EQUAL SHOULD MEAN EQUAL

Chattanooga Times Free Press - - OPINION - AN­DREWS MCMEEL SYNDICATION

Women fi­nally achieved the right to vote when the 19th Amend­ment be­came law in 1920. Here’s a good way to cel­e­brate its cen­ten­nial: Rat­ify the Equal Rights Amend­ment — or ERA — that com­pletes the job of ban­ning all forms of gen­der-based dis­crim­i­na­tion, not just in the vot­ing booth.

The en­tire amend­ment con­tains only 24 words: “Equal­ity of rights un­der the law shall not be de­nied or abridged by the United States or by any state on ac­count of sex.”

As Sens. Lisa Murkowski, an Alaska Repub­li­can, and Ben Cardin, a Mary­land Demo­crat, wrote in The Washington Post: “It’s a lit­tle less than a tweet, but it will make a pos­i­tive dif­fer­ence in the lives of mil­lions of women.”

Here’s why: Un­der cur­rent law, dis­crim­i­na­tion “on ac­count of sex” is not sub­ject to “strict scru­tiny,” the most rig­or­ous le­gal stan­dard and the one ap­plied to racial in­jus­tice. The ERA would change that, equal­iz­ing the tests that ap­ply to both race and gen­der, and mak­ing it much harder to jus­tify bi­ases aimed at women.

Le­gal ex­perts agree that the ERA is needed to clar­ify the law, since there is still a lot of con­fu­sion and un­cer­tainty about how fed­eral courts should in­ter­pret claims of sex dis­crim­i­na­tion.

The ERA was first pro­posed in 1923, but it was not ap­proved by Con­gress un­til 1972. Law­mak­ers man­dated a seven-year pe­riod for rat­i­fi­ca­tion and later ex­tended the dead­line to 10 years, but fierce op­po­si­tion from con­ser­va­tive women, led by ac­tivist Phyl­lis Sch­lafly, stalled the rat­i­fi­ca­tion ef­fort. By 1982, only 35 states had ap­proved the mea­sure, three short of the 38 needed.

The amend­ment fell into deep hi­ber­na­tion un­til it was re­vived by a com­bi­na­tion of pow­er­ful forces: the de­feat of Hil­lary Clin­ton, the rise of Don­ald Trump and, most im­por­tant, the grow­ing promi­nence and po­tency of women in pub­lic life, who fu­eled the Women’s March and the #Me­Too move­ment and ran for of­fice in record num­bers.

The new Con­gress in­cludes 102 women in the House and 25 in the Sen­ate — both his­toric highs.

Two years ago, Ne­vada be­came the 36th state to rat­ify the ERA, and last year, Illi­nois be­came the 37th, leav­ing one state to go. Vir­ginia came close last month, with the amend­ment pass­ing the state sen­ate, but it got blocked by four Repub­li­cans in an ob­scure sub-com­mit­tee of the house.

Del­e­gate Jen­nifer Car­roll Foy, the mea­sure’s lead spon­sor, told op­po­nents af­ter the de­feat, “We will be back.”

They will be back, but ob­sta­cles re­main. Op­po­nents of the ERA have hauled out old scare tac­tics and fear-mon­ger­ing that helped quash the amend­ment more than 30 years ago, in­clud­ing the to­tally un­founded charge that it would lead to un­lim­ited tax­payer-funded abor­tions.

Another prob­lem is that the statu­tory limit for pass­ing the amend­ment ex­pired in 1982, but that’s not in­sur­mount­able. The Con­sti­tu­tion makes no men­tion of time lim­its for amend­ments, and none were im­posed un­til the 18th Amend­ment, man­dat­ing Pro­hi­bi­tion was ad­vanced, in 1917.

The dead­line has al­ready been ex­tended once, and to guard against le­gal chal­lenges, bi­par­ti­san bills have been in­tro­duced in both houses of Con­gress that would for­mally ex­tend the dead­line a sec­ond time.

The un­bal­anced and un­fair le­gal sta­tus of women could not be clearer. Sup­port­ers of the ERA point to the late Antonin Scalia, the most in­flu­en­tial con­ser­va­tive ju­rist of his age, who said in a 2011 in­ter­view: “Cer­tainly the Con­sti­tu­tion does not re­quire dis­crim­i­na­tion on the ba­sis of sex. The only is­sue is whether it pro­hibits it. It doesn’t.”

Rep. Carolyn Maloney, a lead­ing sup­porter of the ERA, agrees with Scalia. Since “our Con­sti­tu­tion does not con­tain the word ‘women’ … it does not guar­an­tee our equal rights,” she ar­gues. “So we need to make it clear, that equal means equal. To do that we must spell it out in the Con­sti­tu­tion. … Now is the time.”

Yes, it is.

Cokie Roberts

Steve Roberts

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