Podcast: Can the Equal Rights Amendment be Revived?

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the national Constitution Center and welcome to We the People a weekly show of constitutional debate. The national Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. In this episode we explore the Equal Rights Amendment. The proposed amendment to the constitution technically expired in 1982, which was the ratification deadline set by Congress. But A Renewed push to resurrect and ratify the amendment gained momentum in 2017 leading to ratification by Illinois and Nevada. Now supporters of the amendment are looking to secure ratification in a 38th state which would round out the necessary two-thirds majority of the states required to pass the amendment raising fascinating and important constitutional questions about whether or not related ratification would be valid and if valid what the effects of an ERA would be? Joining us to discuss this crucially important series of constitutional questions are two of America's leading commentators in this important debate. Linda. Coberly is managing partner in the Chicago office of Winston and stron. She is chair of the national ERA coalition's legal task force and has briefed and argued many appeals in the Supreme Court federal courts and state appellate courts. She clerked for justice Stephen Breyer. Linda thank you so much for joining.

Linda Coberly: [00:01:29] Nice to be with you.

Rosen: [00:01:30] And Inez Stepman is senior policy Analyst at the Independent Women's forum and Senior contributor to the federalist where she writes about politics and women's issues including the ERA. She previously served as director of the education and Workforce Development task force that the American legislative exchange Council and she testified as an expert in state legislatures across the country. Inez It's wonderful to have you with us.

Inez Stepman: [00:01:52] Thanks for having me.

Rosen: [00:01:53] Linda if you could begin by telling us aboutt the state of play of the ERA. There was a move to ratify in Virginia, which seems to have stalled. Tell us how many states are necessary to ratify. What are potential possible states that could ratify and how did we get to where we are now?

Coberly: [00:02:12] Sure. Well, I'll start with that last question how we got to where we are now. The Equal Rights Amendment was originally written by Alice Paul in the 1920s and introduced in Congress for the first time in the early 1920s, but it wasn't until the 70s when Congress officially passed the ERA and recommended it to the states for ratification. So 38 states are needed and at the end of you know, 1982 when congress's own internal deadline passed there were only 35 ratifications. It was a couple of years ago actually on the 45th anniversary of when Congress sent the ratification to the states, the state of Nevada passed the Equal Rights Amendment and voted to ratify. And it really was- I can't say that was what ignited the push to ratify the ERA now. It's actually been introduced in many legislatures every year for years, but it was really the Nevada effort that started to grab people's attention. The Illinois General Assembly ratified ultimately on May 30th 2018. And now as you mentioned we're looking for the 38th state. There have been efforts in Virginia. Those efforts are not dead, although there are some opportunities have passed so activists there are continuing to push forward though It's not clear whether there will really be a vote this term or whether that's something that would be reserved for a following term. And then there are also ratification efforts today in both Arizona and North Carolina as well as recently Georgia. So there are a number of states that remain to ratify and efforts to ratify in many of those States.

Rosen: [00:04:13] Inez what can you add to the question of how we got to where we are now and then take us up to the political state of play? As Linda said Arizona, North Carolina and Georgia are considering, senators Lisa Murkowski of Alaska and Ben Cardin of Maryland recently expressed support for the ERA and said there're also efforts in Alabama, Arkansas, Florida, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina and Utah, you know, tell us how plausible it is that we might actually have of 38th state that could ratify.

Stepman: [00:04:49] Sure. So first, I want to go back a little bit just as Linda started with 1923 and talk a little bit maybe about what happened in between 1923 and those 1970s efforts where the ERA really peaked and became- and most of those those states that we're talking, about not the ones in the modern era but the ones prior, the 35 ratified. So it's got a long and interesting history this this proposed amendment and it's interesting what- or to me at least It's interesting, what eras it sort of advanced and and was part of the conversation and what eras it was not. So after its initial introduction it kind of languished for a few several- first few decades which interestingly was largely due to the result of folks like Eleanor Roosevelt in the labor movement. So if you're thinking about New Deal America, one of the first fronts in which economic regulation was both being legally upheld and also sort of socially becoming more- politically becoming palatable was to protect women in various labor environments. So regulations on the number of hours that women might be able to work or regulations on the type of heavy lifting young women might be able to do- so these were sort of some of the initial fronts in the labor movement. And so for a long time those two movements were kind of at odds. The women's rights  movement that pushed the ERA and the labor movement that wanted to put in place some of these protections for women in the labor market. I note this only because I think some of the same Dynamics at least the push-pull between sort of the idea that some laws that single out women actually do so to protect women and the idea that women should be in every single aspect legally equal to men, those two kind of camps continue to be a push-pull today when we talk about it. So in terms of the 1970s that was where the larger push was and for a long time the ERA became- it seemed sort of inevitable  that the ERA would pass right? Because the I mean if you look at just the party platforms of the two parties that there were- support for the ERA was in both of those party platforms, the Democratic and the Republican. It had the support of presidents from Eisenhower to Nixon and also Johnson and Carter it really, that consensus started to come apart only in the mid 1970s when you had Phyllis Schlafly burst onto the scene and actually for the first time articulate strong arguments against  it mostly as I said couched in the idea that women, the status of women was actually sort of more protected legally without the ERA. So that's kind of the the historical battle. It had been considered basically killed by Phyllis Schlafly's hand in the 1970s. And that's that's what all the history books wrote about the amendment until just a couple years ago where we've seen the onset, and I'm sure Linda can speak extensively to this, the onset of the three-state strategy meaning we're gonna count all of these ratifications from the 1970s, these 35 ratifications over 40 years ago alongside modern ratifications and if we do that, we've only got three states to go and now that Nevada and Illinois have ratified, only 1 state to go and 13 states to get that state from.

Rosen: [00:08:28] Thank you so much for that and for the fascinating history and for signaling this clash between those who claim that the ERA would end special protections for women and those who claim that it was necessary to ensure equality. I think maybe this is the time to really talk about the substance of the debate because that'll give us a better sense of whether or not the amendment is likely to pass and will help our listeners decide whether they support or oppose its passage and then we can conclude with the question of whether a belated ratification would be permissible. So Linda tell us what the arguments for the ERA are that have led a super majority of Americans in some polls to support it and then respond to the major arguments against it. Right now, why are people opposing the ERA?

Coberly: [00:09:23] Sure absolutely so that let's start with the text of the ERA which is “equality of rights under the law shall not be denied or Abridged by the United States or by any state on account of sex.” It's pretty simple and pretty straightforward. The function of the ERA would be to put into the constitution for the first time the idea of banning sex discrimination and a lot of people actually think the Constitution already guarantees equal treatment of the sexes and it doesn't. Justice Scalia famously said, certainly, the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Now anyone who's seen the recent films about Ruth Bader Ginsburg knows that her career as a practicing lawyer was dedicated to the idea of using the 14th Amendment to also protect against sex discrimination. The Fourteenth Amendment says that the government may not deny to any person within its jurisdiction the equal protection of the laws. So the 14th Amendment does provide some protection against sex discrimination but not in the same way that it provides protection against discrimination based on race or national origin. And of course Justice Scalia and other justices who follow a similar view of the Constitution think that even that protection under the fourteenth amendment should be rolled back because the Fourteenth Amendment doesn't talk about sex and the framers of the Fourteenth Amendment didn't have gender or sex in mind when they adopted that Amendment. So ratifying the ERA would resolve that issue. It would make equal rights for women and men a core value in the Constitution and it would have pretty broad ramifications both legally and culturally since the Constitution does reflect our you know, our core values as a culture. So how would it differ from the from the protections already provided under the law? Well, there are lots of local state and federal laws that prohibit discrimination. For example title 7 is a federal statute that prohibits employers from discriminating based on sex race color national origin Etc. It also applies to government. There are local laws that prohibit discrimination in municipalities and housing in wages in in medical care and a variety of things. But all of those are laws, they're statutes that can be changed and having a guarantee in the Constitution is different. Another way the ERA would differ from those protections is it would apply specifically to the government. On its face the ERA applies to the United States or any state. So really what the ERA is saying is that the law will not distinguish based on sex. There may be differences among people. There may be lots of differences among people and there are different ways that the laws can take those differences into account, but it can't create a distinction solely based on sex unless it passes a test that the courts referred to as strict scrutiny so you can distinguish, just like you can have affirmative action based on race under some circumstances, but that kind of Distinction has to pass a very specific legal test called strict scrutiny and strict scrutiny means that the the law has to be narrowly tailored to achieve a compelling government interest and it has to be the least restrictive means of doing so. Now some people think strict scrutiny means all distinctions go away. That's actually not the case. There are distinctions based on race or sex that are upheld under strict scrutiny. So- but the point is that a distinction has to survive that kind of analysis in court in order to be upheld. So those are some of the legal reasons why the ERA is important. And one other thing I want to mention is the Equal Rights Amendment actually has multiple Clauses. The first one is the one I read a moment ago, the second one just gives a like a two-year waiting period before the protections go into place to give governments the time to evaluate whether there are sex distinctions that they need to change in their laws, and the third Clause gives Congress the power to enact legislation that would protect the rights and Advance the rights that the first Clause represents. So for example, the violence against women act some of which was held unconstitutional, that's a type of legislation that could be adopted by Congress using the power that the third Clause of the ERA would provide whereas currently Congress passes a lot of its legislation including employment discrimination so forth by relying on its Commerce Clause power. This would give Congress another source of power that would enable it to enact legislation that would protect the rights of women under state and federal law.

Rosen: [00:15:08] Thank you very much for that comprehensive introduction to some of the effects of the ERA. You mentioned Justice Ruth Bader Ginsburg's support for the amendment. She's written: every constitution written since the end of World War II includes a provision that men and women are equal citizens of equal stature, ours does not. We the People listeners all of us at the Constitution Center were thrilled just on Monday night when Justice Ginsburg attended the first concert performance of The Notorious RBG in Song which the Constitution Center hosted in DC and we'll run that as a podcast soon. And as you described, Justice Ginsburg believes that the ERA would require what you called strict scrutiny for all laws and you describe the test; the law has to be necessary to achieve a compelling governmental purpose. At the moment gender-based classifications have to satisfy what's called intermediate scrutiny, which means they have to be substantially related to an important governmental purpose although Justice Ginsburg in the VMI case ratcheted things up a bit to what's called strict scrutiny with bite and it has to be- has to have an exceedingly persuasive justification. So Inez help us disaggregate and understand the practical effects of ratcheting up the standard from intermediate or super intermediate scrutiny to the strict scrutiny. You have written a really helpful piece called- in the federalist on January 5th describing some of the effects of the ERA and you say would likely affect the wise changes the Trump  Administration has made to Title Nine enforcement. The ERA would probably chip in to states already very narrow ability to regulate abortion and it is likely to throw a large wrench into various sex-based presumptions in divorce custody alimony and child support law. Tell us about those changes and others that you think the ERA's adoption  would result in.

Coberly: [00:16:59] Sure, so I think maybe we should start just like Linda did by going back to the language of the ERA which sounds very basic, sounds like us talking about basic legal equality and indeed that kind of basic legal equality enjoys broad support in America as Linda pointed to in polls. I mean, I think most- the vast majority of American men and women believe in basic legal equality. I would point out though that that language exactly because perhaps it is written in an inspiring sort of basic way also is very broad and so it will be up to the courts to determine what equality actually means and to unpack that idea and how to apply the idea of equality to specific instances. I also just want to make one little point. I think that when we are talking about for example the equal protection clause or talking about intermediate scrutiny vs. Strict scrutiny we are talking about laws that discriminate on the basis of sex in some way and I don't mean the word discriminate in the loaded sort of typical sense that we talked about it, but in the sense that they just might treat men and women differently in some way for some reason, but I mean the zoomed out larger picture is in fact that of course women's rights are protected by all the rest of the Constitution. Nobody for example says that the First Amendment doesn't apply equally to men and women, that women don't have their free speech rights or their religious liberty rights or the right to a jury trial. So we're talking about a very specific group. Now, it's important to talk about these kinds of laws that distinguish on the basis of sex, but I do want to object slightly to the idea that it's the only category of laws that we should be talking about. This is on the backdrop of already a large number of protections that are assured to men and women equally under the Constitution but nevertheless that's the discussion that we're having about the ERA applying to these kinds of laws that discriminate between men and women for some purpose, right? And I think the underlying principle and perhaps disagreement between people who oppose the ERA  and who support it is not on that sort of basic equality but on the idea that men and women are in fact different, right? So when we talk about raising the standard to strict scrutiny what has been traditionally looked at under strict scrutiny are you know race and ethnic and differences based on national origin an so I think that the differences between men and women and I think many Americans think the differences between men and women are more substantial and real than the differences that we've all rightfully rejected, right? In the past people thought that there were some real and substantive differences between the races. Obviously American society has overwhelmingly rejected that and the courts have rejected that and through the 14th Amendment and through equal protection cases, they have looked at any kind of Distinction based on race as something to look at very very carefully, right? Because the presumption is there can be no legitimate reason to discriminate based on race. With men and women it's a little more complicated right? There are real biological differences between men and women. There are physical differences. There are neurological differences between men and women. Men and women's Brains are quite different. None of this means that we're not equal in the broad sense, but it does mean that if we have a very strict or harsh interpretation of what exactly equal means, it could have some unintended consequences, right? So some of those unintended consequences might be the first thing that Phyllis Schlafly brought up in the 70s, the fact that currently only men register for the selective service for the draft, right? We just extended combat positions to women. So now that distinction is sort of gone. So it may be constitutionally infirm anyway. But there are still half of Americans- it's about 50/50 would be opposed to the idea of drafting women saying, you know women are maybe intellectually equal, they may be equal in, sort of under the eyes of God and in every other way legally, but combat may be a place that may be exactly one of those places where the biological differences between men and women become relevant- become very relevant and there are a whole series of other laws that recognize the biological differences between men and women. So for example, the WIC program, a federal welfare program under federal law, right? So that stands for women infants and children. On the face of it It actually does distinguish by sex. Would it be under the ERA constitutionally infirm to offer benefits specifically to Young mothers or for that matter for any Department of the federal government to give a grant to an organization that for example has a system as it's explicit goal to help girls in stem subjects, for example, that could be considered a Distinction on the basis of sex. Now these things are not necessarily going to happen under the ERA. It depends on how that those words and those sort of nice sounding broad words are interpreted. But that's that's the Crux of the matter. We place that interpretation into the hands of the Judiciary and an I think that there are a lot of Americans who would like to keep. In the normal political process these kinds of issues. Should we extend special benefits to Young mothers? Should we, you know should women be in the draft or not? These are issues that should be hashed out through the normal political process and what I worry about with the ERA and I think many others do is that it will take those issues put them beyond the political process and then put them back into the hands of the Judiciary as they interpret the ERA as part of the Constitution.

Rosen: [00:23:04] Linda, Inez just mentioned some laws that might be vulnerable from an all-male draft registration to laws that favor women for welfare programs. She mentioned Phyllis Schlafly's 1970s opposition to the ERA on the grounds of that it would mean the end of gender segregated restrooms and in fact recently some lower courts have struck down gender segregated restrooms often under title VII although sometimes under the Constitution. I want to focus on the question of abortion, which is obviously one of the hottest issues in America right now and Inez mentioned in her really helpful Federalist piece that the ERA might force states to copy the model just passed in New York, which allows abortion on demand for all nine months of pregnancy. Isn't that a plausible fear? Justice Ginsburg has argued that restrictions on abortion violate women's equality by denying them the opportunity to make their own life choices and if restrictions on abortion were subject to strict scrutiny, isn't it plausible that courts might invoke it to require more extensive protections for reproductive choice than they do now?

Coberly: [00:24:15] Well, I think to begin with I agree with inez's view that it will be up to the courts to decide a lot of these questions, which is always the case with Constitutional Amendments. And if you read the Constitution, it does speak in broader terms than statutes do and and that's appropriate and we do we enact kind of constitutional principles and then courts do resolve exactly how those apply. On the abortion issue in particular, this was a very common talking point against the ERA in the 70s and it is still today. But of course abortion rights are already protected under the Constitution through something completely apart from the equal protection clause or the ERA and so there's a separate line of cases that provide protections and provide a framework to evaluate restrictions on abortion. I don't know if- you know many states have ERAs in their state constitutions, Illinois has had one for decades and ERAs have not led to a broader recognition of a right to abortion on demand than, you know, than the types of Provisions that are in the federal Constitution currently, so I simply don't think that- that's that's not the point of the ERA. It's certainly not the point and I don't think it would be the effect. Could people use the ERA in support of arguments about abortion? I'm sure they could. Lawyers use arguments all the time and make all kinds of arguments. But I think it's important to note that the state ERAs have not led to that result. Now the state ERAs have been used in a couple of states to reflect on and require federal sorry- government funding of medically necessary abortions when the state concludes that you know, it will pay for other kinds of medically necessary procedures, but it will not pay for this particular medically necessary procedure you know the type of Regulation that relates exclusively to women with that become a more widespread phenomenon. I'm not sure it depends on the courts and what they say about it, but I don't think that's necessarily the case and it certainly doesn't. There's no evidence that it will lead to what you described as abortion on demand for all nine months. That is a matter that's within the state's power to legislate right now, and there are states that provide more leniency and there are states that provide less leniency, but I haven't seen any arguments or certainly not accepted by any Court anywhere based on the state ERAs that suggest that the mere presence of the ERA would lead to abortion on demand for all nine months. I don't see why that would be the case. Abortion is a very complex question and I think Court's decisions appropriately wrestle with that complexity rather than adopting a broad-based, you know, all-or-nothing kind of rule. Now with respect to one other issue that Inez mentioned which is the kinds of legislation that Phyllis Schlafly was talking about in the 1970s that protects women in particular, most of the kinds of legislation that Phyllis Schlafly was talking about is gone now. Many states if not Most states have already removed the special protections that women used to receive in domestic relations spousal support child support in the- in Illinois for example the statutes already take into account and look principally at the best interests of the child rather than incorporating a presumption that the mother is should be the custodian. Similarly the state laws about spousal support require the spouse who makes more money to support the other spouse and you know, I personally look forward to the day when it is very very common for women to be the ones who are providing spousal support. I think that would be a positive thing and I don't think there's any need for those kinds of protections and states have recognized. Similarly the Social Security Administration used to draw distinctions based specifically on sex and those are now based on different considerations. For example, instead of saying young mothers, it provides they provide certain kinds of benefits to the primary caretakers of small children because the reality is that Young Fathers, if they're taking care of the children require these similar benefits, and when you see this in the cases that Justice Ginsburg brought in her early days of practice where some of the cases she brought under the 14th Amendment were on behalf of men seeking the similar protections to the ones that the laws already provided for women, and I think our laws already reflected. As for the draft you know, it is true that the ERA would prevent a men only draft but in October 2017 the Pentagon already recommended that women should be required to register for the Selective Service and women do today serve with distinction in the military including in combat. I'm personally more worried about a woman suffering from discrimination in her advancement and her ability to serve to the best of her ability in the- in the government after she volunteers for service in the military that I am about a draft that in today's age would obviously have to be gender-neutral.

Rosen: [00:30:35] Inez, Linda argues that although it's theoretically possible that an ERA could be invoked to support broad abortion rights, including Public Funding for abortion, it's unlikely that courts and in particular this Supreme Court would construe it that way given the fact that a majority of justices have not embraced Justice ginsburg's vision of equality and Reproductive Rights. Why don't you tell our listeners why you fear lower courts and the Supreme Court could use the ERA to invoke, you talked about the Title Nine enforcement under the Obama era which an ERA could be invoked to resurrect threatening due process and also tell us about unconscious bias. Justice Ginsburg has said that that remains the large area that the constitution does not currently take account of and the Supreme Court has interpreted the equal protection Clause to require intentional discrimination. Would an ERA allow people to claim that actions that had the effect not the intended discriminating on the basis of sex violated the Constitution and what would the results of those arguments be?

Stepman: [00:31:48] Sure. So to start off we're necessarily speculating here, right? The ERA has not been the law of the land and and so we have to necessarily speculate what sorts of laws that distinguished on the basis of sex would be considered to run afoul of an ERA and and in reality would probably these issues as long as I said would be hashed out through the courts and there would be very different interpretations by different district courts, and then ultimately, you know, depending on the composition of the Supreme Court we would see how these issues would go rise to the top and actually be laid down and press it in so we don't know a lot of this and we are speculating. I just want to be clear about that. That being said about abortion specifically there were- there were multiple attempts both in the 1970s and in the modern ERA to attach abortion neutral language to the ERA, right, to say nothing in the ERA will be construed to apply to abortion in any way whatever the regime is with regard to abortion from the other provisions of the Constitution, this amendment will not be applied to any of those debates about abortion. Those amendments were roundly rejected by ERA proponents back in the 1970s. I can understand why they would reject them today because they're trying to- and I'm sure we'll get to the question of ratification and ratification over time. They have to use the same language as was used in the 1970s so I can understand why they would reject additional riders like that today, but that doesn't explain why they would reject them in the beginning if this was not going to have any kind of impact on our laws surrounding abortion and the Supreme Court precedent surrounding abortion. And as Linda mentioned there have been some state cases that show that it will impact abortion, that that was a discrimination under the law with regards to sex and struck down and forced the Medicaid Program there to cover abortion. There's a very similar case in Connecticut in 1986. So while we have to sort of speculate, we can look at you know, it's in some states, the ERA has had very very little effect on the abortion regime, in some states it's had more effects. It's not clear which direction the federal Judiciary would go in terms of interpreting it but that's something we would just find out and that leads me I think to repeat a point that this is just not what voters, a lot of voters when they read the broad language of the ERA, they're not thinking about for example, whether or not it would apply to abortion. They think that it's enshrining a very basic legal principle and I think that's just and that's good. It's good the fact that our society broadly accepts the basic equality between men and women, but there is a bit of a, you know, sort of speculation or lack of understanding about how, if we decide to apply this law, especially if we decide to apply this amendment in you know in very sort of harsh interpretation, it could create very large changes not just with regard to abortion, but with regard to a whole bunch of issues, the draft being one, but I mean the- I'm not sure that I agree fully with the way that Linda characterized the fact that we can just rewrite- rewrite these laws as gender neutral, right? So she brought up spousal support, it's now spousal support, it's not husband must support his wife. It's the spouse who makes more money much must support the spouse who does not- who decides to to you know be a homemaker or a stay-at-home dad, the spouse that chooses to forego that economic sort of career success in order to take care of the home. She thinks that that potentially because the overwhelming number of people who take spousal benefits under the Social Security Law, Ruth Bader Ginsburg has suggested that in fact this amounts to a government endorsement of, an encouragement of women to drop out of the workforce. And she thought that it would violate a kind of basic equality principle. So just changing these things to say okay well now since you know, we live in 2019, this is not always the woman doing this thing, sometimes it's the man, sometimes it's the father, we're going to- we're going to change the language to cover that small percentage of cases. That's not necessarily going to save those kinds of laws under some forms of analysis in the courts. Linda is absolutely right by the way to point out that men often bring suit under State ERAs and Texas, for example, that does have a state-level ERA, the majority of suits on various different topics were brought by men so that kind of underscores the reality that some of these laws do in fact reflects particular vulnerabilities that women may have vis-à-vis men and when we enforce a very aggressive form of legal equality, say a strict scrutiny regime on legal equality, that in fact a lot of the laws that are primarily, regardless of what neutral language is sort of edited in, are still primarily intended to protect women might be more constitutionally infirm under an ERA than without one. So intentional versus unintentional discrimination, right? We have a model for this through equal protection litigation for race, right, distinctions based on race. So obviously the equal protection clause has been interpreted to forbid it in all cases except for the case line dealing with affirmative action, explicit government distinctions between races, right, we're going to give benefits or detriments to folks of one race and not of another. Those- those laws are sort of obviously constitutionally infirm. But the equal protection doctrine is much broader than that, right? In fact a large branch of equal protection cases and doctrine has been dealing with, how do you get to the intent of a law and a law that may even- and then perhaps not even intent- the law that may not intend but then does have the effect of discriminating on the basis of race, even if it's not intended to or if that intent is hidden, right? And one of the ways that courts have been trying to get at those kinds of laws has been through disparate impact and the fact is that men and women- men and women have made very very different choices. So I think it's hard to argue that in 2019 women don't have the freedom to make a lot of different choices about their lives and part of the sort of consternation perhaps to some is that when women are given free choice, for example of how to balance family and career or on a whole host of other issues, they often choose differently on aggregate than men. So there's the potential then to set up the ERA as actually oppositional to the free choices of many women. If for example courts start to look at just raw numbers, for example, the pay Gap, right the average man makes more than the average woman. To try to find invidious discrimination in laws that are facially neutral with regard to men and women by looking at the different choices of men and women on aggregate, I could see it becoming very quickly oppositional to ironically the freedom of women to be able to choose to live their lives on aggregate differently than men do, and so I think that that's- that's part of as I said in the beginning we're speculating in general because we haven't passed the ERA yet. But I think that's part of the worry of many- many Americans who would oppose the ERA and opposed ratification would be that those kinds of free choices would somehow be used as evidence of discrimination when in fact it's evidence of the fact that women are simply free to be different and often when they're free, they do choose to be different and to make different decisions than men.

Rosen: [00:41:36] This is so important; let's have one more round on the substance and then maybe end by giving us cases that you think the ERA should be adopted to affect. In a piece in the American Bar Association in which you were quoted, the author noted that women's rights Advocates are looking to the ERA after claims of unequal treatment have failed in the courts. For example in class actions to chain store employees with sex discrimination claims - that's the Walmart case, or in the failure to hold police departments accountable for the systemic failure to enforce domestic violence protection - that's the Castle Rock case. Give other examples of cases that you think should come out differently if the ERA were adopted.

Coberly: [00:42:43] Sure. So first of all with respect to the ostensibly neutral laws that might be challenged could the- again, could those challenges be brought? I'm sure. You know people have brought those kinds of challenges under the Fourteenth Amendment based on facially neutral laws that they argue have a disparate impact on race, and you know for better or worse, and we can maybe have a disagreement about that, the courts have rejected those kinds of claims and have looked for proof of intent. So, you know, if obviously, again and I think we're all in agreement that we're speculating here, about how courts resolve these issues and I do think that, you know, there may be some who would want to argue to use the ERA to take another run at this issue about you know, is disparate impact by itself a sufficient basis to show constitutional infirmity? But if you know, we have to inform our speculation by what's actually happened in history and that has not succeeded under the Fourteenth Amendment. So there is a requirement under the cases that there be some sort of either explicit or implicit racial motivation with respect to those neutral laws. And I- there's every reason to think that the same- that courts would ultimately reach the same conclusion with respect to the Equal Rights Amendment. You know one example of the kind of gender neutral law that that we're- that we're talking about again is child custody. It may be societally the case that- that you know, it is more often the case that a young mother would be the parent who would be best situated to care for the best interests of the child. That may be the case. It may not be the case, but I certainly can imagine evidence that would show that even today in 2019 that is still- parenting is still largely a gendered occupation, but it's hard for me to imagine anyone challenging a law that requires looking for the best interests of the child as not being appropriate under the Equal Rights Amendment. It seems obvious that that kind of law would survive strict scrutiny. So again, this takes us back to a point we discussed earlier; I think it's really important; the Equal Rights Amendment would not- would not lead to the abolishment of any and all sex distinctions, whether explicit or that are created as a consequence of a gender-neutral law, what they would do at most is to subject those laws to strict scrutiny. And if someone wanted to challenge that law, the government could still have the law upheld by showing that it serves a compelling interest and that it is the least restrictive way to serve that interest and I think a facially neutral law like a child custody, best interest of the child analysis for example would clearly survive strict scrutiny. So I don't think those kinds of concerns are are well-founded so, you know in the end, it's certainly true that a lot of the laws that we have today provide lots of options for women. They provide lots of choices. Women obviously can avail themselves of the other rights in the- in the Constitution for example, but we have to remember that under the Constitution, that was not always the case. For many years women had fewer property, fewer individual rights, fewer rights of self-determination and could not vote until the beginning of the 20th century. So it may be the case today that we generally regard the Constitution as providing, you know, many people generally regard the Constitution as providing equal rights, but it doesn't say that. And it wasn't written to say that and I think history would show that it was intentionally written not to say that because of how people viewed gender equality when the Constitution was written. So in a way passing the Equal Rights Amendment is in a sense something that an originalist should get behind. I mean after all it was, as I said earlier, Justice Scalia who pointed out that the Constitution does not prohibit sex discrimination on its face and many courts agree with that. So the ERA would change that and it's in my view about time. I did- you mentioned also the Walmart case and the case about unequal prosecution of domestic violence offenses. I think those are actually two very different examples. There's a lot of confusion about this but it's important to go back to the text to see that the Equal Rights Amendment does not apply to private companies, it does not apply to private actors. It doesn't apply to churches. It doesn't apply to private schools. It on its face says that equal rights under the law shall not be denied or Abridged by the United States or by any state. So many people think that adopting the Equal Rights Amendment could lead to increases in pay equity for example as private employers make an effort to match the pay Equity that would be compelled by the equal- by the Equal Rights Amendment by government employers, but the impact is not direct, so I actually don't think that there would be a direct impact on, for example, the Walmart case or in cases that involve private causes of action against private- private actors. There would not be a direct impact. There's- there may well be an impact on cases of unequal law enforcement of you know increasing the power of congress to enact laws that would ensure equal law enforcement or that would better provide some sort of federal remedy if state remedies were found to be unequal or inadequate. So there are lots of ways in which the Equal Rights Amendment would impact the lives of women, and particularly disadvantaged women, and women of color etc, but but they would not- it would not directly impact private civil litigation against corporations.

Rosen: [00:49:23] Thank you for those very helpful distinctions between the ERA's potential effect on private companies and on government and also for your arguments on behalf of the ERA. Inez, the last word on the substance is to you and then we will turn to the ratification question. So Linda says that an originalist should support the ERA because the Constitution as currently construed does not forbid sex discrimination and it should explicitly do so. What's your response to that and you know sum up your main concerns that leads you to oppose the ratification of the ERA?

Stepman: [00:49:59] Sure, so just because one agrees with real originalist interpretation, for example, the interpretation she pointed to from Scalia of the 14th Amendment, of the equal protection Clause not applying to sex doesn't necessarily mean that we think that it should be- I mean- look, I applaud ERA proponents for doing this quote the right way, right? I think originalists would applaud that effort from that perspective. It doesn't mean we have to agree with it on the matter of substance. But I think this is the right way to go about changing the Constitution, not to read ever broader interpretation into the language that's already there, just separate it from any kind of original understanding, but in fact to go through this complicated process with the details of which we'll get to in a minute of amending the US Constitution. So in that regard, she's absolutely right. I think originalists should cheer the fact that we're talking about this as an amendment and not as an interpretation of the equal protection clause. That being said, because the closest thing that we have to sort of speculate on what the consequences of this kind of amendment would be is the equal protection Clause, I think it's worth making the point that women do not in any way qualify- if you go back to the entire, the genesis of these kinds of levels of scrutiny, right, there's a famous footnote in the case called Carolene products that kind of birthed this entire scheme of rational basis intermediate scrutiny and heightened and strict scrutiny for  classifications  based on race, and the justification originally for this entire type of analysis was the idea that discrete and insular minorities in other words, for example, racial minorities would not have open to them the normal remedies of the political process because by definition they were minorities, right? They did not make up the majority. We still are a republic. We still have a democratic system. So it would make political remedy through the normal political process of any of these kinds of injustices very difficult, right? That was sort of the underlying thought behind creating this kind of equal protection analysis. Women don't qualify for that. So not only are women the majority of citizens in the United States eligible to vote. They are in fact in real life the majority of Voters in almost every election for a long time. Now I think the average is around 53 percent of the electorate is actually female, in the last I don't know what it is, eight, ten elections, so- and and in fact women have made their political voice known through the normal political process here. We have lots of advancements whether, you know, we can debate whether those are a good thing or a bad thing. Some people, depending on each one, and I suspect we shouldn't go into each one of those, but for example sex discrimination is included in the 1964 Civil Rights Act, right. We have an equal pay federal law that says that in fact similarly situated men and women doing the same job cannot be paid differently on the basis of sex, right and we have similar laws on the state level. That is all evidence that in fact women can address what they see as any kind of injustice through the normal political process and therefore taking those issues, many of the issues, you know, we kind of bounce back and forth on between Linda and I for example, you know, whether or not abortion should be paid for with taxpayer dollars or you know, whether women should be included in the draft, whether Public Schools should be able to segregate restrooms and locker rooms based on sex, right? These are all issues that regardless of how you feel and which side you come down on the debate, I think the the normal political process can and should take care of. When we constitutionalize these issues, right, the United States has one of the shortest constitutions in the world. Not the shortest, I believe that's Monaco, but we have one of the shorter constitutions in the world exactly because the founders intended to leave so much especially in the states, so much to the Natural political process and actually- so Scalia wrote a dissent in the u.s. Versus Virginia, the VMI case that I believe both of you have mentioned earlier, in which he included the phrase “the smug assurances of each age.” Right, all of these speculations on a how this amendment would apply practically and impact the, you know, hundreds and hundreds of laws that recognize distinctions between men and women in some way or another, those we object to, taking our understanding at this, you know precise moment in 2019 of those laws and then constitutionalizing it and making it extremely difficult for voters, the majority of whom are women, to be able to play out this give-and-take, okay, you know, is it more worth it to draft women or is it on the- on the principle of equality, is that much more fair or is it- are there reasonable reasons for exempting women from the draft right? That's- that's a reasonable debate that we can have as part of the normal political process. And the reason that I and many other many others object to constitutionalizing that is that it places that debate in the hands of Judges who, Linda is right currently, probably our Supreme Court would be more likely to interpret this in a reasonable and narrow way, but that may not always be the case. And so I think constitutionally- constitutionalizing that process and those debates and taking it away from voters is- is you know, not the wisest course of action. I think it's better to leave these kinds of give and take questions in the hands of voters, as I said the majority of whom are in fact women who are perfectly capable of looking at these laws and determining whether they're fair or not.

Rosen: [00:56:22] Thank you for both for so thoroughly mooting the questions about the potential effects of the ERA. We now turn to the crucial question of ratification and belated ratification, and in 1972, when the Congress proposed the ERA, it specified a seven-year time period for ratification that expired in 1979, then right before the original deadline passed, Congress passed a resolution by majority extending the deadline until June 30th 1982. And that was by majority vote, not by 2/3. A federal court subsequently ruled that that extension was not lawful. That was a 1981 decision that said that Congress couldn't lawfully extend the ratification deadline, but the status of that extension is unsettled in the courts and then to complicate things further, after the ERA was proposed, four states that ratified it subsequently passed resolutions of rescission claiming to void their ratification and one state had a sunset clause revoking its original ratification if the amendment didn't gain approval by 1978. On the other side proponents of extended ratification cite the remarkable belated ratification of the 27th Amendment which, as we all know, I hope We the People listeners know, was ratified in 1992 years after it was originally proposed as the original First Amendment in 1789. Dear We the People listeners, we have at the Constitution Center one of the 12 original copies of the Bill of Rights. The original first amendment was not the free speech amendment, but the Congressional pay Amendment and that was belatedly ratified as the 27th Amendment in 1992 based on a student's note, a paper by a brilliant undergraduate who argued, at the University of Richmond, citing a term paper by a University of Texas undergraduate called Gregory Watson, that citizens could push the pay Amendment and that it could be ratified nearly 200 years after it was originally proposed. So this is a complicated debate. We could have a whole separate podcast on it. But we just have a few minutes to put the main arguments on the table. Linda tell us what proponents of the ERA are invoking to support their claim that belated ratification, if a 38th state does indeed ratify, would be permissible and enough to ratify the amendment given the passage of the original deadline and the extension?

Coberly: [00:59:05] So well there are a number of different ways to approach this issue and I'll focus on the way that has been in the news most as of late, which is to have Congress remove the deadline, you know, there is a difference obviously between the 27th Amendment which took 203 to ratify and is now part of our Constitution and the ERA and that difference is that Congress imposed this deadline, that's a practice that was new at the beginning of the 20th century. Before, you know, kind of- I think was 1917, there had been no deadlines imposed by Congress. Congress started to impose the deadlines with the prohibition Amendment and did so with every other amendment that it proposed to the states in the 20th century with the one exception interestingly of suffrage, women's suffrage. The interesting thing about the deadline for the ERA is that it does not appear in the text of the amendment itself. So when a state was voting on the Equal Rights Amendment, the seven years is not in the thing it was voting on. The two-year delay in the effectiveness of the ERA was in the thing Iit was- the legislatures were voting on. But the 7-year limit was not. The 7-year limit was contained in a joint resolution by Congress that was introducing the amendment and expressed congress's intention at that time, and there's no reason to think that Congress can't change that. It's just a joint resolution. We have a well-established presumption in our democracy that one Congress cannot bind future congresses. So if the current Congress concluded that the seven-year deadline and then later the nine-year deadline should just be removed and that the Equal Rights Amendment should be effective whenever the 38th state ratifies, it can do that, and there is reason to believe the Supreme Court would actually uphold that, and Coleman versus Miller, the Supreme Court expressed significant deference to congress's judgment when it comes to matters of ratification and specifically the timing of ratification. So that's something that the Supreme Court has said Falls within the power of congress as it exercises its ability to propose amendments to the states. And if Congress changes its mind that is up to Congress to decide. There are currently bills pending in both the House and the Senate to remove the deadline. The house bill was introduced by representative Speier, the Senate's bill was introduced by Senator Cardin and Senator Murkowski. Both of them have bipartisan sponsors. And you know our view is that if those statutes are passed, that would make the 38th states' ratification effective whenever it happens. As for the rescissions, you mentioned the four states that attempted to rescind back in the 70s or that limited their ratifications. Historically those kinds of rescissions have not been found effective. They've just not been recognized. In fact the promulgation of the Fourteenth Amendment itself depended on States that had ratified and then attempted to rescind but everyone agrees, all three branches of the federal government actually agreed, that that amendment was fully ratified and it's been treated as such for more than a century. So the only question under Article V which governs the process of ratification is whether a state's legislature voted to ratify at some point in time. Did that occur or did it not? And as of this moment that process has occurred for 37 States. We're just waiting for one more.

Rosen: [01:03:14] Inez, the last word is to you on this fascinating question about whether, if Congress were to pass a resolution extending the deadline or lifting it, that would be a valid ratification or even if it did not, given the fact that as Linda suggests, the Fourteenth Amendment was ratified at the point of a bayonet, the original Constitution was illegal according to the ratification procedures specified under the Articles of Confederation. So if States choose to ratify, is there an argument that Congress can't condition validity and might it be possible that courts would accept ratification under those circumstances?

Stepman: [01:03:56] Well, I think it's going to be fascinating to see how this actually plays out. If the ERA proponents actually do manage to get 38 states and then managed to get the deadline revoked in Congress, it will be really interesting to watch these cases from a sort of detached, instead of being an opponent, from a detached Observer perspective, I just think that they're going to be really interesting. They're going to open some really interesting constitutional questions. So first of all this seems- so if we take what Linda said and sort of generalize it to all amendments, it does awfully seem to kind of create the proposition that although it's not, maybe not a good thing to leave ratification over an indeterminate amount of time, there really actually isn't any way to reject for the American people to reject a amendment to the Constitution. Right? So if rescission is not valid and ratification can take place over such a long period of time that perhaps the body politic is in fact completely replaced, as in let's say an amendment was ratified well over a hundred years ago by a certain number of states and then today by the other half of the required 38, you could- you could  see that in fact there might not even be anybody left alive who was part of that original ratification, and that does seem in some way to contradict the spirit of Article V and the Article V process, right? This is supposed to show overwhelming popular support for an idea that then enshrines it into the Constitution. So there does seem to be some kind of contradiction to the spirit of Article V, but that being said, there are some Supreme Court precedents that have put this as a political question as Linda mentioned. Coleman basically set- I mean so previously the Supreme Court had said that ratification should be quote reasonably contemporaneous and quote part of a single process which seems sort of reasonable, but then they said that exactly what that phrase means, whether it's seven years or 20 years or a hundred years, is going to be a political question for Congress to decide and that Congress is going to have plenary power over that. So I think it's worth then looking at the intent of Congress that Congress has that plenary power- the intent of Congress and why they put in deadlines. And in the ERA, and as Linda mentioned, it was sort of- it was the fashion of the time; all the sort of early Progressive amendments- Progressive era amendments had- did not have these kinds of- did have these kinds of deadlines, right, either for seven-year deadlines, other than the 19th Amendment, and then afterwards. They actually in- we have legislative history that shows they said that looks really cluttered right, if we're going to put more amendments. This is not just a legal document. It's also a you know, foundational document of the United States. We don't want a document that has a bunch of sort of statute like language cluttering it up. So they said it's too much clutter. We're going to put those deadlines in the resolution surrounding the actual text of the amendments and then it's worth pointing out that in fact after this became the issue that it has been with the ERA, Congress went back to inserting- it said, okay, well this isn't worth- not having clutter isn't worth this problem. So they went back to inserting that kind of deadline language in the actual text. So for example, there's an amendment floating around that would give the District of Columbia full representation as a state in the Union that has deadlines language in the text of the actual Amendment. So there's some evidence that Congress didn't really intend to do this and that this distinction isn't really rooted in what Congress intended to do. But of course as Linda said, a past Congress can't really bind a future Congress. So I think finally I'd just point out that the 27th Amendment is the strongest sort of precedent that folks who say that the ERA can be ratified this way have, as Linda said. It was ratified over two hundred and three years. But it's also maybe not the best example for this specific case. For one there were never any time limits imposed in the text of the amendment or in the surrounding resolution language. So that's an element that's there with ERA that is not with, or was not with, the 27th Amendment and furthermore some legal scholars have sort of looked at the 27th Amendment and said actually maybe because of the weird way that it was ratified, and it's hard to say if this is really the reason, but it's been interpreted as kind of a pariah both by courts and Congress. Congress has passed laws, the 27th Amendment relating to when Congress can give itself a raise. Congress has flouted or at least gone to the edge of flouting that Amendment multiple times and courts really haven't stopped them and perhaps that's part of how courts interpreted as sort of not a real Amendment because it didn't go through the quote normal ratification process where those ratifications were separated by such a long period of time. So I think these are actually really fascinating questions, you know, I hope to to advocate to stop the ERA before it gets to the 38th and Congress repeals the deadline language, but I guess the consolation prize if I lose on the merits will be to see these really fascinating questions played out in the Supreme Court.

Rosen: [01:09:39] Thank you so much Inez Stepman and Linda Coberly for a completely fascinating discussion both on the substance and ratification of the ERA. If the ERA does gain a 3rd state we will absolutely ask you both back to debate whether its ratification is constitutional and I need to thank you both for airing the arguments for and against the ratification of the ERA so well and so rigorously and also for showing us the complexity of the arguments for and against ratification. So for enlightening We the People listeners, Inez, Linda, thank you so much for joining.

Stepman: [01:10:18] Thank you very much for having me.

Coberly: [01:10:20] Thank you. It's been good to be with you.

Sign up for our email newsletter