The ERA: A Futuristic Idea Whose Time Has Passed

Introducing....
Juli Loesch Wiley, our newest contributing editor to Voices. She is a Catholic writer and pro-life activist, who in the 1980s was the founder/director of “Prolifers for Survival”, an organization that opposed abortion and nuclear arms. She is the wife of Donald Wiley and the mother of two teenage sons. The Wileys live in Johnson City, Tennessee.

Juli was born in Erie, Pennsylvania. From 1969-72 she worked as a boycott organizer for the United Farm Workers; then lived and worked as a Lay Associate with the Pax Center/Benedictine Sisters of Erie (1972-83). She has written for a variety of publications, and was a regular columnist for the National Catholic Register, for which she received an award from the Catholic Press Association in 1986. In 1988 she served as Media Coordinator for Operation Rescue.

She has contributed chapters to several books, including The Politics of Prayer: Feminist Language and the Worship of God (ed. Helen Hull Hitchcock); Prodigal Daughters (ed. Donna Steichen); Prolife Feminism: Different Voices (ed. Gail Grenier Sweet); and Prolife Feminism: Yesterday and Today (ed. Mary Krane Derr, Rachel McNair).

She is also the author of Emma’s Journal, recently published by EnRoute Books (Morganton, NC); a novel about an activist’s journey from living as a lay woman in a community of radical sisters to founding a movement combining peace and pro-life conviction — who, following tribulation, pain and grace, eventually finds her heart’s home.

Juli describes herself as “a worshipper of one God, the wife of one husband, a transplanted Yankee, a recovering feminist, a shape-note singing enthusiast, and the home-schooling Mater et Magistra” of her two sons. — Editor

Beyond Re-Animator (2003). Return of the Living Dead Part II (1988). Let Sleeping Corpses Lie (1974). Astro-Zombies (1969).

When I read “New Drive Afoot to Pass Equal Rights Amendment” in last month’s Washington Post, I was irresistibly inspired to Google “zombie movies”.

Voices readers under the age of 30 or 35 won’t even remember the fact that in 1982, after failing to gain the approval of three-quarters of the state legislatures, the Equal Rights Amendment died — after having been introduced in Congress and dying over and over again since it was first proposed in 1923.

Re-dubbed the “Women’s Equality Amendment”, the amendment-formerly-known-as-the-ERA has now been launched again, owing to liberals’ renewed sense of power since the November 2006 midterm elections.

The amendment consists of 52 words and has one key line: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

“But equal rights is already the law of the land”, you may say. And right you are. Since the passage of the Civil Rights Act of 1964, it has been illegal to discriminate against women in voting, employment, education, government, and public facilities and services. The courts have held that Title VII — the part of the Civil Rights Act that covers women — also prohibits sexual harassment. Title VII has also been supplemented with legislation specifically prohibiting discrimination on accounts of pregnancy, age, and disability.

And women are excelling in the larger society as never before. Women constitute 60% of all college students, and the US Department of Education estimates that by 2014, women will not only earn 60% of all bachelor’s degrees, but a majority of professional and doctoral degrees as well.

With women surging into all professional fields, with Drew Gilpin Faust taking her place as president of Harvard University, and with “equal pay for equal work” firmly entrenched for almost two generations, an intriguing question arises: why now, in 2007, are major feminist and liberal organizations committing themselves to the long-term and extraordinarily expensive process of amending the Constitution to promote “Women’s Equality”?

Isn’t that like pushing for nationwide, enforceable norms asserting that “fish gotta swim, birds gotta fly”?

What one has to understand is that sometimes specific and detailed legislation (like the Civil Right Act Title VII, with its hundreds or thousands of pages of administrative application and judicial interpretation) is not nearly as useful — for some purposes — as short, vaguely worded law, like the proposed ERA.

The beauty (or rather, bane) of the neo-ERA is that it is wide open to the most expansive interpretation, and can be used as a tool to achieve all kinds of ends not specified in its deliberately non-specific text.

This kind of amendment at the state level has resulted in lawsuits to require same-sex marriage, gay adoption, insurance funding for contraception, public funding for abortion, and other pernicious programs that could never have been adopted through the ordinary procedures of democratic governance, e.g. state legislatures. In other words, it is a wedge (no, more than that, it’s a back-hoe, front-end lift and hydraulic pile-driver) to get the courts involved in every disputed sex, gender, and family question that the feminists can’t control through the legitimate legislative route.

“Fair treatment in the workplace” (fish gotta swim) may be the cover story, but the real agenda is whatever a federal court will read into this one-line bumper sticker of an amendment. And we can be fairly sure of what that would be by looking at what the courts have done with ERA-like amendments to state constitutions.

ERA would put “gay rights” into the US Constitution.

The Yale Law Journal has stated that ERA would favor the granting of marriage licenses to homosexuals and generally implement the gay rights and lesbian agenda because the phrase “on account of sex” is interpreted as including sexual orientation. The supreme courts of Hawaii and Massachusetts ruled that ERAs in these state constitutions require same-sex marriage; and recently a judge in Maryland ruled the same way.

Tellingly, 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.

ERA would put abortion rights into the US Constitution and make abortion funding a new constitutional right.

Courts in New Mexico and Connecticut have ruled that the ERA requires the state to pay for all abortions for low-income women. Again, when Rep. James Sensenbrenner (R-WI) introduced an amendment to make the proposed federal ERA abortion-neutral, it was rejected.

ERA will jeopardize single-sex programs and schools.

Because the ERA would subject legal claims of gender discrimination to the same strict scrutiny given by courts to allegations of racial segregation and discrimination, ERA would render single-sex schools and colleges unconstitutional.

The ERA would pressure the sex integration of fraternities, sororities, Boy Scouts, Girl Scouts, YMCA, YWCA, and mother-daughter and father-son school events. ERA would jeopardize the income tax exemption of all private schools and colleges that permit any difference of treatment between males and females, whether or not public monies are involved.

Rep. Dan Lungren (R-CA) proposed an amendment to exempt religious schools from the effect of ERA, but it was rejected.

Religious schools run by churches and synagogues that do not ordain women, or that 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.

ERA would take away important rights and powers of grassroots control and of the states.

The ERA would give Congress the power to legislate on all areas of law that 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.

Even if the voters in your state passed a state marriage amendment, federal judges could still require your state to recognize same-sex marriage or to give equal benefits to same-sex couples.

Rep. Tom Kindness (R-OH) offered an amendment to give the states concurrent enforcement power, as well as the federal government. It was rejected.

ERA would give enormous power to the federal courts to decide the definitions of the key words in the 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.

ERA would take away legal rights that women possess — not confer any new rights on women.

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.

Rep. Clay Shaw (R-FL) offered an amendment to prevent ERA from requiring women to serve in military combat on the same basis as men, but it was rejected.

ERA would make unconstitutional the laws that impose on a husband the obligation to support his wife.

ERA would require “unisex insurance”. Women will be required to pay higher insurance premiums. 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.

The ERA has been voted down since 1972 — no, since 1923 — because it is a sloppy proposal whose broad and deep ramifications are deliberately unspecified. It is fraught with opportunities for special interest groups who are denying their hidden agendas and hoping for its acceptance

The Constitution lays the framework from which the laws of our federal union are derived. Proposed amendments to it should be required to withstand minute investigation until it is fully clear that law and justice cannot exist without the amendment. To put it mildly, the ERA does not pass this test.

Author’s note: Most of the political and legal analysis in this article was derived from two sources: the Arkansas Republican Assembly and Phyllis Schlafly’s Eagle Forum. To them I give full acknowledgement and gratitude for their indispensable work.