For years, critics have claimed that women don’t need the Equal Rights Amendment (ERA) because the Supreme Court has secured women’s rights under the 14th Amendment’s Equal Protection Clause.
In 2000, under the Violence Against Women Act (VAWA) —a law that allows survivors a civil rights remedy to sue their assailants for gender-based violence in civil court—Christy Brzonkala, a then-college student, sued the two men who allegedly gang-raped her on the Virginia Tech campus in Blacksburg, Va., roughly six years prior.
The alleged assailants countered, arguing VAWA, the new law, was unconstitutional and that Congress had no power to pass it. Almost every court to hear their constitutional claim rejected it—until the case reached the Supreme Court where, in 2000, women’s right to equal protection from violence died in the case United States v. Morrison when the Court ruled that Congress had no power to protect women from violence because crime is a matter for the states.
There are many reasons to fight for an Equal Rights Amendment to the Constitution. But Brzonkala’s case offers a particularly poignant one.
But What About the 14th Amendment?
Morrison proves the “protection” provided by the 14th Amendment’s Equal Protection Clause is partial at best.
At the time it was ratified in the 19th century, no one thought that the 14th Amendment protected women; its purpose was to end slavery. Thanks to pioneering lawsuits by Ruth Bader Ginsburg in the 1970s, women did gain a measure of equal rights under the 14th Amendment, but lawyers know that those victories were limited.
After the Civil War, the Supreme Court cut back on the meaning of equality under the 14th Amendment, creating a series of precedents that would support segregation in the South for almost 100 years. As a result of these rulings, Black Americans could sue to declare a law unconstitutional or a state official’s actions unconstitutional, but private individuals and entities were not covered under the amendment. Segregated businesses and water fountains and even lynching could flourish if conducted by “private actors.”
To pass the 1964 Civil Rights Act (which includes Title VII), Congress had to work around those 19th-century apartheid-supporting precedents. Congress claimed the power to end segregation under an entirely different part of the Constitution: the Commerce Clause.
It was not a particularly satisfying fiction. Why should your right to equality depend upon whether you were at work?
In Morrison, however, the Supreme Court rejected even the “commerce” workaround. The justices drew a bright-line rule: Brzonkala’s rape was a crime, not commerce, and therefore Congress had no power.
And the 14th Amendment? The Morrison decision shut that down too, declaring there is no equal protection right to be free from gender violence. The Court explained that the “amendment erects no shield against merely private conduct, however discriminatory or wrongful.”
The work done by Ginsburg focused on state laws that expressly discriminated—laws that, for instance, prohibited women from administering estates. Such laws were actions by the state.
Morrison was different: The question was whether Congress had the power to create a federal civil rights remedy based on states’ failure to act to remedy gender discrimination.
Ironically, states’ failure to act was the entire point of the 14th Amendment—to protect Black people from lynching and apartheid during Reconstruction when state officials looked the other way.
It was the Supreme Court, not Congress, that had narrowed the 14th Amendment in the civil rights cases. And as a result, Jim Crow flourished.
Private actors lynched: The 14th Amendment did not apply. Private actors raped: The 14th Amendment did not apply.
When I went to law school, I was taught that these civil rights cases were a font of despair and evil: They sustained vicious anti-Black discrimination for nearly a century. In the 1970s, some members of the Supreme Court suggested that the cases should be overruled.
Yet in the year 2000, in Morrison, the Supreme Court revived them. Cases that reenslaved Black people in the 19th century were used to limit Congress’ power to free women from gender violence in the 21st. Private actors lynched: The 14th Amendment did not apply. Private actors raped: The 14th Amendment did not apply.
The problem with that approach, of course, was that state law was the problem, not the solution. Morrison’s logic—that Congress was not the proper lawmaker—depended upon the idea that women had a remedy for rape and sexual harassment under state criminal and civil law. Congress, and the mountain of evidence it collected, contended they did not.
Common sense suggests that the Court’s assumption was untrue then, and remains untrue today. If state laws were enough to deter such violence, why did 19 million women post #MeToo on Twitter in one year, 17 years after Morrison was decided?
The answer lies in the fact that neither state criminal nor civil “tort” law was ever intended to ensure gender equality—both were created in eras in which women were legally invisible. State criminal law remains mired in assumptions that befit a barroom brawl but not a progression of sexual harassment or predation. Evidence rules bar the use of a “pattern” of evidence in many civil and criminal cases.
If state laws were enough to deter such violence, why did 19 million women post #MeToo on Twitter in one year, 17 years after Morrison was decided?
Recent attempts by state legislatures to reform these laws, with particular focus on sexual harassment, may have made the situation worse.
Harassment law has always focused on the workplace—meaning that your rights start when you clock in and stop when you clock out. But most sexual assaults do not occur on the job. Some of the new laws, built partially on a harassment framework, mean that survivors face barriers depending on whether the assault took place at work, whether the business had enough employees, whether medical malpractice limits apply, whether worker’s compensation is the proper remedy, whether churches are immune from suit—not to mention confidentiality clauses that keep victims silent and arbitration agreements that keep the cases out of court.
Remember Harvey Weinstein? His victims ended up using the lesser-known civil version of a federal law known as RICO (Racketeer Influenced and Corrupt Organizations Act) meant to make it easier for prosecutors to sue organized crime.
ERA Now
Most gains in women’s rights—laws like Title VII and Title IX—have come not from the Supreme Court via the Constitution, but from Congress via legislation.
And since Morrison was decided, the Court has only become more conservative. Now six justices, including former President Donald Trump’s three appointments to the Court, believe in “originalism”: the theory that the meaning of the Constitution was fixed more than 200 years ago in 1787, when women were legally regarded as the property of their husbands and fathers. If strictly applied, originalism would eradicate women’s progress and allow this Court to overturn all the decisions applying the 14th Amendment to women because no one thought women were included in the 14th Amendment at the time it was ratified. Forget about abortion. Under the originalism doctrine, states could pass laws that expressly discriminate based on sex, barring women from jobs and denying equal pay.
The ERA would block that move by placing the words sex and equality in the U.S. Constitution. Even originalists bow to the actual text of the Constitution.
Perhaps more important, the ERA would spark Congress to enact new laws on gender violence, including redrafting the VAWA civil rights remedy, and chart a path to overturn Morrison.
It is long past time to add the ERA to the Constitution—to address this matter and right a constitutional wrong.
This article was adapted from a 2021 article titled “A Devastating Supreme Court Decision on Sexual Assault Shows Why the U.S. Needs the ERA Now.”
See also: “Why Do We Need the ERA? New Decision from the Sixth Circuit Answers the Question“ from Columbia Law School’s ERA Project.
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