(WOMENSENEWS)–Last month Maryland’s Court of Appeals agreed to review lower court Judge Brooke Murdock’s ruling that the state’s ban on same-sex marriage violated the state’s Equal Rights Amendment, adopted in 1972.
As a longtime ERA proponent I hope the Maryland Appellate Court will follow other recent higher courts in deciding that same-sex marriage and the ERA are two completely separate issues.
Advocates for a constitutional guarantee of legal equality for women have been working since 1923 for an ERA to our U.S. Constitution.
We have watched as other countries have added similar gender equality language to their constitutions. We have cried "foul" as the U.S. government shamelessly insisted that a statement giving men and women equal rights be included in the new constitutions of Afghanistan and Iraq while denying that same right to American women.
Our campaign is seeking to add these simple words to our constitution: "Equality of rights under the law shall not be denied or abridged because of sex." Yet today we must battle not only long-time opponents of the amendment, but defend this amendment against misinterpretation by those whom most would consider our natural allies.
Maryland’s state ERA has the same wording as the proposed federal amendment, yet in reaching her ruling Murdock decided to side with gay marriage lawyers’ claims that the reference to "sex" includes "sexual orientation." This interpretation of the ERA has been tried before and has been consistently rejected in higher court decisions since 1974.
Ban Applies Equally
Again and again, higher state courts have said that a ban on gay marriage does not constitute sex discrimination because the ban applies equally to women and men causing no inequity on the basis of gender, since neither men nor women are allowed to marry members of their same gender.
The connection between the ERA and gay marriage began in the 1970s, when STOP ERA activists employed it as one of several scare tactics. They depicted the amendment as a threat to the structure of our entire society that would cause social upheaval and destroy the family unit.
Enough lawmakers believed–or purported to believe–the claims that the ERA ratification deadline came and went on June 30, 1982, with only 35 of the 38 required state ratifications.
Now, 24 years after the 1982 ratification deadline, a new campaign to finish ratifying the ERA is well underway. We want to gain ratification in three more states and then challenge the 1982 deadline. Ratification legislation has been introduced in several states–such as Illinois, Missouri, Florida and Arkansas–that never ratified the ERA.
The renewed ERA campaign has riled up opponents who are taking advantage of the same-sex marriage issue’s high profile to once again claim the ERA is a backdoor route to legalizing same-sex marriage.
In a case of strange political allies, anti-ERA and anti-gay marriage activists are teaming up with same-sex marriage lawyers to make the same erroneous claims about the ERA. In early 2005, for instance, gay marriage lawyers in Washington argued before their supreme court that the state ERA rendered a ban on same-sex marriage unconstitutional. Who did they find agreeing with them? None other than arch-social conservative Phyllis Schlafly, founder of STOP ERA, who for 30 years has been declaring the ERA will grant same-sex marriage.
In July of last year, after 18 months of deliberation, the Washington State Supreme Court reaffirmed its 1974 decision and ruled that the state’s ERA has no bearing on gay marriage because the ban on gay marriage affects women and men equally.
This echoed decisions handed down in Vermont in 1999 and in Massachusetts in 2003. Although both those courts found other reasons for siding with gay marriage couples, they both explicitly rejected arguments that a ban on same-sex marriage constituted gender discrimination.
But despite these decisions Schlafly and her Eagle Forum nonprofit group continue to argue that the ERA is a same-sex marriage initiative in disguise.
Cracks in this anti-ERA strategy, however, are beginning to appear.
The Family Research Council, a staunch Schlafly ally, publicly continues to support the spurious proposition that an ERA equals gay marriage. But it is furtively arguing just the opposite.
In the wake of the Washington ruling this past summer, the Family Research Council, based in Washington, D.C., filed a brief in the Maryland case accusing Judge Murdock of using "flawed Equal Rights Amendment analysis" and offering the Washington state decision as proof that the ERA cannot be used to legalize gay marriage. Yet in November, the Family Research Council’s Tony Perkins wrote an article saying that Schlafly is correct when she says the ERA is "an excuse for legalized same-sex marriage."
Unfortunately for our campaign, the ERA is so far off the media radar that no journalists have bothered to connect the dots enough to find Schlafly siding with gay marriage attorneys in one state and the Family Research Council both supporting and not supporting the Equal Rights Amendment in another.
If any were watching, they’d see clearly enough that ERA opponents are in a state of legal inconsistency and getting caught, finally, in their own trap.
Idella Moore is founder of 4ERA.org, a national single-issue, non-partisan organization working to finish ratification of the federal Equal Rights Amendment.
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