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.


Kimberly Wilmot Voss, PhD, is an assistant professor of journalism at the University of Central Florida. She studies women and newspapers in the 1950s through the 1970s. She examines the women who worked in journalism at that time, as well as the media’s representation of women. This often means looking at the early years of the women’s liberation movement. She has published numerous academic articles in these areas. She is currently writing a book about Dallas women’s page editor Vivian Castleberry.