Let's introduce into Congress a broadened Very Equal Rights Amendment that would include a prohibition on discrimination on the basis of sex, but also add prohibitions to discrimination based on other key categories.
Back in the 1970s and early 1980s, our efforts to pass an Equal Rights Amendment fell a heartbreaking three states short of ratification.
That proposal, based on the original written by the inimitable suffragist, Alice Paul, in 1923, read:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.I propose we renew our push for an Equal Rights Amendment, but make it more inclusive. We could do this in a minimal way, by adding sexual orientation and gender identity in, or do it in an even more inclusive way. I lean towards the latter, but first, here is what the former might say:
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
We would change Section 1 to read:
"Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. sexual orientation, and/or gender identity."
We could call this the Very Equal Rights Amendment, or VERA.
The need for this is relatively obvious. The Supreme Court still does not apply strict scrutiny to sex discrimination cases, so the original ERA is still needed. And we need it to protect ourselves against Justices such as Scalia, who doesn't believe the US Constitution forbids sex discrimination. The Congress has still not even passed the Employment Non-Discrimination Act (ENDA), which would prohibit employment discrimination on the basis of sexual orientation and gender identity. And many states have not yet passed non-discrimination measures as well. It's long past time we caught up to South Africa and ban such discrimination in our constitution.
Should Additional Categories of Discrimination Be Explicitly Included?
Protections included in the Americans with Disability Act, for example, could and should be included in the Constitution. The question I think is whether we should expand this into a broader anti-discrimination amendment, along the lines of South Africa's, which forbids discrimination on the basis of:
race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birthIf we added "gender identity" into that list, I think it would be a powerfully inclusive constitutional amendment, perhaps dubbed VVERA (Very Very Equal Rights Amendment), and its inclusiveness might make it easier to forge a powerful coalition to support it.
I'm not sure what the "birth" language means in South Africa, but including it in the US could be misconstrued as an attack on abortion rights, so I'd leave it out.
So, the proposed text of a more inclusive VERA:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, gender identity, age, disability, religion, conscience, belief, culture, and/or language.I've also proposed adding in, in a new Section 2, language based on the all too oft-ignored 9th Amendment, so that the enumeration of types of discrimination in Section 1 would not be used in the future to deny protections against discrimination on other bases. This was Madison's original objection to a Bill of Rights in the first place.
Section 2. The listing of categories in Section 1 shall not be construed to deny or disparage the rights of people discriminated against on other bases.
Section 3. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 4. This amendment shall take effect two years after the date of ratification.
1) The Equal Protection Clause Already Makes this Unnecessary
This is tricky. From my perspective, the equal protection clause of the 14th Amendment should have made the ERA, the VERA, and these other explicit constitutional bans on particular forms of discrimination unnecessary. Can you imagine how much suffering would have been prevented, how much human capacity and potential not destroyed, if the 5th Amendment's Due Process clauses and the 14th Amendment had truly been enforced for the last 150 years? But the Supreme Court has not consistently ruled this way, as I noted above in their continuing failure to apply strict scrutiny to sex discrimination cases. There is the continued threat of current or future justices who might hold Scalia's originalist objections (mentioned above) to applying the 14th Amendment to any other forms of discrimination besides race (despite the Amendment's very clear and very broad language).
2. This would step on or hinder the idea to revive the original ERA through a "three state strategy."
The ingenious idea behind the three state strategy is to reset the clock on the original ERA, thus counting the 35 states who have already ratified and then pushing to ratify the original ERA through the approval of three more state legislatures.
If this were on the verge of happening, I'd be more concerned about this objection. But I don't see the Republican House approving this any time soon. It would be useful to push the House to approve any and all of these measures, exposing again how misogynist and discriminatory in general so many Congressfolk are. To pass the ERA, the VERA, or the more inclusive VERA through the House will most likely require some pretty fundamental shifts in the House in any case.
But if there's a chance of expanding the Constitution in a more inclusive direction, I wouldn't want us to miss our window of opportunity by including too little. In the debate over the 14th and 15th Amendments that went on within abolitionist and suffragist circles in the late 1860s, for example, the Republican failure to acknowledge women's rights to vote, and the division caused by the racist attacks by some women's rights advocates (including, alas, Susan B. Anthony) on the 15th Amendment, resulted in both a tragic division between the anti-racist and anti-sexist movements in the 19th century and a continual violation of both black and women's rights.
In any case, if people like these ideas, constitutional lawyers should examine and refine the proposed language above. And then let's build coalitions and organize.