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Equal Rights Amendment

Once again, like a repeating pop-up target in a circus midway game, ratification of the federal ERA comes up before the Missouri General Assembly. The ratification effort, called the "three states strategy" by its supporters, is a deadly serious matter. This pop- up target comes armed to shoot at us' and not with toy bullets. Its ammunition is federal constitutional litigation, with injunctions and damage awards. Among its chief targets are abortion regulations, no matter how modest, and the traditional family structure of a man and woman together for life.

Missouri is a key state in the effort to revive the dormant federal ERA Thirty-five of the required thirty-eight states ratified the ERA in the 1970's. According to the proponents of the "three states strategy," ratification by another three states would mean the adoption of the amendment, notwithstanding the seven-year limit on ratification (later stretched into ten years) set by Congress. At the least, they say, ratification by three more states would set the stage for Congress to rescind its time limitation and declare the amendrnent to be adopted. Their statements and strategy are laid out in the web site, www.equalrightsamendment.org  for all to read.

Missouri is well known as a pro-life state and a crossroads between all the regions of the country. It is a bellweather for elections. If Missouri ratified the ERA, the ERA would be given a boost which would recharge the ratification movement and may well bring another two states along.

The question of ratifying the federal ERA is not merely an exercise in election-year posturing on "equal rights," in which legislators' votes will have no legal effect.  To the contrary, ratification presents a clear and present danger of handing to the federal courts broad powers to interfere with many of the most important parts of our lives at the behest of those who disdain ordinary family life, including such matters as:

  • marriage and family arrangements;
  • divorce laws;
  • support of spouses and children;
  • custody of children;
  • non-recognition of gay partnerships as marriages;
  • provision for separate girl-only and boy-only groups like Boy Scouts, Girl Scouts, YMCA, YWCA, Boys' State and Girls' State;
  • tax exemptions for private schools which philosophically oppose gay rights and policies advanced by the ERA on gay issues or abortion, just as private schools which do not subscribe to civil rights laws lose their tax exemptions; elimination of veterans' preferences in state employment and contracts, because of the disparate impact favoring men; and
  • regulation of abortion and protection of the unborn.

Federal courts simply have no business issuing decrees and injunctions in these matters.

The social goals of the ERA arc not really about workplace issues. Federal courts stand ready to remedy sex-based discrimination and sexual harassment with civil damage awards, injunctions, and penalties on top of awards. Employers spend substantial sums these days on training and seminars on how to comply with anti-sex discrimination laws. Missouri state law is also strong in this area.

Rather, the social consequences of ERA are what counts. They include the following:

  • Proponents always tie the ERA to abortions rights and gay/lesbian rights. "Criteria for endorsement (of candidates) include support for the Equal Rights Amendment; reproductive freedom including Medicaid funding for abortions and young women's rights; civil rights for all - including lesbian and gay rights;... "National NOW Times (Summer 1990).
  • A 1996 Hawaii court decision ruled that gay marriages must be allowed under Hawaii's state ERA. Baehr v. Lewin, 852 P. 2d 44 (Haw. 1993), on remand, Baehr v. Miike, Hawaii Circuit Court, Civ. No.91-1394 (injunction issued December 3, 1996.)
  • Applauding the Hawaii decision, NOW. President Patricia Ireland said, "Lesbian rights are women's rights is what we've argued for more than 20 years. Today's historic decision finally throws some legal weight behind that idea." "Lesbian rights are one of NOW's five priority issues, and the organization has a firm Commitment to securing sarne-sex marriage rights."  (Web site at http://www.now.org/press/12-96/12-03-96.html visited 2/7/2000.)
  • State courts have ruled that the state must pay for abortions for indigent women under state ERA's. According to the New Mexico Supreme Court a law like Missouri's which withholds Medicaid funding for most abortions "undoubtedly singles out for less favorable treatment a gender-linked condition that is unique to women." New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998), cert. denied sub nom. Klecan v. New Mexico Right to Choose/NARAL, 119 S. Ct. 1256 (1999).  Hence, according to the court, it violates the state ERA.
  • Similarly, a Connecticut court held that the state ERA required public funding of abortions. "Since only women become pregnant, discrimination against pregnancy by not funding abortions . . . is sex-oriented discrimination . . . . The Court concludes that the regulation that restricts the funding for abortions. . violates Connecticut's Equal Rights Amendment." (Doe v. Maher, 515 A. 2d 134, 162 (Conn. Super. Ct. 1986). Only one state court, Pennsylvania's, has said that its state ERA does not require public funding for abortions.
  • ERA could eliminate veterans' preferences under the same kind of argument as persuaded the New Mexico and Connecticut courts. Since by far most veterans are men, it will be claimed that it discriminates against women to grant veterans' preferences in state employment, contracts, and any other public benefits. xxxxUnder present law, private schools and other nonprofit organizations which do not follow the principles of civil rights laws are denied tax exemptions. Under the same principles, the ERA could place at risk the income tax exemption of all private schools which failed to acknowledge such benefits of the ERA as gay marriages and unregulated abortions. The exemptions of traditional religious schools which opposed such behaviors would undoubtedly be scrutinized very closely by the IRS.

Is this really what we want? Should we give the federal courts the chance to follow the precedent set by the Hawaii, Connecticut and New Mexico state courts in interpreting their respective ERA's? The federal courts are not especially known for restraint in the interpretation of constitutional amendments, after all, and the "abortion distortion" in federal constitutional law, which is always exercised in favor of abortionists, is generally recognized by legal experts.

Few remember that when the U. S. House of Representatives passed the ERA on October 12, 1971, the senior female member was Leonor K. Sullivan of Missouri. She spoke strongly against the ERA because of the harm it would cause to the family in this country. Once the implications of the ERA are known, then voices of women now are like Ms. Sullivan's then---opposed to the social agenda which underlies the ERA.

It is reckless to vote in favor of putting the ERA into the federal constitution. If 38 states ratify, Congress may well declare the amendment effective. If Congress does not do so, the Supreme Court may. It is n unpredictable whether the courts would recognize or assume any jurisdiction in the matter. If Congress announced the effectiveness of the amendment upon ratification by three-fourths of the states, would the courts acquiesce; under the principle that ratification is a political question not justiciable by the courts? That principle guided the Supreme Court to reject a dispute about ratification of an amendment some sixty years ago. Coleman v. Miller, 307 U.S. 433 (1939). However, since that date, other supposedly non-justiciable "political" questions, notably the controversy in the 1960's over reapportioning state legislatures by the one-person-one-vote principle, have been ruled to be justiciable after all. No one knows for sure what will happen. Anything could happen.

If the ERA becomes a part of the Constitution, make no mistake about it: it will become the centerpiece of pro-abortionists' arguments against every type and kind of abortion regulation attempted by any legislative body. If the public can be forced to pay for abortions, then no regulation possibly affecting abortions is safe from attack, whether parental consent, informed consent, or keeping abortion facilities separate from family planning offices. Supreme Court Justice Ginsberg, in fact, wrote articles as a law professor expressing the wish to place abortion jurisprudence within the principles of equal protection of the laws.  An ERA in the federal constitution would grant that wish and solidify abortion in the law as nothing else to date has done

If that happened, pro-ife legislation would be finished for decades. The pro-life movement would not be over, for we are under a "life" sentence, and the Giver of life has not seen fit to grant us a reprieve, but the movement would have to turn to a constitutional amendment in the short run, instead of focusing on normal legislation.

That such an outcome is certain, no one can say, but then risk is substantial, and as such, unthinkable. Twenty-seven years of pro-life work by the Missouri General Assembly, most recently against wily and determined opponents, should not be thrown away in a rush to embrace the mantra of "equal rights."

For these reasons, Missouri Right to Life is steadfastly and energetically opposed to ratification of the Equal Rights Amendment, and we urge legislators in the strongest terms to vote against it should it come up for a vote in 2001.

Click here for MRL's White Paper on the ERA