Neither Left nor Right, but Catholic

 THE EXHUMATION OF THE EQUAL RIGHTS AMENDMENT

  By Stephen M. Krason 

Perhaps some readers have noticed that there is a move afoot in some states to “ratify” a constitutional amendment proposal that people thought had died almost forty years ago. Remember the Equal Rights Amendment, which was a major feminist rallying point in the 1970s? Proposed by Congress in 1972, after the idea had kicked around for fifty years, it quickly sailed through state legislatures and seemed destined for easy ratification. In fact, Senator Birch Bayh, who was one of the main people who spearheaded pushing the proposal through Congress in 1972, had predicted that it would be ratified in two years. It almost was, as the amendment “sounded like a good idea” and generated limited debate or critical analysis. After all, how could anyone dispute 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,” as the amendment stated? Then, as the decade wore on, there were no more ratifications and a few state legislatures even voted to rescind their previous ratification. There was no deadline for ratification written into the text of the amendment, as has been the case with most proposed amendments of the past hundred years, but a seven-year deadline was specified in the preamble to the joint Congressional resolution proposing it. When the seven years elapsed, Congress enacted a controversial three-year extension. That still didn’t help the amendment to meet the constitutional threshold of ratification by three-quarters of the states and it was understood that it died in 1982. That was not disputed even by its most ardent advocates. The defeat of the ERA, by the way, was an example of how one person can sometimes make a world of difference in politics. Most observers agree that if the late faithful Catholic Phyllis Schlafly, who headed the Eagle Forum and Stop ERA organizations, had not been on the scene there is little doubt that the ERA would have become part of the Constitution.

But lo and behold, feminists and their allies—mostly in the Democratic party—have now rediscovered the ERA and claim that there really was no deadline for ratification and are pushing to supposedly finish the job. They also reject the validity of the previous rescissions. The new push started in 2017, when Nevada “ratified” (the quotation marks are appropriate because it is doubtful, to put it mildly, that there is any longer an amendment to be voted on since the deadline passed decades ago). Then in 2018, Illinois—which, despite massive pro-ERA efforts, never ratified in the 1972-1982 period—“ratified.” Most recently, the push has been on in Arizona and Virginia to try to “put it over the top”—with the assumption that the stated Congressional deadline and the fact of the rescissions are irrelevant.

The evidence is all against these new ERA proponents and the media reports that claim that the ERA now needs only one more state ratification to be added to the Constitution. The validity of the original 1979 deadline was obviously understood by Congress—and especially its pro-ERA members—at the time. That’s why, when the amendment couldn’t secure enough state ratifications by then, they moved to extend the deadline. It was also seen by the fact that the Supreme Court, when a federal district court case upholding the rescissions and additionally rejecting Congress’ authority to extend the deadline was appealed to it, refused to take up the case, saying that since the deadline had passed the question was now moot. Indeed, the ERA’s supporters acknowledged the fact in 1982 that it was dead and turned their attention elsewhere. The fact that the deadline did not appear in the text of the proposed ERA was consistent with changed Congressional practice. After the 22nd Amendment, Congress mostly moved away from writing deadlines into the text of constitutional amendment proposals. It instead included them in the resolutions proposing the amendments, as in the case of the ERA. There was no question, however, that Congress intended there to be a ratification deadline for them.

Until the emergence of the current strategy of pretending that the lapsed amendment is still alive, the actions of ERA advocates in Congress since 1982 have shown that they understood that they no longer believed the old proposal was still alive. They have repeatedly introduced new versions of it. Tammy Baldwin, the avowed lesbian Democratic Senator from Wisconsin, introduced legislation in 2011 when she was still in the House of Representatives, to remove the 1982 deadline—implicitly acknowledging, of course, the deadline’s validity. What was constitutionally questionable was whether it would have made any difference had her initiative succeeded. If the deadline ran out, the ERA proposal seemingly was dead and Congress would, by a vote of two-thirds of each house, have to vote a new ERA proposal and the ratification process would have to start anew. If Baldwin’s effort was playing fast and loose with the realities of constitutional amendment ratification deadlines, this current effort to just pick up where things left off as if there were no deadline and no rescissions is even more so. It seems to allow ratification requirements to be made up just as one goes along, allowing a political agenda to be furthered no matter what.

One might wonder why feminists and the left have resumed the push for the ERA now. Indeed, one is unclear about what is lacking about equal treatment under the law for women with the substantial amount of both federal and state statutory and case law in place that provides such guarantees. Abortion is probably a major motivation. A number of national pro-life and pro-family leaders recently sent a letter to the Virginia legislature, when it took up the supposed ratification vote on the ERA, saying that it will create “a constitutional foothold for abortion” that will likely—in light of how certain state courts have interpreted state equal rights amendments—mandate taxpayer funding for abortion. I will add that one wonders if the left’s renewed push for the ERA is not precipitated by the fear that with the changed composition of the Supreme Court it might narrow, if not overturn, the 1973 Roe v. Wade and Doe v. Bolton decisions which legalized abortion on demand for all practical purposes throughout pregnancy. Possibly also stimulating the new push for the ERA has been the “Me-Too” movement, with its claim of a national crisis of sexual harassment and abuse—even though, as I have said in previous articles, it doesn’t define what it is, seems impervious to the problem of false allegations against men, and embraces the very sexual libertinism that gives rise to it. The irony is that it has long been accepted that one of the legal effects of the ERA would be to preclude special protective legislation of virtually any kind for women. That is, in some sense, the very thing that the “Me-Tooers” are seeking.

Finally, one might ask, what is so bad about the ERA? That could be a lengthy article by itself. Besides, its pro-abortion implications, we can list just some of many very likely serious legal consequences (some of these things that the left will now push for they would not even have thought of when the ERA was proposed by Congress in 1972): mandating draft registration for women, and if the draft is reinstituted at any time subjecting women to it exactly as men are; full integration of men and women in military training; no exclusion of women from combat in spite of all the turmoil and tragedy that would lead to; girls and women on the same public school and college sports teams; prohibiting virtually any single-sex educational endeavors, activities, clubs (including fraternities and sororities), or even dormatories in public schools or higher education institutions (private schools and colleges would also be affected because of pressures to follow the norms set by the public institutions); abolish any remaining legal presumptions that the husband has support obligations for his wife; make it more difficult for women to receive child support in the case of legal dissolution of marriage; eliminate any remaining protective labor legislation for women (it is not even clear that pregnancy leave for women in public institutions or pregnancy coverage in those institutions’ health insurance or pregnancy coverage in Medicaid could fend off constitutional challenge); the enshrining of same-sex “marriage” into the Constitution and essentially the entire homosexualist agenda; and the constitutional embracing of the transgender agenda, including access to public restrooms and school locker rooms by people claiming they are of the sex they “identify” with. Some of this would be influenced by the now standard view of the left—which it has also influenced more of a confused and poorly intellectually and morally-formed general population to accept—that one’s sex is a mere socio-cultural construct. We could go on and on about consequences, and any serious consideration of what the left and self-proclaimed civil libertarians now seek makes clear that mentioning these things is in no way “crying wolf.”

It’s time for Americans who are concerned about any further poisoning of the relations between the sexes and respect for the very integrity of the provisions of the Constitution to take notice of the current bald-faced attempt to secure the ERA by stealth and constitutional manipulation and speak up against it. Hopefully, the exhumation of the ERA will be followed by its reburial—for good.

Stephen M. Krason’s “Neither Left nor Right, but Catholic” column appears monthly (sometimes bi-monthly). He is Professor of Political Science and Legal Studies and Associate Director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also co-founder and President of the Society of Catholic Social Scientists and a lawyer. Among his books are: Abortion: Politics, Morality, and the Constitution; Liberalism, Conservatism, and Catholicism; The Transformation of the American Democratic Republic; Catholicism and American Political Ideologies, and a Catholic political novel, American Cincinnatus. This column originally appeared in Crisismagazine.com and may be freely reproduced so long as the place of its original publication is noted. The views expressed here are his own.

 

 

 

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