On Jan. 15, the Virginia legislature voted to ratify the Equal Rights Amendment, which states that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” This brings the number of states that have ratified the ERA to 38, making up three-fourths of all the states — the proportion required to amend the U.S. Constitution.
That doesn’t mean the ERA is now in force. In 1972, when Congress originally sent the ERA to the states to be ratified, it set a deadline of 1979 for ratification, a deadline that was extended to 1982 — at which time only 35 states had ratified the measure. For that and other reasons, three state attorneys general recently filed a federal suit aiming to block adoption of the amendment. On Jan. 7, ERA advocates filed suit in Massachusetts arguing that the deadline is not binding because it was not in the text of the original amendment. That will take time to work its way through the courts.
But what if the ERA had been ratified way back in 1982? Let’s consider what it would — and would not — have done.
Would an ERA have pushed forward women’s rights dramatically?
Many observers believe that an Equal Rights Amendment would provide ironclad, irreversible guarantees of women’s rights. That’s what Rep. Carolyn B. Maloney (D-N.Y.) suggested in a statement after the Virginia vote: “A constitutional amendment is forever. It cannot be repealed, rolled back or expire. It is not subject to the whims of who controls Congress, a statehouse, or the White House.” Advocates believe it would strengthen legislation on issues ranging from pregnancy discrimination to equal pay to violence against women. Opponents fear it would be used to overturn abortion restrictions.
My research suggests the impact would be less dramatic. First, the ERA would probably affect Supreme Court decisions indirectly, by raising sex equality to the status of a fundamental right and increasing the standard that the Supreme Court would apply in determining whether a law that discriminates on the basis of sex violates the Constitution. That would make it more likely that courts would favor those who sought gender equality. Second, the ERA would not constitutionally protect women in most cases of violence against women. I’ll explain below.
What can we learn from the 25 states that have state-level equal rights amendments?
To assess the potential effect of a federal ERA, we can examine the impact of state-level equal rights amendments, which half the states have. California passed the first one in 1879, prohibiting workplace-based sex discrimination; Delaware is the most recent, having adopted such an amendment just last year. Maine, Minnesota and New York may be getting close.
Political scientists Lee Epstein, Andrew D. Martin and I examined all state-level constitutional sex-discrimination cases that reached states’ top courts between 1960 and 1999, looking at both the legal standards the courts applied and how the cases were decided. We find no evidence that simply having an ERA directly affects how sex discrimination cases are decided — but it affects those decisions indirectly. In the United States, courts can choose the standard they will use to determine whether a law is constitutional. If a law violates a fundamental right, such as free speech or the 14th Amendment, it will apply the highest standard of review, known as strict scrutiny. Our research shows that having a state-level ERA significantly increases the likelihood that judges will apply a higher standard of law in sex discrimination cases. That leads state-level courts to rule more often in favor of the person claiming sex discrimination.
That was true even when controlling for other factors that might influence justices, including ideology, the percentage of women on the bench, whether a state ratified the federal ERA, and the kinds of litigation being considered. Of course, these results need updating. But if we rely on these findings, we would expect that a national ERA would increase the likelihood that Supreme Court justices would apply a higher level of scrutiny to sex discrimination cases and would eradicate all sex-based classifications — treating sex the way that race is treated now.
What about registration for the military draft, abortion, same-sex marriage and gender-neutral bathrooms, issues that have been on the agenda since the ERA battle began in the 1970s? Again, any effect would likely be indirect, with the court applying the strict scrutiny standard. But an ERA may not be necessary to expand rights protections in those areas. The Supreme Court didn’t need an ERA to invalidate state laws that prohibit same-sex marriage, for example. And the Supreme Court will soon announce its decisions on two cases — Altitude Express v. Zarda and Bostock v. Clayton County — that hinge on the question of whether the “on the basis of sex” language in the Civil Rights Act necessarily includes discrimination on the basis of sexual orientation.
Don’t expect the ERA to change case law about gender-based violence
With the #MeToo movement, support for the ERA surged. Some observers hope ratification would strengthen legal protections against violence against women. This is unlikely. The Constitution — and the rights and equality that it guarantees — applies only to what the government does, not to private actors. Laws that discriminate against women are unconstitutional, but the Constitution does not protect citizens from harms committed by private individuals or organizations. And in most domestic and sexual violence, individuals’ wrongs are the main concern. As I argue in “Defying Convention: U.S. Resistance to the U.N. Treaty on Women’s Rights,” this means that an ERA would not provide a constitutional right to protection against intimate-partner violence.
Consider Supreme Court decisions in domestic violence cases, especially the 2005 decision in Castle Rock v. Gonzales. In that case, Jessica Gonzales’s husband violated a restraining order she had against him and brutally murdered their three daughters. The court maintained that the police in Castle Rock, Colo., could exercise discretion in deciding whether to enforce a protective order — and that Gonzales had no constitutional right to that protection. An ERA would likely have little effect here.
In short, though advocates and opponents alike are energized — or agitated — by the possibility of a ratified ERA, it wouldn’t change as much as many expect. Look instead for a significant — but limited — effect on legal protections for women’s rights.
Lisa Baldez (@labaldez) is a professor of government and Latin American, Latino and Caribbean studies at Dartmouth College, and the author of “Defying Convention: U.S. Resistance to the U.N. Treaty on Women’s Rights” (Cambridge University Press, 2014).