Politics & Policy

Posturing About the Equal Rights Amendment

Activists calling for Virginia’s adoption of the Equal Rights Amendment gather outside the Virginia State Capitol building in Richmond, January 8, 2020. (Jonathan Drake/Reuters)
The amendment is dead, but the moral preening underpinning it is very much alive.

The House passed H.J.Res.79 last Thursday, a resolution nixing the ratification deadline for the so-called Equal Rights Amendment (ERA). The ERA would afford “equal rights under the law” to all American citizens without regard to sex. This is effectively a back-door attempt to codify the Supreme Court’s decision in Roe and to obscure the legitimacy of various sex-specific institutions, from gendered restrooms to the male-only draft. Its 1979 ratification deadline — dubiously extended to 1982 by an act of Congress — has long since passed. Thus, what the resolution achieves beyond providing its proponents a chance for self-congratulation is unclear.

Some of the resolution’s proponents at least attempted a rational justification. After the resolution passed, one senior Democratic aide told The Hill that its purpose was “to remove any legal ambiguities surrounding the deadline” of the ERA. If the aide meant to claim that lifting the deadline would retroactively construct the 38-state coalition necessary to ratify the amendment, this does not pass basic constitutional scrutiny. As John McCormack has shown in some detail, the ERA’s earlier ratification deadlines were binding. Even noted ERA exponent Justice Ruth Bader Ginsburg — whose “feminist legacy” is now “uncertain” because she dared to state legal reality plainly — told amendment supporters that they would be wise to “start over,” given the passage of the deadline and the defections that occurred at the state level before 1979.

The House, by removing the deadline for ratification, merely opens the door for future statewide ratification efforts, which does nothing to revive the since-expired state approvals. To remove the deadline that was a part of the text voted on by legislatures is effectively to create a new constitutional amendment, one that state legislatures have not voted on, and certainly have not voted for.

Since H.J.Res.79 did nothing to “remove” whatever “ambiguities” remain about ratification deadlines long since passed, the resolution essentially provided a platform for the sort of sanctimonious performance art that has become a staple of Congress in the age of C-SPAN.

Representative Ayanna Pressley (D., Mass.) addressed the House in anticipation of the resolution vote to voice her “strong, unapologetic, righteous” support for it. She did not say how the resolution would obviate the legal incoherence of reviving a dead ratification process with a simple act of Congress, which was its ostensible aim. Instead, she spoke in fevered tones about the alleged plight of women in the United States.

“We women are still in so many ways not fully free, still shackled,” the duly elected, sitting representative said. “Women are strong, hardworking, bright, and resilient. We are the backbones of our families, our communities, and our democracy.”

The suggestion that all women are “strong, hardworking, bright and resilient,” as well as the “backbones” of their families and communities, is puzzling. The progressive assumption that there are no inherent personality differences between men and women, would, if true, make it impossible for one sex to be categorically “hardworking” or disproportionately “resilient.” Questioning that assumption in corporate America can get you fired. Likewise, Americans are instructed to take as an article of faith that the differences between men and women are so inconsequential that a man can become a woman just by saying so. If the entire male-female binary is a construct of the patriarchy, as the feminist origin myth goes, how can women be categorically “strong, hardworking, bright, and resilient” when “women” do not even exist as a discrete category?

Perhaps recognizing that she was implicitly sanctioning the gender binary, Pressley proceeded to pay verbal obeisance to “intersectionality” and the manifold “identities” of American women: “We do not live in checked boxes; we live in an intersectionality of lived experiences and identities. Our issues are everyone’s issues because our destinies are all tied.”

What “intersectionality” as modified by “lived experience and identities” means, or what “our” issues are, remains unclear. Pressley says that women “do not live in checked boxes,” which must mean that the categories of “male” and “female” do not adequately capture the breadth of gendered experience. If that is the case, why pursue an Equal Rights Amendment at all, and why say “we” when there is no defined group to which the speaker belongs?

Also speaking in the majestic plural, the bill’s sponsor, Representative Jackie Speier (D., Calif), claimed that “women want to be equal and we want it in the Constitution. I am equal on this House floor with all of my male colleagues, but when I walk out, I have fewer rights and protections than them . . .”

It would be helpful if Representative Speier would name one right afforded to men under the Constitution that she, or Ayanna Pressley, as women — whatever a woman is — are denied.

In the absence of such an example, one must presume that her remarks, indeed like the rest of the proceedings, were mere posturing. Perhaps that’s the point.

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