ERA: historical curiosity or needed weapon against bias today?
For example, the Supreme Court struck down an Air Force rule that made it more difficult for spouses of women who were members of the Air Force to get “dependent” benefits than it was for spouses of men in the Air Force. Likewise, the Supreme Court found that an Idaho law giving preference to men over women to be appointed as estate administrators was a violation of the 14th Amendment.
Roberta Francis, the head of the ERA task force at NOW says the very act of fighting for the ERA turned the tide of public opinion drastically. “In the 1970s, we hardly had to turn around to come up with examples of [sex discrimination]. Fortunately we’re not in that situation any more. That’s one of the victories that the ERA brought us.”
But, Mayeri notes, those same ERA advocates, saw that women remained far from achieving “equality in fact.”
While the full contours of ERA’s potential impact are not clear (see sidebar), there are two areas of change that, at least in terms of the intentions of proponents, have been central. “I think what civil rights advocates and feminists probably all would have agreed on by the late-70s and early-80s,” Mayeri said, “was that what they wanted was strict scrutiny for invidious classifications and something much more permissive for affirmative action.”
Strict scrutiny is the level of review that the Supreme Court imposes on race-based classifications, and, as a practical matter is scrutiny that almost always results in the striking down of such distinctions. “Intermediate scrutiny,” on the other hand, is the standard of review that the Court uses to evaluate gender-based constitutional claims. Under intermediate scrutiny analysis, the burden on a state or locality to justify a gender-based classification is less than that required to justify classifications that are subjected to strict scrutiny, like those based on race.
So, for example, in the absence of strict scrutiny, the Supreme Court during the ERA ratification period ruled that men and women could be treated differently for purposes of draft registration, that pregnancy discrimination was not necessarily a violation of the Constitution, and that states that provided a range of medical services could nevertheless constitutionally deny funding of abortion services.
The other area crucial to ERA advocates, Mayeri said, was redressing “the extent to which the Supreme Court had really curtailed the possibilities for disparate impact theory” as a matter of constitutional doctrine under the 14th Amendment.
For example, the Supreme Court in 1979 upheld a Massachusetts veterans’ preference provision that, while technically open to both men and women, unquestionably operated to the strong benefit of men (because of the gender imbalance in the number of ex-military personnel).
Advocates saw that disparate impact would be a “key” method of “challenging not just [gender-based] veterans’ preferences, but a wide range of policies that have a disparate impact on women,” Mayeri said.
Disparate impact theory is designed to overturn policies that, while neutral on their face, disproportionately and negatively effect a protected class.
Among frequently cited disparities that have a disparate impact on women are those relating to the receipt of Social Security and other government benefits, family law matters, and the cost of insurance coverage.
As to the last, Eleanor Smeal says that “women pay on average 48 percent more for health insurance than men do.” (But, to the extent that insurance is “privately” provided, see box below on the question as to whether the ERA would bar conduct that was not itself “state action.”)
Symbol and standard
Some advocates focus on the symbolic value of having an ERA. “The right to vote is the only right that we have,” explains Diana Egozcue, President of Virginia’s NOW chapter, “Women are not mentioned once in the constitution. Men are mentioned 38 times.”
For some, however, the symbolic value has practical applications. Nan Rich, for instance, a Florida state senator who has introduced legislation to have the state finally ratify the ERA, said, “It’s not like passing an ERA is going to ensure that we are going to have 50 percent women in the House and Senate, but it sends message that gender equality is fundamental to our core beliefs and needs to be on par with other rights such as freedom of speech.”
Beyond the symbolism, ERA advocates say, are more concrete potential gains as well.
What would the full impact have been? What might it be?
The full contours of the ERA’s potential impact remain far from clear for at least two significant reasons. First, observers point out that it is difficult to separate what changes an ERA would be intended to mandate from how the Amendment would be implemented. What, for example, would passage tell us about the the political will of Congress to pass appropriate legislation — or, for that matter, from the judiciary’s willingness to interpret an ERA robustly? In other words, would passage of the ERA cause changes, or would it simply reflect a more favorable to gender equity in which pro-equity legislation and court decisions would be more likely to take shape with or without the legal mandate of the ERA?
The University of Pennsylvania’s Serena Mayeri says that, while the ERA “could be a potentially very useful tool for achieving what women’s rights advocates have been trying to accomplish,” she did not see ERA as “a necessary or sufficient condition for that to happen.”
In terms of the intended consequences hoped for by ERA supporters, these have not always been transparent. Strategic considerations have often meant it is opponents who have sketchd the furthest potential bounds of the ERA’s impact, while proponents have shied away from doing so. Thus, for example, in the course of trying to create a new legislative history for the ERA after the failure of ratification in 1982, proponents were “trying to come up with a set of aspirations that were expansive enough to move the law beyond where it was but not so expansive so as to derail any possibility that they would get any political traction,” Mayeri said.
(In the course of preparing this article, Remapping Debate came up against the problem of ERA supporters who were unwilling to speak openly: we reached out to a number of women’s rights organizations who were unwilling to talk about the ERA’s potential impact.)