed in the aftermath of the civil war and said, no state shall deprive any person of equal protection under the law. Suffragettes in the 19th century were allied with abolitionists and they hoped that after the civil war, Congress would pass an amendment and America would amend the constitution to protect against both race and sex discrimination. Well, as it happened, when push came to shove, the su- suffrage supporters got thrown under the bus because it couldn't get passed. And so the 14th amendment ends up introducing the word male into the constitution for the first time.
So it's very clear that the equal protection clause is not intended by the framers in 1868 to apply to women, to protect women. Because the second section says you're only gonna be punished if you're a state and you deprive men of the vote implicitly saying if you deprive women the vote, that's okay. So discrimination against women seems to be contemplated by the people who enacted the 14th amendment.
So fast-forward into the 1970s, women are looking at the 14th amendment. This is the equal protection clause, right? This is the grand provision of the constitution that protects people against discrimination by the state. And they're seeing that it doesn't protect on the basis of sex. It only protects on the basis of race. And so they say, we need an amendment to the constitution that will protect on the basis of sex. That will make it clear that that is also a ground on which the state may not discriminate. And so they write the Equal Rights Amendment, which says the quality of laws guaranteed, no discrimination on account of sex. That's the early 1970s.
Interestingly, over the course of the 1970s in part because of pro ERA activism and the engagement of the women's movement, the Supreme court starts to interpret the 14th amendment to prohibit sex discrimination. And so, that's not what the people who passed the amendment intended it to do, but the Supreme court starts to say first in 1971, and then almost every year in the 1970s, the court decides a case saying discrimination on the basis of sex violates the equal protection clause.
And so interest ... There's an interesting scholarly debate now about whether we need the ERA, because some people call this body of 14th amendment case law, the de facto ERA. It's not clear if we had an ERA passed today, what it would actually do because the court has read the equal protection clause to prohibit discrimination on the basis of sex. The ERA would also prohibit discrimination on the basis of sex. It's very interesting to think about whether that would add anything to what we already have. And I'll just ... I'll say one thing it might add is the protections under s- ... for sex under the 14th amendment are all embedded in the case law. So a new court could come along and could overturn all of those cases and that could not happen if there was a constitutional amendment.
Now this body of 14th amendment case law is almost 50 years old. It's very well entrenched. I do not foresee it being overturned in the near future. So it's interesting to think about what the ERA would actually do practically.
Jeffrey Rosen: [00:09:58] Yeah. That's a fascinating question. I'd love for you to address Serena. Tell us a little more about why the ERA did not pass. I remember a great book by Jane Mansfield about Why we Lost the ERA, and the claim is that when the Supreme court, as Cary suggests intervened, essentially to read the ERA into the constitution by, ... in- in the, in the Frontiero case, it took the wind out of the sails ratification because people thought we don't have to pass this anymore more. The Supreme court has given us to this by- by judicial Fiat. W- ... did the court error and stepping in that way, would the amendment had passed if the court did not intervene. And then tell us about what sort of arguments that feminists made drawing on the civil rights movement to persuade the court, essentially to extend the reasoning that it embraced to protect women in the 70s and 80s.
Serena Mayeri: [00:10:48] Sure. I think as far as the question of whether the 14th amendment litigation success derailed the ERA I, you know, I think that certainly may have played a role. It's hard to do a count at the historian. I always have told you in counter factuals of what would have happened, had the court not done that. I think at least as significant was a very strong anti ERA movement that was really spearheaded by Phyllis Schlafly and and her ... She and her grassroots supporters made arguments against the ERA that were not just about the fact that the Supreme court was enacting was- was basically enacting the ERA through judicial Fiat, although they did mention that. But also were really substantively about whether equal rights for women and the way that the ERA would have or- or at least they perceive the- the ERA what they perceived the ERA to do. They- they made a very substantive case against the amendment. So I think that's, that's an important, important factor.
Jeffrey Rosen: [00:11:43] Well, what was this substantive case against?
Serena Mayeri: [00:11:44] Well, so I mean, some of the substantive case was based on what arguably was a misinterpretation of the ERA's impact. So if we think that what the Supreme court did in the 1970s is more or less what the ERA would have done had it passed. I.e. it eliminated sex-based classifications from most of federal and state law. So for example, social security benefits that were that husbands and not wives could receive or vice versa became gender neutral. Alimony laws became gender neutral. Opponents of the ERA argued that the ERA would, in fact, for example, eliminate husbands duty to support their wives would leave women bereft at divorce. They also argued that it would enshrine abortion rights into the constitution and require fedERAl funding of abortion. By the end ... by the mid to late, actually even in the early 70s, anti ERA opponents of the ERA argued that it would require same-sex marriage.
Feminists denied a lot of this many feminists deny that it would have any impact on abortion rights or on same same-sex marriage. They also denied the notion that that husbands would have no duties to support their wives. Rather they said it simply made the duty of support. For example, gender neutral.
Cary Franklin: [00:13:01] Can I just interrupt with, we should not underestimate the potty problem. There was a ton of discussion 1970s about how this would get rid of say sexed bathrooms. And we would all be went to the bathroom in the same room and, you know, endless editorial cartoons about- about that. That was a big part of the case.
Serena Mayeri: [00:13:15] And- and I ... and that reminds me to also mention the- the military draft is a more substantive issue that people were concerned about was that the ERA would require women as well as men to be drafted. Yeah, yeah.
Jeffrey Rosen: [00:13:27] Now I have to ask, were the opponents, right? In some sense, Cary, you describing this really fascinating article that justice Ginsburg's vision of anti subordination, which she certainly encourage the court to read into the equal protection clause, but also would have thought that the ERA embrace as well does in fact lead to reproductive rights to same-sex marriage. And I guess might ... some would have invoked it today to argue for same-sex bathrooms. So w- w- w- were the opponents right to worry?
Cary Franklin: [00:13:57] Yes and no. I think some of the extremely radical claims about what would instantaneously happen were on ... were not correct. And I think they opponents were forgetting that the court is an institution in a society. It doesn't tend to get too far out from where the culture is. And a lot of the things Serena mentioned were not things American culture was ready for in the 70s. I do not think an RA would ... the ERA would have somehow magically implemented all of those goals.
However, in- in- in- in one way, in a deep sense, I think there was something to what the opponents were saying. At this ... go on a little tangent, but it's gonna, it's gonna come back around to say that Ruth Bader Ginsburg is the person who litigated most of the sex discrimination cases in the 1970s. She's the lawyer most responsible for persuading the court to interpret the 14th amendment to prohibit sex discrimination. And she brought her case, her sex discrimination cases with male plaintiffs, right? To this day, most of the plaintiffs to reach the Supreme court under the constitution on sex discrimination claims have been men, right? Most of our sex discrimination plaintiffs are men. And she decided that this was a good idea, not because as some critics have accused her of just, ... she wanted to remove every distinction from the law and sought, I could, I could challenge it with a woman. I could challenge it with a man Supreme courts, all men, maybe there'll be more sympathetic to a man.
Critics have said, this left us with a kind of very formalistic sense of equality that didn't actually help women in a lot of circumstances, such as pregnancy when formal equality wouldn't help them that much. I actually think why she brought all these cases with men is that she wanted to show the court that sex discrimination works both ways, right? What sex discrimination is, is a set of laws that push people into traditional gender roles and this kind of behavior on the part of the state affects women and men equally.
And she wanted the court to implement a constitutional principle that said the state can't act in ways that push people into this breadwinner, caregiver, dichotomy or the push men to be actors in the marketplace and women to stay home. And there was a whole set of laws that she challenged under this thinking and persuaded the court to I think adopt this theory of when the constitution is violated, right? That's not saying that we have to treat men and women exactly the same in every circumstance. It's saying we're gonna look at each particular law and ask whether it does this traditionalist move, whether it pushes people in these directions.
And one of the reasons why I think some of this could lead to some of the kinds of current issues that you're talking about is the court in the 1970s, didn't start applying this theory to same-sex marriage. That was way beyond the kind of thing that they were thinking then. However, if you think about the logic of action by the state that pushes people in traditional gender roles, well, forcing people into traditionally sex marriages is something that does that, right? The assumption is that a man has certain characteristics and traits and a woman has certain characteristics and traits. And they make couple together, they make a home and each of them brings something different to that union, right? That's the kind of thinking that Ginsburg was attacking, even though she wasn't attacking sexed marriage laws at the time. Today, we could, we could say that that kind of philosophy, which the court has adopted would apply to limiting marriage, to different sex couples.
And I am very interested to see this summer when the court, which I think it will do strikes down. I- I- I- I say to my class, you know, I'm not gonna predict, and then I do predict and I'm wrong every time. So I don't know why I keep doing this.
I- I- I think it's likely that the Supreme court will say that laws, limiting marriage, different sex couples are unconstitutional. I'm very curious to see whether there'll be any of this kind of reasoning in the opinion that again, predicting just as Kennedy will author on the subject.
Jeffrey Rosen: [00:17:40] Well, let us talk a bit more about justice Ginsburg's vision. She is a great hero of the National Constitution Center. I'm thrilled that she gave us when she was here last year, signed copy of her brief in the struck case where she first set out the vision of anti subordination that Cary has just mentioned, and you can go see it in the permanent exhibit, along with her robe. I just want to promote in our most prized possessions Serena, you have this really fascinating paper here about the possibilities and limits of justice Ginsburg's w what'd you call the formal vision of gender egalitarian marriage, which he persuaded the court to write into the constitution. You say, as a matter of formal law, it was good for married couples, men, and women, and it might even be extended to married gay couples, but you say it has limits because it doesn't necessarily include unmarried couples, both gay and straight. Tell us more about the strengths and weaknesses of justice Ginsburg's vision of legal equality.
Serena Mayeri: [00:18:38] Great. Well, I wanna be really clear, actually. I completely agree with Cary's wonderful and very persuasive article on this topic. I think what justice Ginsburg and her allies and colleagues presented to the Supreme court was a lot more than what they got in the end. And, and so I think it's important to distinguish what it was she was arguing for and what the court actually did. When it comes to what the court actually did I think the argument that the court had, the easiest time accepting of all the arguments that justice Ginsburg made was that husbands and wives should not be treated differently as a matter of law for the purposes of things like social security manifests for the purposes of marriage and divorce law.
And and to the extent that that ... that they wrote formerly quality into the law with respect to married couples that of course has limits even with respect to married couples. It didn't overnight make husbands and wives equal. It merely said that husbands and wives could not be treated differently by the government for the purposes of receiving these benefits. That didn't mean that many of the structural inequalities that are both built into government policy. And also that happened in ... as a matter of social reality and homes, workplaces. Those of course didn't magically disappear.
But even- even though, ... even this formerly quality that was written into the law with respect to marriage and divorce to a large degree had its limits for a growing portion of women. And particularly women of less economic means and women of color who during the same period that all of these gains were being made in making marriage more legally, at least formally gender egalitarian marriage rates were falling, divorced rates were r- rising rates of non-marital childbearing were rising.
And so a lot of the benefits that at least some married women in the wealthier professional classes gained from what the Supreme court did in the 1970s was increasingly unavailable to large numbers of women on the basis of class and race.
And so it's not ... I wouldn't necessarily characterize it as a limitation to what justice Ginsburg argued for. There are many contexts in which what she argued for would have and did benefit women, whether they were married or not. And regardless of race and class things like her campaign against pregnancy discrimination and a lot of the litigation that she and her colleagues did under Title VII, of course, that has nothing to do with marriage and and furthers women's economic independence, regardless of whether they have a partner.
What we've seen recently is is really an increasing what sometimes people call a marriage gap that marriage rates are much higher among wealthy and upper middle class college educated white Americans than they are among the rest of society and that marriage gap wasn't wasn't ... it was starting to be apparent, but it wasn't really, I think very apparent in the 1970s when this litigation was happening. So it's also important, I think to remember that what they were thinking about in the 70s was not necessarily what then came to pass.
Jeffrey Rosen: [00:21:33] Fascinating. Tell us more Cary about why justice Ginsburg thinks it's so important today to have an ERA. I had the huge pleasure of interviewing her in DC a few months ago for the New Republic. And she said, we need an ERA. She was critical of younger feminists for no, for not pushing for it and realizing how important it is. I- I mentioned to you that we ... there's a great new book out about justice Ginsburg's legacy that Cary and others have contributed to why does she think the ERA is so important? W- what would it achieve?
Cary Franklin: [00:22:03] Yeah, I she has said this before I last year justice Scalia and justice Ginsburg were both asked if you could have an amendment to the constitution what ... how would you amend the constitution? And justice Ginsburg said I would I would have an ERA. And justice Scalia gave the answer that I would give, which is I would amend the constitution to make the constitution easier to amend.
Jeffrey Rosen: [00:22:19] Hmm.
Cary Franklin: [00:22:20] Tight. I just ... Our constitution is extremely, extremely difficult to amend. And so one of the reasons we had the 14th amendment interpreted to protect sex discrimination rather than an ERA is because our amendment process is broken, I think, right? It was created by a set of people a couple hundred years ago, who wanted the constitution to be tough, but not impossible to amend. There were many fewer states, there were many fewer people, it was not hard to amend the constitution, right? The constitution was amended immediately after it was passed.
Today justice Scalia calculated that less than 2% of the population could stop a constitutional amendment, right? We don't see constitutional amendments these days. I think there've been about a dozen since 1870. So it's very, very difficult to amend the constitution. And I think the ERA the prospects for the ERA are not very good simply because it is very, very, very hard to amend the constitution these days. The kind of consensus that's required is the kind of consensus we just don't have.
So one- one limitation, I think one- one reason that younger feminists may not be organizing around the ERA is just a realization that it is so hard to get this add-on. Adding onto that, it's not clear, as I mentioned before, what it would do beyond what the 14th amendment would do. That, that's an interesting question. The 14th amendment has been read to prohibit sex discrimination. The ERA would prohibit sex discrimination. I think if you asked justice Ginsburg and in fact, I've seen interviews with her where she says, I want my granddaughters to open up the constitution and see that there's a provision saying saying that discrimination on the basis of sex is unconstitutional.
I think it's important to have that language in our founding document, as Jeff mentioned, the 14th amendment inserted male, right? It was not intended to protect against sex discrimination, the kind of body of case law that she helped create could be rolled back, you know, 100 years from now think society can change. And that can be eradicated with a couple of court decisions. If we amend the basic foundational document of the nation, it can't be removed other than through an amendment.
And it's impossible to amend the constitution. So if we could possibly get the ERA in there, we wouldn't be able to get it out. But you have to get through that first hurdle. And I- I am fascinated by the question of- of whether an ERA would be a helpful thing. I ... my own view would be practically speaking, it's not clear to me legally what it would do other than what we already have. 14th amendment does all the work that I think an ERA would do legally. I wouldn't underestimate however, the cultural resonance of, and I think part of what's funding, Ginsburg's ideas that to have an entire population mobilized around the idea of protecting women's equality would have a lot of spillover effects into all sorts of other areas. And that's probably true.
Jeffrey Rosen: [00:24:59] Serena, how important is constitutional text and how important is the social movement that supports change. We have a phenomenal new interactive in the bill of rights gallery, which you can use there and also online where you can click on any provision of the bill of rights and the subsequent amendments, and compare that liberty with the rest of the globe. So you'll see if you click on gender discrimination that I think the majority of countries do have gender discrimination prohibitions, but these include countries like Iran, which are hardly noted for their celebration of of- of gender equality. So Serena you've studied the history of the movement, the way the feminist drew on the civil rights experience. Tell us what that experience did to actually achieve equality and practice, and whether that, or the text is more important than achieving gender equality in practice.
Serena Mayeri: [00:25:47] Great. Um, guess I would say that it's really the interaction between the two that's significant. So one- one thing I was thinking as Cary was speaking, and I- I completely agree with what she said. Is that part of what the ERA for example means is what sort ... what is the meaning that social movements invested with? So there's a really interesting debate sort of little known debate in the early 1980s, right after the ERA failed to be ratified. a debate in Congress where lawmakers intr- ... re-introduced the ERA. And it's fascinating to see what feminists were sa- ... were- were saying and thinking about the ERA just after it had failed to be ratified.
And one of the things that some of them were thinking was that, you know, they- they sort of sat back and thought, well, what have we ... what did we originally hoped to do with the ERA when it was proposed in the early 1970s? And what they discovered was that most of that had been achieved. But that they still had a lot of unfinished business both unfinished business that they thought an ERA might help to remedy and unfinished business that they recognize needed to happen outside the ERA. And so one of the things that I think about when asked about prospects for a future amendment is you know, to a large degree, it depends on the efficacy of a new ERA would depend upon how it's interpreted and how it's interpreted often depends as Cary mentioned upon the, so ... the- the meaning that social movements invest it with and the- the type of advocacy that they do to change public opinion, to support new interpretations of existing tax.
And so I think I think with respect to what, what's the unfinished business that feminists recognized in the early 80s a lot of it is still unfinished business today. It's things like it's things like funding for abortion rights. It's things like same-sex marriage, although we're much closer to that. It's things like legislation that enables people to better balance work and family, which some of which has been achieved in the form of the FMLA, but we're still ... we're talking about comparisons to other places very far behind other developed countries and even- even developing countries in the extent to which we don't provide family leave and other supports such as subsidized childcare and and other supports for families to balance working family.
And so I guess I guess my view would be that not that the ERA is by any means rebating needs to be a bad thing, but just that as I think feminists were recognizing in the late 70s and early 80s legislation lobbying changing the culture of workplaces and and the culture of family life is also really important in- in finishing from a very unfinished business.
Jeffrey Rosen: [00:28:23] Let me ask you about the work family balance as well. And then we'll take some questions from the audience. When I interviewed justice Ginsburg in the late 90s she had in her office, a picture of her son-in-law holding their infant ... his infant grandchild, and there was so much, it was at ... it was an odd experience 'cause she didn't want to sit down for a face-to-face interview, but she said, go to my chambers and look around as you please.
So I was there in these beautiful chambers with this modern art feeling, a little awkward as I sort of looked at the bookcases and sort of hung out for about a half hour, admiring the pictures of her and justice Scalia on an elephant in India and her appearing in a production of the pirates of Penzance and so forth. But she had this picture of her, of her, of her son-in-law and she then called me from her car and said, did you see that picture? That's my hope for the future. And initially I thought that was a sort of banal kind of my grandchildren, the hope for the future, but then I read her speeches and thought more deeply about it and realized, she said only when men take equal responsibility for childcare will women to be truly equal.
This is a big debate among feminists today among third wave feminists there are hotly contested arguments about what the solution to the workplace ... work-life balances, give us a sense of the legal debate and whether you think solutions to this most difficult of all questions are likely to come from the courts from legislatures or from social movements.
Cary Franklin: [00:29:47] So- so one thing I would say and it picks up on the previous question about the ERA is it seems to me potentially a more promising route for activism is through legislation rather than through an attempt to get a constitutional amendment, simply because it is so- so difficult to amend the constitution. Now it is so, so difficult to get things through Congress right now, too. So I don't [laughs] I'm realizing as I'm talking, then I'm not holding that up as a panacea. This is hard right now. But there's, ... everyone knows the first part of the 14th amendment. It says the state can't deny people equal protection. People tend not to know about the fifth part of the 14th amendment. The fifth provision of the 14th amendment gives Congress the power to pass legislation that enforces the first part. So the fifth part of the constitution is Congress you have the power to go pass laws to make equal protection or reality.
So it seems to me that a promising route for activists to take is to lobby Congress, to lobby legislatures. And to say, we need laws that make this equal protection promise a reality. I think it is clearly the case that courts can only do so much and legislatures in the day-to-day life of most people will make a much bigger difference.
And so Serena mentioned the FMLA this is one example of a piece of legislation that was enforcing the equal protection promise of the 14th amendment. It said that employers have to provide 12 weeks of family leave to men and to women. And the court agreed that that was a law that enforced equal protection because without leave employers, didn't let men take leave. They pushed women to take leave, and they continued this cycle of family stereotyping. And- and Congress said, we're gonna guarantee 12 weeks because we've to everyone to stop that kind of discrimination. It seems to me that to attack the work family problem, you're gonna need a lot more of this kind of legislation.
So if I were an activist interested in these issues, I would probably advocate for paid leave, right? We only have, I think it's three states, California, Rhode Island, New Jersey, the only states where there's any paid leave at all. So the FMLA leave, 12 weeks of unpaid leave, that's wonderful. But if you're a low-income person, you can't afford 12 weeks of leave. So that's a, that's a, that's a miracle promise to you. It's not gonna really bring you much paid leave would be pretty important to enable people to actually take this leave.
Sick leave is important. There are a lot of people who lose their jobs, who are working say at McDonald's, if you have a sick child, it's easier for McDonald's just to fire you and hire someone else. If ... and they provide you with no sick leave you're gonna lose your job if your child is sick. This is a reality for a lot of people. These are the kinds of legislation that I think I would push for if I were interested in getting that equal protection clause implemented, it's hard ... It's slow going though. It's slow going. It's not ... as- as Serena mentioned, America is very far behind. If you, if you support this kind of legislation, you'd say very far behind in implementing all of these kinds of safety nets for working families.
And and I think, however that if you wanted to attack the work family balance, the ERA would not be the way to go. It would be lobbying legislatures to implement these kinds of projections.
Jeffrey Rosen: [00:32:58] Great. We have some superb questions from our wonderfully engaged audience and let's get right to them. Serena, the Pennsylvania constitution protects explicitly against gender discrimination. Has that made any difference for Pennsylvania citizens compared to US citizens?
Serena Mayeri: [00:33:11] That's a great question. And one that I could have answered in a more informed way a few years ago when I was working on these issues. And I I so I don't remember specifically the Pennsylvania ERA and the specific court decisions that would be relevant to a truly informed answer on this question. I can say generally though, that state ERAs have made a difference in certain areas in certain states and different state ERAs actually have different language. Some of them are very similar to what the federal ERA would have been. Some of them are quite different. Some of them incorporate sex into a larger state equal protection clause.
One of the ways in which state ERAs have been significant is in the area of abortion funding. So for example, Connecticut has a state and the Supreme ... the Connecticut Supreme court ruled I think back in the 1980s that that the state ERA required Medicaid funding for abortions. So that's been one significant way in which it's made a difference. I think it's also made some differences in some areas of family law. And you know, there are differences that I would s- ... I- I would not characterize as dramatic differences. They state ERAs have been u- ... you have been invoked in marriage equality cases to some degree they've been invoked in some other contexts, including things like inheritance laws that differentiate on the basis of sex.
So I would say they ha- ... they certainly have not been insignificant. But they haven't made such a huge impact beyond what the litigation under the federal equal protection clause is provided.
Jeffrey Rosen: [00:34:39] Fascinating. Interesting indeed. This question Cary says we just passed the first state ERA in 30 years in Oregon. First, isn't it true that some want to hold up the ERA so that it includes gay people and transgender people. And second, the ERA has and a case name is listed [Mira 00:39:37] versus Johnson has held that I think reproductive rights are protected. So I think the question is about this Oregon ERA might be extended to transgender people and reproductive rights.
Cary Franklin: [00:35:08] Well, it's certainly the case that that discrimination on the basis of sex is starting to be interpreted by some courts to protect prohibitions on discrimination on the basis of sex have started being interpreted by some courts as protecting against discrimination against on the basis of homosexuality discrimination on the basis of transgender. There was a famous case a few years ago where a person applied to work as a library ... at the Library of Congress. And he was a man when he applied, he got the job. And then when he showed up at work, he was a woman. He had transitioned in the period between he got the job and he showed up and the Library of Congress said you're fired. I think it was actually, it'd be working with some collections, maybe military collections that members of Congress would be requesting of the library. And the library said, you know, we can't have you being our liaison to Congress no way.
And so he ... she went to court and won because the DC court said, this is discrimination on the basis of sex, right? You hired this man, and now you don't want this woman. And every single thing is the same, except for the person's sex. That's not the only decision in which a court has held that, there have also been some courts saying that discrimination on the basis of sexuality particularly against homosexual people, is discrimination on the basis of sex, because what you don't like about that person is that they're attracted to men instead of women. It's the sex difference there that you don't like. And so I think some opposition to sex discrimination provisions is definitely is definitely on this basis.
The the most the most important one is probably ... and I wonder if the person was also thinking about this, so I'll just say one word about it. Which is the there has been an effort, a very strong effort to amend Title VII, to prohibit discrimination on the basis of homosexuality. Our main employment discrimination law in this country is Title VII, says, employers can't discriminate on the basis of race, on the basis of sex. It does not protect against discrimination on the basis of sexuality. So under federal law, if an employer says, I don't like you, you're gay you're fired, that's acceptable, right? So there has been an attempt to amend Title VII to include homosexuality. And one of the big arguments against it is, you know, is this gonna protect transgender people? Is this gonna protect things that we're not comfortable protecting yet? And that definitely has hold held up the addition of the amendment to Title VII.
So, yes, I think this ... these ... think these ways of thinking this, these extensions of protections against discrimination on the basis of sex that Jeff flagged the opponents in the 1970s were arguing, they're coming into play now. And they are a hurdle that advocates of laws need to overcome.
Jeffrey Rosen: [00:37:51] Serena, does the ERA have to start over again or do we just need three states with the Sunset provision constitution?
Serena Mayeri: [00:37:57] I have to admit, that's not a question that I'm prepared to answer. I don't know, Cary, if you have any insight on that.
Cary Franklin: [00:38:01] Well, I don't but, no that won't stop me [laughing].
Jeffrey Rosen: [00:38:04] You're a law professor [laughs].
Cary Franklin: [00:38:06] Yeah, yes, I am a law professor.
So, so there's an argument that the ERA actually managed to get 35 states it needed 38 states to pass. By 1982 it- it fell short, it fell three states short and there was a, there's an argument that we ... those 35 states that passed the ERA in 1970s should still count as having passed it. And so we should only need to get the other remaining three. And then once we get the 38, it should pass immediately. There's others who say no, those 38 ... those 35 states don't count. In fact, I think some of the states have rescinded their passages of the ERA. It's a technical procedure kind of question that's not in the wheelhouse of either me or Serena. But yes, there was a debate among legal scholars about whether those 35 states that passed in the 70s should count if- if the ERA were to come up today.
Jeffrey Rosen: [00:38:56] How can you appeal to men to join in the ERA fight?
Serena Mayeri: [00:39:00] So I think one of the genius of justice Ginsburg strategy and of many of the 1970s feminists was their recognition that sex discrimination harms men as well as women. And I think to the extent that we think that men need to feel a personal stake in feminism in order to support it, that that appealing to the ways in which it- it harms ... the ways in which sex inequality and sex stereotyping harm men as well is, is very effective.
And so I think one of the perhaps incidental benefits of um, of Ginsburg strategy in the 1970s, wasn't bringing to the forefront, the fact that sex discrimination and sex inequality and sex stereotyping keep men from actually restrict the freedom of men as well as women. Restrict their freedom to care for their families and work. Restrict their freedom to really have true reproductive choice in their in their own families restrict their- their ability to be if they want to full time parents to their children and still maintain their position in the workforce.
And and so I think, and that's also one of the geniuses of the family medical leave Act, as Cary said, it applies to men and women. And that is in fact part of what what feminists and other advocates were thinking when they made it gender neutral was to say in order for our society to become friendlier to women and to people who provide care for others, which tend to be women, but in order for it to not only be women anymore, we need to allow men to do these things as well. That, that's that, that kind of gender neutral strategy is one that's to me seems really promising as a means of helping them to understand what their staking isn't feminism and feminist activism.
Jeffrey Rosen: [00:40:39] And you do- do you wanna add to that Cary? 'Cause you say that the court in upholding the Family and Medical Leave Act and the Hibbs' case did embrace a broader vision of anti-submarine nation. That might be a review to those who said that justice Ginsburg was merely you know, embracing a gender blind vision that wanted women to be like men.
Cary Franklin: [00:40:55] If you're interested in what the Supreme court has said, in terms of men's stake in sex equality, I highly recommend the department of ...Nevada department of transportation the Hibbs case. It is accessibly written and very interesting. And that the most interesting part about this decision is that it was written by justice Rehnquist and it's as if you were a ventriloquist speaking justice Ginsburg, because the entire opinion is her theories about sex stereotyping. And what that opinion says is in fact, the plaintiff in that case was a man and he was denied. Well, he- he he wanted to take family leave. And the question was whether Congress had the power to give him that family leave. And the court said that there is a cycle of stereotyping in this country and it feeds on itself.
So it hurts women when men cannot get parental leave because they therefore have to take all of that burden on themselves. And employers treat them differently and don't give them plum assignments and don't promote them because the expectation is when they have children, they're gonna leave the workplace or scale back. And the court said it hurts men because they are expected to work hard. Once they have kids, they are gonna be supporting their family. They're not gonna be given any time off at all. And they're gonna be put in the same way they're going to put in a different box, but both systems are gonna be put in boxes and limit what what they're able to do.
And chief justice Rehnquist says that's not permissible as a behavior for the state to engage in any way. Congress can attack that kind of thing, because it's hurting it's hurting both sexes. And just as a side note, this is something that Linda Greenhouse, the former court reporter for the New York times always brings up. Justice Rehnquist had a daughter who was a single mother. He had a couple of grandchildren that he was ... and- and when he ... at the time he wrote this opinion constantly picking up from school because she was working. She couldn't get out to pick them up. He had to pick up the family slack and a light bulb went off in his head. Gee, this is hard, you know? And families need families need some support. And I think that, that ... I think justice Ginsburg informed him intellectually, and I think his own experience in formed that opinion personally.
Jeffrey Rosen: [00:43:12] Fascinating story. She was so fond of chief justice Rehnquist, who she always called my chief. And that opinion that you mentioned, the Hibbs case was for her, the crowning evolution of the justice who had voted against her in some of the gender equality cases in the 1970s, but she felt evolved. I think we have time for one last question. Would having more women in Congress help protect women's rights in the passage of a women's rights amendment. How can that be achieved and more broadly, what ... is there a gender ... What are the gender numbers when it comes to the ERA? I know some conservative, ... some polls suggested that women supported the protective legislation that was upheld in the partial birth abortion case at a higher rate than men. So I guess my question ... I'm extending the question to ask did all women favor of the ERA, or is there a, you know, gender gap there?
Serena Mayeri: [00:44:03] Great. So the first part of the question about more women in Congress, I mean, I guess my answer would be it depends on the women and I would say in order to achieve-
Jeffrey Rosen: [00:44:10] [laughs].
Serena Mayeri: [00:44:10] ... in order to achieve these goals, more feminists in Congress would be helpful. And and I think certainly the record of women in Congress thus far has suggested that at least the women who have served in Congress have been somewhat more able to work together, perhaps on some of these issues. And so regardless of their partisan affiliation or their orientation toward feminism, it might be useful to have more women in Congress for that reason. And the second part of the question was, sorry-
Jeffrey Rosen: [00:44:37] W- w- what are the poll numbers about women in the ERA ... yeah?.
Serena Mayeri: [00:44:40] Oh, I'm sorry, you ... ERA support. So I don't know the exact poll numbers but it is definitely true that a lot of the opposition to the ERA, as well as a lot of the support for the ERA, was coming from- from women who were worried about its effects who were conservative on other dimensions who were often religious and had religious objections to the feminist movement more generally and I think the electoral demographics have undoubtedly shifted since the time of the ERA was a really a big issue. But I think not being a political demographer myself, I- I think it's fair to say that there continues to be a divide among women. There also is as there was beginning in the early 80s a very, of course, substantial electoral gender gap between men and women. But when you break that down into different groups of women it becomes clear that gender is not the only factor that's driving that gap.
Jeffrey Rosen: [00:45:35] Fascinating. Thank you. Please join me in thanking Cary Franklin, Serena Mayeri. Thanks for a great discussion.
Jackie McDermott: [00:45:39] This episode was produced by me, Jackie McDermott, along with Tanaya Tauber and Lana Ulrich. It was engineered by the National Constitution Center's AV team. Please rate, review, and subscribe to live at the National Constitution Center on apple podcast, or follow us on Spotify and join us back here next week. On behalf of the National Constitution Center, I'm Jackie McDermott.
