It’s often been said that if Americans were allowed to vote on some of the guarantees in the Bill of Rights — such as freedom of the press or the right against self-incrimination — they would reject them. What is rarely noted is that if some protections excluded from the Constitution were put to a referendum, voters would readily grant their approval.
A prime example is the Equal Rights Amendment, which set out a seemingly unassailable proposition: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” But because of fierce opposition led by conservative Phyllis Schlafly, who died recently, it fell three states short of the 38 required for ratification.
The ERA commanded overwhelming public support when it was passed by Congress in 1972 — and when it expired a decade later, and afterward. A 2001 survey found 88 percent of Americans agreed that the Constitution ought to affirm the equality of women. Nearly 3 in 4 people thought it already did.
Americans believe that not because they are ignorant but because, in essence, it’s true. In one of those odd paradoxes of our system, the people eventually got their way through unelected judges rather than democratic processes.
In the last three decades, most of the protections the ERA would have conferred have been found in the language of the 14th Amendment, which guarantees “the equal protection of the laws.”
In 1972, that provision was not taken to mean women were actually entitled to the same rights as men. Today, it is. The predictions opponents made about what would happen if the ERA were adopted came true — even though it was rejected.
This development occurred in spite of justices like the late Antonin Scalia, who said, “Certainly, the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”
Supporters of the ERA argued it was needed to eliminate anachronistic, unjust laws and policies — such as differences in the age of legal adulthood for women and men and limits on women’s right to buy and sell property and operate businesses, as well as automatic preferences for mothers in child custody disputes.
But prodded by Ruth Bader Ginsburg (first as a lawyer and later as a justice), the Supreme Court eventually acknowledged that unequal treatment contradicts the plain language of the 14th Amendment.
“For at least a quarter-century, the Supreme Court has acted as if the Constitution contains a provision forbidding discrimination on the basis of sex,” University of Chicago law professor David Strauss wrote in his 2010 book, The Living Constitution. “Today it is difficult to identify any respect in which the law is different from what it would have been if the ERA had been adopted.”
The 14th Amendment, after all, says the government may not deny equal protection to “any person.” Taking it to forbid official sex discrimination doesn’t require a tortured interpretation of the text. It merely requires acknowledging that women are people.
The court has done so, and so has the citizenry. Today few Americans would defend the laws the justices have struck down or the antiquated stereotypes they reflected. Most take for granted that women should be free to join the military, play on sports teams in high school and college, and go to public universities once open only to men. They don’t think women are so different from the rest of the human race that they deserve special protections or penalties.
In this evolution of laws and attitudes, the Supreme Court has sometimes led and sometimes followed. Scalia objected to its reading of sexual equality into the Constitution. But something he once wrote in a different context sheds light on why his side lost that battle.
“A guarantee may appear in the words of the Constitution, but when the society ceases to possess an abiding belief in it, it has no living effect,” he argued.
The same holds for the sex discrimination he insisted the Constitution allowed. At one time that was true, but as soon as Americans came to see it as an affront to our national ideals, it was doomed.
Schlafly and her allies killed the Equal Rights Amendment. But as Union soldiers sang of John Brown during the Civil War, its soul goes marching on.