Academic journal article Notre Dame Law Review

The Equal Rights Amendment Revisited

Academic journal article Notre Dame Law Review

The Equal Rights Amendment Revisited

Article excerpt

[I]t's humiliating. A new amendment we vote on declaring that I am equal under the law to a man. I am mortified to discover there's reason to believe I wasn't before. I am a citizen of this country. I am not a special subset in need of your protection. I do not have to have my rights handed down to me by a bunch of old, white men. The same [Amendment] Fourteen that protects you, protects me. And I went to law school just to make sure. --Ainsley Hayes, 2001 (1)  If I could choose an amendment to add to this constitution, it would be the Equal Rights Amendment.... It means that women are people equal in stature before the law. And that's a fundamental constitutional principle. I think we have achieved that through legislation. But legislation can be repealed. It can be altered.... I would like my granddaughters, when they pick up the Constitution, to see that notion, that women and men are persons of equal stature. I'd like them to see that that is a basic principle of our society. --Ruth Bader Ginsburg, 2014 (2) 

INTRODUCTION

A woman who has been discriminated against on the basis of her sex has several options for relief. If the discrimination was a result of state action, her attorney might first advise her to bring a claim that the state has failed to provide her "equal protection of the laws" as required by the Fourteenth Amendment to the Constitution. (3) Yet her lawyer might inform her that the Supreme Court did not understand that Amendment to contemplate protection against sex-based discrimination until more than 100 years after its adoption. (4) She might be informed that the focus of that Amendment at the time of adoption was discrimination on the basis of race; state action discriminating on that basis is subject to the most exacting of scrutiny on review. In contrast, her claim will be reviewed through the lens of a lower level of scrutiny, what has been judicially classified as intermediate review. (5) Her attorney might also inform her that at least one prior Justice has argued that intermediate review is too burdensome, and that the lowest standard of review of sex-based discrimination by the hand of the state would be more appropriate. (6)

Somewhat discouraged by this information, the woman might seek alternative channels of relief. Her attorney might propose an option rooted not in the Constitution but in the legislative process--a process representative of all things American: pluralistic debate, democratic disagreement, and efficient resolution. If her claim arose in the context of her employment, she might be advised to bring a claim under Title VII of the Civil Rights Act of 1964. (7) This route seems promising; the legislation was passed by the elected representatives of our nation as part of a great and lasting civil rights bill. Her lawyer might tell her the common story of how the word "sex" was added to the legislation. The Democratic Chairman of the House Rules Committee, Howard Smith of Virginia, proposed the addition in an attempt to delay the vote and retain the reign of Jim Crow laws. (8) Indeed, her lawyer might tell her that the "prank" addition "stimulated several hours of humorous debate, later enshrined as 'Ladies Day in the House.'" (9)

While the woman might decide to follow her attorney's advice and bring both of the above-mentioned claims, the history could, and perhaps should, give her pause. Is a late-in-the-day judicial interpretation of a watered-down post-Reconstruction amendment, and an Act born as a joke rooted in the inherent second-class nature of an entire sex really the best that fifty percent of the nation can hope for? The absence of normative and legal support for the critical notion that men and women are equal can and should be eliminated: the United States should ratify and adopt the Equal Rights Amendment to the United States Constitution.

This Note proceeds in three Parts. Part One chronicles the history of the Equal Rights Amendment, from the original attempt at passage through the various reiterations thereafter. …

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