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Women do need constitutional protections and guarantees

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In her desire to keep women subordinate to men, Cathi Herrod is purposefully downplaying the Equal Rights Amendment’s far reaching impact on women’s lives, and dangerously misrepresenting the facts.

The ERA is not expected to solve “all of society’s ills with one piece of controversial legislation.” It will provide women and men with the same constitutional protections and equality under the law. The ERA is a starting point, an essential legal foundation. Legislation can be taken away with the swipe of a pen, the change of an administration, or the whim of a politician. We need a constitutional amendment. The ERA is not controversial, it simply prohibits discrimination based on sex. A majority of Americans support it and most think it’s already been passed.

Tammy Caputi

Tammy Caputi

The United States is one of the only countries in the world that does not have a constitutional equality provision guaranteeing equal rights for women. Even under the Afghan Constitution, men and women have equal legal rights and duties. It specifically outlaws discrimination based on sex. Women around the globe do not feel “insulted” that their countries’ constitution includes them. They do not feel it’s “nonsense” to be protected from discrimination on the basis of sex in foundational documents. The Declaration of Independence, signed in 1776, stated: “All men are created equal” and that governments derive their powers “from the consent of the governed.” Women were not included in either concept. And women were not recognized as citizens or as individuals with legal rights in the U.S. Constitution either. The word “woman” is not used once in either document. This omission of legal equality for half the US population has never been amended or updated.  

Women are not equal under the law. There is nothing in our Constitution that protects women from discrimination on the basis of sex. Early court decisions made clear that women were not “persons” under the 14th Amendment. The 14th Amendment only covers state action and is limited to public employees. It does not cover private action by individuals.

The Supreme Court uses a different and lower standard of review for sex discrimination claims under the 14th Amendment than is does for claims of racial or religious discrimination. No majority opinion has articulated sex as a “suspect” classification.

Systemic bias has not been considered by the Supreme Court to violate the equal protection guarantee of the 14th Amendment unless the bias can be shown to be intentional. Whether intentional or not, pay inequity is harmful and discriminates against women based on sex. Women have no legal recourse under the 14th Amendment for many forms of discrimination, including unequal pay for equal work and pregnancy discrimination. The courts have upheld the constitutionality of paying a woman less than her male colleagues, even though they are doing the same work, because the woman’s salary in a prior job was less than a man’s. Employers can continue paying women less than a man if other employers did it. 

Herrod argues that women usually don’t do the exact same job, working the same hours, with the same background as men. She says women choose different career paths and take time out of the workforce over higher wages. Women “choose” these things because we are the only developed country in the world without guaranteed maternity leave or child care benefits. Women still do most of the unpaid work at home, and are forced to take jobs with fewer hours and less pay. This is not a “choice.” This is a systemic problem that perpetuates the inequity in pay. Women and men have equal rights to work and have children at the same time. The ERA would create a right to sex equality that is fundamental and substantive.

Herrod’s real concern is limiting a woman’s basic human right to decide whether and when to have children. She thinks the ERA is mostly about preserving access to abortion care.  We can endlessly debate whether or not a fertilized egg has rights, but the government never has the right to compel a woman to use her body and risk her life against her will. Men do not have restrictions on making their own medical decisions that impact their bodies, health and lives. Our Constitution must protect a woman’s right to make these same decisions. Guaranteeing women equality under the law would give them the same personal sovereignty and bodily autonomy that men enjoy. If denying women equal rights under the law ensures that they can’t make their own reproductive decisions, then that is exactly why we need an ERA. Women are free citizens.

The ERA will enshrine in our Constitution the value judgment that sex discrimination is wrong. If it’s not needed, as Herrod claims, why does she care so much if we pass it? 

Tammy Caputi is a local business owner and mother of three young children.

Editor’s note: A previous version of this column contained inadvertently placed links that have been removed. 

3 comments

  1. We now note Cathi Herrod, once again, doing a full court press (no pun) on matters that involve the Rights often left off the table in Arizona. She is ‘beloved for the money she showers on Elected Officials, to assure that Arizona remain in the 19th Century. She must be fought by advising these same Elected Officials, including her ‘friend’ our tone deaf Governor.

  2. I can’t think of any reason why I would need an Equal Rights Amendment. Ms. Caputi doesn’t need it either. She is a very intelligent, educated young woman. She is a wife, mom to 3 and a business owner who “lights up our valley”. She doesn’t need an Equal Rights Amendment either. I’m a 63 year old Black women and I remember the first “Women’s Lib” Movement. It opened a lot of doors for women and that’s s good thing, but it went too far. The divorce rate went up and the birth rate went down. Black women always worked outside the home because it took two incomes to make a better life so husbands and wives worked together and complimented each other. It wasn’t a competition. Men and women are not equal. Never will be. We’re different and that’s as it should be. That’s what makes it work.

    Women are not the weaker sex, not by any means. Women are not “oppressed”, “subservient to men”, or not protected under the law! Unless you’re really dealing with a psycho, no one can make a woman feel like a second-class citizen without her permission. In her workplace, if a woman believes she’s being treated unfairly by someone or in some way, if she is respected and her work valued, all she need do is speak up—and she doesn’t have to be a high powered executive either! 9 times out of 10, her concerns will be addressed. I’ve only been sexually harassed on the job twice. However, in the late 70’s even early 80’s, suing your employer was not a good idea—it still isn’t—especially if your employer was an advertising agency, an investment bank or a corporate law firm anywhere on Wall Street. You’ll end up a pariah. Women back then had to deal with this the only way that works—a right hook and a loud protest. Sexual harassment isn’t about sex, it’s about power. Men do this to women if they think they can get away with it. If you take that power away, loudly, that’s usually all it takes to solve the problem and get an a-hole fired.

    The point I’m trying to make here is that these women nowadays have NOTHING to whine about! There is NO “pay gap” (ironic, that the only women I see and hear whining about a pay gap are upper middle class women!) Women use more of their employer-sponsored health insurance than men. They take more time off than men to have children, care for sick kids, etc. Whatever “gap” in pay women think there is it’s more than made up for with the high cost to her employer for her health insurance, time off to have her children, time off to care for them when they’re sick, paid family leave (only large companies can afford this). It’s not a matter of whether a man and a woman do the same job or not. What matters is who is putting in the most hours and who is taking the most leave and who is using the most health insurance benefits. In other words, who costs more to employ? Women are “high maintenance” in the workplace so women today need to stop whining about a “pay gap” because this is going to backfire on women!

    In the 20’s a lot of women were against a Constitutional Amendment granting equal rights to women because they feared it would disadvantage housewives, cause women to be drafted into the military, lose protections such as alimony, women may not get custody of kids in a divorce case, eliminate protections for women under labor law. Feminists were split on this issue throughout the 30’s, 40’s, 50’s. Be careful what you wish for.

    Back to this ERA. The only reason an intelligent, strong, educated business owner, wife and mother like Ms. Caputi, who also ran for office in 2016, would play the “victim” , to push a Constitutional Amendment that’s unnecessary is because the ERA will make it unconstitutional to restrict access to abortion and mandate taxpayer funding for abortions. Ms. Caputi believes that government doesn’t have the right to make a women use her body and risk her life against her will and that guaranteeing women equality under the law would give them the same personal sovereignty and bodily autonomy that men enjoy. Why should one women’s tax dollars go to pay for another women’s “bodily sovereignty and autonomy” and fund an organization that was founded by a Eugenist and a racist who wanted to exterminate my race? Margaret Sanger had a Klansman, Lothrop Stoddard, on her American Pregnancy League BOD. She gave a talk at a luncheon hosted by “Ladies of the Ku Klux Klan”. She got 10 offers to speak at their luncheon and other similar groups. I wonder what Maggie had to say that was so interesting to these “ladies”?

    Discrimination is wrong. That’s NOT what will be enshrined in our Constitution by the ERA. What will be enshrined in our Constitution is that killing the unborn is a right! If the tiny unborn lives don’t matter, then NO life matters. Planned Parenthood has nothing to do with “parenthood”. It’s a shrine to a woman who believed she had the right to play God, decide who is fit and who is unfit to live, and that woman’s commitment to forced sterilization and genocide. Ms. Caputi feels that a woman should have the “right” to have an abortion. I feel I should have a right NOT to have to pay for it!

  3. If a business can hire women to do the same job for less pay, why would they ever hire men?

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