Cathi Herrod, our modern day Phyllis Schlafly, is correct: public policy often sounds better in theory than it plays out in reality. Which is why it’s essential that we pass an Equal Rights Amendment. As Ms. Herrod points out, “who can disagree with equal rights for women? No one.” She lists numerous laws that prohibit discrimination on the basis of sex. But as she points out, laws and policies don’t always “live up to their names.”
The U.S. Constitution prohibits discrimination based on race but not sex. Women’s equality is dependent on legislation which can be repealed or diminished with a pen stroke; women’s rights are at the whim of elected officials. Former Supreme Court Justice Antonin Scalia confirmed this. A Constitutional Amendment is needed.
We are one of the only developed nations that does not have gender equality enshrined in our Constitution. It is our foundational document and it sends a powerful message. Women are over half of this country and should never have been excluded in the first place. The 14th amendment promises “equal protection of the law”, but was passed after the Civil War with no intent or instance of including sex. It doesn’t protect women from pay discrimination, pregnancy discrimination, or gender-based violence. If women were protected from discrimination by the 14th amendment, we wouldn’t have needed a 19th amendment for the right to vote. An ERA might not solve all our problems, but it would provide a legal framework to address them.
Opponents of women’s equality have historically used scare tactics like Herrod’s to thwart its passage. The ERA states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” It does not say there is no biological difference between men and women; it says you can’t deprive a person of their legal rights based on their sex. There is no reason the law would “conflate equality with sameness.” Same sex spaces would always be allowed to exist because we have a constitutional right to privacy. Cathi Herrod is a lawyer; she knows this.
Which brings us to her real issue: the idea that the ERA could be used to remove abortion restrictions. The right to terminate a pregnancy is legal in the United States, protected by our constitutional right to privacy, not equality. Our courts should be prohibiting unconstitutional restrictions on the right of women to make our own private decisions, regardless of an ERA. Why should a woman’s private medical procedures be treated differently than that of a man? Women are free and sovereign citizens of the US, just as men are.
Yes, the ERA deadline for ratification has passed. But Congress can vote to change the date by which ratification must be completed. Furthermore, the 27th Amendment took 202 years to ratify. Article V’s text requires that two-thirds of both Houses of Congress pass a proposed amendment, and that three-quarters of the states ratify the amendment as it passes in Congress. From a strictly textual viewpoint, the terms would be satisfied, and the Amendment would have to be accepted as a valid addition to the Constitution.
The consequences of passing the ERA are as intended: women would be granted the rights and privileges promised by The Declaration of Independence that men have enjoyed for centuries. There would be more equality and justice in the lives of millions of Americans, both women and men. It’s time to extend democracy to all American citizens.
It’s 2019 and we can’t even get a hearing on including women in our constitution? Sickening.
Tammy Caputi is a local business owner and mother of three young children.