By Ann MacLean Massie, professor of law emerita at Washington & Lee University. Reprinted from TheRoanoke Times, February 6, 2019.
Editors’ Note: This Wednesday, February 20, the House of Delegates is scheduled to consider whether to vote on ratifying the ERA in Virginia. The legislative session ends for the year on Saturday.
As a retired Constitutional Law professor, I feel compelled to respond to the blatant inaccuracies in the opinion piece published by The Roanoke Times on Jan. 17 by Victoria Cobb and Marjorie Dannenfelser. Their column, “Women should beware of the E.R.A.” claimed that ratification of the Equal Rights Amendment, now coming up again for a possible vote, would be dangerous for women, and, indeed, would undo many of the statutory non-discrimination protections enacted by Congress. Such a claim totally misconstrues the nature of the Constitution and its role in our national life. Cobb and Dannenfelser overlook the key fact that, other than the Thirteenth Amendment (which prohibits slavery and applies universally in the U.S.), the Constitution applies only to government conduct. If the E.R.A. were to become part of our Constitution, it would mean that government (federal, state, local) and all government actors (employees of government) would have to accord equal rights to all people, regardless of their gender. That would say nothing at all about the behavior of private entities and actors, such as private employers and private institutions, such as churches.
Included in that column were numerous assertions of specific effects that simply do not hold true. The women spend over half their space on the abortion controversy, concluding that “ERA would [enshrine] in our Constitution a right to abortion on demand, paid for with taxpayer dollars.” Under current law, any adult woman has the right to decide to have an abortion pre-viability. The ERA says absolutely nothing about it. If the current abortion cases were overruled, the controversy would again devolve to the states. Other medical procedures are prohibited by law (such as a right to physician aid-in-dying, protected in a few states but prohibited in most), and presumably, abortion could be, as well, absent its current protections under the due process clauses of the Fifth and Fourteenth Amendments.
Cobb and Dannenfelser further claim that “ERA would open up a host of unintended consequences,” possibly breaching the inviolability of “sex-segregated sports teams and prisons, as well as personal privacy in bathrooms, locker rooms, hospital rooms, nursing homes and other traditionally female-only spaces.” I cannot imagine what leads them to such speculations. Constitutional equal protection regardless of sex would not require mixing of persons of different genders in any of those facilities (even those owned or operated by government), any more than coeducation at VMI led to mixed bathrooms there or affected the single-sex policies of Hollins and Sweet Briar.
Similarly incomprehensible is the column’s assertion that “Title IX, which guarantees women equal opportunity in collegiate sports, would be rendered meaningless.” The truth is that the great freedoms protected from government intrusion by the Constitution are fleshed out and applied to private actors, as well as public, by federal statutes prohibiting discrimination based on race, ethnicity, origin, sex, religion, and even age and disability (not mentioned in the Constitution). To say that any of them would be somehow nullified, or even modified, by the ERA makes no sense at all. Finally, Cobb and Dannenfelser raise the specter of judge-imposed sameness of treatment on houses of worship. Nothing could be further from the truth. Freedom of religion is specifically protected by the First Amendment. Title VII of the Civil Rights Act of 1964 contains a specific protection for religious institutions that limit their leadership to a single sex, exempting those positions from the general requirement of non-discrimination in employment.
People need to hear the accurate story of what the ERA would and would not do before they make up their minds about whether their state legislature should vote to ratify the ERA’s provision 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.”
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