EDITORS NOTE: A resolution passed at the 1993 National NOW Conference calls for members to review and consult on the Equal Rights Amendment. This commentary considers why the ERA is essential, and why it has been opposed.
In coming months, NOW activists will address another substantive question what do we want constitutional equality for women and nondiscrimination on the basis of sex to mean? Only then can we address another strategic question where do we go from here and how?
Discrimination against women is a fact of life and law, but women's fight to end it is not a story every schoolchild knows -- even though it provides some fascinating history. For more than two centuries since this country was founded, men have deliberately refused constitutional recognition to women's legal and civil rights. Three key occasions when this was done:
The accuracy of McKinney's analysis is repeatedly confirmed as courts and legislatures find pretexts for treating men and women differently. Comparisons of 14th Amendment decisions since 1870 consistently show the Supreme Court judging laws which disadvantage classes of men to be unconstitutional while seeing no constitutional barrier to discrimination against women. The only exceptions are token cases, such as Reed v. Reed (1971), which affirmed that a woman had the same right as a man to administer the estate of a deceased relative.
The court tends to follow the pattern set in early decisions when it arbitrarily invoked "the laws of God and Nature" to justify denying Myra Bradwell's right to be licensed to practice law (1872) and Virginia Minor's right to vote (1874). In Fitzpatrick v. Bitzer (1976), the court found it unconstitutional to deny backpay to men state employees who had received unequal early retirement pay based on sex, but ignored this precedent in denying backpay to women in a similar pension case, Arizona v. Norris (1983).
The Equal Rights Amendment has significance beyond issues of equal access and pay. John Adams' conviction that "masculine systems" would be endangered if men could no longer abuse women with impunity holds true centuries later. A 1977 rape study found that "All unequal power relationships must, in the end, rely on the threat or reality of violence to protect themselves." In a very real sense, then, the Equal Rights Amendment will rectify a profound constitutional imbalance that may promote violence against women.
The Equal Rights Amendment is essential because, without clear acknowledgement of women's right to equal protection of the law, sex discrimination is not unconstitutional. Legal discourse about "standards of review" ultimately must yield to the bleak reality that hard-won laws against sex discrimination do not rest on any constitutional foundation and can be enforced fully, inconsistently, or not at all. Women seeking enforcement of these laws must not only convince the court that discrimination has occurred, but that it matters. As legal scholar Catharine MacKinnon observes, "It is not difference that is important, but what difference difference makes."