| The following was prepared as a summary explanation of key concerns underpinning the working draft language of the CEA adopted by the membership of the National Organization for Women at its annual conference in July 1995. This paper originated as an aid in the debate at that conference and has been expanded to include more perspectives and issues. This is not a complete discussion and is offered only as an aid for understanding and discussion that will continue to evolve. Under each section is an explanation of particular words and/or concepts that were chosen and what potential pros and cons exist regarding each choice. |
|
"Women and men" is used to describe all "persons" while putting "women" into the Constitution for the first time. The 19th Amendment for women's suffrage only states that the right to vote shall not be denied or abridged on account of sex. "Women and men" was also chosen as opposed to "men and women" to insure we began in the right frame of mind.
"shall have equal rights" adopts the 1923 affirmative language of Alice Paul's original Equal Rights Amendment and rejects the language "equal rights under the law shall not be denied or abridged" in the 1943 Paul ERA which became the language in the 1972 ERA. In addition, rejecting "under the law shall not be denied or abridged by the United States or any state" removes the passive tense and the requirement the ERA apply only to state action. This means that the provision may be read to challenge a private discriminatory action, i.e. by business and corporations, without a requirement that state action was involved.
"throughout the United States and every place and entity subject to its jurisdiction" is intended to reach all government entities and also the operation of any entity including U.S. businesses and entities outside the geographic confines of the U.S.
"the subordination of women to men is abolished" was modeled on the 13th Amendment (abolishing slavery) and intended to flag the issue that sex inequality is about power differences as well as all other distinctions based on sex.
| "Section 2. All persons shall have equal rights and privileges without discrimination on account of sex, race, sexual orientation, marital status, ethnicity, national origin, color or indigence;" (see also Sec. 4) |
"All persons shall have equal rights and privileges" was chosen because it is affirmative ("shall have") and extends beyond rights to include privileges ("rights and privileges"). The term "immunities" was left out because it has been rendered legally meaningless. The term "liberty" was not included because it was viewed as unnecessary and had the potential to be interpreted to extend to men the right to control women's reproductive choice- making as discussed below in Section 3.
The protected categories listed are included to reflect the Resolution from the 1994 NOW Conference calling for this action on the ERA and the Majority Report for the January 1995 NOW ERA Summit, both of which expressed the desire for an expansive equality standard and explicit inclusion of a variety of protected categories of persons. The categories listed were adopted at the 1995 National Convention. The rationale for not listing other specific categories is discussed below. It is our desire that all categories listed be subject to the highest standard of judicial review as discussed under Section 6. Further discussion is necessary for several categories. Many categories already exist in ERAs in State Constitutions.
"Sex" is a biological characteristic and not a social construction. "Gender" was not chosen because gender connotes a socially imposed sex-role. One cannot discuss "gender" issues without reference to stereotypes according to biological sex identification. Stereotypes are explicitly addressed in Section 4.
"Race" denotes certain, common and distinguishing physical characteristics constituting a comprehensive class appearing to be derived from a distinct historic source. We are aware debate exists as the whether race does indeed exist, and therefore include further classes such as ethnicity, national origin and color.
"Sexual Orientation" specifically includes lesbian and gay, bisexual and heterosexual people.
"Marital Status" was included because of the current and historical discrimination against women because of their marital status. Historically, women were seen as their husband's property incapable of owning their own property or conducting their own business. Currently, single women are discriminated against in many areas such as reproduction and employment benefits. Example: in some areas only married women may be artificially inseminated; single women employees may only be able to list husbands or children as beneficiaries in company retirement plans and not parents or siblings.
"Ethnicity" denotes classification or affiliation with a group of people having common customs, characteristics, language, etc.
"National Origin" refers to immigrants, legal and illegal.
"Color" refers to skin pigmentation characteristic of race, ethnicity or national origin.
"Indigence" reflects concern that some members of all the above listed categories are additionally oppressed by impoverishment as a consequence of power inequality. One example is the exclusion of abortion from Medicaid funding. Terms such as "class" or "wealth" or "economic status" may be interpreted to forbid any differences in treatment based on economic circumstance, such as a graduated tax which imposes an obligation for those with greater means to pay a higher percentage of income to tax. Thus, such general terms may not accurately reflect the intent to remedy power inequality.
| "Section 3. This article prohibits pregnancy discrimination and guarantees the absolute right of a woman to make her own reproductive decisions including the termination of pregnancy;" |
The entire section was included to reverse the current U.S. Supreme Court's interpretation that sex discrimination excludes discrimination based on pregnancy and pregnancy-related conditions. It was also included to make clear, as directed by the 1994 Resolution and implemented by the 1995 NOW ERA Summit Majority Report, that equality considerations include women's reproductive freedom.
"including the termination of pregnancy" was included to avoid any ambiguity on the subject of a woman's right to choose an abortion. The woman-centered language of Section 3 was chosen to address the problem that infringement on reproductive rights is mostly aimed at women's reproduction.
These phrases were chosen instead of broad guarantees of "liberty," "autonomy," "bodily integrity" or "privacy" to avoid the result that such broad language might be perversely interpreted by the courts to require that a man shall have a separate right to veto a woman's decision to terminate a pregnancy that he allegedly caused.
The language of this section, defined in more detail below, is included to incorporate developments of equality doctrine which have occurred in case law interpretation of constitutional and/or statutory provisions. These developments are ones compatible with an expansive and inclusive equality doctrine as opposed to the traditional "equal protection" equality doctrine that narrowly identifies "discrimination" only where men and women are "similarly situated" but are treated differently. This language is intended to apply the same principles of interpretation to all the protected categories in Section 2.
"unique characteristics" are traits possessed by members of a given group. For example, at least for the present time, women have the unique characteristic of being able to bear a child (even though some of us cannot or will not). This language was originally included to insure that pregnancy is not treated as "unique" and unrelated to one's sex. It was left in notwithstanding the provisions in Section 3 which expressly prohibit pregnancy discrimination as sex discrimination. This language is a secondary guarantee against an interpretation that pregnancy related discrimination is not sex discrimination because pregnancy is a characteristic unique to women. This language is also a primary guarantee to prevent possible interpretations that we have not yet anticipated.
"stereotypes" are generalizations about traits or behaviors regarded as typical of members of a given group and/or generalizations about standards to which members of a given group must adhere to in order to be accepted as a "good" or "acceptable" representative member of the group. (For example: the poor are lazy, women do or should act or dress a certain way.) The "stereotypes about" language was included to invoke the recognition that much discrimination is fueled by stereotypes. In one prime example, a woman was denied partnership in a major accounting firm because she did not walk or talk femininely enough. Note also that sometimes stereotypes are erroneously treated as if they were "unique characteristics."
"facially neutral criteria which have a disparate impact" is not as complicated as it sounds. Criteria used by government or business to distribute awards or opportunities that do not explicitly classify on the basis of sex or race, etc., appear neutral. "Facially" is an adjective frequently used in court decisions to describe a statute or regulation that uses the explicit categorization, like sex or race, "on its face;" "disparate impact" is a term used to describe the circumstance in which an apparently neutral criterion has a negative or exclusionary effect on members of a particular protected class. For example, paying market wage rates does not classify by category of sex and appears as a neutral standard by which to pay employees. However, $4.00 an hour to cafeteria workers (mostly women) compared to $8.00 an hour to janitors (mostly men) in comparable jobs creates a disparate impact that hurts and thus, discriminates against women. Another example is a minimum height requirement of 6 feet for police officers. Height does not classify by sex "facially" but it certainly guarantees that few women will qualify, while a substantial number of men will qualify.
"protected classes" are members of the categories which are specified as entitled to equal rights. For this draft, the "protected classes" would be those defined by sex, race, sexual orientation, marital status, ethnicity, national origin, color or indigence.
| "Section 5. This article does not preclude any law, program or activity that would remedy the effects of discrimination and that is closely related to achieving such remedial purposes;" |
To combat historic and ongoing discrimination and achieve equality, many federal laws and programs, including affirmative action, are necessary. This language is included to ensure that remedies already in place will continue and that a high standard of review will not be applied in a manner to defeat efforts to overcome historic and ongoing discrimination.
| "Section 6. This article shall be interpreted under the highest standard of judicial review;" |
The Constitution provides a shared understanding in law that guides the actions of legislatures, governing bodies and other public institutions. The U.S. Supreme Court is the final arbiter of that "understanding" and makes the final determination of what the law is. Therefore, the Supreme Court justices have tremendous power in deciding constitutional questions. It is, however, the constitution that provides the guiding principles. The Constitutional Equality Amendment will supply the Court with a guide in determining what the law is in regard to the categories and principles in our amendment. More explanation of standard of review is given later in this section.
| "Section 7. The United States and the several states shall guarantee the implementation and enforcement of this article." |
This language was included to ensure that all branches of federal and state government are not only explicitly authorized but also explicitly required to implement and enforce the article. It serves as a device to supplant the language in the 1972 ERA: "Section 2. Congress shall have the power to enforce by appropriate legislation, the provisions of this Amendment." This sentence was seen by some as a way to inflame anti-federal feeling but thought by others as necessary to enable Congress to enact legislation.
From time to time there is a dispute as to whether a law or action is consistent with principles outlined in the Constitution. Basically two types of actions concern us: one is the unequal treatment of women when they are classified by a law to receive different treatment than men, and the other type of action is when an individual's fundamental rights have been infringed by a law, such as the right to privacy. The first type of action is when a state legislature or other governing body passes a law or policy, and the new law classifies people into groups. It may be challenged by a person within that group receiving unequal treatment as an unconstitutional violation of equal protection of the law in a lower court such as a federal district court or state court. Most laws generally involve different treatment of persons.
Traditionally, if a classification was unreasonable, arbitrary or invidious (malicious), the court would hold that the classification violated equal protection. This statement will be discussed in further detail below. If the lower court permitted the classification and discrimination to continue, the decision could be appealed to an appeals court. When it reaches the U.S. Supreme Court upon further appeal, the nine justices will use the requirements outlined in the Constitution to guide them in determining violations of equal protection or infringements upon fundamental rights. All lower courts then must "review" all other similar claims coming before them as the U.S. Supreme Court has reviewed and instructed them from previous cases.
In each level of this process, every court evaluates the law (the means) as to how it achieves the goal (the ends) of the legislation or action. The court evaluates or reviews the means and ends under a "standard of judicial review." The "standard of review" defines in what manner and how closely and carefully the courts must examine the disputed action for its consistency with the requirements of the Constitution .
The traditional level of scrutiny was "reasonableness;" only an unreasonable classification would violate equal protection. This low level of scrutiny is called the "rational basis" standard of review. To classify upon one's sexual orientation, for example, the law must serve a "reasonable" (as opposed to compelling or important) governmental objective and must be rationally related (as opposed to narrowly tailored and substantially related) to the achievement of those objectives. The main problem with this low level of scrutiny is that it is very easy for the legislatures to justify that a law is reasonably related to obtaining the government's goal of the statute, and the courts will give the legislatures great latitude in supplying those reasons.
If a "suspect class" is involved in the claim, (race and national origin are currently considered suspect classes), or a fundamental right has been burdened by a law, the court will review the goal of the statute or the importance of the right that has been violated under a "strict scrutiny" standard of review. Strict scrutiny means that to classify upon race, or to infringe upon a fundamental right such as the right to vote, the law must serve a "compelling" (as opposed to important or reasonable) governmental objective and must be narrowly tailored (as opposed to substantially or rationally related) to the achievement of those objectives. Narrowly tailored means that the law affects the smallest number of people necessary to achieve the government's compelling goal.
Women are not a "suspect class," which means that classification by sex is not "suspect" as discrimination. The court created an "intermediate" or "heightened" level of scrutiny for women. To classify upon sex, the law must serve an "important" (as opposed to compelling) governmental objective and must be substantially related (as opposed to narrowly tailored) to the achievement of those objectives. In applying this standard, the courts will also consider whether men and women are similarly situated and will not remedy the discrimination if they are not. Generally, the court does not consider men and women "similarly situated" in regard to a woman's pregnancy, and therefore allows greater latitude for the state to justify the discrimination based on pregnancy.
Research comparing the court interpretations of ERAs under various state constitutions makes dramatically clear that the language of any ERA would be rendered worthless without a strict standard of review.
Return to NOW Home Page / Join NOW / Send Us Mail/ Search NOW