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- Equal Rights Amendment Challenges Our 10th Amendment - December 2, 2019
The Equal Rights Amendment is a proposed amendment to the U.S. Constitution which would eliminate any legal distinction between men and women, even when it makes sense to do so based on their biological differences.
This is a far cry from how Alexis deTocqueville perceived Americans understood and thought about the equality of the sexes in 1840, as noted in Alexis deTocqueville’s Democracy in America, volume 2 (1840):
“It can easily be imagined that by trying hard in this way to make one sex equal to the other, both are degraded; and that from this crude mixture of the works of nature only weak men and dishonest women can ever emerge.
The Equal Rights Amendment (ERA), was an idea that began with a bill passed by Congress and sent to the states in 1972, although an earlier version of an “equal rights bill” for women was introduced in 1923 by Alice Paul, a feminist activist which simply reads : “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” Gender was not mentioned.
To correct what was perceived as sexist language in Alice Paul’s original measure where only men and women were mentioned, current ERA ratification bills now advocate for the “equality of rights” without regard to “sex.”
Effect of ERA on 10th Amendment
The Tenth Amendment was part of the Bill of Rights that was added to the Constitution on December 15, 1791. This amendment states that “any power not specifically given to the federal government by the Constitution belongs to the States and the people.”
As an article on June 1, 2018 in The New American noted:
“The ERA would virtually turn the 10th Amendment on its head by transferring the jurisdiction and powers of laws that relate to the family — such as marriage, divorce, adoption, abortion, alimony, public and private education, even restroom and dressing facilities — away from state and local governments over to the federal government. This underscores the threat of the ERA to the U.S. Constitution and the Republic.”
“This precedent will create a powerful centripetal force, drawing into the central government all and any matters dear to human existence within the purview of the federal government. Faith, family, and all other rights and institutions enjoyed by mankind will be henceforth enjoyed only with the permission of the federal government.” had the delegates in Philadelphia in 1787 or at the ratification conventions later that year and in 1788 imagined such a scenario, not a single man among them would have given his sanction to the proposed Constitution.”
Could the state of Virginia provide the final vote for ERA?
“Not often in American history does a single state election yield the ratification of an amendment to the Constitution—a task that is, by design, perhaps the most Herculean in the U.S. political system. But that’s what Virginia’s voters may have done on Tuesday by sweeping Democrats into power in the state legislature for the first time this century. The party’s newly empowered leaders pledged during the campaign—and have reiterated in the days since—to quickly vote to ratify the Equal Rights Amendment when their majorities take office in January. If they do, Virginia would become the 38th and final state needed to sign off on a constitutional revision.”
But despite claims there are enough votes to pass the bill by Eileen Filler-Corn, likely to be first woman speaker of the Virginia House of Delegates, even if Virginia does pass the proposal, this will not be the last word on ERA. At issue is the ERA resolution of 1973 which had a seven-year deadline for ratification by three-quarters of the states; however, in 1979 the amendment was still three states short of the threshold for ratification. Momentum for passage had long since faded until Nevada became the 36th state in 2017, the first in 42 years to ratify the ERA, with Illinois following a year later.
Credit for defeating the ERA in the 1970s has largely gone to Phyllis Schlafly, a national leader of the conservative movement since the publication of her best-selling 1964 book, A Choice Not An Echo. Phyllis rallied women against the amendment on the grounds that men and women were fundamentally different and that its ratification would threaten gender-specific protections that were long baked into the law, such as exemption from military service.
Recent ERA congressional legislation
Already, legislation to remove the ERA deadline altogether is being legislated in both the House and Senate.
The House Judiciary Committee on November 13, 2019, Chairman Jerrold Nadler (D-NY), successfully marked-up joint H.J. Res. 79 which would clear the path for ratifying the Equal Rights by removing the deadline for ratification of the ERA, guaranteeing that the ERA can become a part of our Constitution once a 38th state ratifies it. During the mark-up Rep. Nadler told members that when they talk about “sex,” Democrats mean sexual orientation and gender identity.
House Republican leader, Rep. Doug Collins, R-Ga., warned fellow members against supporting an effort to resurrect a plan from nearly 50 years ago for an Equal Rights Amendment, originally proposed in the 1970’s, which would allow the last few votes to count to pass the ERA.
While the House Judiciary Committee was considering H.J. Res. 79 Collins made this statement: Congress simply “doesn’t have the constitutional authority to retroactively revive a failed constitutional amendment and subject citizens in all 50 states to the current political trend in just one state.”
In the Senate U.S. Senators Mark R. Warner and Tim Kaine (both D-VA) joined Senators Ben Cardin (D-MD) and Lisa Murkowski (R-AK) in sponsoring a bipartisan Senate resolution (S.J. Res. 6) that would immediately remove the ratification deadline for the Equal Rights Amendment (ERA).
If Virginia acts next year and officially becomes the 38th state, the ERA’s legal fate likely would end up before the Supreme Court. Notable is that earlier this year when at Georgetown University, Justice Ruth Bader Ginsburg renewed her support for the ERA by suggesting that for the ERA to get into the Constitution, the process of ratification would need to start “over again.”
What ERA mandates
Tony Perkins on November 14, 2019 voiced “that ERA is not just about women anymore, it’s not really about women at all. Although liberals to ERA being all about equality, it’s really a “Trojan horse” for everything else on their social agenda wish list and why liberals want to resurrect the ERA. So while Democrats might say they are concerned about “women’s rights” they summarily dismiss the fact that women already have equal rights under the fifth and 14th Amendments. What is more, there are even laws in place to prohibit sex discrimination.”
Perkins goes on to cite a liberal wish list of social agenda items: “Gender-neutral bathrooms; Taxpayer-funded abortion; Infanticide; LGBT indoctrination at school; Radical sex ed; Transgender “rights?”; and the elimination of women’s sports.” Accordingly, ERA will give men a constitutional right to be in women’s restrooms, locker rooms, hospital rooms, and prisons. ERA will also force young women to register for the military draft.
As for abortion, “it would provide a smokes screen to establish the most radical nationwide policy on abortion ever seen. Far more radical than Roe v. Wade — and much more binding, by “wiping the slate clean of any state or national pro-life law, amending the Constitution to create a permanent right to abortion on demand — right up until the moment of birth, paid for by American taxpayers.”
What ERA won’t do
ERA will not give women equal pay for equal work or prevent sexual harassment in the workplace. In fact, ERA will erase any benefits given to women in the workplace.
Women are already guaranteed equal pay through the federal Equal Pay Act of 1963 and can seek remediation through the EEOC. The currently quoted wage gap between men and women is a misunderstood statistic in which the average wages of all full-time working men and women are compared in one lump sum of men to women across all occupations and education levels. This doesn’t allow for an equal pay comparison. When we compare the wages of men and women within the same career, in similar positions, at the same age, the wage gap narrows to 98 cents for women compared to a dollar for men. Even when we compare within career fields, key factors such as years worked, the level of education, and time flexibility of job, etc. are not factored into the comparison (see “An Analysis of the Reasons for the Disparity in Wages Between Men and Women” U.S. Dept. of Labor, 2009).
As to EPA dealing with sexual harassment, https://www.apa.org/monitor/2018/02/sexual-harassment one persistent problem related to sexual harassment is a lack of agreement on its definition. “While it is easy to define sexual harassment, it is very difficult to apply that definition to a set of particular facts. Court opinions can seem inconsistent about whether sexual harassment has occurred, sometimes deciding differently in cases with very similar facts”
Why the present push for ERA?
As for women, they currently have claim to equal rights through the 14th Amendment (section 1), as well as numerous other laws in virtually all areas of American life — employment (including equal pay), education, credit eligibility, housing, public accommodations, etc. The US Supreme Court has already applied the 14th Amendment to women’s issues in United States v. Virginia, 518 U.S. 515 (1996).
Why then the push by legislators to rescind the ERA 1979 deadline to make way to pass ERA? While Democrats may view ERA as a “Trojan horse” to enact their social agenda, might Republicans believe ERA is a good way to appeal to a sharply widening gender gap, especially among young female voters?
While it’s true many of the “dangers” that the STOP ERA campaigners warned about have come to pass without the ERA, from women in combat to same-sex marriage to unisex bathrooms, but if ERA becomes a federal law all states will have to abide by its provisions without exception, which runs counter to what our 10 th amendment dictates as a states’ right.
[Originally Published at Illinois Review]