How We Got the ERA

You won't find the Equal Rights Amendment in any copy of the Constitution. Even though it was rejected by the states two decades ago, the ERA has quietly and stealthily become the law of the land thanks to twenty-five years of Supreme Court decisions first guided and the written by ERA advocate and now-Justice Ruth Bader Ginsburg. "There is no practical difference between what has evolved and the ERA," she remarked in a recent appearance at the University of Virginia School of Law, adding, "I would still like it as a symbol to see the ERA in the Constitution for my granddaughter." Congresswoman Carolyn Maloney [D-New York] obliged by reintroducing the failed amendment for a third run on March 22.

Many have probably forgotten what the ERA battle was about, or why opposition to it at the time was so bitter. Its cheerleaders--largely the National Organization for Women and its sympathizers--believed an ERA was necessary to bring women into full equality with men; its critics, especially the Stop ERA movement spearheaded by Phyllis Schlafly, head of the Eagle Forum, saw it as a feminist ploy to shove radical ideas of sexual equality into the Constitution. Whatever the ERA's intent, the American people eventually rejected it through their elected representatives. While Congress passed the ERA in 1972, only thirty-five states had ratified it by 1977, and none thereafter. To be added to the Constitution, the ERA needed approval by three-fourths of the states within ten years. Proponents demanded, and got, a second chance, but the ERA was finally declared dead in 1982.

But was it dead? Or had it just temporarily stopped breathing, awaiting resuscitation by a more sympathetic and interventionist Supreme Court? For when you stand back and survey today's legal landscape, it's startling to notice how many of the ERA's goals have been written into law. Even Schafly's most dire predictions have actually come to pass: co-ed bathrooms on college campuses, the abolition of single-sex public colleges, and in Hawaii, the use of an ERA provision in the state constitution to support homosexual marriage.

How did this happen? Mainly because while the ERA battle raged in the state legislatures, NOW and friends like the American Civil Liberties Union launched a second front in the courts. Among the most prominent advocates seeking adoption of the ERA by other means was the head of the ACLU's Women's Rights Project at the time: Columbia Law School professor Ruth Bader Ginsburg. Until her appointment as a federal judge in 1980, Ginsburg herself briefed and even argued some of the major Supreme Court cases in the 1970s dealing with sex classifications under the Fourteenth Amendment. Her appointment to the Supreme Court bench in 1993 was the final jolt ERA needed to be brought back from the dead.

Sadly, though, Ginsburg's judicial embrace of ERA will only advance an ideological war on nature, which aims to achieve equality between the sexes by refusing to acknowledge their differences. Pursuing this vision will not make women more free or equal, but instead will reduce them to legally indistinguishable "persons." That was the reason, in the end, why the public lost enthusiasm for the ERA. But the Court has decided it knows better and enacted the ERA anyway. And what can "We, the People" do about it? Not much.

On the surface, the stated principle behind ERA seems fair and reasonable, and that is why, in the beginning, Congress and so many state legislatures were immediately willing to embrace it. The ERA was supposed to give women the same constitutional protection as racial minorities. This was, in fact, one of the mobilizing issues for the formation of NOW in the late sixties. NOW co-founder Betty Friedan, writing in a 1976 epilogue to her 1963 book The Feminine Mystique, said she and other feminists of that era conceived NOW as "an NAACP for women." They were especially incensed that, although Title VII of the Civil Rights Act of 1964 forbade discrimination on the basis of sex as well as race, no one seemed seriously occupied with the enforcement of women's rights.

To correct this imbalance, NOW made one of its earliest projects the ratification of the Equal Rights Amendment, originally proposed in 1923. The ERA would forbid sex discrimination exactly as other parts of the Constitution forbid race discrimination. According to Friedan, the ERA "had been bottled up in Congress for nearly fifty years" and "we had to take the torch of equality from the lonely, bitter old women who had been fighting all alone."

They fought alone for good reason. Most people recognized that legally equating sex with race would inhibit states from making any distinctions, no matter how reasonable, based on sex-and discourage states from enacting laws helpful to women. For, unlike skin color-a superficial characteristic utterly irrelevant to merit or performance-sex, when it does matter, matters a great deal. Men and women share many of the same human characteristics and in many ways are equally capable, but they also differ in significant (and physically obvious) ways.

The Equal Protection Clause of the Constitution's Fourteenth Amendment provides, "No state shall deny to any person within its jurisdiction the equal protection of the laws." Obviously many laws classify and treat people differently; in the past, laws treating women differently from men often operated to the woman's advantage. Because of the inevitable economic sacrifices a mother makes to raise her children, for instance, a woman could once generally expect to get custody of her children and be awarded both alimony and child support if her husband left her. Widows used to be favored with higher pensions than widowers.

The Equal Protection Clause was aimed at race discrimination, yet because it is phrased so broadly, the question arose whether states may treat any person, race aside, differently from another. The courts determined early on that the Equal Protection Clause permits legal distinctions between persons as long as the different treatment is rationally related to a legitimate purpose-the "rational basis" test. In practice, Equal Protection cases (other than those involving race or national origin) seldom overturned democratically enacted laws unless they were truly arbitrary, lacking any plausible reason.

As an example, consider laws regulating lawyers. Early in the history of the Fourteenth Amendment, the Supreme Court declared it unconstitutional to deny bar admission to blacks. The Court has, however, upheld the right of states to demand other reasonable qualifications as a condition of being licensed to practice law. In the case of women, the Court held that concern for their delicate sensibilities (essentially the only reason offered) was not a rational basis for denying admission to the bar.

The "rational basis" test stood for over a hundred years. Then came the 1971 case of Reed v. Reed, which involved a mother and father who each wanted to be named as executor of the estate of their deceased son, who was a minor. When a person dies without a will naming an executor, it is necessary to appoint someone to administer the estate. This involves paying bills, making an inventory of the deceased person's property and distributing what's left to the legal heirs. As a practical matter, the real duties of an executor or administrator are usually limited to signing checks and forms prepared by a hired lawyer. State laws governing the appointment of administrators usually give preference to next-of-kin, in a prescribed sequence (spouse, children, parents, siblings, etc.). Under the challenged Idaho law, whenever two equally entitled candidates of opposite sexes desired appointment, the man was preferred. Mrs. Reed, rejected in favor of her estranged husband as administrator of her son's estate, took her claim to the Supreme Court.

As its "rational basis" for this law, the state submitted that the automatic preference served to expedite estate proceedings, avoid the cost of hearings and minimize intra-family disputes. But the Supreme Court unanimously declared the Idaho law unconstitutional, saying there was no rational basis for automatically preferring the man if both candidates were qualified. The Court called this "the very kind of arbitrary legislative choice forbidden" by the Equal Protection Clause. It declared, in essence, that reason doesn't matter when sex is involved.

Giving preference to male candidates might not have been the fairest possible method of appointing administrators, but it could hardly be called irrational. Holding hearings in each contested case might be more fair, but also time-consuming, expensive, and divisive--factors legislators should be entitled to consider. Flipping a coin might have been fairer, as well as cheaper and friendlier, but completely unpredictable and truly arbitrary. Idaho's elected legislature passed this law for reasons that were, at the time, good and sufficient to the men and women of Idaho.

But when the Court called Idaho's law "arbitrary," what it really meant to say was, "not modern." If the people of Idaho objected to their old-fashioned laws, they had the simple remedy of electing legislators who would amend them. In fact, the people of Idaho did exactly that. Several months before the Supreme Court issued its decision, the Idaho legislature revised its probate code and eliminated the mandatory preference complained of in Reed. The Supreme Court could have declared the case moot and let the new law stand on its own; instead, all nine justices decided to substitute their judgment for that of the people of Idaho.

Indeed many, if not a majority, of the voters in Idaho were women. Though they might have appreciated the Court's sentiments, they should have been wary of the Court's usurpation of a right far more important than the "right" to be appointed as an estate administrator, namely, the right of the people to govern themselves.

But the Court was planning to go further. Only two years after the Reed decision, the Court came within one vote of judicially adopting the ERA. The case of Frontiero v. Richardson (1973) involved laws requiring military women's husbands, in order to qualify for dependent benefits, to show that they actually depended on their wives for more than one-half of their support. As in Reed, the Defense Department offered many reasons for its policy, but eight justices voted to invalidate the policy because, under Reed, those reasons weren't considered rational. Only Justice Rehnquist dissented.

Four justices (Brennan, Douglas, Marshall and White), anticipating passage of the ERA, voted to judge sex classifications by the same strict standard as race classifications. Four other justices (Burger, Blackmun, Powell and Stewart) refused to go so far. Criticizing his brethren's rush to judicial adoption of the ERA, Justice Powell warned that some issues "normally should be resolved by the elected representatives of the people," and when they are not, "democratic institutions are weakened, and confidence in the restraint of the Court is impaired."

Ruth Bader Ginsburg had represented the plaintiff in Reed, argued Frontiero, and returned for a rematch in the 1976 Supreme Court case of Craig v. Boren.This case challenged an Oklahoma law prohibiting the sale of 3.2 percent beer to males under twenty-one and females under eighteen years old. The state presented abundant evidence that teenage boys were far more likely than teenage girls to drink, drive and have accidents. Then-ACLU lawyer Ruth Bade Ginsburg contended that this law, even though it was "rational" and apparently favored women, violated the Equal Protection Clause simply because it treated women and men differently.

This time she got a five-justice majority to agree that the old "rational basis" standard shouldn't apply when sex is involved. The Supreme Court held in Craig that the proper test for constitutionality of a sex classification under the Equal Protection Clause is not whether it has a rational basis but whether it is substantially related to the achievement of an important governmental objective. This test became known as the "intermediate scrutiny" standard, as distinguished from the "strict scrutiny" standard applicable to race. After Craig, "gender" was firmly established as a specially protected category under the Equal Protection Clause.

Interestingly, the Court used the term "gender" rather than "sex" in Craig and in subsequent opinions for many years thereafter. When Justice Ginsburg's nomination to the Supreme Court was about to be confirmed in 1993, she claimed to the Washington Post that it was she who invented this terminology in the 1970s. Her secretary, it seems, was uncomfortable typing the word "sex" over and over in legal briefs, so Ginsburg substituted the more delicate sounding term "gender." This was grammatically incorrect: "gender" is a property of nouns and adjectives, masculine, feminine and neuter (as in Latin or French). But it was a revealing action on Ginsburg's part, showing she is imperiously willing to overrule language itself when it gets in her way.

The new "intermediate scrutiny" standard, however, raised more questions than it answered. Justice Rehnquist dissented in Craig, saying, "How is this Court to divine what objectives are important? … I would have thought that, if this Court were to leave anything to decision by the popularly elected branches of the Government, … it would be the decision as to what governmental objectives to be achieved by law are 'important,' and which are not." Fans of Justice Ginsburg say her involvement in Craig shows her impartiality toward both men and women. This is because they regard Craig as a victory for men. In fact it was a victory for the beer vendors of Oklahoma (also party to the case), who won the right to sell 3.2 beer to thirsty teenage males. Conversely it was a sad defeat for parents and highway patrolmen, who surely felt they had good reason to try to put a few roadblocks between driving-age boys and beer.

In any case, the "intermediate scrutiny" test adopted in Craig held up for twenty years. Perversely, but exactly as predicted by opponents of the ERA, intermediate scrutiny of laws classifying persons by "gender" yielded several more victories for men (or defeats for women, however one chooses to look at it). In Mississippi University for Women v. Hogan (1982), for example, the Court ordered Mississippi's only all-female state nursing school to admit men, even though men had access to other state-supported nursing schools that were already co-ed. Barring men from any nursing school, the Court said, would make Mississippi guilty of perpetuating the "stereotype" of nursing as a women's career. Time and again, the Court went on to strike down perfectly sensible laws that were either harmless or positively beneficial to women. Each "gender" case afforded the Court another opportunity, as Justice Scalia once wrote, "simply to pay conspicuous obeisance to the equality of the sexes."

It wasn't until last year, though, that the Supreme Court was given its most tantalizing opportunity yet to enact fully the remaining agenda of ERA, in the Virginia Military Institute case, U.S. v. Virginia. Never mind the pale imitation of sexual equality that the four old men wanted to hand over in Frontiero. The VMI case afforded feminists a clear shot at eradicating the patriarchy by eliminating a 157-year-old all-male college. VMI was an all-purpose target, being masculine, military, traditional and Southern. Although lower courts agreed that single-sex programs are pedagogically valid, legitimate and beneficial within a public education system, the Supreme Court tossed out all the expert evidence supporting those findings.

Now-Justice Ruth Bader Ginsburg wrote the VMI decision, which ratcheted up the existing legal standard for any sex-based state action to require "an exceedingly persuasive justification." No justification is acceptable if it relies on "overbroad generalizations about the different talents, capacities, or preferences of males and females." Under Justice Ginsburg's formula, a generalization is deemed overbroad if any individual might prove to be an exception to it.

So stated, the new test effectively enacts the ERA. Under the formulation in VMI, the only permissible legal distinctions between women and men would have to involve the required use of genitalia. The occupation of "sperm donor" could be limited to (biological) men. "Birth mother" could be limited to women, but perhaps not "wet nurse" (after all, many modern young dads are quite adept at administering a baby bottle). In championing the absolute rights of individuals, however, Justice Ginsburg did not fail to consider the interests of one group: Women. Writing the VMI opinion, she carefully reserved the right of government to take action to "compensate women for 'economic disabilities' they have suffered." She also provided that nothing "may be used … to create or perpetuate the legal, social, and economic inferiority of women."

To whom might women be inferior? It can only be men. Unlike racial minorities, which are numerous and, with increasing intermarriage, no longer discrete, the sexes are only two and exist in a closed system. For women not to be inferior, as Ginsburg insists, they must be either equal or superior to men-or perhaps just "more equal" as the pigs in Orwell's Animal Farm would have it. The old ERA modestly, if vaguely, aimed to achieve equality between the sexes; the new Equal Protection rejects any sense of fair play or give-and-take between men and women by promising protection to women exclusively. This might satisfy ideologues, but realists bear in mind there are two sexes; the new both necessary to carry on the human race. On that score, Justice Ginsburg's VMI decision calls la différence "cause for celebration, but not … for artificial constraints on an individual's opportunity," a future Court could easily use the such language to permit or require states to sanction homosexual marriages. For how could we deny two individuals the opportunity to marry merely because they lack complementary sex organs?

Homosexual marriage isn't legal yet, but what other dire predictions of old ERA opponents remain unfulfilled? Not many. Women still aren't drafted, but neither are men today. In peacetime, the number one military readiness problem seems to be pregnancy, followed closely by sexual harassment.

Indeed, the last thirty years have yielded mixed results for women as a group. Elites-those with the brains and money to attend college and pursue a career-have succeeded spectacularly. Others-those less talented, and often imprudent or unlucky in love (or sex)-are economically far worse off and far greater in number. Their misfortunes are depressingly familiar, the same things our antediluvian, pre-1960s mothers warned us against: unwanted pregnancies, single motherhood, poverty, and welfare dependency.

These problems are exacerbated by a law that, in the name of equality, refuses to acknowledge sexual distinctions between men and women. The protections and special status the law once afforded mothers and wives because of their unique, biological sacrifices have been taken away; from a legal point of view they are now simply "spouses" judged on par with men. We cannot estimate how many programs beneficial to women may have been curtailed or rejected (particularly in education) because of the cost or impracticality of providing the same for men. It works the other way around, too. Many states have cut back or eliminated successful all-male "boot camp" criminal rehabilitation programs because the states can't afford to run a parallel program for a relatively small number of female convicts. As a result, more young male offenders are released unrehabilitated-with predictably adverse effects on their future victims.

The interests of "women" are hardly advanced if they must live in a dysfunctional society. A society cannot function if it cannot make rules based on reason, experience, and the collective wisdom of its people. Sound rules are exactly what America's founders intended to accomplish through majority rule in a free society. The Supreme Court does none of us a favor when it subverts this intent.

Justice Scalia, dissenting in the VMI case, wrote: "The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society's law-trained elite) into our Basic Law."

The real tragedy of the elite feminists' fifth column march through the Constitution is that it left us-by which I mean all of us, women and men-no more equal, but considerably less free.

Anita K. Blair, executive vice president and general counsel of the Independent Women's Forum, serves on the VMI Board of Visitors. .

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