The Stealth Amendment

the source: “Constitutional Culture, Social Movement Conflict, and Constitutional Change: The Case of the De Facto ERA” by Reva B. Siegel, in ___California Law Review___, Oct. ­2006.

In 1982, as time ran out on the drive to ratify the Equal Rights Amendment (ERA), supporters fought desperately to win over the necessary last three states. They appealed to the Supreme Court, sued in state courts, organized marches, sponsored boycotts, sought extensions, and fended off efforts to rescind state ratifi­cations. And when their efforts finally fell short, they reintroduced the legislation. All for ­naught.

Except that some scholars now believe that America has a de facto ERA, according to Reva B. Siegel, a Yale law professor. The unsuccessful fight to pass and ratify a consti­tutional amendment to prohibit discrimination on the basis of sex so changed the “constitutional culture” of the country that courts, and even conservative judges, began inter­preting the existing Fourteenth Amendment as if it did forbid such discrimination.

“There is no practical difference between what has evolved and the ERA,” Siegel writes, quoting Jus­tice Ruth Bader Ginsburg from a newspaper article. “As a result of dra­matic post-1970s changes in judicial interpretation of the equal pro­tection clause,” University of Chi­cago law professor Cass Sun­stein wrote in The Second Bill of Rights (2004), “the American constitution now has something very much like a constitutional ban on sex discrimination.”

In the first century after the 1868 ratification of the Fourteenth Amendment, which guarantees equal protection under the law, “no court interpreted the Constitution to prohibit state action favoring men over women,” Siegel writes. Governments could—and ­did—­bar women from practicing law, exclude women from juries, and prohibit women from working in the same occupations as men. Without exception, courts found the prohibitions to be perfectly reasonable exercises of public ­power.

The fight over the ERA reversed this, according to Siegel, not by changing the Constitution but by changing public opinion. But the ferment surrounding the amend­ment was not an unqualified victory for the women’s ­movement.

During the ratification debate, substantial numbers of Americans became concerned that by signing on to an ephemeral promise of sexual equality, women would lose the concrete protection the law pro­vided in the workplace, during pregnancy, after divorce, and throughout ­child rearing.

ERA opponents seized these issues. Their powerful arguments forced amendment supporters to back off from claims that women should be treated as strictly and totally equal. Soon the ­pro-­ERA group embraced the notion that women’s “unique physical characteristics” could entitle them to disparate treatment in certain circumstances, because only females, for example, could get pregnant.

At the same time, the supporters’ arguments had a countervailing effect on the opponents of the amendment, who began to stress their profound support for the principle that women should be “equal citizens.”

As the debate raged, with each side characterizing the other’s position in the most extreme negative fashion and more narrowly describing its own, the Supreme Court itself, absent the ERA, stepped into the sex discrimin­ation arena. In 1971, the Court ruled that an Idaho probate court was wrong in automatically choosing a man over a woman to administer an estate, and that the hus­band of an Air Force lieutenant was entitled to be treated the same as a wife in determining employee benefits. These repre­sented the first times the Court held that the Fourteenth Amend­ment protected women from dis­criminatory treatment by state or military ­officials.

Many other rulings have fol­lowed. Even Chief Justice William Rehnquist, one of the early critics of the ERA, eventually came to en­dorse its principles, Siegel says. In one of his last cases, he wrote that a state had unconstitutionally dis­crim­inated against an employee based on a ­“sex-­based overgeneralization” that women, not men, were caregivers for the ­sick.