ERA in a New Era

How interesting -- there's a new push to ratify the Equal Rights Amendment, which was originally proposed by Congress in 1972, and which fell just three states short of ratification in the 1980s. The amendment would provide that "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."

What would the ERA actually do if adopted today? I think the fair answer has to be "no one knows." Much of what it might do has already been done by the Supreme Court. At the time the ERA was first proposed, one could still point to Supreme Court cases suggesting that gender discrimination need only be supported by a "rational basis" -- the most lenient standard of review. E.g., Kahn v. Shevin, 416 U.S. 351 (1974) (upholding state law granting property tax exemption to widows, but not widowers). But the Supreme Court has changed all that. Current law requires that gender-based government action be supported by an "exceedingly persuasive" justification. E.g., United States v. Virginia, 518 U.S. 515 (1996).

So it's not quite clear what the ERA would do. I suppose it would, at a minimum, prevent the Supreme Court from unraveling what it has done in the sex discrimination area, which would be a useful safeguard. Conventional wisdom suggests that it would make sex a "suspect classification," and that laws discriminating on the basis of gender would be struck down as much as laws discriminating on the basis of race. But I am skeptical. A law requiring blacks and whites to use different public bathrooms in a state building (as was the practice in an earlier time in our history) would obviously be struck down forthwith, but, to use the example that anti-ERA people love to bring up, what about a law requiring men and women to use different public bathrooms, as is common? I am guessing that courts would probably find that the ERA was not intended to change this customary practice. Courts, I am guessing, would probably be willing to credit the justification that "men and women just feel uncomfortable using the same public bathrooms," even though the justification "blacks and whites just feel uncomfortable using the same public bathrooms" wouldn't fly for a moment.

In other words, I am guessing that no matter what language is used, courts will never quite put gender rules on exactly the same par as race rules. I am not saying that this is desirable or undesirable; it's just my view on what's likely to happen. The Equal Protection Clause already guarantees men and women the "equal protection of the laws," and I don't see that much difference coming from a specific prohibition on denying "Equality of rights under the law" based on sex. I would guess that the Supreme Court would end up thinking that both phrases mean something like "give an appropriate level of protection against gender discrimination."