ERA Again

"ARTICLE — "Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. "Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. "Sec. 3. This amendment shall take effect two years after the date of ratification."

March is Women's History Month and one thing the House might cover this month besides the voting rights bill is the ERA. 

As we last left this, three states (those necessary for ratification if none of the "backsies" are allowed) voted for the ERA, the House voted to extend the deadline and competing lawsuits either wanted the ERA to be blocked or allowed. The latter as I recall rejected on standing grounds or something on the district court level. So, there is more litigation going on though it might be mooted at some point. 

I don't want to say too much until more developments occur, but as with D.C. statehood, I'm more supportive of ratification. One thing is that a closer look at the text suggests it is not the same thing as the Equal Protection Clause. This curiously seems not to get the attention it deserves, which might explain my past position to some degree. The ERA says "abridging" equal protection. That matters, especially in conservative courts, since it is stronger than mere "deprivation." A strong reading of the Fourteenth (and Fifth) Amendments can bridge the gap, but stronger language matters.  The Fourteenth Amendment itself was ratified in part because it was believed by some the Thirteenth was too narrow to do what the Congress at the time sought to accomplish. 

My somewhat idiosyncratic (not totally so) concern also was that too much time has passed to count the three recent state ratifications. Mind you, I think legally Congress has power to allow for it. Coleman v. Miller and history shows this. And, I don't think revocations should count. But, as a matter of good constitutional policy, which does matter, it concerned me. Still, Congress does provide a national expression of the public will here and the facts on the ground has changed the law anyway. Plus, thirty-five states already ratified originally. It is more a matter of constitutional nicety not to respect that.

The 27A in fact -- though its reach was so much more narrow -- is much more concerning there since most of the ratifications came late. An amendment mostly in hibernation since the early 19th Century really should have been sent back to the states. It would likely have been ratified anyways -- the number of states ultimately (if after formal ratification) would have been enough. And, unlike the baggage of the ERA, who would be against that amendment really? Partially since it really is symbolic, Congress by current law following it anyway. 

The symbolism alone of the ERA is much more debatable, especially again given the nature of the courts and government. Clear text with additional legislative history [a curious question for an amendment ratified over decades but I suppose the history in Congress when the ratification deadline has significant weight]  would have special value here. This would include a wider meaning of "sex" discrimination in recent years, including as to GLBT and gender identity issues. The special effect of clear text here is seen by the signing on of Gorsuch in the Bostock opinion and now with the added value of a more up to date ratification not based passed in the 1960s. Its limited possible effect factored into my thinking.*

As seen here, there is a plan (with at least a few Republicans on board) to reintroduce a measure to extend the deadline.  I will try to keep watch -- there is so much happening -- and update as required. I already added an addendum. More will come.

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* [ETA] One basic thing that still bothers me is singling out one class of people for equal protection of the laws.  It is part of a wider principle -- for instance, we do not single out the types of religion or speech or punishments in the relevant amendments.  

Why should we do it for "sex," even if in the scheme of things this will cover more than a narrow view of the term?  If you press me, this remains a powerful argument, especially when the Constitution right now has the potential to bring in what the ERA offers. Yes, "abridge" matters, especially in more conservative times.  But, if you favor sex specifically, does not it suggest other categories are in some fashion less protected too?

The one basic exemption here is voting rights. The Constitution protects voting rights piecemeal though the Supreme Court ultimately said voting was a fundamental right so deprivation should be given heightened scrutiny across the board.  In recent years, the value of this was somewhat weaker than in the past, but it an appropriate path. And, that only underlines the power of an argument that a general voting rights amendment is necessary, not the logic in the 21st Century of piecemeal approaches there.