Academic journal article Albany Law Review

Does an Equal Rights Amendment Make a Difference?

Academic journal article Albany Law Review

Does an Equal Rights Amendment Make a Difference?

Article excerpt

Because the proposed Equal Rights Amendment (ERA) to the United States Constitution was never ratified, one cannot know what its impact might have been. At the state level, however, the consequences of a constitutional gender equality guarantee can be assessed empirically. This Article employs several analytical approaches to ascertain what difference an ERA has made in the largest state that adopted one in the 1970s, Texas. The record of appellate decisions establishes that the Texas ERA has proven effective as a weapon to fight sex discrimination, and that it has benefited men as well as women.

As interpreted by the Texas Supreme Court, the state's ERA elevated sex to a suspect classification subject to strict judicial scrutiny. Discriminatory laws, subject to the strict scrutiny test, can only pass constitutional muster if they serve compelling state interests that cannot be protected in any other manner. Nor do unique physical characteristics of men or women necessarily bar application of the sex equality guarantee. This standard is much more exacting than that used by the U.S. Supreme Court in its equal protection analysis of gender-based discrimination and has led to the invalidation of statutes that would have withstood attack under federal doctrine.

I. Introduction

The campaign to amend the U.S. Constitution to provide that "equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex" was defeated in 1982, giving rise to much soul searching as to why the cause was lost.(1) On one level, the quest for equal rights was a matter of fundamental values, an effort to break formally with the separate spheres doctrine, which assigned men and women different roles in public and private realms of social life. Ratification of the ERA was intended to supplant antiquated stereotypes and ideas about the appropriate place of men and women with the principle of equality and individual choice. At the same time, however, the pursuit of the ERA was more than a matter of symbolic politics. It had a pragmatic rationale as well. The ERA was meant to "spark overdue change in laws and in the perspective of public officials,"(2) and to establish a better constitutional basis to fight sex discrimination in the courts than that available under the existing Equal Protection Clause of the U.S. Constitution.(3) In Frontiero v. Richardson,(4) Justice Powell explicitly stated that the Court should not usurp the democratic process by making sex a suspect classification while the states were considering ratification of the ERA.(5) The clear implication was that with the ERA in place the Court would apply the highest level of scrutiny in cases involving complaints of unconstitutional sex-based discrimination. According to Herma Hill Kay, author of a leading casebook on sex discrimination, "the failure to ratify the equal rights amendment in 1982 was not only a crushing symbolic defeat, but also a very real loss of advantage in the courtroom.(6)

In the course of the ratification debate, the anticipated consequences of the ERA were a major bone of contention. Uncertainty about the ERA's effects was compounded by the controversial nature of some of the claims about the societal changes it would entail. The question of impact (and by extension that of beneficiaries and losers) mattered not only to activists in the campaigns for and against ratification; it is also a key concern of any political analysis and assessment, whether prospective or retrospective. Because the campaign for the national ERA failed, any effects it might have had are mere conjecture. In many states, however, ERAs were successfully adopted in the 1970s. Their impact can thus be assessed retrospectively, based on empirical evidence.

Texas is the most populous and important ERA state. Having adopted its own version of the constitutional equality guarantee in 1972, this key state allows us to gauge its impact over a time span of more than two decades. …

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