by publius
I need some help. I’m having trouble discerning a thesis in George Will’s tirade today against the ERA. The argument seems to go like this: (1) Liberals like bell bottoms and love beads [cue Stayin’ Alive bass line]. (2) The ERA is bad because it duplicates the equal protection clause (Will’s favorite constitutional provision no doubt). (3) Hairy, bell-bottomed, love-beaded ERA-supporting hippies cheated back in the 70s. [Well, you can tell by the way I use my walk . . .] (4) The ERA is bad because it’s an end run around the legislative process. As #4 is the most ridiculous part of a fairly ridiculous op-ed, let’s start with that one.
The Will column is a textbook example of how conceptual narratives can harden to the point where facts become irrelevant. Remember that one of the central (and sometimes accurate) arguments of modern conservative jurisprudence is that post-World War II liberals use vague constitutional doctrine to do an end run around the legislative process. Inevitably, conservatives argue that if liberals want to change the Constitution, they need to do so through the proper channels – i.e., the Article V amendment process.
Funny thing, though. That’s exactly what the renewed effort to pass the ERA is trying to do. But to Will, these efforts are merely an even-more-cleverer way to avoid legislatures:
All amendments generate litigation, but the ERA’s purpose is to generate litigation. It is a device to get courts to impose social policies that supporters of the policies cannot persuade legislatures to enact. ERA — now WEA — supporters, being politically lazy, prefer the shortcut of litigation to the patient politics necessary to pass legislation.
If Kennedy and like-minded legislators think that the condition of American women needs improvements, they should try to legislate them. Instead, they prefer to hope that liberal judges will regard the ERA’s language as a license to legislate.
To sum up, commanding legislative supermajorities at the federal and state level in the manner explicitly provided for by Article V is a “politically lazy” “shortcut.” What legislators who want to help women should really do, Will explains, is to “try to legislate” rather than, you know, legislating.
I suppose what Will is saying is that passing the ERA will empower judges [whether they’re a brother or whether they’re a mother . . .] to impose strict remedies that he won’t like very much, and that majorities of the public may not like either. Not to be too blunt about it, but yes George, that is the point. Amendments – all amendments – that confer rights reallocate institutional power from legislatures to courts. The whole point of amending the Constitution – and commanding the legislative supermajorities required to do so – is to constrain the freedom of legislatures. I mean, under Will’s logic, the First Amendment is a fiendishly clever end run around our country’s legislatures too.
That brings us to Point #2 — Will’s argument that the ERA is bad because it’s unnecessary and duplicative of the equal protection clause:
The full inclusion of women in America’s regime of rights was accomplished in the 20th century without an ERA, a constitutional redundancy that would have added nothing to the guarantees of equal protection of the laws and due process for all “persons.”
This is a bit rich on a number of levels. For one, protections for women under the equal protection clause were read into the Constitution by judges over the criticisms of judicial conservatives. Presumably, this is not the way Will prefers such rights to be established. Second, the equal protection clause has been the bane of anti-Warren Court writers for decades. So it’s always a bit amusing to see people who are philosophically skeptical (often for good reason) of an expansive equal protection doctrine embrace it when needed (see also Bush v. Gore).
There is a serious point here though – the reason why I support enacting the ERA is because of the weaknesses of the current equal protection doctrine. In particular, because the doctrine lacks a clear textual foundation, it’s an unstable protection for women (particularly if Republicans keep winning presidential elections, which they may very well do).
Personally speaking, I am (like Scalia) skeptical of the gender dimensions of the equal protection clause. Old Legal Fiction readers have heard all this before, but I’m a political process guy in the John Hart Ely sense. To be grossly general, I don’t like expansive readings of vague constitutional text unless the underlying political process is flawed or defective (e.g., segregation resulting from disenfranchisement; felon disenfrachisement). It’s not that I don’t like the results sometimes. It’s that I take process seriously and that I’m more skeptical than most progressives of a powerful judicial branch vis-à-vis the legislature.
Applying that logic to gender and the equal protection clause, it’s not clear what the basis of the heightened protections is. Women (or men for that matter) are roughly 50% of the electorate (not a voting minority) and aren’t disenfranchised. Thus, gender discrimination (or differentiation) isn’t a product of some underlying legislative or procedural defect in the same way that, say, Jim Crow laws were. (That said, I would support applying high levels of scrutiny to laws enacted prior to women’s suffrage).
You may agree or disagree, but this is really a conversation for another day. The point is that constitutional gender protections are on weaker conceptual grounds than, say, race protections. And it’s not just from a political process point of view. If you’re an originalist, for example, it’s far easier to accept scrutiny for race differentiation than gender.
All that said, I agree on the merits that gender equality should be a constitutional right. And I agree that we should prohibit (or at least apply strict scrutiny to) government action that discriminates on the basis of gender. Thus, to remove all doubt, and to be safe from current and future Alitos, we should carve the right into our Constitution. You simply can’t rely on the judge-made doctrine of today to live on forever in the absence of text. Nor should you.
And finally, let’s talk about George Will’s reference to “love beads.” On one level, you might say it’s just a joke. And I suppose that’s true. But it never ceases to amaze me – having been born in 1976 – how deep the political scars of the 1960s and 70s are. The fact that Will would associate “love beads” with the new ERA debate is incredibly telling to me, joke or no. It’s like every conservative pundit over 50 has a conceptual narrative that was forged by Vietnam and campus riots (with Hendrix’s version of All Along the Watchtower playing in the background). And because this narrative became frozen in their minds, every debate of today is colored by events that are now many decades old. For instance, debates about war in Iraq morph into Vietnam, and so on. I hope I live to see the day when “60s Resentment” is no longer the unifying conceptual narrative of conservatives (particularly judicial conservatives). I mean, Jesus people, it’s time to let go. Feel the city breakin’. Everybody’s shakin’.
Speaking of the 60’s, how do you feel about women getting drafted into combat units?
You know, I picked up an Atlantic magazine in the DFW airport, and there was a murderer’s row of hacks in the issue. The cover was by Gregg Easterbrook, Hitchens had a book review, both of which were hackish, but George Will’s hissy fit reminds me of Mark Steyn’s look at one of the members of the Mamas and the Papas. It seemed to revolve around the fact that here was a Canadian who got to do more drugs and have more sex than Markie. I suspect a similar dynamic here.
I would echo what Will’s first wife said to him, which was ‘take it somewhere else, buster”
I am all for equality including the military provided there are (modest) clauses on maternity. But I don’t think that any military command would sent visibly pregnant women to the (fighting) front anyway..
The conservative thing about legislation and judging is pure rhetorical dodge. Its essential meaning is “You ought not use the means at hand; you should only feel entitled to use means that aren’t available or don’t work.” It’s the same logic as leads to free market boosters opposing boycotts after insisting that regulation is bad because it displaces consumers’ own moral choices. They talk about processes, but it turns out they want outcomes just as much as any Five Year Plan and will change or chuck any process that proves unsatisfactory in getting there.
George Will is a giant dink.
So, what exactly would it mean if we passed the WERA? How would it impact segregation in sports, Universities, the military? Would it prevent any government funding for Smith College, for example, or stop the State funding of Douglass College? Or allow males to compete in the LPGA? Require all Title 9 sports to be a single playing field, rather than split by sex? Would it require that military male fitness standards are lowered to female standards, rather than increase them (though to a large degree this has already happened)?
As a father of three girls, I am all in favor of my girls having every opportunity opened to them, and fair treatment, but I am not sure what the WERA would do to improve their opportunities, rather than limit them.
What burning problem of American social policy is supposedly going to be remedied by the ERA?
What about the fact that gender is different than race? To take a hackneyed (but true) example, separate bathrooms for different races seems gravely wrong; whereas you’d have to be insane to want public restrooms to allow both men and women to use them simultaneously (*not talking about single-user restrooms, in other words).
Also, have ERA supporters even thought about this sort of argument?
One aspect that may not have occurred to you, jrudkis:
Women are much more likely than men to be carers of dependent children;
Women are much more likely than men to need to work part-time or school-friendly hours;
Women are much more likely than men to suffer financially, short-term and long-term, when employers discriminate against workers who need part-time or school-friendly hours.
So, a Constitutionally-guaranteed right to equality on the grounds of gender might well lead to laws protecting part-time workers against discrimination.
In any case, Jrudkis, I can’t see how it can be other than beneficial to have equality on the grounds of gender written into the constitution.
It seems unlikely that it would change the long-standing institution of sex-segregated sports, as similiar laws have not managed to change this institution in other countries: but if it did, you might get over the notion that your three girls are by nature less strong, less fit, and less capable physically than any boy.
From all I’ve read, and experienced, men object to sex-segregated sports not because women can’t compete on equal terms with men, but because men cannot bear to be beaten by a woman… speaking as someone who was once the best player in the sub-aqua hockey team, and got picked on endlessly out of the pool by the boys who couldn’t beat me in the pool.
whereas you’d have to be insane to want public restrooms to allow both men and women to use them simultaneously
Well, this I agree to.
But, if we could manage to convince boys that it’s not an insult to their manhood to learn how to aim (and if you miss, use a wad of paper to wipe), well, I might change my mind…
The way I understand it — the text of the amendment addresses most of the Schafly type hypos. First, it’s limited to state action, and says “equality of rights … shall not be abridged.” That might prevent the federal government from installing bathrooms only for men, but it wouldn’t prevent dual bathrooms.
it’s a bad phrase but there will be some separate but equal aspects to this — varsity sports for instance.
but one point that is interesting is that I think it does potentially affect gender-based affirmative action. but — in the educational setting anyway, this is increasingly a problem for MEN. as i understand it, affirmative action benefits men more than women these days in college admissions.
but it’s a fair question to say “what it is needed for?” that’s an important point the pro-era people shoudl answer. and i’ll try to do that in a future post
There will always be outliers in any population that are not the statistical norm (Jackie Joyner Kersey comes to mind), but based on the attempts that the army has made at integration, and the studies they have done, physical standards are lower for women than men in both upper body strength and cardio vascular conditioning.
This has impacted the Army in several ways; in order to comply with directives to integrate, some standards have been changed, and others eliminated. For example, it used to be a standard for a mechanic to carry his tools several hundred meters to a broken vehicle, under the theory that the vehicle was broken, and can’t get to the tools. That standard went away after integration.
One study I just reviewed discussed that women do better at carrying a 150 pound stretcher when it is a team of all women rather than being part of a male team (probably based on height disparity). It caught my eye, because in my unit there is no one who will weigh less than 200 pounds on a stretcher, and most of us will be pushing 250 (because the average weight is about 190, and we have 50 pounds of protective gear that stays on after you are hit so you are not hit again). Simply doing buddy carries with that gear on is extremely taxing, and is simply not something most women can ever hope to do.
There are various other examples regarding jobs that would seem ripe for integration, like a Patriot crew member, where in the commercials it appears that all they do is watch a video screen. In reality, you have to set that equipment up, sometimes several times a day, and each piece of equipment often weighs 100 pounds or more.
Other areas like schools that at one time were difficult for the average man, such as airborne school, are now integrated such that the physical standards are all but gone, in order to ensure that females graduate at near the rate of males.
In support of this, the army did a year long study on a group of female soldiers, giving the as near perfect nutrition, physical fitness training, and focused on strength building. They found that by working out 4 hours a day over that period, a woman can gain to 70% the strength of an average man, who does not work out.
Not withstanding that nobody in the army gets 4 hours a day to focus on physical training, that much effort to get to 70% of the level of a man doing nothing does not seem like a worthy effort.
And if we are talking about getting to work part time and have school friendly hours, I want in on that too. Are you suggesting that only women would have that protection, or that it would be for everyone, and if it is for everyone, how is that related to an amendment for women?
I agree with publius’ main point: that this is a way of writing into the Constitution something I think ought to be there (not: something I like, but something I think should be constitutionally guaranteed), so that any questions about the current theory on which gender discrimination is subject to heightened scrutiny are just laid to rest.
I also don’t think that the question ought to be: are there burning political issues that this would address. A constitutional protection is there not just to address present political issues, but to ensure that any future impulses to do what it prohibits are ruled out. Even if the ERA addressed no current issue, it would be valuable for that reason: because gender discrimination is wrong, and the Constitution should rule it out.
And I completely agree with publius both about the idiocy of the ‘circumventing the legislative process’ argument and about people’s strange fixation on the 60s. Honestly, I have absolutely no idea what explains this.
(And publius: were you really born the year I graduated from high school? Yikes.)
jrudkis: And if we are talking about getting to work part time and have school friendly hours, I want in on that too.
Well, you can do that now, Jrudkis. Nothing stopping you, except that your income will go down enormously (just a guess, since I don’t know what your income is now) since the price of having to work part-time/school-friendly hours is an extreme drop in income and future career prospects.
Women tend to suffer that drop because women tend to be the ones considered responsible for caring for dependent children, even if the children have a father living with their mother who could equally well have given up the job he does now to take a part-time job that lets him work only the hours his children ar e in school. Which is why making it illegal discriminate against women, often means that eventually, it becomes illegal to discriminate against people who work part-time school-friendly hours, by (for example) paying a part-timer less per hour, scheduling essential meetings on days or at times the part-timer isn’t in the office, denying part-timers pension or health-insurance, or refusing to consider someone for promotion because they are now or have been working part-time.
But, if you don’t care that your income and career prospects will drop, but only want to work part-time school-friendly hours, you can find some job that will let you do that. Read Nickled and Dimed for examples of the kind of job you will end up doing….
Publius: First, it’s limited to state action…
I’m old enough to remember the original push for an ERA, and I seem to remember a least some supporters saying that it was about “equal pay for equal work”, but that somehow separate-but-equal government restrooms could remain. So it was clear that the intent was that the amendment would somehow cover many issues (e.g. private employment) not mentioned in the text, but that other issues that would appear to be covered by the text (e.g. public facilities) would somehow be exempted.
In other words, we were being asked to support some words that were not going to mean what they appeared to mean.
It would be a good idea if supporters this time were explicit and honest about exactly what is covered, how that relates to the actual text, and what they will be claiming when actual cases get in front of the Supreme Court.
To jrudkis may I suggest that, in the military and out, job requirements be set based on the actual physical requirements of the job. If the mechanic has to carry the tool box to the vehicle, make that a requirement and let any person who is capable of meeting the requirement have an equal shot at the position. In this example I am tempted to ask if there is really a necessity for everything to go in one big tool box instead of two smaller boxes. I suspect that in many cases the physical requirements that exclude most women are of a “we’ve always done it that way” nature. Looking at the situation with fresh eyes will often find a way to accomplish the same thing, just as well, with lower strength requirements.
Jes,
So essentially you are saying that if I was an attorney working at a firm part time because I chose to raise my kids in a certain manner, I should get paid the same (presumably prorated to the actual time worked), receive full time benefits, and make partner at the same time as someone who is there full time? How does that make economic sense for a law firm?
Do you think it would make sense for the military, to have part time soldiers receiving full time benefits and promotion?
I have never understood the argument that it is the employers responsibility to pay for the lifestyle choices of their employees.
Baskaborr,
There is no doubt that miltary equipment and standards are developed for men. If you were to build a tank to be fielded by women, you could probably make one smaller, take advantage of natural flexibility in its design, and have much lighter road wheels. The same is true for much of the equipment (though military necessity makes things pretty darn heavy just for survivability).
The question is how do we address the problems with the equipment? Does it make sense to redesign our entire force?
It would be a good idea if supporters this time were explicit and honest about exactly what is covered, how that relates to the actual text, and what they will be claiming when actual cases get in front of the Supreme Court.
Yes indeed, particularly given the history of such provisions — as Eugene Volokh has pointed out, when the state-level Equal Rights Amendment in Massachusetts was enacted, opponents said it might lead to gay marriage; proponents said that’s a ridiculous parade of horribles, a slippery slope that would never happen. But then voila, at least one Justice of the Massachusetts Supreme Judicial Court uses that provision as support for mandating gay marriage.
So it would be nice to know if ERA-supporters plan to use the same sort of subterfuge here. If you want an amendment mandating gay marriage, hey, go for it — but be honest about what you’re doing rather than getting people to vote for it on false pretenses.
jrudkis: So essentially you are saying that if I was an attorney working at a firm part time because I chose to raise my kids in a certain manner, I should get paid the same (presumably prorated to the actual time worked), receive full time benefits, and make partner at the same time as someone who is there full time?
Yes.
How does that make economic sense for a law firm?
Makes perfect economic sense for society as a whole, though. And does not disadvantage any one firm, since all firms are bound to accept that some of their associates will at any time be off working part-time in order to care for their children.
In order to get new attorneys, it is necessary to have babies; for someone to care for the babies: for someone to care for the children the babies grow into. Without this, there will eventually be no new associate attorneys. (No new anyone, in fact, but let’s keep the focus on attorneys…)
So, a firm of attorneys desperately needs a group of people who are willing to spend time caring for the babies who will eventually grow up and become the new associates and then the partners. It’s a long-term investment, but an extremely worthwhile one.
Of course, this investment cost is at the moment not one that a firm of attorneys has to make, because at present, women who have children who will grow up to become associates and then partners are expected to provide that essential labor for free without any assistance from the firm of attorneys who will eventually benefit from it.
But, practically speaking, jrudkis: the point is that you asked how your daughters will benefit from an ERA. And one answer is, that if any of them want to be attorneys when they grow up, it could mean that they won’t have to choose between getting to have children and getting ahead in their career as an attorney. No more than a son would have had to choose between having children and getting ahead in his career.
Jrudkis: The question is how do we address the problems with the equipment? Does it make sense to redesign our entire force?
Given the amount of equipment that will have to be abandoned in Iraq, why not re-equip the military completely on the presumption that any item of equipment should be made to be used with equal ease by women or men?
Mr. Doe, your suggestion that the proponents of this amendment have a hidden agenda is meaningless. It may indeed be correct; for all we know, Osama bin Laden is secretly working behind the scenes to advance this amendment because it would make it easier for him to commit atrocities. This, however, is both speculative and irrelevant. The American body politic does not need to know anything about the motives of the proponents of the amendment; such concerns ultimately boil down to mere ad hominem arguments. What we need to consider is the actual text of the proposal. If you see something in the text that will lead to gay marriage, global warming, or nuclear annihilation, then bring that point up. But to stand on the sidelines engaging in idle speculation as to what the motivations of the proponents might be is a waste of time.
And while we’re on the subject of idle speculation, how do we know that you’re really NOT Osama bin Laden seeking to reduce American women to the servile status they suffer under Islam?
Jes,
Because you can not optimize a piece of equipment for both sexes, and unless you foresee a time when women will be the predominant warfighters, it does not make sense to make smaller, lighter tanks, because men would not fit in them. Main gun rounds on a tank weigh 90 pounds a piece because it requires a lot of explosive to fire a dart through three feet of steel. They are not likely to get lighter without new technology. It is possible to put in an auto loader, however, but that would then remove a crewmemeber needed to maintain the tank and all of its heavy parts.
And we are not leaving that much equipment like that there: There are few tanks there now, few artillery pieces, very little Air Defense…
Jrudkis – fair enough. I think the main point to be made is: if there are essential physical standards for a job, set them. But sometimes physical standards are set not because they’re essential, but because fewer women can pass them than men…
OTOH — as we are admonished by our political ancestors — neither can you rely on a text to overcome a judicial or executive intent.
Too, since this looks like being a mostly ERA-friendly venue, may I pre-emptively play devil’s advocate and point out that even by your own admission ERA is an attempt to apply legislative methods to what is fundamentally a cultural, “pre-judicial” problem.
John Doe’s last comment may be weak on merits (explanation omitted but available), but it’s based a strong critique. All legislation intersects with culture, but legislation that’s designed to intersect with culture is inherently problematic. It’s like war, or invasive surgery, or state religions — sometimes necessary, sometimes just foolish vanity, but never desirable.
Excellent post BTW. Downright hilzoy-quality 😉
In support of this, the army did a year long study on a group of female soldiers, giving the as near perfect nutrition, physical fitness training, and focused on strength building. They found that by working out 4 hours a day over that period, a woman can gain to 70% the strength of an average man, who does not work out.
Me want linky. Me want linky *badly*.
I’m old enough to remember the original push for an ERA, and I seem to remember a least some supporters saying that it was about “equal pay for equal work”, but that somehow separate-but-equal government restrooms could remain. So it was clear that the intent was that the amendment would somehow cover many issues (e.g. private employment) not mentioned in the text, but that other issues that would appear to be covered by the text (e.g. public facilities) would somehow be exempted.
In other words, we were being asked to support some words that were not going to mean what they appeared to mean.
‘Separate but equal’ didn’t work for black schools because they were obviously not equal. But there isn’t anything inherently wrong with ‘separate but equal’ under other circumstances- bathrooms for instance. Or sports. As long as it isn’t a way to circumvent the “equal” part.
As to your being “clear” about the “intent”, maybe some people were confused about what the ERA meant. That sort of thing happens frequently, and doesn’t imply any subterfuge. Finally, how is it that co-ed bathrooms “appear to be covered by the text”?
To avoid further confusion, here’s the original text. Nothing about bathrooms, sports teams, etc.
Nothing I said was “ad hominem.” The text of the ERA prohibits discrimination on account of sex. Some people do seriously argue that unless a state recognizes gay marriage, that is discrimination on account of sex. Thus, whether you call it a “hidden agenda” or mere ignorance, the proponents of the ERA are pushing something that, if adopted, would definitely be used by litigants and probably courts to mandate gay marriage. The unwitting supporters of the ERA should realize what they are doing. The witting supporters should be more honest about what they’re doing.
hilzoy raises a good point — even if it addresses nothing at present, it’s still worthwhile in light of what may come.
The state action question is an interesting one. As of now, the employment discrimination provisions are empowered by the commerce clause, not the civil war amendments. I’ll need to look more at this too in terms of figuring out what it would actually require/allow.
To avoid further confusion, here’s the original text. Nothing about bathrooms, sports teams, etc.
What to say to this . . . There’s nothing in the current Constitution about abortion. There’s nothing in the Free Speech Clause about pornography, nude dancing, flag burning, draft card burning, wearing a jacket in a courthouse, posting a sign, picketing a business, passing out pamphlets, issuing campaign ads.
This list could go on for many pages.
Actually – I say this reluctantly – John Doe is right. (I think. IANAL.) The Massachusetts Supreme Court determined that as their state Constitution required them not to discriminate on grounds of gender, it was not legal for the state to require that a woman choose only a male partner for marriage, or that a man choose only a female partner. (Again, I think. IANAL.)
And I know some people are just homophobic enough to think that if the ERA may require them to do right by GLBT people, the ERA must therefore be a bad thing….
“the proponents of the ERA are pushing something that, if adopted, would definitely be used by litigants and probably courts to mandate gay marriage.”
“the proponents of the ERA are pushing something that, if adopted, would definitely be used by litigants and probably courts to mandate gay marriage.”
And that would be bad exactly how?
And that would be bad exactly how?
I used to think that would be bad because apparently allowing same-sex couples to have a civil marriage is the major threat to Christianity of all time. But, since last Friday, I’ve discovered that actually a life-size statue of Jesus Christ molded in milk chocolate is the major threat to Christianity, at least till it melts.
Then, I suppose, it’s back to gay marriage.
Perhaps GLBT activitists in the US could pay up for a very large fridge?
Carleton,
I looked for the link before I posted, and could not find it. The study was published sometime in the mid 90’s. There are other studies regarding similar issues:
http://www.momrp.org/dwhrp_index.html
http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1279143
http://www.springerlink.com/content/jr2084844337kk82/
http://news.bbc.co.uk/2/low/health/1738487.stm
Mr. Doe, you again argue that some people will attempt to use this to pursue other political goals. In particular, you cite gay marriage as an example. Now, remember that anybody can make any legal claim they want — the issue is not whether people can make such a claim, but whether they are likely to convince a court of law that their claim is valid. Therefore it is incumbent upon you to demonstrate how the sentence “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” can be used in a court of law to justify a claim for gay marriage.
Mr. Radish, I am perplexed by your statement:
All legislation intersects with culture, but legislation that’s designed to intersect with culture is inherently problematic. It’s like war, or invasive surgery, or state religions — sometimes necessary, sometimes just foolish vanity, but never desirable.
Perhaps we are using different definitions of culture, but my understanding is that law is the formalization of those cultural rules that command broad respect within a polity. Viewed this way, law is intrinsically expressive of culture. How do you seem law and culture as immiscible?
hilzoy raises a good point — even if it addresses nothing at present, it’s still worthwhile in light of what may come.
And what’s that? Why is this hypothetical risk of unknown events — that you can’t even speculate about — worth amending the Constitution? As Prohibition showed, even when people think there is a current problem that demands to be addressed, a constitutional amendment may play out in ways that no one really anticipated or thought about.
Also, if the notion is, in reality, to provide a constitutional grounding for abortion, people should be honest about that too.
Erasmussimo — Therefore it is incumbent upon you to demonstrate how the sentence “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” can be used in a court of law to justify a claim for gay marriage.
It is incumbent on you to read the entirety of the comment where I brought up this subject, where I pointed out that a Justice of the Massachusetts Supreme Judicial Court used the Massachusetts ERA precisely as a reason to mandate gay marriage. IOW, I’m not just speculating about a hypothetical scenario here.
John Miller: And that would be bad exactly how?
I didn’t say it would be bad. What I said would be bad — if you read carefully — is dishonesty and subterfuge in presenting the ERA to the public. I.e., it’s bad to get the average American rube to vote for the ERA by presenting it as nothing more than being nice to women, when you really know that courts could (and already have) interpret such language to require gay marriage.
No doubt things have become so much worse since the 1970’s when the last shot at ERA left it floundering like a beached whale. Therefore why not disinter a bad idea in the name of a cause, which it seems some of us can’t live without.
Women relegated to second class citizenship, forced to receive part time pay for part time work, pitter pattering barefoot in the kitchen baking cookies for their brute husbands, denied the opportunity to be infantrypersons, pure hell indeed.
Get out the spades, dig up the corpse, dust it off and let’s march again. The search and psychic need for the fulfillment of causes, the chance to assert moral hegemony too tempting to be stilled.
I may in passing say that their have been alternatives to the amendment process to which publius attributes conservative promiscuity. But let it go, why allow for minimal subtlety when building a straw man.
The 14th Amendment reference [Bush v Gore] suffers from a mental anemia that can’t go unanswered though. Are we asked to accept an oft used reading of that amendment by liberals and the decisions that follow as implying a proprietary interest held by those liberals? If the 14th has been used as a legal means to expand the federal government’s purview into matters of individuals claims and state governance how so does one find irony and humor in it’s use in a federal election, for president, with innumerable squinting eyes seeing what they want to see while arguing over holes and indentations in pieces of paper?
Ample use presumes further use, and after decades the real humor is to be found in the left’s reaction to Bush v Gore.
i’m with our honest Mr John Doe: until everyone in the country comes out and divulges exactly what he/she wants from the ERA now, and what he/she will want from it in the future (especially those of us who are now, or will be in the future, sitting on a Supreme Court somewhere), there’s simply no way we should even consider it.
i mean, getting the biggest entitlement in 40 years (1000 pages, written by pharma lobbiests) passed in the dead of night, having had less than 24 hours to read it, is one thing. asking that people be treated equally is quite another.
What to say to this . . . There’s nothing in the current Constitution about abortion. There’s nothing in the Free Speech Clause about… flag burning… posting a sign, picketing a business, passing out pamphlets…
Things like posting a sign are pretty obvious examples of free speech, it doesn’t need to be spelled out.
When I asked where in the ERA communal bathrooms were mandated, I wasn’t expecting you to show a line with the words “communal bathrooms”. I was expecting you to explain how “equality of rights under the law” “appear(s) to be covered” the issue of co-ed bathrooms.
The gay marriage thing I see as a possible argument. This, I do not see, despite your belief that it is an obvious consequence.
(if you’re arguing that it isn’t an obvious consequence, but that some kwazy kourt might see it there anyway, I suggest that we stop passing any laws at all lest courts misinterpret them).
Concerning the military, Sweden seems to cope perfectly well with an integrated military.
A Swedish female PhD student (chemistry) I know had “major (reserve) in a flak regiment” in her resume. The Scandinavian countries seem generally to be those that achieve the highest level of gender equality worldwide.
Btw, what about Israel? There is a feamle draft, iirc.
I was expecting you to explain how “equality of rights under the law” “appear(s) to be covered” the issue of co-ed bathrooms.
That’s easy — just as blacks would (rightly, in the case of race) argue that being shunted into a separate bathroom is a sign of discrimination, somebody (male or female) would argue that being prevented from using a particular bathroom is also a sign of discrimination.
Anyway, I never said that courts would necessarily use the ERA to mandate communal public restrooms. They’d probably put aside logic and back away from that conclusion. My point was that here’s a good example where almost all of us agree that gender just isn’t the same thing as race. So maybe people should start thinking about why it might not make sense to put in the Constitution language suggesting that every gender distinction in society is just as invidious as a racial distinction.
Mr. Doe, you offer two arguments:
1. The amendment in question could be used to make a successful claim in Federal court in favor of gay marriage. You offer as evidence of this the fact that a member of the Massachusetts Supreme Court came to an analogous conclusion with respect to an analogous law. You overlook the fact that judges come to all sorts of different conclusions, and are frequently overruled by higher courts. You need to show that the majority of judges, or, more important, a majority of the justices of the Supreme Court, would come to that conclusion. You have not done so; therefore your point is mere speculation without justification.
2. You claim that you are not arguing against the amendment itself, but rather demanding that its proponents be honest about their hidden agendas. This argument denies the very essence of law: a public statement of some requirement the members of society. That public statement is declared in the wording of the law. You argue that we should concentrate, not on the public statement, but on the hidden agendas of some people. Those hidden agendas, whatever they may be, are irrelevant. The law is the issue, not the personal preferences of different people. It’s the law that will affect people’s lives, not the political beliefs of some people. It’s the law that we vote for or against, not the political beliefs of some people.
Keep your eye on the ball.
It’s curious to me that, generally speaking, conservatives tout their high professional standards in hiring practices and resent any interference in requiring the imposition of any extraneous (in their eyes) categories that might prevent them from hiring the most talented, qualified individual for the job but …..
….when they gain control of the government, they hire, generally speaking, folks who have no education or experience in the fields of expertise they oversee, and, in fact, when these folks are hired in management positions, they downgrade, ridicule, demote, and otherwise ignore the expertise, education, and opinions of staff trained in their fields.
I am gratified to note, however, that the females hired by this administration in particular seem equal to their ignorant, amateur, and unqualified male counterparts, if recent news reports hold any water.
NEXT: I’ve never met anyone who is in favor of unisex bathrooms (for one thing, guys take too long in the stalls reading the sports page). But let’s say the ERA is passed and somewhere down the line an idiot steps forward — probably a grandchild of Phyllis Schafly who has decided to practice idiocy out of inverted spite — and sues to force a business or local government to provide only unisex bathrooms.
I wouldn’t be surprised if these entities hop on board the bandwagon, citing the reduced costs of one set of plumbing, one door, one sign, etc. Whaddya know …. lower overhead … gosh, even Michelle Malkin could go for that.
NEXT: We need an ERA to combat age discrimination.
NEXT: I don’t know that I can come up with a reason why businesses should pay for people’s lifestyle choices, but I also don’t know why more than a few months out of the workforce is such a big deal, looked on with such suspicion.
And it’s not only females raising their kids or taking care of infirm parents. Try being a male and taking off a few years to raise a little kid, while the wife works. Some job interviews, regardless of the sex of the interviewer, can make a guy feel like he just spent three years malingering.
What do you have to do, lactate on the carpet to prove you weren’t just watching ESPN during the kid’s naps? No, darn it, ESPN was on but I took a nap, too, because you can only play UNO so many times before 2 pm without succumbing to exhaustion.
I could see a court requiring that women get more bathrooms than men though, to counter the scourge of long lines at the ladies room at concerts, sporting events, and bars.
I can’t offer much here, but I have to say I really don’t get it. I’m trying to see why this amendment is needed, and I can’t. The minority conservatives seem to be winning this one so far from my point of view. I’m feeling guilty over it, too, which is weird. Usually, in the current political environment, I’m inclined to feel guilty about my liberal leanings.
Erasmussimo:
Hope you don’t mind me jumping into your argument with Doe.
The problem for me isn’t “hidden” agendas, the agendas are for the most part out in the open. The problem is that these agendas don’t match with the text.
Already in this thread people are discussing maternity leave and part time labor at private companies. Does this mean that despite the text being explicitly confined to state and federal government, people believe this will somehow apply to private companies? And even further, the discussion is about overturning gender neutral policies (e.g no part timers) if they disadvantage women. It’s clear to me that the intent is not to have gender neutrality, it’s to have gender fairness. Not necessarily a bad thing, but that’s not what the text says.
What do *you* think the ERA means? Specifically, will it (a) have any application to private discrimination, and (b) permit separate but equal government facilitiies?
jrudkis–
I recall reading some time ago that ladies spend an average of 1:15 using a restaurant bathroom, gents :45. Some places, for this reason, make the women’s bathrooms a little larger. Of course, those numbers might well be because men don’t wash their hands as often*.
*sometimes for the reason that they see other men peeing in the sink, of course.
I don’t, and they aren’t (and I blame my lack of clarity on the fact that my comment actually posted when I had actually hit the preview button ;-). In fact I agree that law is intrinsically expressive of culture, and that in a healthy society the two are pretty tightly coupled.
What I’m suggesting is that attempting to change a culture by changing the law mostly doesn’t work, and winds up delegitimizing the law enforcement apparatus. The civil and labor rights movements (e.g.) were at least as much cultural shifts as legislative ones. Gay rights are like that today.
Absent a corresponding cultural shift, a dramatic legislative shift is as likely to be counterproductive as not (e.g. 18th amendment, “war on drugs” etc). Attempting one without the other breaks the coupling…
1.. . . You need to show that the majority of judges, or, more important, a majority of the justices of the Supreme Court, would come to that conclusion.
Talk about raising the bar. There’s no way to show what a “majority” of Justices would think about a new constitutional amendment, let alone a “majority of judges.” Nobody can meet that standard about anything — you can’t prove, for example, that a majority of judges are going to get rid of heightened scrutiny under the Equal Protection Clause (which is the only plausible reason why the ERA might be necessary).
2. You claim that you are not arguing against the amendment itself, but rather demanding that its proponents be honest about their hidden agendas. This argument denies the very essence of law: a public statement of some requirement the members of society.That public statement is declared in the wording of the law. You argue that we should concentrate, not on the public statement, but on the hidden agendas of some people.
The “wording of the law” can often be interpreted in different ways by different people. If you’re trying to persuade the average Joe to vote for the “wording” of the ERA, and you know that the average Joe wouldn’t vote for the “wording” if he truly understood that some courts of law would interpret it to protect gay marriage, and yet you pretend that gay marriage isn’t on the table — you’re being contemptibly dishonest, even if you think it’s in service of a good cause.
JakeB,
I think there is little question that were I to design a building, I would have more bathroom facilities for women than men per capita, for the very real issue that women would have a difficult time lining up and using a trough, so it takes longer.
But I don’t know that having a higher ratio ought to be a Constitutional right, that would require new buildings and substantial renovation to comply with. But that is the sort of suit I would expect from an ERA, just like we see it with the ADA.
I would now like to weigh in on the weighty issue of bathrooms. One of our distinguished correspondents observes that a primary obstacle to unisex bathrooms is the proclivity of males to sprinkle urine on the seating surfaces of the toilets. A good point this is, however, I must remind our female correspondent that this is in no wise due to poor aim. The mechanics of male urination are not limited to a single narrow stream; that stream is oft accompanied by some extraneous droplets. The real problems arise at the initiation and conclusion of the process. The tissue that directs the stream is quite plastic; at the outset the direction of the stream relative to its outlet cannot be precisely controlled. At the conclusion of the process, a number of additional difficulties arise. Depending upon the muscle tone of the bladder, the pressure animating the stream can undergo a number of fluctuations, resulting in dramatic changes in the direction of flow. Lastly, it is a hygienic necessity to properly clear the drainage duct, lest post-urination seepage dampen one’s clothing. This requires some mechanical operations not involving the bladder, which mechanical operations usually yield some random scatter of fluid.
I therefore submit that accusations of urinary incompetence on the part of males constitute a sexist myth beneath the dignity of this august gathering.
Moving on to the even weightier issue of unisex bathrooms, I must point out that the provision of stalls ensures the privacy of both genders. Some may point out that uncivilized individuals may take advantage of the situation to engage in improper behavior, but there the same argument applies almost as compellingly to the current arrangements.
Opponents of unisex bathrooms fail to anticipate the enormous entertainment value arising from legal responses to such an innovation. Who can fail to lick their lips in anticipation of a Supreme Court ruling on “potty rights”? And what could be more edifying to the body politic to watch the drama of a passionate Congressional debate on the merits of the “Patriotic Toilet Liberty Act”?
Erasmussimo: I therefore submit that accusations of urinary incompetence on the part of males constitute a sexist myth beneath the dignity of this august gathering.
I refer our distinguished correspondent to my addendum: if you can’t help sprinkling, wipe.
I refer our distinguished correspondent to my addendum: if you can’t help sprinkling, wipe.
or sit.
Erasmussimo wins the coveted Cleek’s Favorite Post Of The Day award.
I demand separate bathrooms for sleepy older men with enlarged prostates.
Their groaning disturbs my sports-page reading.
Wouldn’t it be cheaper and enhance productivity to do away with bathrooms altogether and require catheterization of all employees?
Oh my, many issues have been raised and I am running out of time. I’ll be brief:
eeyn524 asks: What do *you* think the ERA means? Specifically, will it (a) have any application to private discrimination, and (b) permit separate but equal government facilitiies?
My guess is that the scope of the law will include such relationships as housing, employment, and school sports, but I think that truly private discrimination (say, in truly private clubs) will remain beyond the scope of the law. That’s how I read the law.
The law doesn’t seem to permit separate but equal facilities in government-funded operations. This in itself does not seem too difficult a proposition — why shouldn’t a girl be allowed to play on the boy’s team if she can play as well as a boy? But see my response to radish.
Radish, I agree wholeheartedly that law should follow culture, not lead it. If the majority of people don’t really like the cultural implications of a law, then the law will not be obeyed and should never have been written in the first place. Indeed, I go further in this respect: if a substantial minority of people have a strong objection to a law that doesn’t provide a strong benefit to the majority, I would prefer to see the majority respect the wishes of the minority. At the extreme end of this spectrum sits the Bill of Rights, which puts some basic limits on what the majority can do to the minority.
So in general, I don’t think that laws should be passed to cram something down the throats of the people. HOWEVER, there is a special case that arises when we discover some incompatibility in our legal structure. Law A has implications that conflict with the implications of Law B. That’s when it’s time for the courts to untangle the mess and resolve the conflict as best they can. And if the consequences of that untangling produce results that the majority doesn’t like, then the majority has to enact some sort of law to clarify the matter.
Several people have asked why we even need such a broad law to protect women. On this point, I can offer a good explanation: consolidation. Sometimes a body of law grows so messy, so clumsy, so laden with case law that it’s time to consolidate all the fragments into some higher-level abstraction that resolves the mess. The amendment in question appears to do exactly that.
Jesurgislac: I stand corrected. A gentleman should wipe up his splatter. Or raise the toilet seat first. Or sit. However, I will not concede the God-given right to leave the toilet seat up after I am done. Should the new ERA tyrranically impose such slavery upon mankind, I shall be the first to hit the barricades singing revolutionary hymns.
For the sake of those here who are worried about hidden agendas, let me say that I wholeheartedly support this legislation, and I fully intend, should it pass, to use it to argue for a constitutional right to equal recognition of same-sex marriages. The sooner marriage equality opponents are forced to admit to themselves that their opposition on this point represents a fundamental opposition to equality between the sexes, the sooner we can put an end to their misleading rhetoric on the issue.
Now that that is out of the way, can we count on your support, John Doe?
FWIW: we had Equal Pay for Equal Work since the second half of the ’70s and at the time it was desperately needed (womens rights were poor in the Netherlands). Even now we still have a few percent difference between various groups (I think 7% between male/female and 4% between allochthone/autochthone. In practise it concentrates on work conditions (same pension plan, equal hourly pay, etc.) but to give women equal opportunities you have to have more than an ERA to be honest; improving childcare opportunities for instance was as important.
In practise equal treatment ment that companies that used to have only male bathrooms suddenly had to have at least two bathrooms; one for men and one for women.
In 1983 we had a constitutional change to forbid discrimination: “All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be permitted.”.
We had civil union for homosexual couples in 1994, as part of ERA and homosexual marriage as from 2001. The links are to places where you can also find English translations of our relevent bits of law.
Dutchmarbel,
I recall that sometime in the 90’s there was a strike among the military in the Netherlands. Do I recall that correctly, or am I mistaken? My recollection was it had to do with working weekends and wearing beards.
Darn, that was pre-google. There wasn’t a strike (I don’t think the militairy is allowed to strike) but there was definately some kind of argument because some male soldiers felt that if female soldiers were allowed to have long hair and earrings, so should they.
In 1971 there was an official policy from the ministery of Defense that stated that soldiers are free to decide how they want to wear their hair unless there is a need to disgress. We’ve had a few court cases afterwards, usually when soldiers work in an international environment and the officers decide that obligatory short hair is better for the image, whilst soldiers still feel it’s a lifestyle choice that does not hamper their professional abilities.
I think wearing beards is encouraged in AFhganistan, but only for the male soldiers.
OT: Tancredo’s in
The military cut business and shave is in place for our army in part because of the problem with bugs/lice, part because it adds to uniformity (and with a diverse ethnic population in the US aids with identification), but primarily it is because long hair and beards interfere with sealing chemical protective masks.
But we allow females to have long hair so long as it can be worn above the collar and not interfere with wearing a hat, and simple post earrings. No earrings for males.
I think worn above the collar is a general prerequisite too, for both genders. Since I assume females need chemical protective masks too I’m not sure that is really an argument – and the identification thing is probabely why most soldiers don’t like it. If they properly followed their Dutch culture they might even have difficulty wearing the same uniform 😉
The mask is certainly true with beards: We have tested beards with the mask and tear gas, and there is enough of a break of the seal to get some in. Presumably that would be really bad with nerve agent.
Maybe they just figure females are more aware of where their hair is, and can brush it aside before putting on the mask.
Interesting discussion. The question of equality in the military misses out on a larger point, which is do we want or need a military that can perform the kind of mass destruction tasking that a pre nuclear one needed to do? It’s been my premise that the military needs to shift to more of a peace keeping focus, and by integrating the military more completely, you help do this. Questions of muscular strength and cardio vascular capacity are not really at issue. If there are situations where a Patriot operator has to set up and take down in a way that only a strong man could do it, that is lazy design rather than some fundamental property in Patriot missile batteries.
When everything you own is built to withstand and shield against electromagnetic pulse, it gets heavy.
Good lord, I wish American conservatives would get over their obsessions with TEH GAY. If it’s progressed to the point where their opposition to the ERA — beyond the general base-level misogyny that partially characterizes the right-wingers these days — stems from it being a potential stalking horse for gay marriage, things have gone quite far enough. Seriously, folks, I can’t imagine homosexuals are going away anytime soon. Get over it.
hilzoy: (And publius: were you really born the year I graduated from high school? Yikes.)
So was I. The only difference is that publius actually accomplished something with his life. (:
The only substantive point I have time to make concerns publius’ original point that gender discrimination doesn’t correspond to racial discrimination. To wit:
Women (or men for that matter) are roughly 50% of the electorate (not a voting minority) and aren’t disenfranchised. Thus, gender discrimination (or differentiation) isn’t a product of some underlying legislative or procedural defect in the same way that, say, Jim Crow laws were.
This I think misapprehends the distinction between racial discrimination and minority status. It’s true in this country that the two tend to be conjoined but it’s by no means required; consider pretty any much foreign colony with a substantial native presence.* The issue then becomes a subtler one: there are institutional defects that aren’t necessarily legislative or procedural, and therefore aren’t covered in your framework. Something as simple as not hiring a person because he’s a Latino, or she’s a woman, or whatever. There might be legitimate reasons why this would be the case — jrudkis’ examples above make a very compelling argument for certain absolute requirements that might be tantamount to gender restrictions — but there are going to be many more illegitimate ones, despite the fact that women comprise 50% of the electorate, and “minorities” could do so in a reasonable time-frame.
* This is one key reason why I think a number of people, particularly American conservatives, don’t get anti-colonial arguments. American anti-colonial was a rebellion of English (more or less) against English, it wasn’t really a “colonial” rebellion in ths usual sense of the word; the true colonial rebellions in North America were the Native American revolts against white hegemony, and look how those turned out.
If you’re trying to persuade the average Joe to vote for the “wording” of the ERA, and you know that the average Joe wouldn’t vote for the “wording” if he truly understood that some courts of law would interpret it to protect gay marriage, and yet you pretend that gay marriage isn’t on the table — you’re being contemptibly dishonest, even if you think it’s in service of a good cause.
I take it you feel exactly the same way about the honesty and contemptability of those who proposed the various anti-gay-marriage amendments that are now being used to prevent same-sex civil unions?
On the issue of women in the military:
I agree with Jes that baseline physical requirements (for any given position) should be established, and if that means that many positions in the military end up being 95% male and 5% female, well, that’s not an intrinsically discriminatory thing.
Also, Hartmut is absolutely correct that Israel has a female draft. I attend a 1/3 Jewish college, and a number of the young women here served in Israel’s military. A significantly larger number got the hell out Israel before turning 18 (or whatever the draft age is). I don’t know how Israel has handled it; I do know that women serve in combat positions that include heavy guns/protective gear/etc.
The “Don’t vote for the ERA because it could lead to gay marriage” argument is nuts. I agree with Phil: whether or not the ERA will lead to gay marriage is beside the point. If it does, yay. If it doesn’t, gay marriage will be legalized anyway within the next 10 years.
30 years ago, the Right warned that passing the ERA would lead to women in combat and unisex bathrooms. Well, women are in combat – even without the ERA. And, I don’t know about you, but the prospect of unisex bathrooms simply doesn’t bother me.
The use of scare tactics just shows the Right either doesn’t have a substantive argument against the ERA, or its substantive argument is that women just shouldn’t have full legal equality, but the Right is reluctant to come right out and say so.
When everything you own is built to withstand and shield against electromagnetic pulse, it gets heavy.
This assumes that we are going to get in a conflict with a near peer that has the industrial/research capacity to manufacture and deliver such weapons and that is willing to accept the kind of destruction that such a conflict would create.
jrudkis: “So essentially you are saying that if I was an attorney working at a firm part time because I chose to raise my kids in a certain manner, I should get paid the same (presumably prorated to the actual time worked), receive full time benefits, and make partner at the same time as someone who is there full time?
How does that make economic sense for a law firm?”
Jesurgislac: “Makes perfect economic sense for society as a whole, though.”
My goodness, after years of reading Legal Fiction and now Obiwg, I finally agree with jrudkis! All that implementing the types of rules that jrudkis describes would do is make it so that women don’t get hired in the first place. Are we then going to institute quotas? It might very well be beneficial to society if firms were to behave in this manner, but you really can’t control their behavior. If you put forth rules trying to force the firms to act as you wish, then they will simply find ways around those rules. The end result may very well be to actually make women worse off.
There is another issue, which many people have already brought up in one form or another, but to which I would like to add my particular point of view. I am a game theorist, and one of the subjects that has long interested me can reasonably be thought of as defining fairness and equality. I haven’t published much in this area, but I have read a fair bit. If you have two people who are equal in all ways when they enter a situation, then it is very easy to define a theoretical notion of fairness for how they should leave the situation. However, even with a theoretical model, even when studying absurdly simple situations, there is no agreement for how to define fairness with regards people who are different when they enter the situation. When we start talking about the complexities of the real world, agreement becomes much more of a problem. We can see this fact when looking at the discussion here. Does anyone feel confident that (s)he can group the posts here into even two sets (conservative and liberal?) within which there is agreement about what constitute equal treatment for men and women? If we can’t even come up with that much of a consensus, then how are we going to implement something like the ERA?
This entire post is built on a lie.
“Saturday Night Fever” so totally didn’t have anything to do with hippies.
If we can’t even come up with that much of a consensus, then how are we going to implement something like the ERA?
The same way we implemented (and continue to implement) the 14th Amendment… and, come to think of it, just about all the other Amendments.
That means more legislation, and probably lots of court cases.
I realize that bothers people who don’t like the federal courts interpreting the Constitution, but that’s one of the basic duties of the federal courts.
Just a couple of articles regarding women in the military and combat units, if anyone else had their interest piqued from this discussion.
http://www.cbc.ca/news/background/military-international/
This one is interesting in that it seems to say that despite restrictions, the US military has the most integrated force.
http://usacac.army.mil/CAC/milreview/English/NovDec02/NovDec02/wojack.pdf
This one is by an infantry officer arguing for integration of women in the infantry. It was most notable for some facts regarding the Canadian and Israeli model, but interesting in its own right as well.
http://usacac.army.mil/CAC/milreview/English/NovDec02/NovDec02/wojack.pdf
The second link should have looked like this. It was cut off somehow.
c02/wojack.pdf
Alright, don’t know why it cuts that part off, but that is needed at the end of the link.
Here is the text of the proposed amendment, in its entirety:
Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex
What is the freaking problem with that? Exactly what? jrudkis, john doe, please advise.
I must be missing something.
But it never ceases to amaze me – having been born in 1976 – how deep the political scars of the 1960s and 70s are.
I was born in 1956 and I’m equally amazed.
What I’d like to point out is that the obsession with the 60’s and 70’s is, at this point, almost exclusively an affliction of the right.
Left-leaning folks no longer fear or loathe folks wearing madras shirts or poodle skirts, and sporting “I Like Ike” buttons.
Their nightmares are no longer populated by fresh-scrubbed young yuppies purposefully showing up an hour early for their new merchant banking job with a copy of “Dress For Success” packed in their briefcase.
Nobody on the left talks, or even thinks, about sterotypes like this anymore, nor have they done so for quite some time. Can any of the conservative voices here explain to me what is up with the “hippy” obsession?
Sometimes I wonder if conservative people actually know any hippies. Most of the actual hippies I know from back in the day ended up taking some kind of self-directed, entrepreneurial path through life. Most of them married relatively young, had a bunch of kids, and launched them into productive adulthood. Most of them are strongly suspicious of government interference in their lives, and would prefer to go without — and have often in fact gone without — rather than take a handout.
The real hippies I know are profoundly conservative folks, in the best sense of the word.
“Saturday Night Fever” so totally didn’t have anything to do with hippies.
Thank you. Someone needed to say it.
Thanks –
What I’d like to point out is that the obsession with the 60’s and 70’s is, at this point, almost exclusively an affliction of the right.
I think you seriously underestimate the left’s cultural obsession with the 60s and 70s. Saying that the political obsession is almost exclusive to the right is closer to the truth, IMO.
I think you seriously underestimate the left’s cultural obsession with the 60s and 70s.
Maybe, but I have to say I don’t see it.
Who are you referring to? Reid? Dean? Obama? Edwards?
Hillary, maybe. Kennedy, maybe, but the 60’s he harks back to are more the days of the Great Society, and less of love beads and bell bottoms. There’s not an ounce of hippy in Ted Kennedy.
Even outside of professional politics, who is living in the 60’s and 70’s? John Stewart? Colbert? Olberman? Maybe Noam Chomsky, but his roots go back further.
I really have to say I don’t see it. You’ll have to spell it out for me, cause I don’t get it.
Thanks –
russell — I’m not sure I think most liberals have any sort of obsession with the left, but there is certainly a class of political writers on the left who do. (All those people who thought that those of us who opposed the war were hippies come again; similarly everyone who thought that blogs were a modern antiwar movement just like the one in the 60s, only digitized. I have to say that I always found the idea of Josh Marshall and Kevin Drum as latter-day Abbie Hoffmans incredibly funny.)
there is certainly a class of political writers on the left who do.
OK, I see what you’re getting at, and there is a point there. I guess I never really think of those folks as being on “the left”.
I have to say that I always found the idea of Josh Marshall and Kevin Drum as latter-day Abbie Hoffmans incredibly funny.)
Coming soon — “Steal This Blog”!
Thanks –
What good are we, as a society, if we can’t say together, “No sexism in the law.” ?
I mean, seriously. If people stop hiring women and the army starts arming our soldiers with chibi-guns and we replace our luxurious American bathrooms with some sort of corporate omnisexual urinary apparati, all because “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” what the heck good are we?
The problem with the amendment is that there are differences between men and women, and trying to shoehorn the two into the same box is not good for either sex.
So my problem with the text is that I do not see how based on that text you can have government funded single sex anything, including schools and sports. The amendment itself is gender neutral: Where does Douglass College (part of Rutgers, state funded) fit in that amendment:
At Douglass, we recognize the individuality of students and provide them with opportunities to continue discovering, developing, and maximizing their potential. Even after graduation, Douglass women benefit from belonging to a network of successful alumnae who can assist them within a wide range of professional opportunities.
Open to commuter, residential, and non-traditionally aged women, Douglass Residential College is located on the beautiful Douglass campus within the urban community of New Brunswick, New Jersey. Within the university undergraduate population of about 20,000, Douglass provides a park-like respite to the 2,500 women who call it “home.” Though self-contained, Douglass is easily accessible to the rest of the university. Downtown New Brunswick is within walking distance and New York City and Philadelphia are a train-ride away, offering students access to countless cultural, entertainment, and professional possibilities.
If you want to maximize your potential and gain a competitive edge, choose to be a Douglass woman at Rutgers University.
(Douglass does allow males in class, just not to live on campus, or enroll in that specific college)
My sister graduated from Douglass, and it was the right fit for her: she thrived in an environment where she was not living with a bunch of fratboys next door. I would like options like that for my kids.
Does Douglass somehow survive that amendment, whereas single sex male schools like VMI fell without it? How would that make things better for women if Douglass goes away?
I think that for the most part both boys and girls benefit from single sex education. I don’t see how such a thing can be possible under the ERA, based on its language.
And I fail to see how if girls will get to “play up” if they are competitive enough for boy sports (which I believe would be an outcome of ERA), that boys won’t be able to do the same (if they are better than the girls at softball), in effect ruining the strides of title 9.
Oh, and I am pretty sure that Publius has a few posts where he was pining for the idealized 60’s. blogspot is banned by my server, though, so I can’t search them.
I presume that you don’t have a problem with teenagers or even children having the same _basic_ rights as adults, even though if we were to try and shoehorn the two groups in the same box, problems may arise and I assume that you are happy with the courts making the call as to which rights for a teen are basic and which might necessarily cause problems if the notion of basic rights were extended to everything. If you feel comfortable with that, why are you so afraid of asking the courts to make the necessary distinctions that might come into play in this area?
Because I have seen a court decide that the PGA cannot determine that walking is part of the game.
And I disagree that the Constitution calls for children to be treated as adults. If we had an Equal rights amendment for age, I think we would see a lot of different results.
Well,from Findlaw
The PGA’s inability to cite rules or other written evidence to suggest that walking is an essential part of the game of golf was fatal to its arguments that providing Martin a golf cart would fundamentally alter its competitions.
This is not to say that I agree or disagree with the decision. But the ruling only applied to Martin, so any other disabled golfer who could qualify for the Tour and then needed transportation assistance would have to file a separate suit. I’m not an avid golfer, but I when I’ve seen Tour events, they haven’t been flooded with golfers riding around on carts, so if a decision involving one single golfer in special circumstances is all it took to have you change your mind, it suggests you already had it made up to begin with.
Also, note that I didn’t say that the constitution calls that children be treated the same as adults, I said children were granted the same “basic” rights. Which constitutional protections are withheld from children? And in what cases has the court erred in finding that children have some protections that they shouldn’t have?
Hartmut said
I am all for equality including the military provided there are (modest) clauses on maternity. But I don’t think that any military command would sent visibly pregnant women to the (fighting) front anyway..
This raises an interesting point. Should the military fund development of a reliable Norplant type implant and require deploying women to take it? Right now, for a deployed woman in the US military, pregnancy is like shooting yourself in the foot without the negative career consequences (UCMJ action for malingering or self-mutilation). One female in my unit elected this means of ending her tour early. She was sent home with no negative career consequences while the rest of us sit in Iraq. IIRC there was an incident in the first Gulf War where roughly 60 women became pregnant on the same ship shortly after it was ordered to head for the gulf. That was roughly 5-10% of the crew.
This issue needs to be addressed if women are going to be fully equal in the military. It is also worth considering for men. Although the direct readiness impact applies to women, there are other problems that could be avoided. If men had received equivalent implants in Vietnam, the whole Amerasian children issue could have been avoided, for example.
Jack Robles: All that implementing the types of rules that jrudkis describes would do is make it so that women don’t get hired in the first place.
Employers kept threatening that, yes: “If you force us to treat women justly, we just won’t hire women!”
Didn’t work out that way.
Donald Clarke: Should the military fund development of a reliable Norplant type implant and require deploying women to take it?
Providing the military also funded development of a reliable Norplant type implant for men, and required both deploying men and women to use it, that would be legal under the ERA, I think.
It would also probably help if the military didn’t have a ban on providing full health care for women, thus requiring a woman who is pregnant somewhere she can only get health care on the military base, to be posted back to somewhere she can get an abortion.
The problem with the amendment is that there are differences between men and women, and trying to shoehorn the two into the same box is not good for either sex.
jrudkis –
This is actually a good point, and thanks for raising it.
There are, in fact, clear and obvious differences between the genders. Women get pregnant. Men have, on the average, greater upper body strength. That is biology, and it is not going to change.
It’s also clear that there is a cottage industry in folks gaming the legal requirement for equality under the law for frivolous or harmful purposes. Friends of ours who started a very popular chain of women-only gyms spent years and many thousands of dollars fighting a lawsuit brought by a guy who insisted on his “legal right” to join the one near his home. He never attended the gym, had no real interest in doing so, he just wanted to make a point.
There are, generally, simple and common sense solutions to things like this. Job requirements can generally be spelled out explicitly, and you either measure up or you don’t. Single-sex colleges, gyms, and similiar institutions should be allowed to exist, especially when mixed-gender alternatives are readily available.
Unfortunately, we all know that simple and common sense solutions don’t always prevail. Useful and beneficial institutions — your sister’s college, my friend’s gym — may be forced to change in ways that undermine what makes them uniquely valuable. Important job requirements may be watered down so that otherwise unqualified candidates can qualify.
You’re right, these things happen.
What I want to say here is that every public policy and action is vulnerable to abuse and distortion. If something like the WEA is passed, that will happen. And, if something like the WEA is *not* passed, that will happen.
In my opinion, the value of the WEA would be to make explicit, as part of the Constitution of the US, the principle that women are equal to men under the law. It removes that principle — not necessarily the practice, but the principle — from the vagaries of political fashion, and makes it explicitly part of what we embrace as a nation.
Maybe we’ve come so far in the last 40 years that that’s redundant. If so, great, and if so, there is no harm in making that principle explicit.
I have no question whatsoever that, if such an amendment were passed, a generation of creative legislation and lawsuits would follow, like mushrooms after the rain. Some would have a lot of merit. Some would be frivolous or worse. For better or worse, that’s the way we hammer out our issues here. That’s the way we work out the meaning, interpretation, and limits of what we claim to believe.
But the bedrock of all of this is what, in fact, we claim to believe. To me, the idea of making it explicit that one of the things we believe is that men and women are equal under the law is a no-brainer, and long overdue.
Thanks again for your thoughtful comments.
Liberal J,
That is the point. The Court can with children use some common sense when deciding what is right with regard to age. It is not applying strict scrutiny. For example, currently it is illegal for adults under 21 to have alcohol. Under a strict scrutiny test from an age equal rights amendment put forth by someone 20 years and 9 months old, how would that law fair? I don’t think that under strict scrutiny, it could pass, because it is arbitrarily punishing a group of adults who have not done anything wrong.
Similarly with driver’s licenses, where some states allow them at 16, others at 17, NYC at 18 (I think). How could that disparity stand up to strict scrutiny where there is a equal right to not be discriminated upon based on age?
Russell,
Thanks for your comments as well. I am not against the WEA in principle, and would most likely vote for one if given the option, but I want a clearer idea as to the breadth of what it would mean. So I agree that no action is still a decision, and that we will continue to have challenges that are frivolous either way, but putting a strict scrutiny test on the Court’s decision seems to me on the face of it to eliminate a lot of the flexibility in the law that I value with regard to opportunities for my kids.
We actually have a committee where you can file complaints before you to court. But the infringement has to be serious; thus we still have women-only fitness clubs & more child-care opportunities for women in some circumstances, etc. The fact that discrimination on the basis of religion is forbidden also doesn’t mean that religious schools cannot exclude students who are not religious enough (happened with a.o. a protestant collega and a jewish highschool).
We have women in the army, but (like the USA) not many (I assume NATO figures are representative).
In the 2005/2006 report (Dutch pdf) of our Government Emancipation Review Committee they said that culture in the army is still not welcoming for women, but things are improving slowly. Because in the future it might be hard to meet recruitment targets (aging population) it is important to make the army more women-friendly now.
Fysical requirements should be reviewed again, since they are often theoretical and higher then requirements in practise. The role of women soldiers in peace missions is important, for contact with local population but also because mixed teams perform better. Giving men with children under 4 the option to stay home (as women have) might not be feasable in practise, since the effect on operability is too high, but should be studied. U-boats are still entitled to have male-only crews.
If pregnancy is that easy to achieve for female soldiers, maybe the male soldiers should use more condoms.
I take it you feel exactly the same way about the honesty and contemptability of those who proposed the various anti-gay-marriage amendments that are now being used to prevent same-sex civil unions?
Not sure what you mean. Anyway, the gap between “not recognizing gay marriage” and “not recognizing gay civil unions” is little more than semantics. The gap between “be nice to women” and “courts mandating gay marriage” is very wide, and if proponents of the ERA try to pretend in public debate that their amendment has nothing to do with gay marriage, then that is simply a lie.
[I]f proponents of the ERA try to pretend in public debate that their amendment has nothing to do with gay marriage, then that is simply a lie.”
No: we’re saying we don’t care if the ERA helps get gay marriage leaglized.
Oh, heck – my apologies, and please turn off the italics.
That’s the second time John Doe has dismissed an Amendment declaring it illegal to discriminate on grounds of gender as “being nice to women”. I really shouldn’t have to say how offensive this is – not that it’s a big shattering offense, just one of those nasty little steady driblets, implying that equality legislation is something done to women, that equal civil rights are “being nice”. Would John Doe describe the 14th Amendment as “being nice to blacks”?
What Jes says!
I also think the chance that the courts will mandate gay marriage is rather slim.
Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex
What is the freaking problem with that? Exactly what? jrudkis, john doe, please advise.
In theory, nothing. In practice: (1) No one has yet identified any pressing social problem that either currently exists or is realistically on the horizon, and that would be solved by this amendment. Indeed, state governments are more likely to give preferential treatment to women, rather than to discriminate against them. What is it that liberals always say about needlessly tinkering with the Constitution every time a conservative proposes an amendment about any subject whatsoever?
2) Out of the ways that the ERA might have any effect at all, some could be surprising and mischievous. Not perhaps to you folks, but at least to many average Americans who might be fooled into voting for the ERA.
Forget the military, gay marriage, and bathrooms for a minute. How about classrooms? You can’t have single-race schools or classes, not by official policy. That’s segregation. That’s bad. But there’s a very good argument that some girls and some boys might do better in single-sex classrooms. That argument might be right or wrong; I don’t care at the moment. But this is not even remotely the same thing as racial segregation. (The case mentioned above about the womens-only gym is a perfect example — there’s no good reason to have a whites-only gym, but lots of good reasons to have a womens-only gym — they’re just not the same thing.) I’m not sure why we want litigants with an ax to grind to be able to halt a potentially useful educational device by running to a judge.
The problem with ERA proponents, at least here, is that you’ve got your head in the clouds. No one has come up with any affirmative reason to support the ERA other than, “Gee, I like equality.” OK — abstract equality — a great idea. But constitutional provisions like this are not aspirational. Putting it in the Constitution will have only one effect — to give litigants grounds to file a federal lawsuit about anything and everything that might happen to give slightly different treatment to men vs. women. You name it — bathrooms, classrooms, sports teams, the military. Not all of these lawsuits would actually win — judges might show some common sense, after all — but lawsuits don’t have to win to have an effect. Doesn’t everyone admit that there are lots of areas of life where there is at least a reasonable debate about whether to treat the genders in exactly the same way? Why do we need to constitutionalize it?
That’s the second time John Doe has dismissed an Amendment declaring it illegal to discriminate on grounds of gender as “being nice to women”.
Your offense is due only to your own misreading. When I said “being nice to women,” I wasn’t describing my own view. I was describing the way in which proponents of the ERA try to sell it to the public. “You should vote for this, because if you don’t, you’re not being nice, you’re being hateful to women.”
Rather than honesty: “You should vote for this, because we want to sneak in something that at least some judges would use to mandate gay marriage; that some people will use to file a federal lawsuit over every high school girl’s basketball team that doesn’t let boys play (and probably take over the entire team); and that will have all sorts of unintended consequences.”
Not perhaps to you folks, but at least to many average Americans who might be fooled into voting for the ERA.
It’s unlikely many average Americans will be voting for the ERA, aside from average Americans who hold seats in state legislatures.
The German constitution does it simply
The last sentence was added recently.
With the military it is a bit ambiguous because that was not an original part of this 1949 document (for obvious reasons).
Until recently it was: Men are drafted and women are banned (except in non-combat health-related positions). The Supreme Court used this shaky solution of double (=both sexes)disadvantage in order to not openly violate Article 3. Now the situation is completely open because the European court declared the ban on women as a human rights violation but neither a female draft nor a dropping of the male draft is politically enforcable at the moment. Thus in the strict sense the German military discriminates against men at the moment (involuntary service for men, voluntary service for women).
To my knowledge there is currently only one woman with the military rank of general and that’s in the medical department.
You can’t have single-race schools or classes, not by official policy. That’s segregation. That’s bad.
IANAL, but my understanding is that “separate but equal” was dismissed by the court in Brown because, in practice, it was not equal. It provided a way for a racist society to continue to practice racism, and therefore dismantling segregation was by far the easiest solution to the problem. (Much easier than, say, mandating ‘equal’ schools and then producing metrics to monitor that equality).
That does not necessarily imply that equality before the law cannot be achieved without the removal of any (gender-based) segregation. I find it profoundly unlikely for example that a male would be able to compel a school to let him participate on a female sports team when a male equivalent was available.
Not all of these lawsuits would actually win — judges might show some common sense, after all — but lawsuits don’t have to win to have an effect.
I suspect that they’re likely to neither win nor have a significant effect. Here, we’re just going off of our own distinct sense of how things work. For example, I think the ADA has been a net good for society & hasn’t produced an onerous load of frivolous lawsuits to the point of harming society.
JD- I don’t know what that last bit was, but Im pretty sure that “honesty” doesn’t mean “belittling your own arguments to the point of absurdity”.
We appointed our second female general last week ;), she’s currently in the US working on the JSF program.
John Doe: I gave all the Dutch examples to show that, in spite of having an ERA for years, we still manage to have seperate rules for men and women if there is sufficient reason. Just like the Jewish school can refuse to admit children that are not Jewish enough, even though discriminating religions is forbidden. And that Jewish school for instance *has* seperation of gender (and thus very very small classes). I can also still visit my women-only gym if I want to, or join a whole range of women-only clubs. We even still have a political party that has a party program which says that women can’t have govern.
that last sentence should either be ‘can’t govern’ or ‘can’t have governmental positions’.
“You should vote for this, because we want to sneak in something that at least some judges would use to permit electronic transmission of people performing explicit and unconventional sex acts; that some people will use to file a federal lawsuit over every instance of not being allowed to coerce people into participating in a Christian prayer; and that will have all sorts of unintended consequences.”
“You should vote for this, because we want to sneak in something that at least some judges would use to permit the exclusion of condemning criminal evidence; that some people will use to file a federal lawsuit over every instance of being asked to open theiir backpacks on the subway; and that will have all sorts of unintended consequences.”
Seriously, what is your obsession with gay marriage, John Doe? Are you seriously afraid someone is going to force you into one? (That is, after all, what “mandating” means.)
From waaaaaaay up-thread:
speaking as someone who was once the best player in the sub-aqua hockey team
Well, that’s easy when you’re a giant blue insect! Was your team motto “Spoon!”?
PS: Via PZ Myers at Pharyngula, here is a perfect example of why we need a Federal Equal Rights Amendment. Short version: The city manager of Largo, Fla., who by all accounts is good at his job, is being fired because he is becoming a she. This should be patently illegal, in my opinion. (The firing, not the gender reassignment.) Can anyone explain to me why it should not be?
I can see it being illegal to fire someone because he had gender reassignment generally, but I think a city can fire its manager for bringing unwanted press on the town, and causing the town problems, regardless of why the press happened.
Jrudkis: I can see it being illegal to fire someone because he had gender reassignment generally, but I think a city can fire its manager for bringing unwanted press on the town, and causing the town problems, regardless of why the press happened.
So if someone (not the town manager) had horribly murdered the town manager’s wife, and this had brought unwanted press on the town and caused the town problems, it would be legal to fire the town manager?
Seriously?
Yes. In America generally, you can fire someone for any reason or no reason, it just can’t be an illegal reason. It is not illegal to fire someone because their wife was murdered.
Phil: Seriously, what is your obsession with gay marriage, John Doe? Are you seriously afraid someone is going to force you into one? (That is, after all, what “mandating” means.)
Perhaps he’s thinking about what happened in Massachusetts.
PS: Via PZ Myers at Pharyngula, here is a perfect example of why we need a Federal Equal Rights Amendment. Short version: The city manager of Largo, Fla., who by all accounts is good at his job, is being fired because he is becoming a she. This should be patently illegal, in my opinion. (The firing, not the gender reassignment.) Can anyone explain to me why it should not be?
But the ERA wouldn’t necessarily address that. If the city says, “Men are fine; women are fine; but people who get reassignment surgery are not,” that’s not discrimination on the grounds of gender. It may be discrimination on the grounds of mental disability, but that’s a different thing.
I find John Doe’s argument — that the ERA should be opposed because it would be stealth legalization of same-sex marriage — refreshingly honest, actually. He is acknowledging what I have long felt to be true: that opposition to same-sex marriage is about maintaining gender inequality, specifically male dominance.
That’s why I’m in favor of SSM, though I am married to a man: because SSM undermines traditional (that is, patriarchal, female-subservient) gender roles, and that benefits me. And my daughters, and most other women, and even most men, in the long run.
So I think John Doe is right: SSM and the ERA *do* run together, they are two facets of the same thing. I just think that thing is “women being treated as equally worthwhile human beings”, and I think it’s been coming since the 19th Amendment.
But the ERA wouldn’t necessarily address that. If the city says, “Men are fine; women are fine; but people who get reassignment surgery are not,” that’s not discrimination on the grounds of gender. It may be discrimination on the grounds of mental disability, but that’s a different thing.
1. So, the ERA, preventing gender-based discrimination, would somehow magically result in gay marriage, but not actually prevent discrimination on the grounds of a matter that clearly has to do with gender? How, exactly, does that work again?
2. Nice to discover you’re actually kind of a bigger schmuck than I would have guessed. (I like when my basic misanthropy is confirmed in spades like that.) Oh well, no need to engage with you in the future, since you clearly don’t argue in good faith. Watch out for the gays!