The major problem with the ERA, problems which Scratch and Harmony either ignorantly or, more than likely, disingenuously overlook, is contained entirely in the first section. The ERA doesn't mention the cosntitution, but only "the law". Now, of course, "the law" to a liberal/leftist does not reference the unailienable rights of nature and nature's God but whatever they (and the enlightened men and woman in black robes who are their Trump card in their ongoing multidecdal
kulturkampf) say it is, and whatever they say it is can change every day. "The law" within the context of this nebulous phrase as used in the first section of the ERA is, in reality, the case law and precedents set by it that form the backbone of much of our modern jurisprudence, not "the supreme law of the land" based upon the unalienable rights that preexist the state and regarding which the state is nothing buy protector and guaranteer.
As I said, that first section is a leftist special interest lawyers playground. Any statement that simply claims that woman, or any other group, has some relation to "the law" when that concept is not clearly drfined and delineated, is an open ended intiviation to ideologiclly motivated litigation and carefree judicial activism just as we've seen over the last forty years (Roe is a major case in point).
If "the law" is whatever those in power say it is, and not a delimited and cogent set of core principles with respect to which all other laws must defer, then "the law" becomes nothing but a shifting sand dune that elites wieding power within the govenrning insitutions of society can use to reward cultural comrades and punish cultural enemies.
Here's an interesting essay from CWA:
The “Second Wave’s” Last Hurrah 11/3/1999[/b]
The “Equal Rights Amendment”? Didn’t that die in 1982? Not quite. Militant feminists are still on the march to garner ratification of this intrusive behemoth. The Equal Rights Amendment (ERA) states:
Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.
Alice Paul of the National Women’s Party authored the original ERA in 1923. Introduced as the “Lucretia Mott Amendment”—in honor of the suffragist—it stated: “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” Early reformers opposed the amendment, fearing it would undo their hard-earned protective labor laws which treated women differently. In 1943, Paul rewrote the amendment, now called the “Alice Paul Amendment,” which is the current version (ERA Summit, “The History Behind the Equal Rights Amendment”).
Introduced in every session of Congress since 1923, the ERA eventually passed in 1972 and was sent to the states for ratification. Starting with the 18th Amendment, which established the Prohibition in 1917, Congress has placed a seven-year deadline for ratification of constitutional amendments. (The 19th Amendment for women’s suffrage was an exception.) The ERA also received a seven-year deadline. Radical feminist groups (the “Second Wave”) pushed for ratification. Motivated by them—and the homosexual and abortion rights the ERA would establish—conservative women organized opposition. In fact, the birth of Concerned Women for America in 1979 is rooted in fighting the ERA.
Twenty-two states ratified the ERA within the first year. Indiana became the 35th, and last, state to ratify it in 1977. However, the next year Congress buckled and extended the ratification deadline to June 30, 1982. Nonetheless, conservative women were successful, and the ERA failed to be ratified by the necessary three-fourths of the states. In addition, five of the 35 states passed rescissions, changing their decisions about ratifying the ERA. Although ERA supporters claim these rescissions are invalid, the Constitution is silent about whether states may rescind ratifications.
The ERA was reintroduced in Congress on July 14, 1982, and has been before every session since then. It requires approval by two-thirds of both the House and Senate and ratification by 38 states. Sound impossible? ERA proponents are organized and determined.
They have two primary strategies to ratify the ERA:
* Starting from scratch. In the past two sessions of the House, Rep. Carolyn Maloney (D-New York) has introduced legislation to include the ERA in the U.S. Constitution (American Bar Association Journal, August 1999). The current bill in the 106th Congress is H.J. Res. 41; the Senate version is S.J. Res. 30.
* Going through the back door. A coalition effort is targeting specific states for ratification of the ERA originally passed in 1972. The ERA Summit has a “Three-State Strategy.” This argues for validation of the 35 original ratifications and the verification of the ERA as part of the Constitution when three more states ratify it. The Summit does not recognize the five rescissions. It has targeted Illinois, Mississippi, Missouri, Oklahoma and Virginia for potential ratifications. Missouri plans to reintroduce the ERA in its legislature on December 1 (USA Today, 10/22/99).
The ERA Summit states on its Web site, “It is likely that Congress has the power to adjust or repeal the previous time limit on the ERA.” Its advocate in the House is Rep. Robert Andrews (D-New Jersey). Along with nine cosponsors, Rep. Andrews introduced H. Res. 37 in the 106th Congress, which calls on the House to verify ratification of the ERA.
Supporters cite the 27th Amendment, the Madison Amendment concerning congressional pay raises, as justification of their three-state strategy. Originally passed in 1789 without a ratification deadline, when there were only 13 states, it was ratified by a 38th state in 1992. However, not only did the ERA pass with a ratification deadline, it received a three-year extension and still was unsuccessful. The message was clear: America did not accept the ERA. And Congress tacked on an additional favor: To prevent more rescissions, it stipulated that only those states that had not ratified it could consider the ERA (Washington Post, 9/12/99).
Columnist George Will correctly argues that the ERA would provide “license for judicial legislating, yielding whatever meaning a result-oriented judge decided to discover in it” (Washington Post, 9/12/99). With the proliferation of activist judges in today’s system, the ERA could easily be abused to serve the interests of radical feminists.
“In order to get the ERA back on track, people have to understand what they’re missing,” stated Eleanor Smeal, president of the Feminist Majority Foundation (Jane, October 1999). While the federal ERA has not been ratified, some states have passed their own ERAs. Last year, Florida and Iowa added ERA language to their constitutions. But what would the ERA do for America?
* Aid in the killing of millions of unborn babies. “Contraceptive coverage and reproductive freedom are the basic rights [of] women,” writes Jennifer Baumgardner in Jane (October 1999). “The ERA provides a legal base for actually attaining these bare-minimum rights.” For example, state ERAs in New Mexico and Connecticut led to Medicaid coverage of abortions for poor women. The ERA would also eliminate waiting periods and spousal consent for abortion and mandate insurance coverage of contraception and abortions.
* Usher in homosexual rights. The ERA does not establish “equality” of the sexes, so much as it eliminates differences between them. With the ERA, lesbian women would be considered no different from men.
If the genders are the same, what difference is there in parenting situations? A New Jersey custody battle illustrates this. Two women—one a biological mother, the other a “psychological” parent—are fighting for custody of 5-year-old twins. “New Jersey’s top court will have to deal with gay rights, the definition of marriage and the extent to which people who are not biologically related to a child can claim custody” (The Star-Ledger of New Jersey, 10/24/99).
* Suppress true femininity and womanhood. The fight for “comparable worth”—or equal pay for similar work—resulted in shaming many women into the proverbial closet. Feminists fought to get all women into the labor force—never mind that not all wanted to join them. As a result, those who preferred part-time work, home-based business or stay-at-home motherhood were ridiculed.
One of these women has come out of the closet, bringing her dust mop with her. “Today a repressive social code governs housekeeping, and those who breach it find themselves censured and shamed,” writes author Cheryl Mendelson (Talk, October 1999). “In the 1950s a woman vaunted her housekeeping and was sexually coy. Today you are supposed to display your sexuality and be coy about your housekeeping.” Discussing the 1970s, Mendolson writes, “As women’s on-the-job bona fides became accepted, the depreciation and social slighting of housewives … increased.”
Mendolson affirms that not only have stay-at-home moms returned to domesticity, but intellectuals, teachers, struggling artists, and well-to-do doctors and lawyers have also rediscovered the joy of housekeeping. The women of Proverbs 31 are rising up.
“More than 27 years after Congress passed the ERA, nearly 23 years after the last state ratified it, more than 20 years after Congress’s original ratification deadline passed, more than 17 years after the extended deadline passed,” writes columnist George Will, “ERA supporters propose not just rewriting the rules of ratification but essentially abolishing all rules” (Washington Post, 9/12/99)—not to mention abolishing differences between the sexes. “Equality” has nothing to do with their struggle, but destroying our distinctions does.
Intrusive federal control is a major reason to oppose the ERA. “No matter how much legislation is in place, we are only one president or one Congress or one Supreme Court away from losing what we’ve gained,” states Kim Gandy, executive vice president of theNational Organization for Women. “We need a guarantee of equality as much now as we did then” ( American Bar Association Journal, August 1999). ERA proponents are fighting for a change to the Constitution. This is nearly impossible to remove afterwards, regardless of what future generations want. Essentially, the “Second Wave” is scrambling to leave a permanent mark, its “last hurrah,” before leaving the political arena.
“Several historians have connected the rise of intense domesticity to the growth of democratic governmental forms,” writes Mendelson. “Thus it follows that as home life declines, so do the values that underpin the larger society” (Talk, October 1999). Preserving our God-given identities as men and women and protecting the traditional family are essential to ensuring the future strength of our society.
The test cases for what the ERA would do on the national level are simply what they have already done, and how they have been interpreted, on the state level. As another CWA essay points out:
Seemingly innocent, the ERA actually eliminates any distinction between the sexes. State ERAs have had negative results for women:
* Husbands have relinquished responsibilities for their wives medically and financially -—including alimony and child support cases -—because of the distinction made between gender in those situations.
* In adoption cases between unwed partners, a mother has to get the father’s consent before giving up the child for adoption; whereas, without the ERA, only the mother’s consent was necessary. Such stress creates the possibility of abortion.
* Before the ERA, mothers were favored for child custody during a child’s younger years. Now, a mother can no longer assume she will automatically receive custody of her children.
* States have to provide child care in order to allow women to work outside the home. The role of homemaker is denounced, while financially lucrative positions are favored for women.
* State funds cannot be denied for those seeking abortion because to do so would distinguish a procedure unique to women.
One of the most obvious results of the ERA has occurred in Alaska and Hawaii. Gay rights advocates have used ERA language in the state constitutions to push the legalization of same-sex marriage. Hawaii will have a ballot question on November 3 to legalize same-sex marriage. It is absolutely important that constituents vote yes to allow the state ”to have the power to reserve marriage to opposite sex couples“ (emphasis added).
But feminists want more than equality. They want sameness. To say that women are the same as men is dangerous, non-Biblical, and anti-woman. To enforce such an ideology would require denial of basic natural aspects of womanhood. We know that God created men and women equal. Thankfully, He also created us to be different in role. That does not make us different in rank. The ERA proposes the elimination of our God-given roles as men and women, resulting in the redefinition -—and eventual destruction -—of family.
The problem, you see, is that the ERA mentions not gender, but sex, which alters the dynamics of the amendment significantly. Gender is biologically fixed. Sex and sexuality are plastic and variable.
As Eugene Volkh has recently written:
Phyllis Schlafly Said It Would Be Like This:
As I note below, a California trial court has just held that the California opposite-sex-only marriage requirement is unconstitutional; and part of its argument -- though only part -- was that it violated the ban on sex discrimination in the state constitution, since the opposite-sex-only rule necessarily discriminated based on sex. (Eve can marry Adam, but Steve can't; the only difference between the two is that Eve is a woman, the opposite sex from Adam's, and Steve is a man.)
This leads me to repeat a point that I raised when one of the Massachusetts Supreme Judicial Court judges made a similar argument in 2003. Consider these quotes:
1.
"What foes of ERA contend were valid arguments and what advocates claim were emotional scare tactics also seemed to sway sentiment among the women against the amendment [in North Carolina]. Opponents, for example, suggested passage of ERA would mean abortion on demand, legalization of homosexual marriages, sex-integrated prisons and reform schools -- all claims that were hotly denied by ERA supporters." U.S. News & World Report, Apr. 28, 1975.
2.
"Discussion of [the ERA] bogged down in hysterical claims that the amendment would eliminate privacy in bathrooms, encourage homosexual marriage, put women in the trenches and deprive housewives of their husbands' support." N.Y. Times, July 5, 1981 (excerpt of a book by Betty Friedan).
3.
"The vote in Virginia [against the ERA] came after proponents argued on behalf of civil rights for women and opponents trotted out the old canards about homosexual marriages and unisex restrooms . . . ." Wash. Post, Feb. 19, 1982 (column by Judy Mann).
There are many more examples from that era, including, if I recall correctly a quote from leading constitutional law scholar Larry Tribe. (By the way, I have no reason to doubt the sincerity of these claims; my post refers solely to their inaccuracy.)
Yet it now looks like the "hysterical" "emotional scare tactic" "canards" may well have been quite reasonable predictions: It looks like courts are indeed treating opposite-sex-only marriage rules as involving sex classifications, and as thus being presumptively unconstitutional. Had the ERA been enacted at the federal level, it would have further raised the bar against sex classifications, and thus made decisions like the California and Massachusetts one more likely.
True, the U.S. Supreme Court has itself interpreted the federal constitution as presumptively prohibiting sex discrimination, even without the ERA. Federal courts may still use that as an argument to reach the same result as the California trial court did, again even without ERA. (The California trial court's decision was based on California constitutional law, which is largely based on a general "equal protection" provision of the state constitution -- one whose text is similar to the federal Constitution's, though California courts have interpreted the text in a more demanding way.) Still, the ERA would have strengthened the "no sex classifications" rule, and would thus have made it more likely that courts would adopt broad "the government must be sex-blind" positions.
Now I think it would have been good had the ERA been adopted, though perhaps with a few modifications. (For instance, I don't think the coalition that supported the ERA knew that it would be helping resolve the same-sex marriage question; had they known this, they should presumably have carved out an exception for this. It may also have been worthwhile to carve out exemptions, perhaps to specifically protect certain privacy rights, protect girls-only sports teams, and probably allow the exclusion of women from combat, though that's a tough question.) I also think it's good for same-sex marriages to be allowed, though I don't think this should be enacted by courts.
But the California decision -- and the Massachusetts decision, and a similar Hawaii decision that has since been reversed by the Hawaii voters -- shows us that we shouldn't lightly dismiss plausible, facially valid textual arguments (the text bars discrimination based on sex, and the marriage laws do treat people differently based on their sex) as "canards," "scare tactics," or "hysteric[s]." The anti-ERA forces, much as I probably disagree with most of them on many things, have proved prescient.
And, as Patrick Briney, Ph.D, President Arkansas Republican Assembly points out the followingt in the same context:
The language in this amendment is problematic for the following reasons.
1. ERA would put "gay rights" into the U.S. Constitution.
1. Authorities such as the Yale Law Journal have stated that ERA would legalize the granting of marriage licenses to homosexuals and generally implement the gay rights and lesbian agenda because of the phrase ‘on account of sex.’ This is interpreted as including sexual orientation.
2. The supreme courts of Hawaii and Massachusetts ruled that ERA requires same-sex marriage. Four of nine judges on the Washington Supreme Court agreed that ERA protects same sex marriages, and recently a judge in Maryland ruled the same way.
3. When Wisconsin state legislators proposed a state ERA with provisions to prevent it from being used to mandate gay rights or abortion funding, the leading ERA advocates (including the National Organization for Women, the League of Women Voters, and the American Civil Liberties Union) publicly opposed the ERA in this form.
2. ERA would put abortion rights into the U.S. Constitution and make abortion funding a new constitutional right.
1. In 1998, the New Mexico Supreme Court ruled that ERA requires the state to pay for all abortions for low-income women.
2. The American Civil Liberties Union filed briefs in abortion cases in Hawaii, Massachusetts, Pennsylvania and Connecticut arguing that ERA requires tax funding for abortions because it is classified as a medical procedure.
3. The Connecticut Superior Court ruled on April 19, 1986 that the state ERA requires abortion funding.
4. Rep. James Sensenbrenner's (R-WI) introduced an amendment to make ERA abortion-neutral, but it was rejected.
3. ERA will jeopardize single-sex programs and schools.
1. ERA would make unconstitutional all the current exceptions in Title IX which allow for single- sex schools and colleges and for separate treatment of the sexes for certain activities. ERA would mean the end of single-sex colleges.
2. ERA would force the sex integration of fraternities, sororities, Boy Scouts, Girl Scouts, YMCA, YWCA, Boys State and Girls State conducted by the American Legion, and mother-daughter and father-son school events.
3. ERA would risk the income tax exemption of all private schools and colleges that make any difference of treatment between males and females, even though no public monies are involved.
4. Rep. Dan Lungren (R-CA) proposed an amendment to exempt religious schools from the effect of ERA, but it was rejected.
5. Religious schools run by churches and synagogues that do not ordain women, or which treat men and women differently, would lose their tax exemption. ERA would put at risk the tax exemption of thousands of Catholic, Protestant, and Jewish schools all over the country.
4. ERA would take away important rights and powers of grassroots control and of the states.
1. Section 2 of the ERA would give Congress the power to legislate on all areas of law which include traditional differences of treatment on account of sex: marriage, property laws, divorce and alimony, child custody, adoptions, abortion, homosexual laws, sex crimes, private and public schools, prison regulations, and insurance. ERA would thus result in the massive redistribution of powers to our Federal system.
2. Even though Arkansas voters passed a state marriage amendment in 2004, federal judges could still require Arkansas to recognize same-sex marriage or to give equal benefits to same-sex couples.
3. Rep. Tom Kindness (R-OH) offered an amendment to give the states concurrent enforcement power, as well as the Federal Government. It was rejected.
4. ERA would give enormous power to the Federal courts to decide the definitions of the words in ERA, "sex" and "equality of rights." It is irresponsible to leave it to the courts to decide such sensitive, emotional and important issues as whether or not the language applies to abortion or homosexual rights.
5. ERA would take away legal rights that women possess - not confer any new rights on women.
1. ERA would take away women's traditional exemption from military conscription and also from military combat duty. Rep. Sam Hall's (D-TX) proposed amending ERA to prevent drafting women, but it was rejected.
2. Rep. Clay Shaw (R-FL) offered an amendment to prevent ERA from requiring women to serve in military combat just like men, but it was rejected.
3. ERA would make unconstitutional the laws that impose on a husband the obligation to support his wife.
4. ERA would require "unisex insurance." Rep. Harold Sawyer (R-MI) offered an amendment to prevent ERA from wiping out the ability of insurance companies to charge lower insurance rates to women for automobile accident and life insurance policies, but this provision was rejected. Women will be required to pay higher insurance premiums.
6. ERA would forfeit male veterans’ rights.
1. Rep. George Gekas (R-PA) offered an amendment to prevent ERA from wiping out veterans' preference, but this was voted down.
1. The ERA has been rejected since 1972 because it is a sloppy, confusing proposal. There is no mention of women in the amendment, and attempts to clarify its meaning have been futile. It is fraught with opportunities for special interest groups who are denying their hidden agendas and hoping for its acceptance. The fact that there are legal opinions, court rulings, and debate over the ERA is evidence enough that there is a problem with the wording and interpretation. An amendment should be clear about its intent, and the ERA fails to do this.
2. The fact that women today have successfully championed their rights in society and in the courts since 1789 is a testimony to the sufficiency of the current Constitution to guarantee those rights. Attempts to approve the ERA, clutters the constitution with redundancy and confusion, takes local and state control away from people, threatens religious and private institutions, and opens the door for anti-family activists including homosexuals and abortionists.
3. The Constitution lays the framework from which the laws of our federal union are derived. Changes to it should be resisted at every point while demanding that it pass every stringent test devised until it is fully clear beyond all reasonable doubt that law and justice cannot exist without it. The ERA does not pass the simplest tests to justify its acceptance.
Interesting comment on "hidden agendas" here, with regards to both Scratch's and Harmony's claims of the benign nature of the ERA, and the let's pretend attitude to what the actual ideological background of the radical feminist movement that spawned the ERA in the fist place really is.