On Friday, the Virginia House may consider becoming the 38th state to ratify the Equal Rights Amendment, theoretically reaching the threshold (three-fourths of states) the Constitution requires. Long thought dead by Phillis Schlafly’s hand in the 1970s, the misguided ERA has been resurrected in the anti-Trump, p-ssy hat atmosphere of 2019.
Although the legal basis is highly dubious for counting Virginia’s vote as the three-quarters mark 50 years after other states considered the amendment, that’s not stopping proponents. Just like the so-called “Women’s March,” amendment proponents are using the misleading language of legal equality and women’s rights—concepts virtually no one disagrees with—to cover for a laundry list of radical progressive agenda items. It’s a bait-and-switch that legislators and voters, along with women, should not fall for.
The ERA will face substantial legal issues counting modern ratifications alongside those 35 states that voted on the amendment more than 40 years ago; the Supreme Court has ruled that amendment ratifications must be “sufficiently contemporaneous.” But if they succeed in Virginia, ERA advocates are likely to declare victory anyway.
Nice-Sounding Words With Not-Nice Consequences
ERA supporters say the amendment merely enshrines sex equality into the Constitution, but they’re not shy among themselves about pointing out the wide-reaching potential consequences. Theoretically, no law, on the state or federal level, would be allowed to take sex into account. This has huge implications for myriad statues and systems we take for granted, many of which actually privilege women, and others which simply recognize the common-sense differences between the sexes.
To start, the current sex-based draft discrimination—that is, only men must register for the selective service to be drafted in event of national need—is almost certain to become unconstitutional under the ERA, forcing women into the draft. A similar fate is likely to meet other sex-segregated government-operated programs or facilities, such as public school restrooms, or even prisons. After all, separating men and women in government facilities is a discrimination based solely on sex!
Although it’s hard to say exactly how the ERA might be interpreted by federal courts, it would also likely affect the wise changes the Trump administration has made to Title IX enforcement, returning us to the Obama era when due process for the accused was an afterthought, or considered outright sexism. The ERA would also probably chip into states’ already very narrow ability to regulate abortion, perhaps even forcing them to copy the model just passed in New York, which allows abortion on demand for all nine months of pregnancy.
Also, as if our family courts and laws aren’t complicated enough already, the ERA is likely to throw a large wrench into various sex-based presumptions in divorce, custody, alimony, and child support law. It turns out that men and women are undeniably different in key ways, and our laws reflect that reality in a thousand large and small ways.
The ERA could do great damage to the American constitutional order by inserting progressive identity politics into the highest law of the land, and through overly-broad language, leaving contentious social issues in the hands of left-wing judges rather than in the fair brawl of democratic politics. Whatever Americans think about these controversial issues, their debates shouldn’t be short-circuited by a constitutional amendment that falsely promises only basic legal equality.
Constitution Already Protects Women’s Rights
The ERA’s proponents frame it as the natural extension of the Constitution’s protections to women. If this was all the ERA stood for, it would be unnecessary.
The 14th Amendment already protects the life, liberty, and property of any “person,” including female people. Women enjoy the same constitutional protections—protections the campus left often seems intent on stripping away—as men. This includes freedom of speech, the right to a jury trial, and the right to bear arms. When the government infringes on their liberty and property, women have the same right to due process as men do.
And, of course, the 19th Amendment specifically guarantees women the right to vote.
Women are already protected by the Constitution. It’s progressive policy preferences that are not.
Natural Rights for All, Not Special Privileges for Women
In a way, the ERA reflects the contradictions of the modern women’s movement. Women are strong enough for combat, but easily deterred from entire professions by a harmless joke. They can grab a bullhorn and declare themselves “nasty women,” but they’re too delicate to turn away an overly pushy suitor, as women have done for centuries. Women are exactly like men, but need special legal protections to compete.
Successful advancements in civil rights have always been framed as extensions of the great American project. Martin Luther King Jr., for example, whose birthday the country just celebrated, rooted his struggle for black equality in the Declaration of Independence’s premise that we are all created equal, and called on Americans as his fellow citizens to “live out the true meaning of [that] creed.” But the feminists who claim to speak for “women’s rights” today instead want us to subvert that original order, not extend it to encompass women, which has already happened.
The ERA won’t add to the protections the Constitution already grants us all, women and men, for our inalienable rights. Instead, it throws open the door to federal overreach that will curtail voters’ ability to have their say in the combative political and cultural battles of our time, ironically lessening the actual power of women’s votes to affect policy change. Under the guise of female empowerment, the ERA will allow unelected judges to silence the voices of women who do not agree with its left-wing agenda, and strip them of their fair hearing in the public square.
American women are the most opportunity-rich females in world history. We are in the midst of historically low female unemployment, more women than men earn doctoral degrees, and women are freer than ever to chart their own futures.
Women don’t need to see ourselves as an oppressed victim class, and to split off our fortunes from men’s by amending the Constitution with in an ideology-driven, willfully blind effort to make the sexes indistinguishable. The beauty of the American experiment in liberty and self-government is that it already protects us all.