Thank You, Justice Scalia, for Helping Revive the ERA

Two important events in Washington, D.C., last week illustrate and magnify the continued need to push for passage of the Equal Rights Amendment (ERA) in this country. Following the reading of the Constitution in the U.S. House of Representatives Thursday morning, several representatives and leaders from women’s organizations led a press conference on the east front of the U.S. Capitol, across from the Supreme Court, to remind the public what’s missing from the founding federal document: women. This followed on the heels of U.S. Supreme Court Justice Antonin Scalia’s recent statements in California Lawyer that his interpretation of the 14th Amendment–the equal protection clause–does not include discrimination against women.

These two events might be just what are needed to gain momentum for passage of the Equal Rights Amendment. While the path to ratification is uncertain, interest in the amendment requiring that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex” is growing.

At Thursday’s press conference, two congresspeople directly addressed Scalia’s remarks. Sen. Robert Menendez (D-N.J.), the Senate sponsor of the E.R.A. in the last Congress, said,

Three out of four Americans assume that the Equal Rights Amendment is already part of the Constitution, and many others probably believe that social progress has eclipsed the need for it. But Justice Scalia’s recent comments have made it crystal clear that until equal protection for women is explicitly spelled out in the Constitution, the courts might not guarantee it.

Likewise, Rep. Gwen Moore (D-Wisc.), co-chair of the Congressional Women’s Caucus, said,

It’s a wake-up call when a sitting Supreme Court Justice says there is no Constitutional protection for women against discrimination. Apparently women’s rights are at the whim of the Court and will remain that way without the Equal Rights Amendment.

Scalia’s (mis)interpretation of the 14th Amendment has been used in the past as a reason for passage of the ERA. For example, Roberta W. Francis, chairperson of the ERA taskforce for the National Council of Women’s Organizations, issued a statement on the topic several years ago, noting that it was not until a 1971 case that the Supreme Court applied the amendment to sex discrimination. However, in that and subsequent decisions, the Court declined to elevate sex discrimination claims to the most rigorous form of judicial review, “strict scrutiny,” which the 14th Amendment requires for certain “suspect classifications” such as race. (Under strict scrutiny, the court presumes a law or policy to be invalid unless the government can demonstrate a compelling interest to justify it.)

Scalia is quoted in the California Lawyer that if “society wants to outlaw discrimination by sex, hey, we have things called legislatures.” This is also good news for ERA advocates. They’ve been hard at work in statehouses for years, despite the widespread belief the ERA was left for dead in 1982, three states short of the 38 needed for ratification. In recent years, several states have adopted their own ERAs. Moreover, several things feared to occur with ratification have come to pass anyway, despite the ERA’s defeat. Same-sex marriages are now legal in several states, women serve in the military and unisex bathroom facilities are common in many retail outlets under the label “family restrooms.” Several of the 15 states that have not ratified the ERA have it on their legislative calendars in 2011.

So the ERA’s revival remains a real possibility. Since the 27th Amendment to the Constitution was ratified in 1992, 203 years after its passage by Congress, ERA supporters have argued that Congress has the power to maintain the legal viability of the ERA’s existing 35 state ratifications. Supporters also argue that the ERA’s time limit is open to challenge, because Congress already demonstrated a willingness to extend the original deadline for ratification from 1979 to 1982.

Scalia’s statements and the Republican Party’s push to read the Constitution aloud may be the best thing that has happened for years on behalf of the ERA. As NOW president Terry O’Neill said:

We are way past due for a constitutional amendment explicitly acknowledging women’s rights in the United States. Nothing less will do, as long as sexists like Supreme Court Justice Antonin Scalia feel completely justified interpreting women’s rights as unprotected in the U.S. Constitution.

The fight that began in 1923 may actually become a reality in the near future–and thus women would finally be equal under the U.S. Constitution.

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Photo via Flickr user dbking under Creative Commons 3.0.


  1. Well, I hate to agree but he's right. It is NOT in the constitution and until we get it in the constitution, it will be up for debate! So let's do it already!

  2. Wouldn't it just be better for women in this country if Congress finally ratified the CEDAW treaty? Would we still need the ERA at that point?

  3. It’s long past time for the ERA. Oh, and by the way, transgender people also would be protected by it, right? That would be good.

  4. The ERA is the most powerful tool we'd have to ensure legal equality in this country. Thank you, Scalia!

  5. it's possible that i am ignorant; but i never could understand why so much money is being spent on the equal rights amendment when the only places that the constitution mentions gender are situations that have already been overcome, i.e., serving in congress, facing one's accuser. would it not be a more efficient use of funds, particularly at a time when responsible spending is so important, to find a "test" situation and pay the associated monies to test the constitutionality in the courts? as i said, perhaps i do need enlightenment.

  6. We don't need ERA, what we need is to remove morons like Scalia from positions of power. If that man cannot understand the meaning of the phrase "ALL PERSONS" then he needs to go to a doctor to have his mental faculties examined because women are in fact people.

  7. Women involved in the original protests, 1972-1982 have these two sites for ERA posts, both include our "Without an ERA, we can't perform Jury Duty" protest going on now.

    Facebook group:

    And a blogspot here:

    Join the Protest!

  8. What a disaster it is to have Scalia on the Supreme Court! And let’s not forget Clarence Thomas’ sexual harassment toward his coworker Anita Hill. Now that moron is voting against women’s rights ever chance he gets!

    ERA now!!

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