On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act into law. The Act did not protect women from discriminatory pay, but only plugged a hole in the existing patchwork of federal laws. Women now have a longer time period to file a discrimination claim. Instead of getting 180 days from the time of the original act of pay discrimination, they now have 180 days from the last paycheck. To give you an idea of the patchwork, look at the long title of the law:
A bill to amend title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.
The long title shows a list of federal laws that needed to be amended to protect a woman who suffered 20 years of pay discrimination but had no recourse because her employer managed to hide the pay disparity from her.
In August 2012, Public Policy Polling conducted a survey on behalf of Daily Kos and SEIU (Service Employees International Union) that found support for a Constitutional guarantee of equal rights to be almost unanimous.
Do you think the Constitution should guarantee equal rights for men and women, or not?
It should.....................................................…. 91% It should not.................................................... 4% Not sure ......................................................…. 5%
A 2001 Opinion Research Corporation poll showed that 72 percent of Americans thought such equal rights were already guaranteed by the Constitution.
They are not.
In the report of a 2010 conversation with Hastings Law School constitutional law professor Calvin Massey, the late Justice Antonin Scalia indicated that under his theory of “originalism,” there is no right to gender equality in the Constitution.
The 14th Amendment, enacted after the Civil War in 1868, guarantees due process and equal protection and in recent years has been interpreted by courts to prohibit sex discrimination as well as racial discrimination.
But Scalia said he believes the amendment doesn’t apply to discrimination against women because that use of the measure was not intended in 1868.
It cannot be assumed that with his death, this bit of judicial logic will find no followers.
According to a Think Progress article written at the time of Justice Scalia’s remarks, he was not alone on the Supreme Court in thinking that the Constitution provides no guarantee of equal rights for women:
Justice Thomas, who has even gone so far as to call for a return to the days when federal child labor laws and laws banning whites-only lunch counters were considered unconstitutional, would almost certainly be moved by Scalia’s claim that women’s rights under the Constitution must remain exactly the same as they were in 1868. Similarly, as a young lawyer in President Reagan’s Justice Department, Chief Justice Roberts penned an article claiming that only race discrimination — and not discrimination on the basis of other categories such as gender — is limited by the Constitution.
Justice Alito does not appear to have weighed in on the question of how much protection the Constitution gives women against gender discrimination, but as a lower court judge, he penned a dissent which would have “eviscerated” the law banning race and gender discrimination in the workplace. Alito was also the author of the Supreme Court’s unforgivable decision in Ledbetter v. Goodyear Tire, which cut off many women’s ability to seek equal pay for equal work until President Obama signed a law overturning the decision.
The myth that the 14th Amendment secures equal rights for women is just that, a myth. Although some protection is provided, its application is not consistent. The problem is that discrimination on the basis of sex faces a less stringent standard than does the racial discrimination that the 14th Amendment was written to prevent.
In the rationality-review structure, discrimination on the basis of sex does not call for a strict judicial scrutiny – only a lesser standard of intermediate or skeptical scrutiny — because sex is not a suspect classification. This is a critical shortcoming. Under an ERA, when government laws and policies treat women and men differently, these would have to meet the highest standard of justification – that is, proving a compelling state interest – in order to be found constitutional. Prohibition of sex discrimination is not as strongly enforceable as the prohibition of race discrimination. An ERA would ensure uniformity and consistency in sex discrimination cases, helping clarify for the sometimes confused lower courts how to deal with sex discrimination claims.
Justice Scalia, in his 2010 appearance at Hastings went on to say:
“If the current society wants to outlaw sex discrimination, hey, we have legislatures.”
And so we have a patchwork of federal laws that provide some protection, sometimes, against some forms of discrimination. But the weakness in relying on the legislature is that it puts our equality at the mercy of politics. As we learned during the 2013 fight to reauthorize the Violence Against Women Act, any law that is passed to protect women’s rights can be repealed with a majority vote.
The greatest right of all is control over one’s own body. State after state has passed laws limiting, if not removing, a woman’s right to control her own body. From Ruth Bader Ginsburg’s testimony about Roe v. Wade during her SCOTUS confirmation hearing:
This is something central to a woman's life, to her dignity. It's a decision that she must make for herself. And when Government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices.
...
I said on the equality side of it, that it is essential to a woman’s equality with man that she be the decision-maker, that her choice be controlling. If you impose restraints, you are disadvantaging her because of her sex. ... The state controlling a woman would mean denying her full autonomy and full equality.
If we had equality, which should be our natural right, guaranteed by an Equal Rights Amendment, our reproductive rights would also be guaranteed.
Even U.S. Sen. Orrin Hatch (R-Utah), an opponent of abortion rights, wrote in 1983, “Since abortions, by their nature, are limited to women, those laws which relate to abortions are “suspect” in the same manner as are laws that directly classify men and women in a different manner.” Hatch further wrote, “Under the Equal Rights Amendment, however, even the small amount of state authority remaining over abortion would probably be eliminated. The absolutist mandate of the Amendment would likely transform any state restriction on abortion into an unconstitutional exercise in violation of the ‘equality of rights’ guarantee of the ERA.”
The rights of the LGBTQIA community would also be protected under the ERA:
Gay rights advocates argued that prohibitions against same-sex marriage were a form of sex discrimination because one party is denied marriage to another because of that individual’s sex. Unfortunately, in the landmark Supreme Court ruling in Obergefell v. Hodges same-sex marriage case, “the majority opinion avoided any determination that discrimination on the basis of sexual orientation is subject to any form of heightened judicial scrutiny (such as strict or intermediate), or that homosexuals or bisexuals (of any gender) are a protected class.”
The ERA would require strict scrutiny in challenges to the many state laws that deny LGBTQIA persons equal access to public accommodations, permit discrimination in housing, employment discrimination, credit and retail services, jury service and educational programs, among others.
Two dozen words that could change our world:
Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Ruth Bader Ginsburg, 1993:
I remain an advocate of the equal rights amendment, I will tell you, for this reason: because I have a daughter and a granddaughter, and I would like the legislature of this country and of all the states to stand up and say, "We know what that history was in the 19th century, and we want to make a clarion call that women and men are equal before the law, just as every modern human rights document in the world does since 1970." I'd like to see that statement made just that way in the United States Constitution.