ERA Again

Emboldened by the Supreme Court’s overturning of Roe v. Wade, Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Cori Bush (D-Mo.) Thursday unveiled a measure intended to ensure that equal rights regardless of sex are guaranteed and durable in the United States.

I have paid attention to the various ebbs and flows of this drama, which is something of a big sideshow. 

Not too many people are likely aware that there is a push to ratify (or argue ratification happened) the ERA in the 2020s.  There was more attention a few years ago when three states (Illinois, Nevada, and Virginia) seemed to round out the necessary thirty-eight to ratify.  The 38th state is Virginia so even with the two-year time lag until it is active (section 3), it would today fully be actively active (so to speak).  

There is a sort of phony feel to all of this. Ratifications of amendments should not be on the down low.  And, putting aside the 27th Amendment, which is just a joke, it shouldn't linger on for fifty years before being ratified.  This is something like leaving a vote in Congress open for a decade or something.  It is just an absurd way of doing things.

The latest thing is to push the argument that Congress itself does not even have to remove a deadline that was put in place (and then extended for a few years) and lapsed over forty years ago.  The idea the great leaders of the ERA did something illegitimate to me is rather dubious, including since a timeliness requirement is respected in Coleman v. Miller. 

The deadline, unlike for some amendments (and proposed amendments) is not in the amendment itself.  It is a separate congressional thing like a separate vote to determine punishment after someone is convicted of impeachment (a permanent barrier from office is not obligatory).   

The whole thing is academic especially since the vote is open to filibuster like the vote to remove the deadline.  I have repeatedly noted that I find it sketchy to even do that -- too much time has passed, and the times are much different -- but I think Congress has the power to do it.  

Announcing the amendment actually has already been ratified is a bit more.  And, it already would fly in the face of at least one lower court of appeals judgment rejecting the argument.  I think correctly.  I also still am not quite sure what the ERA does and changes since we already have heightened scrutiny based on sex. And, Dobbs alleged that doesn't even support abortion rights, which flies in the face of Casey and reality.  

(Mary Ziegler, the abortion historian, flags how a recent anti-trans case out of the Sixth Circuit -- yeah to a Biden judge confirmed to it yesterday -- used a thin view of sex equality "applying" Dobbs.)  

I think the case for a broad view of the ERA is sensible.  I am partially inspired by a "thick" reading of the Nineteenth Amendment, offered here by Litman and Hasen.  

Way back in Adkins v. Children's Hospital, shortly after ratification, the amendment was used to argue women now were in an equal role in the public economic sphere.  An influential lower court ruling [Abele v. Markle] before Roe cited the Nineteenth Amendment to show the equality aspect of reproductive liberty.  How do women enjoy equal citizenship without control of their bodies?  Equality is essential to democracy.

These are continuing battles worth fighting even if I am not really on board with this specific technique.  The text and history of the ERA suggest a broad view of equality, not limited to that is found in the Civil Rights Cases, where the federal law against discrimination based on race was deemed not an appropriate enforcement of the 14th Amendment.

Still, good law even if interstate commerce was later used.  Equality is being threatened nationwide.  Sen. Tuberville is holding up -- for months now -- hundreds of military promotions because he opposes the military allowing (and paying travel costs) women to travel to other states when necessary to obtain abortion services.  One senator doing this for something defensible would be bad; this is just putrid.

(Sen. Durbin joined the denunciation but when Tuberville was out of town, he said that tradition was that you didn't vote that way. People noted Sen. Harry Reid wasn't so polite.  

Durbin also refuses to oppose blue slips for district court judges, even after Republicans abuse it and shows no such courtesy.  He is taking a knife to a gunfight.  The many lower court judges that were confirmed is nice, but again, they are mostly district court judges, and Trump got in three justices.  Can't rest on your laurels there.)

It would take a long drawn-out process to do these individually, so universal consent is required. Republicans can join with the Democrats to change the rule.  But, they will not.  McConnell or anyone else saying they oppose him, therefore, are full of shit.  And, if you spend hours upon hours (the amount of time spent on Senate votes to consent to nominations is absurd) doing it, what will stop yet another troll to do it for something else?

[Tuberville is a horrible person generally and basically got in trouble in the last week or so for finding it hard to admit white nationalism is racism.]

The House is working on the big defense spending bill and last night by basically a party-line vote (two Republicans -- not fake moderate Nancy Mace -- and the conservative border senator who barely won his primary is the sole Democrat) they voted with Tuberville.  They tossed in some anti-trans stuff, including a Boebert amendment involving so-called "radical gender ideology books" in the libraries. Charming business.  

(On the book front, found an interesting young adult book about a woman code breaker, Elizebeth Smith Friedman.  Not a typo.)

I'll end with a repeat slam against Rep. Nancy Mace (R-SC), who at times tries to come off as reasonable, including being upset at abortion extremism.  Not voting against leaving open women in the military (including family members of the men) having the means to merely travel to places that still provide abortion access would be a sign she is not a big phony.  But, only two Republicans voted against that measure.

This is where we are, including on sex equality, which broadly speaking involves GLBTQ+ rights.  It's insane.  But, this is the party that could not convict Trump, who has been a traitor to our values since his campaign helped the Russians "ratfuck" the 2016 elections.  

Oh well. I do think at some point -- aside from the 27A, none was ratified in my lifetime (I'm not ancient, but not quite young) -- the Constitution needs amending.  Theater like this won't do much but the ideals are good.