The Corner

Law & the Courts

Neil Gorsuch and Mrs. America

Cate Blanchett as Phyllis Schlafly in ‘Mrs. America’. (FX Networks/Screenshot via Youtube)

In April, the political drama Mrs. America debuted to critical acclaim on FX and Hulu. The show chronicles the campaign to pass the Equal Rights Amendment to the Constitution and the opposing campaign led by Phyllis Schlafly, played in this production by Cate Blanchett. Section 1 of the ERA states that “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 amendment failed to make it through the rigorous ratification process in part due to Schlafly’s concerted efforts and was consequently defeated. Some arguments put forward by the anti-ERA characters in the show (and, at the time, in real life) smack of hysteria: women being drafted against their will, fathers being constitutionally entitled to either take the children or refuse to pay child support in the divorce, etc. Although the ERA remains unratified 40 years after the initial campaign against it, Schlafly’s social politics have taken a kicking during the intervening time period, perhaps with the exception of abortion, the practice of which has been in steady decline over the course of the same time period. Overall, Schlafly comes across in the show as a retrograde figure, and her ideals are a less popular vision of the good life than they were during her heyday. 

It was surprising, therefore, when her reputation received an unexpected shot in the arm last week by the United States Supreme Court. The court’s ruling in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission expanded the definition of the word “sex” in Title VII of the Civil Rights Act to include sexual orientation and ‘gender identity.’ This judicial obfuscation of basic semantics would have even more widespread implications in a world in which the ERA was enshrined in the Constitution. In such a world, women would now be constitutionally prohibited from having their own restrooms or sporting events. Any attempt by any state to legally protect exclusively female spaces (or exclusively male spaces) would be met by a constitutional challenge on the basis of the ERA as augmented by transgender ideology. Thus, decades on from the culture wars of the ’70s and ’80s, Phyllis Schlafly is partly vindicated by the perfidy of an ostensibly originalist court.

The real lesson that we should take from last week’s ruling, viewed in light of the ERA’s defeat years ago, is that the fewer laws we can make do with, the better. Language is volatile, equivocal, and often susceptible to abuse from its appointed statutory interpreters in our courts. Every law passed by a legislature contains within its semantic range of possible meanings potential applications and consequences that elude even the wisest legislators. Binding our fellow citizens according to something as vague and malleable as language is something we should do only when it is absolutely necessary. The Harris Funeral Homes ruling and the Equal Rights Amendment demonstrate this.


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