This is not about whether the Constitution applies to women.
Led by the indomitable actress Alyssa Milano, left-wing feminists are waging their latest self-righteous campaign, this time to ensure that American women will finally be viewed as human beings and granted the same rights as men.
After decades of the Left’s insistence that U.S. culture has made steady moral progress, we’re now told that, in fact, American women are still stuck in 1950. As punishment for our cultural sins, the debate over the Equal Rights Amendment (ERA) is back, courtesy of feminists increasingly embittered by the presidency of Donald Trump.
The would-be amendment passed Congress in the early 1970s, and its first section reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” (The other sections give Congress the power to enforce it and state that it goes into effect two years after ratification.)
The activists insist they are just “one state away” from ratification, but in fact they are far from accomplishing their goal. When Congress passed the amendment, it stipulated that if the states didn’t ratify the change by 1979, congressional approval would no longer be in force. When that failed, Congress extended the deadline to 1982, but no more states ratified it. In addition, five of the states that did ratify it later rescinded their endorsements.
To get to “one state away,” ERA supporters are counting all the states that ratified it before the deadline, ignoring states’ attempts to take back their blessings and counting two states that have ratified it since last year, decades after the deadline had passed. At the very least, the pro-ERA movement will face an uphill legal battle. It will need to prove both that Congress can’t set ratification deadlines and that states can’t rescind their ratification votes.
To the average citizen, meanwhile, it might seem that women have come a long way over the last century — since first-wave feminists won women the right to vote, for example. Not to modern feminists. Milano, for example, frames the need for the ERA as a question of whether “women should be protected under the constitution,” as if the rights enshrined therein don’t currently apply to women absent an explicit equal-rights-for-women clause.
“It literally just outlaws discrimination against women,” one of the amendment’s proponents wrote on Twitter. “All this law would do is ensure women are equal to men in the eyes of law,” another claims. Countless others explain the need for the amendment with the rote slogan “Women’s rights are human rights.”
There must be more to their campaign than meets the eye, because the outcomes they demand are already the law. Workplace discrimination on the basis of sex is illegal under federal statute. Sex-discrimination cases have also been successfully litigated under the 14th Amendment, contrary to Milano’s rather uninformed representation of constitutional law — though the 14th Amendment, like the text of the ERA, applies only to discrimination by governments.
What’s their real end game, then? To the extent that their campaign has any grounding in reality, it’s tied to the #MeToo movement, which revealed systemic sexual misconduct against American women in a number of industries. The ERA, though, wouldn’t address this problem in any meaningful way that hasn’t already been attempted through force of law. The horror stories that have emerged stemmed almost entirely from cultural rot and societal dysfunction, not from the fact that the U.S. Constitution has no Equal Rights Amendment.
This unconscionable treatment of women occurred not in the absence of legal protections but in a cultural climate in which powerful men felt entitled to coerce or harass or assault subordinate women. Those men faced no consequences not because there was no law against what they did but because those who knew about the abuse remained silent and turned a blind eye — until now.
The idea that such a culture would necessarily be transformed by a constitutional amendment restating legal rights women already possess places an absurd amount of faith in the notion that cultural problems can be corrected by legal means. If influential men have, until yesterday, gotten away with using their power to prey on women — despite the fact that laws existed to punish them — why would one more legal mechanism condemning unequal treatment change their behavior? It is the cultural view that must change, not the law.
More important, we ought to examine the underlying agenda of those making a renewed push for the ERA. Surely, they’re aware that current law prohibits sex discrimination. Progressives are after neither a legal innovation nor a symbolic victory. They desire, first and foremost, a tool with which to crush their ideological opponents and impose their radical agenda.
A culture in which the Constitution is manipulated to protect sexual liberation as authentic female freedom will never be a culture that defends women.
Undoubtedly, for example, they wish to create some constitutional support for “reproductive rights.” The shaky legal fiction of Roe v. Wade — with no constitutional grounding aside from “emanations” and “penumbras” — has imposed an essentially unlimited abortion-on-demand regime on the entire country for decades. How much more powerful would this constitutional amendment be in accomplishing those aims, especially in the hands of a high court full of justices in the mold of Ruth Bader Ginsburg and Sonia Sotomayor?
In short, liberal feminists are disingenuous when they say they’re simply seeking “equal rights.” They want the U.S. Constitution to offer a clause that can be wielded to protect any right they deem essential to female empowerment. In practice, it would serve not as a recognition of women as equal human beings but as a formal codification of the spirit of the sexual revolution.
If they get their way, it will no longer be the Department of Health and Human Services forcing employers to subsidize contraceptives and abortifacients; it will be the Equal Rights Amendment. When the giants of the abortion industry insist that Congress use taxpayer dollars to fund abortions, they will come carrying a copy of Madison’s founding document. Every demand for complete sexual libertinism, facilitated by the state, will suddenly have behind it the imprimatur of the U.S. Constitution. That’s what they’re after.
This amendment won’t ensure that women will receive equal opportunity in the workplace or that they will be free from the objectification of advertising companies and the porn industry. It won’t stand between the Harvey Weinsteins of the world and their innocent victims. No amendment can do that. Only a culture can. And a culture in which the Constitution is manipulated to protect sexual liberation as authentic female freedom will never be a culture that defends women.