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Tags constitution issues , Equal Rights Amendment , era

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Old 8th January 2020, 02:13 PM   #1
JoeMorgue
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Possible ratification of the Equal Rights Amendment and related legal controversy

Long story short ("Too late!" - Clue)

- 1923 an amendment to the US Constitution that would add:

Quote:
"Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification."

to the US Constitution was proposed.

- The US Constitution requires a 2/3rd super-majority of states to ratify an amendment to the Constitution and puts no time limit on the process.

- The amendment then went through several attempts at ratification of varying degrees of popularity and support throughout the next several decades, but was never ratified.

- In 1972 the amendment was re-introduced with a seven year deadline to acquire the necessary (38 out 50) states to pass.

- By the time the 7 year deadline came around 31 states had ratified the Amendment.

- After the deadline had passed there have been... legal actions which may or may not have extended it (this is the main point of controversy.)

- After 1979 up to now the number of states that have ratified the Amendment now stands at 37.

- To make it even more complicated some states claim to have pulled back their ratification but there's dispute over whether or not they can actually do that.

- Which brings us to now. Virginia is highly likely to ratify it within the upcoming month, which might bring up to 38 required state ratification, depending on who you listen to. Opinions are differing on whether or not this would be a valid Amendment given... *gestures up at last half dozen points*

- So basically we might wind up in a minor Constitutional Crisis coming up soon over whether or not this amendment is valid or not.

General overviews:

NPR: https://www.npr.org/2020/01/08/79441...-next-is-murky
Vox: https://www.vox.com/2020/1/8/2105491...-virginia-date

Legal Argument that the Ratification will be valid if Virginia passes it:
https://equalmeansequal.org/

Legal Argument that the Ratification will not be valid if Virginia passes it:
https://www.nationalreview.com/bench...d-decades-ago/

US Department of Justice's opinion statement that the deadline has passed
https://www.justice.gov/olc/file/1232501/download
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Old 8th January 2020, 02:16 PM   #2
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In 2020 are we really ready to decide if women should be equal to men? I think we'd all be more comfortable with another century delay to think it over more.
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Old 8th January 2020, 02:24 PM   #3
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Originally Posted by TragicMonkey View Post
In 2020 are we really ready to decide if women should be equal to men? I think we'd all be more comfortable with another century delay to think it over more.
What current abridgement does this amendment stop?
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Old 8th January 2020, 02:27 PM   #4
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Originally Posted by BobTheCoward View Post
What current abridgement does this amendment stop?
What has that to do with my comment? Quote the OP if you wish to respond to the OP.
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Old 8th January 2020, 02:32 PM   #5
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Originally Posted by TragicMonkey View Post
What has that to do with my comment? Quote the OP if you wish to respond to the OP.
You asked if we are deciding if women are equal to men. It isn't clear how a) they are unequal and b) this resolved that.

If this doesn't resolve it, then we are not resolving if women are equal or not.
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Old 8th January 2020, 02:35 PM   #6
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Originally Posted by BobTheCoward View Post
You asked if we are deciding if women are equal to men. It isn't clear how a) they are unequal and b) this resolved that.

If this doesn't resolve it, then we are not resolving if women are equal or not.
You misunderstood the nature of my remark. I am proposing nothing, advancing no argument, and not engaging with you on this.
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Old 8th January 2020, 02:38 PM   #7
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Originally Posted by TragicMonkey View Post
You misunderstood the nature of my remark. I am proposing nothing, advancing no argument, and not engaging with you on this.
Yeah but look at it from his point of view: it was really confusing to him.
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Old 8th January 2020, 02:41 PM   #8
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Originally Posted by Belz... View Post
Yeah but look at it from his point of view: it was really confusing to him.
My 2020 predictions don't include any passing of the Turing Test.
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Old 8th January 2020, 02:41 PM   #9
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Originally Posted by JoeMorgue View Post
- The US Constitution requires a 2/3rd super-majority of states to ratify an amendment to the Constitution and puts no time limit on the process.

[snip]

- In 1972 the amendment was re-introduced with a seven year deadline to acquire the necessary (38 out 50) states to pass.
Granted, I've had a long week and it's only Wednesday, but wouldn't 2/3rds of 50 states be 33-34 states, depending on how you round it?
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Old 8th January 2020, 02:44 PM   #10
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Originally Posted by TragicMonkey View Post
You misunderstood the nature of my remark. I am proposing nothing, advancing no argument, and not engaging with you on this.
If you have no position on if the ERA advances the determination if women are equal to men, then it is nonsensical to ask if we are really ready to decide if women should be equal to men in a thread about the ERA.

And if you do have a position that it advances that determination, then you can articulate how.
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Old 8th January 2020, 04:21 PM   #11
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Originally Posted by Upchurch View Post
Granted, I've had a long week and it's only Wednesday, but wouldn't 2/3rds of 50 states be 33-34 states, depending on how you round it?
Brain fart. An amendment requires to be ratified by 3/4ths of the States or two-thirds vote from both Houses of Congress. I conflated the numbers.
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Old 8th January 2020, 04:37 PM   #12
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Originally Posted by TragicMonkey View Post
In 2020 are we really ready to decide if women should be equal to men? I think we'd all be more comfortable with another century delay to think it over more.
Why would we need to delay?

As far as I can tell, we've already decided that men and women are equal*, and we didn't even need an Amendment to do it.

Is there some area of gender inequality that is currently not addressed by law, that this Amendment would address?
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Old 8th January 2020, 04:40 PM   #13
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Originally Posted by TragicMonkey View Post
You misunderstood the nature of my remark. I am proposing nothing, advancing no argument, and not engaging with you on this.
Originally Posted by Belz... View Post
Yeah but look at it from his point of view: it was really confusing to him.
I have no opinion on that.
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Old 8th January 2020, 04:54 PM   #14
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From Ruth Bader Ginsburg:
Quote:
An equal rights amendment. I turn to my Constitution. I have three granddaughters. I can point to the First Amendment protecting their freedom of speech but I canít point to anything that says men and women are of equal stature before the law. I would like to say to my grandchildren that equal status of men and women is a fundamental premise of our system. I was a proponent of the equal rights amendment. I hope someday it will be put back in the political hopper and weíll be starting over again collecting the necessary states to ratify it.
Source (emphasis mine)

Sounds like we're gonna have to start from scratch, if the most reputable and powerful progressive female jurist in America says so. I'm not running an argument from authority here, she really has a say in how this process would turn out.

Originally Posted by theprestige View Post
Is there some area of gender inequality that is currently not addressed by law, that this Amendment would address?
I'd also like to hear an answer to this question. Last I checked, the cause of equality was making progress at a fairly steady clip.
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Old 8th January 2020, 05:52 PM   #15
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Originally Posted by JoeMorgue View Post
Brain fart. An amendment requires to be ratified by 3/4ths of the States or two-thirds vote from both Houses of Congress. I conflated the numbers.

Two thirds of each of the two Houses of Congress, and ratification by three fourths of the States, not "or".

(Or in a Constitutional Convention.)
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Old 8th January 2020, 07:47 PM   #16
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What I find rather appalling is that the real issue here is not the Equal Rights Ammendment, but the process by which constitutional amendments get passed. Never mind the content of the amendment. Suppose an amendment is submitted, and a state legislature votes to ratify it. However, it is extremely unpopular in that state, and the following election, the members of the legislature who supported it are dumped. The new legislature votes to rescind the ratification.

Should that state still be considered, for all time, to have ratified the amendment? Should they count toward the 3/4 even after the people of the state made it clear they don't want it?

There are six different amendments that have passed Congress, but have never been ratified by enough states to be considered part of the Constitution. I'll guarantee you that of those six, none of you will want all six of them. Should the states that have passed them be considered to have passed them for all time? i.e., no rescinding of the ratification is allowed, and none of the built in time limits that were part of the submission process shall be honored? An amendment, once passed by Congress, can never be withdrawn, ever, and once passed by a legislature can never be overturned by the voters of the state?

It's a truly bad idea.

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Old 8th January 2020, 07:51 PM   #17
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Originally Posted by Meadmaker View Post
What I find rather appalling is that the real issue here is not the Equal Rights Ammendment, but the process by which constitutional amendments get passed. Never mind the content of the amendment. Suppose an amendment is submitted, and a state legislature votes to ratify it. However, it is extremely unpopular in that state, and the following election, the members of the legislature who supported it are dumped. The new legislature votes to rescind the ratification.

Should that state still be considered, for all time, to have ratified the amendment? Should they count toward the 3/4 even after the people of the state made it clear they don't want it?

There are six different amendments that have passed Congress, but have never been ratified by enough states to be considered part of the Constitution. I'll guarantee you that of those six, none of you will want all six of them. Should the states that have passed them be considered to have passed them for all time? i.e., no rescinding of the ratification is allowed, and none of the built in time limits that were part of the submission process shall be honored? An amendment, once passed by Congress, can never be withdrawn, ever, and once passed by a legislature can never be overturned by the voters of the state?

It's a truly bad idea.
It does seem like a built-in time limit for ratification schedule should be included in each proposed amendment.

Perhaps we should have an amendment to establish that!
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Old 8th January 2020, 07:56 PM   #18
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Originally Posted by Meadmaker View Post
What I find rather appalling is that the real issue here is not the Equal Rights Ammendment, but the process by which constitutional amendments get passed. Never mind the content of the amendment. Suppose an amendment is submitted, and a state legislature votes to ratify it. However, it is extremely unpopular in that state, and the following election, the members of the legislature who supported it are dumped. The new legislature votes to rescind the ratification.

Should that state still be considered, for all time, to have ratified the amendment? Should they count toward the 3/4 even after the people of the state made it clear they don't want it?

There are six different amendments that have passed Congress, but have never been ratified by enough states to be considered part of the Constitution. I'll guarantee you that of those six, none of you will want all six of them. Should the states that have passed them be considered to have passed them for all time? i.e., no rescinding of the ratification is allowed, and none of the built in time limits that were part of the submission process shall be honored? An amendment, once passed by Congress, can never be withdrawn, ever, and once passed by a legislature can never be overturned by the voters of the state?

It's a truly bad idea.
Originally Posted by TragicMonkey View Post
It does seem like a built-in time limit for ratification schedule should be included in each proposed amendment.

Perhaps we should have an amendment to establish that!
This is where I'm at. I'm trying to figure out what legal strength the 7 year limit has and how it is applied.

Near as I can tell there is nothing inherent, baked into the Constitution that puts a time limit on an amendment process and I'm not totally unsympathetic to people not wanting to put into the process a loophole that will allow stalling or filibusters or "run out the clock" strategies so I'm okay with the process being pretty long, but this amendment has been going on since either the 1970s or the 1920s depending on how you want to look at it and that's... off.
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Old 8th January 2020, 07:57 PM   #19
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I'm not sure who Suddenly was addressing, but I do think there's a difference between statutory and constitutional law, which I think both Bob and the prestige are missing. We have seemed to decide that men and women are equal, at least mostly, but that equality is dependent on specific laws, and laws can be changed. Since laws are judged on their constitutionality, it would seem that an amendment would have more authority. From the theoretical standpoint, I think a unified declaration of equality differs from a collection of individual laws, even if the sum total of the laws addresses all the issues, or seems to at the moment.

If you believe that the law duplicates the amendment, I would see little reason not to pass the amendment, unless you hope to undo the law in the future.
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Old 8th January 2020, 08:00 PM   #20
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Originally Posted by bruto View Post
If you believe that the law duplicates the amendment, I would see little reason not to pass the amendment, unless you hope to undo the law in the future.
There's a fundamental difference between a law and an amendment and laws cannot replace them. The Constitution gives things protection in a way mere laws don't.

It's why slavery is unconstitutional, not just outlawed. Because laws can be changed a lot easier. There's both symbolic and practical meaning to an amendment that isn't there in just a law.

Women should not have to live under the threat of their rights being voted away via a process no more difficult or less subject to passing whims then raising the tax code or renaming a stretch of highway.

It's the fundamental reason why certain things are harder to change.
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Old 8th January 2020, 08:03 PM   #21
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Originally Posted by JoeMorgue View Post
So basically we might wind up in a minor Constitutional Crisis coming up soon over whether or not this amendment is valid or not.

I don't think it's a Constitutional crisis. It's a Constitutional interesting-question-for-law-nerds, but not much else - primarily because the way the 14th Amendment has been interpreted since the 1960s.


Originally Posted by Meadmaker View Post
Suppose an amendment is submitted, and a state legislature votes to ratify it. However, it is extremely unpopular in that state, and the following election, the members of the legislature who supported it are dumped. The new legislature votes to rescind the ratification.

I think that's actually happened with the ERA, multiple times.
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Old 8th January 2020, 08:04 PM   #22
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Originally Posted by Loss Leader View Post
I don't think it's a Constitutional crisis. It's a Constitutional interesting-question-for-law-nerds, but not much else - primarily because the way the 14th Amendment has been interpreted since the 1960s.
*Shrugs* Constitutionally Related Heated Legal Debate then.
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Old 8th January 2020, 08:13 PM   #23
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Originally Posted by Loss Leader View Post
I don't think it's a Constitutional crisis. It's a Constitutional interesting-question-for-law-nerds, but not much else - primarily because the way the 14th Amendment has been interpreted since the 1960s.





I think that's actually happened with the ERA, multiple times.
It has, although the election results weren't landslides. It was more like the amendment passed in a close vote, but later it was rescinded, in another close vote.

Also, there was a time limit in the amendment proposal.


The Supreme Court ruled that the vote on ratification could not be rescinded. The Supreme Court also ruled that the time limit was unconstitutional.

So, those 37 states that ratified the amendment include some states who subsequently rescinded the ratification, but the Supreme Court at the time said a state couldn't do that. Once the vote was taken, it was for all time.
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Old 8th January 2020, 08:14 PM   #24
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Originally Posted by TragicMonkey View Post
In 2020 are we really ready to decide if women should be equal to men?
It is not a question whether women are equal to men. No, the question is whether they should be treated equally by the law.
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Old 8th January 2020, 08:14 PM   #25
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Originally Posted by acbytesla View Post
It is not a question whether women are equal to men. No, the question is whether they should be treated equally by the law.
I guess the first question is are they being treated differently.
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Old 8th January 2020, 08:17 PM   #26
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Originally Posted by Loss Leader View Post
I don't think it's a Constitutional crisis. It's a Constitutional interesting-question-for-law-nerds, but not much else - primarily because the way the 14th Amendment has been interpreted since the 1960s.
The main difference would be that the equal protection clause in the 14th amendment does not apply to the federal government.

Other than that, It would be fun to watch a court full of Trump appointed Federalist society geeks explain how it really means that birth control is illegal or something. Once you get down to it the actual text of the Constitution isn't all that relevant to constitutional law.
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Old 8th January 2020, 08:24 PM   #27
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Originally Posted by Suddenly View Post
Once you get down to it the actual text of the Constitution isn't all that relevant to constitutional law.

Which is why my Con Law professor handed out little booklets of the Constitution at our final and said, "Here you go, test is open book."
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Old 8th January 2020, 08:33 PM   #28
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Originally Posted by BobTheCoward View Post
I guess the first question is are they being treated differently.
No. We don't even have to address that question. This is more akin to sticking a flag in the ground.

Should the law treat men and women equally? Yes or no?
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Old 8th January 2020, 09:54 PM   #29
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Originally Posted by theprestige View Post
Why would we need to delay?

As far as I can tell, we've already decided that men and women are equal*, and we didn't even need an Amendment to do it.

Is there some area of gender inequality that is currently not addressed by law, that this Amendment would address?

Unfortunately, the point is that it is not enforcible. States can ignore it, but they would not be able to if it was a Constitutional Amendment enforcible by Congress
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Old 8th January 2020, 11:51 PM   #30
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Originally Posted by Meadmaker View Post
What I find rather appalling is that the real issue here is not the Equal Rights Ammendment, but the process by which constitutional amendments get passed. Never mind the content of the amendment. Suppose an amendment is submitted, and a state legislature votes to ratify it. However, it is extremely unpopular in that state, and the following election, the members of the legislature who supported it are dumped. The new legislature votes to rescind the ratification.

Should that state still be considered, for all time, to have ratified the amendment? Should they count toward the 3/4 even after the people of the state made it clear they don't want it?

There are six different amendments that have passed Congress, but have never been ratified by enough states to be considered part of the Constitution. I'll guarantee you that of those six, none of you will want all six of them. Should the states that have passed them be considered to have passed them for all time? i.e., no rescinding of the ratification is allowed, and none of the built in time limits that were part of the submission process shall be honored? An amendment, once passed by Congress, can never be withdrawn, ever, and once passed by a legislature can never be overturned by the voters of the state?

It's a truly bad idea.
I suspect that's why the amendment originally had a 7-year time limit for ratification. That way the amendment was passed by the states reasonably contemporaneously, and any state that wanted to take it back could be told, tough luck, elections have consequences.
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Old 8th January 2020, 11:55 PM   #31
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Originally Posted by acbytesla View Post
No. We don't even have to address that question. This is more akin to sticking a flag in the ground.

Should the law treat men and women equally? Yes or no?
The biggest difference I can see is that in the event the draft is ever reinstated, men can be compelled to serve while women have a choice of volunteering or not.
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Old 9th January 2020, 05:16 AM   #32
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Originally Posted by Brainster View Post
I suspect that's why the amendment originally had a 7-year time limit for ratification. That way the amendment was passed by the states reasonably contemporaneously, and any state that wanted to take it back could be told, tough luck, elections have consequences.
Seven year time limits became normal as people realized that, once passed Congress, there was no way for Congress to take it back, and no way to decide whether the people had rejected it. I don't know when the first time limited amendment was introduced, but by some time in the 20th century it had become the norm.

Prior to that, once they were put out there, they were out there forever.

That's how our most recent constitutional amendment got passed. It was ratified in 1992. It was introduced and passed a vote of Congress in 1789.

It's also a total waste of ink, but it sounded cool, so legislatures voted on it in 1992.
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Old 9th January 2020, 05:22 AM   #33
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Originally Posted by JoeMorgue View Post
There's a fundamental difference between a law and an amendment and laws cannot replace them. The Constitution gives things protection in a way mere laws don't.

It's why slavery is unconstitutional, not just outlawed. Because laws can be changed a lot easier. There's both symbolic and practical meaning to an amendment that isn't there in just a law.

Women should not have to live under the threat of their rights being voted away via a process no more difficult or less subject to passing whims then raising the tax code or renaming a stretch of highway.

It's the fundamental reason why certain things are harder to change.
I wouldn't mind a broader amendment that protects the equality of ALL.
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Old 9th January 2020, 05:32 AM   #34
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Originally Posted by acbytesla View Post
No. We don't even have to address that question. This is more akin to sticking a flag in the ground.

Should the law treat men and women equally? Yes or no?
I don't understand what equal means when you use it. Do you have an example of what you think is the law treating them unequally?
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Old 9th January 2020, 05:36 AM   #35
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Originally Posted by Brainster View Post
The biggest difference I can see is that in the event the draft is ever reinstated, men can be compelled to serve while women have a choice of volunteering or not.
That was a huge factor in defeating the amendment in the first place. To be honest, that was a much bigger concern then than it is now. The nature of the military has changed. There will never be another war where large numbers of barely trained people holding rifles can win a battle. These days, the military turns away people who aren't good enough. In WWII, and maybe all the way through Vietnam, if you could stop a bullet, you were good enough. The draft isn't particularly relevant anymore.

Another thing that killed the amendment was that, as people saw courts getting more and more involved in declaring anything down to the local level fair game to be declared unconstitutional, people saw a wave of litigation coming where any time a school principal did anything at all where a boy and a girl were treated differently in any way, there would be a lawsuit saying that one or the other, or both, had had their constitutional rights violated.

And finally, there were laws passed that were intended specifically to protect women, especially in the workplace. A lot of people seemed to think that any law at all that had any special treatment for either sex in any circumstance would be overturned by the ERA.

There were even suggestions, totally fabricated of course, that if we passed that amendment, some court would rule that two men could get married, or that a boy had the right to use the girls' locker room. Can you imagine that? Such absurd scare tactics actually had an effect on defeating the amendment. People fell for those nonsense arguments.

But I digress. The most important question in my mind is whether the people of the United States can be said to want the amendment today based on the vote of the Nebraska legislature of 1972, especially considering that the Nebraska legislature of 1973 voted against it. Surely if people today think it's a good idea it could be reintroduced today, and ratified today.
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Old 9th January 2020, 05:52 AM   #36
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Now, as for the amendment itself, and whether or not the amendment was a good idea, then or now, we have to recognize that, in modern judicial practice, it is not just "the law" i.e. the wording in a statute, that is affected by a constitutional provision.

If a kid gets a detention because a teacher didn't like something the kid said, that kid's free speech rights have been violated, and he could quite likely sue the teacher and/or school district for violation of his first amendment rights. There's no statute involved. There's no official policy. However, the teacher is acting as an instrument of the state. That teacher's actions are an extension of state power, and so the first amendment extends down to that level. A teacher can't lead his class in prayer every day, and it is not because of a law that says he can't. It is because the constitution covers his actions, just as it covers the actions of the legislature.

So, this October, there will be an all girls robotics competition held in a public school, where students from multiple public schools participate. There will not be an all boys competition held. Public funds will be used for this activity.

How could it possibly be held that this activity would be considered constitutionally acceptable if the ERA were ratified?
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Old 9th January 2020, 05:57 AM   #37
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Originally Posted by Meadmaker View Post
There will never be another war where large numbers of barely trained people holding rifles can win a battle.
You sure about that one?
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Old 9th January 2020, 06:10 AM   #38
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Originally Posted by BobTheCoward View Post
Do you have an example of what you think is the law treating them unequally?
I do.

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Old 9th January 2020, 06:21 AM   #39
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Lots of misunderstandings - willful and not - about what this amendment would do. John Oliver has a good piece on it if you are actually interested in learning.

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Old 9th January 2020, 06:25 AM   #40
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Originally Posted by d4m10n View Post
Is it still treating them unequally if it survives strict scrutiny?
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