Wednesday, March 22 marks the 45th anniversary of the congressional passage of the Equal Rights Amendment (ERA). However, while the amendment passed through Congress decades ago, it has not yet been ratified by three-fourths of the states and is therefore not law. But securing ratification of the Equal Rights Amendment is no less important years later. Even though women's rights have come a long way over the past few decades, it is nonetheless imperative to have equal protections for women codified in the U.S. constitution, especially under the current administration.
While many Americans believe that women are equal under the law, even without the ratification of the ERA, that is not necessarily the case. The equal protection clause of the 14th Amendment is the most oft-cited reason why people think the ERA is redundant, as the clause states that no state shall "deny any person equal protection of its laws." However, the equal protection clause does not provide the same constitutional protections for women as the ERA does.
For example, under the equal protection clause, cases of sex discrimination are reviewed with "intermediate scrutiny" rather than "strict scrutiny," the latter of which is used in cases of racial, religious, and national origin discrimination. Furthermore, the equal protection clause mandates that a law or policy must intend to discriminate in order for it to be found discriminatory. These protections are not sufficient and illustrate exactly why the ERA must be ratified.
Cases of sexual discrimination should be given the strictest standard of review under the law. Furthermore, policies and laws that are unintentionally discriminatory, which are seen in many sexual discrimination cases, should still be revised to ensure they are not discriminatory. The 14th Amendment does not ensure any of these protections. Additionally, the 14th Amendment was passed in 1868, almost 50 years before women received the right to vote, which epitomizes the limitations of the equal protection clause.
If the limitations of the equal protection clause are not enough evidence to demonstrate why the ratification of the ERA is so essential, then statements by the late Supreme Court Justice Antonin Scalia about the lack of constitutional protections for women certainly help to bolster this evidence. In an interview with California magazine in 2011, Scalia stated that the U.S. constitution does not protect against discrimination on the basis of gender. In an interview with the Huffington Post, Marcia Greenberger, the founder and co-president of the National Women’s Law Center, asserted that Scalia "was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse."
Supreme Court Justice Ruth Bader Ginsburg also seems to agree that the Constitution offers insufficient protection for women's equality. When asked at the National Press Club in 2015 how she would choose to amend the Constitution if she were allowed, Ginsburg ardently replied that she would ratify the Equal Rights Amendment, saying,
It means that women are people equal in stature before the law ... We have achieved that through legislation, but legislation can be repealed. It can be altered ... That principle belongs in our Constitution. It is in every constitution [outside of the U.S.] written since the Second World War.
Ginsburg's assertion that legislation protecting women can be repealed at any time is especially striking during the current administration, which has already proposed several bills which drastically diminish women's rights and freedoms. Now, more than ever before, it is imperative to not just assume that legislation protecting women will stay in place in perpetuity. The only way to guarantee these protections is through the ratification of the ERA, which would constitutionally provide women with equal protection under the law.
Finally, beyond the issue of legal protection, ratifying the ERA is so imperative because of the principle it perpetuates. Refusing to ratify the amendment because some think it is "redundant" is sexist in itself, as it implies that codifying women's equality is not important enough for legislative time and effort. This mindset diminishes the importance of women's rights and must be rectified through ratification of the ERA.
As one can see, ratification of the Equal Rights Amendment is still absolutely imperative, even 45 years after its initial passage in Congress. If you are similarly passionate about ensuring the ratification of the ERA, make sure to engage in advocacy initiatives to help fight for its ratification, as 2017 could finally be the year in which American women's equal protection is enshrined in the Constitution.
