Tuesday, January 5, 2021
I have a long piece up at National Affairs (and in their print Winter issue) on the philosophical underpinnings of the century long debate over the ERA. At the outset, I quickly summarize the current multi-state litigation over whether Congress can simply vote to overcome the procedural hurdles that stand in the way of the ERA's ratification at this late date, but the essay is far more concerned with the ERA's substance.
Drawing on material from my forthcoming book, The Rights of Women: Reclaiming a Lost Vision (out from Notre Dame University Press in July and now available for pre-order), here's the introduction of my argument in National Affairs:
What may be lost in legal squabbles over ratification procedure is an important substantive point: Although the amendment's text — and the strict equality it enunciates — remain the same, the disputed ERA of 2020 is simply not the same animal the 92nd Congress sent out for ratification in 1972. Congress and the courts have already put into place nearly everything the ERA proponents of the 1970s sought: the removal of sex-based legal distinctions in myriad areas of the law, prohibitions against overt sex discrimination in the workplace, laws in favor of equal educational and athletic opportunities, and laws requiring equal pay for equal work. Indeed, the successful legislative and litigation strategies women's-rights advocates pursued in the early 1970s have given way to a "de facto ERA," as some scholars have put it, making the ERA of 1972 constitutionally unnecessary. So why the elaborate attempt to push it through now?
Proponents maintain that ratifying the amendment Alice Paul penned nearly a century ago would be an important symbolic gesture of historic significance and ensure that the political and constitutional gains of the last half-century will not be undone. The phrase "[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex" would finally be enshrined in the country's foundational legal text — in the year the nation celebrates the centennial of the 19th Amendment, no less.
Yet whatever their public-relations campaign says, those who work for the ERA's passage today are not merely interested in symbolic gestures, or even in securing extant anti-discrimination law. Rather, they seek to ratify constitutionally the same philosophical ideal Paul first sought in the 1920s, but with altogether new targets in mind. If history is any indicator, they will fail for the same reason Paul and successor after successor failed: Abstract ideals of equality do not account adequately for the concrete duties of care that, relative to men, women disproportionately continue to undertake.
ERA advocates are right to seek better workplace accommodations for pregnant women, better treatment of working mothers, and better public support for child-raising families, among other less-savory goals. Yet however much we might like our daughters and sons to see their fundamental equality emblazoned in the text of the Constitution, strict equality will not give mothers and fathers the support they need. A more intentional and robust family policy, on the other hand, just might.