November 17, 2019
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We can’t wait any longer for an Equal Rights Amendment

George Danby | BDN
George Danby | BDN

It’s 2018, and our so-called civil society is still dithering over the most basic of human rights for more than 50 percent of its citizenry: equality for women.

More than 170 countries include explicit verbiage in their constitutions that speaks to women’s equality or protects against gender discrimination. The idea that equal protection for men and women in the U.S. is not guaranteed under the supreme law of our land is appalling and, in a global context, downright embarrassing. We need an Equal Rights Amendment now.

Legislation like the Equal Pay Act can be rolled back. Congress could refuse at any time to re-authorize the Violence Against Women Act as well as repeal other protective legislation with a simple majority vote. Constitutional amendments specifically protect critical provisions like these acts from being easily reversed. This is why we need an Equal Rights Amendment.

Sex, as a legal category, is not considered a suspect classification before the Supreme Court as are race, religion and national origin, meaning that the court more strictly analyzes any action that discriminates against these classes. While these categories are held to the highest standard of judicial review, strict scrutiny, sex is not. As a classification, sex is held only to “intermediate” scrutiny, where the responsibility of proving intent to discriminate falls on the plaintiff claiming discrimination. Under strict scrutiny, the burden of proof weighs more heavily on the entity accused of discrimination. This is why we need a constitutional amendment.

Opponents who proffer slippery slope arguments that an Equal Rights Amendment will increase litigation should look to the 14th Amendment, a bulwark of our Constitution that has certainly generated substantial litigation. But few would argue it should not have been enacted. And while it has also been argued that the 14th Amendment’s equal protection clause protects against sex discrimination, this has only been applied since 1971, when the Supreme Court in Reed v. Reed applied it to prohibit against sex discrimination. And it has never been interpreted to grant equal rights on the basis of sex to the extent an Equal Rights Amendment would.

For those who maintain that the Constitution protects against discrimination based on sex, the late Justice Antonin Scalia would have disagreed. He observed: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” This is why we need an Equal Rights Amendment.

Thirty-eight states are required to ratify an amendment before it can be made part of the Constitution. We are only two states shy of this goal. In a surprise move last year, Nevada voted to ratify the Equal Rights Amendment. And recently, the Illinois Senate voted overwhelmingly for ratification. A vote in the Illinois House is due any day.

If Illinois ratifies, we would be one state away from seeing equality for women guaranteed under the Constitution, the highest instrument of law in the U.S. We know there will be lawsuits challenging that the Equal Rights Amendment has passed its 1982 deadline. We’re ready for that fight, with strong constitutional precedent that challenges the legality of the deadline.

The 27th Amendment, involving congressional compensation, was passed by Congress in 1789, but wasn’t ratified by the states until 1992. If an amendment governing congressional salaries can become law after more than 202 years, why is it legal to impose a deadline granting equality for women?

There is currently proposed joint legislation in Congress that would effectively eliminate any deadline on the Equal Rights Amendment. Rep. Chellie Pingree has signed on to this legislation, while Rep. Bruce Poliquin has not. And both Sens. Susan Collins and Angus King have failed to sign on to the corresponding resolution in the Senate.

The avalanche of protests from groups like the #MeToo movement and Indivisible has spotlighted the need for equitable treatment of women in our society, including within our criminal justice and legal systems. The women’s marches that began in 2017 clearly indicate that women are a force to be reckoned with, especially in our next election cycle.

What may we as Maine residents do? We can call on Collins and King to officially support the Equal Rights Amendment and sign on to the Senate resolution. We can remind Poliquin that this is an election year and that Maine voters in the 2nd Congressional District want to see him support the House resolution. And we should be contacting our local state representatives, calling for their support for an Equal Rights Amendment to the Maine Constitution.

How much longer must we wait?

Susan Snider is a founding member of Equal Rights Maine, a group of Maine residents advocating for the passage of an Equal Rights Amendment.

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