A New ERA, But What Does “Equality Of Rights” Mean?

We went out of town for several days. That (along with flu-recovery) is my excuse for not saying something earlier about the recent notices of the Democrats’ decision to re-introduce the Equal Rights Amendment, now re-named the Women’s Equity Amendment.

The name has changed — more about that in a moment — but the operative words remain the same:

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

What, if any, is the significance of the title change from “Equal” to “Women’s” and from “Rights” to “Equity”?

A serious problem with the new WEA, as with the old ERA, is that even its supporters have trouble explaining what exactly it means. Especially now, after courts have routinely regarded women as “persons” whose rights are protected by the equal protection clause of the 14th Amendment, it appears to be difficult to list practices that are now allowed that could be successfully challenged only after passage of the WEA.

Caroline Fredrickson, who directs the Washington office of the American Civil Liberties Union, said that “it’s hard to predict” how courts would interpret the amendment. But she said it is more likely the ERA would allow women to sue for higher pay and other benefits.

When Ms. Fredrickson says WEA would make it easier for women “to sue for higher pay,” does she mean that the new amendment would constitutionalize the rejected “comparable worth” theories of the 1970s and 1980s? Beats me, and no doubt you as well.

Would WEA require Congress and the states to provide funding for abortions? Would it invalidate state laws barring single-sex marriage? Would it replace Title IX’s requirement of equal funding for men’s and women’s sports with a bar on separate teams for men and women? Would it bar preferential treatment of women, or perhaps even require it?

“Hard to predict,” in short, is a massive understatement.

George Will, as usual, is right on target about the proposed amendment’s opacity:

Most debates about proposed amendments concern whether the amendments are necessary or would be beneficial. Debate about the ERA has always concerned what it might mean. For example, would it forbid treating the sexes differently in pension and insurance plans because of actuarial data about sex-related differences in health problems and life expectancy? Presumably, judges would, over time, tell the nation what it had ratified.

All amendments generate litigation, but the ERA’s purpose is to generate litigation. It is a device to get courts to impose social policies that supporters of the policies cannot persuade legislatures to enact. ERA — now WEA — supporters, being politically lazy, prefer the shortcut of litigation to the patient politics necessary to pass legislation.

All of the above notwithstanding (or perhaps because of all of the above), I welcome the coming debate over WEA. Because some of this debate will coincide with debates over initiatives to bar preferences based on race, sex, or ethnicity that will be raging inside five or so states leading up to election day in November 2008, it will be interesting to watch the spectacle of Democrats and others defending “equality of rights” for women at the same time they denounce as sexist and racist measures such as Michigan’s Prop. 2 that prohibit

state and local government from discriminating against or granting preferential treatment to any individual or group based on race, sex, color, ethnicity or national origin in the areas of public employment, public contracting and public education.

Now, a reasonable person might think that state constitutional provisions barring discrimination against or preferential treatment of anyone based on sex represents the triumph of the equal rights principle of the ERA. (As I argued here, “Michigan … has just passed a state-wide Equal Rights Amendment. Too bad the feminists all opposed it.”) Indeed, any reasonable person should think that. But in every state where proposals embodying this principle have passed — California, Washington, and Michigan — feminists, women leaders, and Democrats (and even some Republicans) have denounced the non-discrimination principle as promoting discrimination against women.

I have written several times (such as here, here, and here) about the historical conflict between two strands of American feminism over the desirability of strict gender equality, between those who sought “protective legislation” for women (limiting hours, working conditions, etc.) and those who sought gender-blind equality.

I urge you, with more force than usual, to look at those earlier posts now, for they are likely to remain relevant as the debate over WEA progresses, in part because one of the oddities of contemporary American feminism is that it has abandoned gender equality in favor of a modern version of the protective legislation feminism that it originally defeated. As I pointed out in the first of the old posts linked above,

The equal rights feminists of NOW … have now (or NOW) abandoned their victory, backtracked, picked up the tattered principles of their vanquished former foes, and are now giving full-throated, often shrill, voice to the notion that women, poor little shrinking violets, must have special privileges to protect them from competition on equal terms with men.

Feminists, of course, are not unique in abandoning the principle that led to their successes. From the same post just quoted:

… [I]n abandoning the gender-blind egalitarian principle that led to their triumph over the “protective legislation” feminists — also known as “difference” feminists, in a familiar twist, because they thought women were not simply “workers with breasts,” as the Marxists were fond of saying, but were purer than men — the gender-blind equality feminists were not unique, or “different.” They simply emulated the abandonment of the principle of race-blind equality and the adoption of pleas for special preferences that characterized the larger civil rights movement.

Thus I look forward with great anticipation to the coming attempt of liberals, Democrats, and others of like mind to explain and justify a Constitutional amendment that purports to provide “equal rights” to women at the same time that they are denouncing initiatives in five or so states that would bar discrimination against or preferences to anyone on account of race, sex, or ethnicity.

It looks as though we may be about to have an often-vaunted “national conversation” on the meaning of equality. I certainly hope so.

Say What?