The ERA’s most harmful effect is that it would likely prohibit government from adopting policies designed to advance women’s equality. The Ugly: The ERA Would Prohibit Affirmative Efforts to Advance Sex Equality Nor would the ERA prohibit violence against women by private individuals. Accordingly, employment concerns, such as discrimination in pay, hiring and promotion, harassment, and lack of maternity leave in private companies, organizations, and universities would remain constitutional. The Bad: No Application to Private DiscriminationĪ gaping hole in the ERA is that it does not apply to discrimination by private actors, such as companies and individuals. That test invalidates virtually all discriminations against women. Since the mid-1970s, the Court has, under the Equal Protection Clause, subjected governmental sex discrimination to “intermediate scrutiny,” which requires government to justify discrimination as “substantially related” to an “important” government interest. This good is qualified, however, because government discrimination against women is already unconstitutional. Accordingly, the ERA would render unconstitutional intentional discrimination by government against women in hiring, pay and promotions, and higher education, as well as sex-motivated harassment and violence by government actors. It is extremely unlikely that any discrimination against women would survive strict scrutiny (except possibly by the military, to which courts often defer). In practice, strict scrutiny virtually always invalidates the discriminations to which it is applied. Technically, the ERA would not outright ban sex discrimination but would likely subject it to a test called “strict scrutiny,” which requires government to justify discrimination as “necessary” to achieve a “compelling” interest or goal. The ERA would ban intentional, government discrimination against women, in legislation and executive action. The ERA’s Direct Effect (Without Legislative Implementation) The (Qualified) Good: No Government Discrimination Against Women Unfortunately, the ERA would not advance any of these goals much over current law and, worse, would likely undermine sex equality. Supporters expect or hope that the ERA would address these concerns, make constitutional protection of sex equality more stable, and enshrine in our Constitution the principle that women are equal to men. Moreover, such inequalities, as Brandy Faulkner observes, are compounded by race and class. Too many women are victimized by sexual assault and domestic violence. Women are also underrepresented in occupations including police, fire, management, corporate boards, and business ownership. In education, girls and women face discrimination and continue to be underrepresented in STEM fields, medicine, and business. At work, women continue to experience inequality in pay, hiring and promotion, suffer harassment, and lack support for family responsibilities. Sex inequality persists across several contexts. The ERA would likely cause the Supreme Court to impose a rule of sex-blindness, preventing sex-conscious policies to reduce sex inequality. The ERA would likely cause the Court to impose a rule of sex-blindness, preventing sex-conscious policies to reduce sex inequality. The Court imposes a rule of “colorblindness,” a duty to ignore race, which prevents government from addressing racial inequality because doing so requires attention to race. My pessimism is based on how the Supreme Court treats race under the Constitution’s Equal Protection Clause. The Equal Rights Amendment would likely harm women’s equality over current law and, especially, over alternative versions of an ERA that could be proposed.
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