Justice Scalia Makes the Case for E.R.A. Ratification

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(WOMENSENEWS)–Supporters of the Equal Rights Amendment should give U.S. Supreme Court Justice Antonin Scalia a standing ovation right about now.

In widely quoted comments in the current issue of California Lawyer, Scalia said the equal protection clause of the 14th Amendment to the Constitution does not protect against discrimination on the basis of gender.

That boils down to the idea that women are not part of the Constitution.

Bravo! That’s just what supporters of the Equal Rights Amendment, known as E.R.A., have been saying for years.

The E.R.A. is rather simple. It would guarantee the equality of rights under the law not be denied or abridged by the United States or by any state on account of sex. It gives Congress the power of enforcement.

Those who follow Scalia’s decisions barely raised an eyebrow at his latest comments. He showed his view on sex discrimination in 1996 when he cast the sole vote in favor of the Virginia Military Institute’s ability to discriminate against female applicants. Overall, his statements are less alarming than the media have trumpeted.

The 14th Amendment was ratified in 1868 as part of the Reconstruction Amendments and was the basis for the 1954 Brown v. Board of Education decision, leading to the dismantling of segregation laws in the South.

Support Not Universal

In recent decades, the Supreme Court applied the amendment to laws that discriminate against women, although support for this interpretation is not universal.

Other judges have not reinforced the application of the 14th Amendment to women’s rights.

The E.R.A. was introduced in 1923 into both houses of the U.S. Congress, which finally passed the legislation in 1972. Initially, ratification proved relatively easy as states rushed to approve the amendment.

Progress slowed by the late 1970s and growing forces rallied against its passage. The national fight for the E.R.A. was considered dead in 1982 when a ratification vote fell short by three states of the 38 states needed.

At that point, the seven-year time limit imposed by Congress had expired and all seemed lost.

But a legal strategy to revive the E.R.A. was developed after 1992, when Congress ratified the 27th Amendment to the Constitution 203 years after its passage, opening the way for a similar time frame for E.R.A. ratification.

In recent years, several states have added their own E.R.A. to their constitutions, and many of the arguments against the ratification, such as women in the military and same-sex marriage, are no longer relevant.

15 States Remain

Currently, 15 states have not ratified the E.R.A. They are Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah and Virginia.

Since 1995, bills have been introduced in six of the unratified states. Proponents for the E.R.A. point out that every constitution in the world written after World War II includes an E.R.A.-like statement that men and women are equals.

Scalia’s colleague Justice Ruth Bader Ginsberg, a strong E.R.A. proponent, has urged citizens to lobby for the amendment’s passage.

"I would write the lawmakers of the United States in Congress and in the states to perfect the fundamental instrument of government in this regard for the sake of my daughter, my granddaughters and all the daughters in generations yet to come," she said in the 1998 documentary "The Equal Rights Amendment: Unfinished Business for the Constitution." "I would like to see in our Constitution this clarion statement of bedrock principle–equal rights shall not be denied or abridged on account of sex."

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Kimberly Wilmot Voss, Ph.D., is an assistant professor in the Nicholson School of Communication at the University of Central Florida. She studies the media’s representation of women, including coverage of the Equal Rights Amendment.

For more information:

California Lawyer interview with Justice Scalia:

2 thoughts on “Justice Scalia Makes the Case for E.R.A. Ratification

  1. I agree with Ms. Voss and Justice Scalia that the Constitution does not support women’s right to equal protction of the law. There is much to be learned, however, from both the Suffrage and ERA campaigns to inform future actions toward gaining a decisive constitutional prohibition of sex discrimination against women. (Discrimination against men is uncommon and is generally corrected under the equal protection guarantee.) See http://www.equality4women.org for critical analysis of many outstanding ERA issues such as the “Three State Strategy,” and primary sex discrimination targeting women’s unique reproductive organs: pregnancy, prostitution, and pornography. All such issues address the need to define equality measured against a human standard including women’s needs, not just men’s needs.

    Other reactions to Justice Scalia’s views show that political preoccupations have led to wide misunderstanding of constitutional reality.

    In fact, you can do electoral/legislative politics or you can do human/civil rights advocacy, but you can’t do both at the same time without failing miserably at both.

    The latest demonstration of the accuracy of this maxim was a rally held at the nation’s Capitol by some politicians and women’s rights leaders to protest Justice Antonin Scalia’s statement that the 14th Amendment does not prohibit sex discrimination. In fact the Amendment itself overtly discriminates by sex through counting only “male citizens” in the second section. This sex discrimination was not an accident, but deliberately designed to exclude women from protections for “persons” and “citizens” in the first section.

    Accusing Scalia of “sexism” for telling the plain truth, NOW’s president announced renewed determination to pass the Equal Rights Amendment. Come again?? If sex discrimination cases that repeatedly fail or that succeed only because they involve sex discrimination against men are not consistent with men’s historical refusal to allow women the constitutional protection that they guarantee for themselves, why call for a constitutional amendment?

    As a further example of the constraints imposed by political friends of the women’s movement, Representative Carolyn Maloney, who seconded the demand for an ERA, would exclude legal barriers to abortion as a primary form of sex discrimination to be constitutionally prohibited because “It’ll never pass with that on it.” (The same argument civil rights politicians used to exclude rape from hate crimes legislation.)

    Instead of catering to the self-serving women politicians, lawyers and academicians who have been shielding American women from the truth all these years, rally participants should have been thanking Scalia for making the factual case for a strong Equal Rights Amendment.

    The Seneca Falls Conference got it right in 1848: “Resolved: That the women of this country ought to be enlightened in regard to the laws under which they live that they may no longer publish their degradation by declaring themselves satisfied with their present position, nor their ignorance by asserting that they have all the rights they want.”

  2. I could almost believe an ERA amendment would be superfluous BUT then I remember in 2010, (2010!) Justice Scalia stated that 14th Amendnent CANNOT be interpreted as prohibiting discrimination on the basis of gender. And by his own reasoning he found that the Constitution and all of it’s rights and protections cannot be extended to women without a specific amendment. (California Lawyer September 2011, reprinted at http://legacy.callawyer.com/2016/02/antonin-scalia-2/

    Enough to quiet those who insist the 14th amendment and the Constitution in its entirety applies to women. When a Supreme Court Justice says it doesn’t, then clearly it doesn’t .