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Tags constitution issues , Equal Rights Amendment , era

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Old 9th January 2020, 06:53 AM   #41
d4m10n
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Originally Posted by uke2se View Post
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.
Does he mention any specific state or federal laws which would likely be struck down? I didn't hear any, but I was slightly distracted at the time.

He does mention the failure to reauthorize VAWAWP but the ERA presumably couldn't've stopped that since it's mostly a set of Congressionally approved spending programs.

Originally Posted by BobTheCoward View Post
Is it still treating them unequally if it survives strict scrutiny?
Under the 14th Amendment as interpreted by...?

Or under the ERA as interpreted by a hypothetical future court?
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Old 9th January 2020, 07:08 AM   #42
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How about this: imagine that there once was a social custom and practice that discriminated against Bobs. Now that prejudice has mostly waned, and every time a person named Bob hits an obstacle, he can bring it to the attention of legislators, and a law is passed that says the equivalent of "Bobs are counted as regular people for this situation." There are no particular situations left in which Bobs are discriminated against as long as the laws don't change. The law, thus, can be said to be fair to Bobs. Is all right with the world? Would that be sufficient for you? Or might you want a blanket constitutional statement that says from now on Bobs are equal without requiring Bob-specific laws?
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Old 9th January 2020, 07:11 AM   #43
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Originally Posted by bruto View Post
How about this: imagine that there once was a social custom and practice that discriminated against Bobs. Now that prejudice has mostly waned, and every time a person named Bob hits an obstacle, he can bring it to the attention of legislators, and a law is passed that says the equivalent of "Bobs are counted as regular people for this situation." There are no particular situations left in which Bobs are discriminated against as long as the laws don't change. The law, thus, can be said to be fair to Bobs. Is all right with the world? Would that be sufficient for you? Or might you want a blanket constitutional statement that says from now on Bobs are equal without requiring Bob-specific laws?
No. Because all the protections are fragile and can be removed as easily as they were implemented.

That's the functional difference between a law and an amendment, stability.
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Old 9th January 2020, 07:33 AM   #44
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Originally Posted by d4m10n View Post

Or under the ERA as interpreted by a hypothetical future court?
Which is the thing. That ERA text is some serious malleable stuff. I imagine this court will treat it as a nothingburger and maybe just apply equal protection as to gender to the feds, which is already sort of happening anyway via the substantive due process doctrine.

If you handed it to a more liberal court it could be used in more dramatic fashion. Especially as to LGBTQ issues because those can be framed as issues of equal rights based on sex.

It is vaguely akin to the 13th amendment in the sense that narrow vs. broad construction would have a pretty dramatic effect. In our timeline, the 13th ended up being a narrow rule against owning other humans.

Now, consider the timeline where Justice Harlan's dissent in the civil rights cases was the majority opinion:

Quote:
The Thirteenth Amendment, it is conceded, did something more than to prohibit slavery as an institution resting upon distinctions of race and upheld by positive law. My brethren admit that it established and decreed universal civil freedom throughout the United States. But did the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several States for such protection, in their civil rights, necessarily growing out of freedom, as those States, in their discretion, might choose to provide? Were the States against whose protest the institution was destroyed to be left free, so far as national interference was concerned,
to make or allow discriminations against that race, as such, in the enjoyment of those
fundamental rights which, by universal concession, inhere in a state of freedom?
http://landmarkcases.c-span.org/pdf/...dissenting.pdf

This pushes up federal civil rights enforcement almost a century before the 1964 civil rights act and possibly reconstruction doesn't get derailed as easily and the Jim Crow era never happens. Plessy v. Ferguson almost certainly never happens. It would be a massive game changer.

If a court took the ERA expansively it wouldn't be that big of a change as to what we see as traditional gender issues as those have largely been addressed. It could have a HUGE effect on LGBTQ issues because a ton of those can be analyzed in terms of equal rights based on sex.
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Old 9th January 2020, 07:45 AM   #45
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Originally Posted by Suddenly View Post
Which is the thing. That ERA text is some serious malleable stuff. I imagine this court will treat it as a nothingburger and maybe just apply equal protection as to gender to the feds, which is already sort of happening anyway via the substantive due process doctrine.

If you handed it to a more liberal court it could be used in more dramatic fashion. Especially as to LGBTQ issues because those can be framed as issues of equal rights based on sex.

It is vaguely akin to the 13th amendment in the sense that narrow vs. broad construction would have a pretty dramatic effect. In our timeline, the 13th ended up being a narrow rule against owning other humans.

Now, consider the timeline where Justice Harlan's dissent in the civil rights cases was the majority opinion:



http://landmarkcases.c-span.org/pdf/...dissenting.pdf

This pushes up federal civil rights enforcement almost a century before the 1964 civil rights act and possibly reconstruction doesn't get derailed as easily and the Jim Crow era never happens. Plessy v. Ferguson almost certainly never happens. It would be a massive game changer.

If a court took the ERA expansively it wouldn't be that big of a change as to what we see as traditional gender issues as those have largely been addressed. It could have a HUGE effect on LGBTQ issues because a ton of those can be analyzed in terms of equal rights based on sex.
For context, this is the text - as I understand it - in its entirety:

Originally Posted by From Wiki
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.
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Old 9th January 2020, 07:49 AM   #46
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Originally Posted by bruto View Post
How about this: imagine that there once was a social custom and practice that discriminated against Bobs. Now that prejudice has mostly waned, and every time a person named Bob hits an obstacle, he can bring it to the attention of legislators, and a law is passed that says the equivalent of "Bobs are counted as regular people for this situation." There are no particular situations left in which Bobs are discriminated against as long as the laws don't change. The law, thus, can be said to be fair to Bobs. Is all right with the world? Would that be sufficient for you? Or might you want a blanket constitutional statement that says from now on Bobs are equal without requiring Bob-specific laws?
If after that amendment, a law survives strict scrutiny but only applies to Bob's, is that unequal?
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Old 9th January 2020, 07:58 AM   #47
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Originally Posted by BobTheCoward View Post
Is it still treating them unequally if it survives strict scrutiny?
Yes. Strict scrutiny is a process for determining when an inequality is justified. It does not, and cannot, prove equal treatment.
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Old 9th January 2020, 08:34 AM   #48
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Originally Posted by uke2se View Post
For context, this is the text - as I understand it - in its entirety:
(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 text really doesn't matter all that much. A liberal justice would make a sort of textualist approach to conclude that the word "sex" encompasses gender issues so now there is a clear federal constitutional basis for ending all LGBTQ discrimination. Or they could frame it as an evolving standards thing to the same effect.

A conservative would, well, not do that and limit the scope of the amendment close to or within existing constitutional doctrines and make it effectively a dead letter.
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Old 9th January 2020, 08:36 AM   #49
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"I'm sorry ladies but we can't Constitutionally protect your rights because we're afraid of hypothetical future hand-wringing over gender issues" doesn't strike me as that persuasive of an argument.
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Old 9th January 2020, 08:43 AM   #50
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Originally Posted by JoeMorgue View Post
"I'm sorry ladies but we can't Constitutionally protect your rights because we're afraid of hypothetical future hand-wringing over gender issues" doesn't strike me as that persuasive of an argument.
I don't know if persuasive enters into it. What you or I find persuasive and what Roberts as a likely swing vote might think is a correct statement of law are likely two way different things.

Anyway, it would be more along the lines of saying that the ERA does provide protections and then defining those protections in way that it is all covered by existing substantive due process / equal protection cases so the whole thing ends up doing nothing.

The civil rights and slaughterhouse cases that greatly neutered the 13th and 14th amendments are good examples of how the Court has done this sort of thing in the past.
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Old 9th January 2020, 10:06 AM   #51
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Originally Posted by BobTheCoward View Post
If after that amendment, a law survives strict scrutiny but only applies to Bob's, is that unequal?
I would suppose that it would depend on what the law was about. In the issue of equal rights, despite what the scare mongers who oppose the ERA have said for years, I doubt it would mean that a law concerning the actual, biological differences between sexes would be impossible. A law that guarantees equal rights does not necessarily mean that nothing specific can be legislated where things other than civil rights are at issue. If a law was passed, for example, to establish standards for wheelchair safety, it's clear that it addresses only the users of wheelchairs. Do you think that this would be in violation of rights for the handicapped?

In any case, I find it odd that in this issue you are addressing the practical consequences of laws, since you seem in the past to have made a career here of disparaging consequences and espousing pure theory.

Perhaps in my previous post I should have said it differently. Even if you see unwanted consequences, and even if you don't personally care about the outcome, do you not at least perceive that there is an abstract difference between an amendment and a body of laws?
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Old 9th January 2020, 10:21 AM   #52
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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.
The Constitution doesn't put a time limit on ratification. It says nothing about whether states are allowed to rescind a ratification, but I really don't see any reason that they shouldn't be allowed to do so. The record for longest time between passage by Congress until ratification is held by the 27th amendment, which provides that if Congress changes its own pay, it won't take effect until after the next election. This was initially passed by Congress in 1789, along with the Bill of Rights amendments, but was not ratified until 1992.

Most amendments introduced in the 20th century contained, within their text, a time limit of seven years for ratification, as did the apparently failed Equal Rights Amendment. To my knowledge, the Supreme Court has never ruled on whether a state can rescind ratification. However, it seems to me, that if there is not a time limit on ratification, it is not reasonable to prohibit the rescinding of a ratification.
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Old 9th January 2020, 10:22 AM   #53
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Originally Posted by Suddenly View Post
A liberal justice would make a sort of textualist approach to conclude that the word "sex" encompasses gender issues so now there is a clear federal constitutional basis for ending all LGBTQ discrimination.
This is—IMO—persuasive and probably the best argument in favor of pushing the ERA forward.

Originally Posted by Suddenly View Post
A conservative would, well, not do that and limit the scope of the amendment close to or within existing constitutional doctrines and make it effectively a dead letter.
Also persuasive, and probably a good argument that there's no rush, given the current composition of the court.

Originally Posted by JoeMorgue View Post
"I'm sorry ladies but we can't Constitutionally protect your rights because we're afraid of hypothetical future hand-wringing over gender issues" doesn't strike me as that persuasive of an argument.
Which currently unprotected rights do you have in mind?
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Old 9th January 2020, 10:31 AM   #54
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Originally Posted by uke2se View Post
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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I AGREE
What an incredibly stupid piece from John Oliver. Completely vacuous.
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Old 9th January 2020, 10:35 AM   #55
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Originally Posted by d4m10n View Post
Which currently unprotected rights do you have in mind?
We should strike the 19th while we are at it, women totally were granted the right to vote by the 14th. That is why putting the ERA in would be as crazy as passing the 19th was.
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Old 9th January 2020, 10:36 AM   #56
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Originally Posted by ponderingturtle View Post
We should strike the 19th while we are at it, women totally were granted the right to vote by the 14th. That is why putting the ERA in would be as crazy as passing the 19th was.
Sarcasm somehow doesn't actually manage to conceal the fact that you've dodged my question to Joe.
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Old 9th January 2020, 10:37 AM   #57
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Originally Posted by d4m10n View Post
Sarcasm somehow doesn't actually manage to conceal the fact that you've dodged my question.
It just shows how vacuous and pointless the women's suffrage movement was, they already had the right to vote.
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Old 9th January 2020, 10:41 AM   #58
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"currently unprotected"
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Old 9th January 2020, 10:45 AM   #59
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You're missing the point.

Demanding I point at some legal protection that women don't currently have as proof we need an ERA is missing the point.

I want the laws we currently have to have protection so they can't be removed on a whim.

It's why we still needed the 13th amendment, because the Emancipation Proclamation (or if we simply have to be nitpickey a broader anti-slavery law since I know the Emancipation Proclamation wasn't that broad reaching) wasn't "good enough."

Laws can be removed easily and are often removed/altered on whims and for greater political purposes and squabbling. Amendments cannot, at least not with anything even approaching the ease. That is the whole point.

Why have amendments if "Well we have laws, aren't they good enough?" is the argument?

No. Sometimes laws aren't enough. That's the whole point.
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Old 9th January 2020, 10:50 AM   #60
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Originally Posted by d4m10n View Post
"currently unprotected"
Because it is not protected, and protecting rights is kind of the point. Legal interpretations change and putting it in stone makes it more real than depending on some penumbra of interpretation that can be changed on whim.
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Old 9th January 2020, 10:55 AM   #61
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Originally Posted by ponderingturtle View Post
It just shows how vacuous and pointless the women's suffrage movement was, they already had the right to vote.
No. On the other hand, your constant stream of ridiculous responses does show that you are either unable or unwilling to address actual arguments.
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Old 9th January 2020, 10:59 AM   #62
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Earlier I said that the supreme Court had ruled on a couple of items related to the ratification process. Based on further reading, I don't think that is true. I don't know if either issue ever reached the court.
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Old 9th January 2020, 11:02 AM   #63
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The problem with Oliver's piece is that it doesn't actually talk of any practical consequence of having the amendment.

Tell me what this amendment would do. To me, it seems like it would outlaw the all girls robotics competition. I think that's bad.
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Old 9th January 2020, 11:07 AM   #64
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Originally Posted by BobTheCoward View Post
If after that amendment, a law survives strict scrutiny but only applies to Bob's, is that unequal?
Bob's what?
Bob's use of extraneous apostrophes?
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Old 9th January 2020, 11:18 AM   #65
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Originally Posted by BobTheCoward View Post
If after that amendment, a law survives strict scrutiny but only applies to Bob's, is that unequal?
It seems like you don't understand what strict scrutiny is for.
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Old 9th January 2020, 11:30 AM   #66
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Originally Posted by JoeMorgue View Post
You're missing the point.
My point was that you don't seem to envision this amendment actually changing anything, in theory or practice, right now. Are you missing my point?

Originally Posted by JoeMorgue View Post
Demanding I point at some legal protection that women don't currently have as proof we need an ERA is missing the point.
There isn't exactly one the point for us all to point at.

There are a set of pros and cons to consider.

Originally Posted by JoeMorgue View Post
I want the laws we currently have to have protection so they can't be removed on a whim.
Which laws do you have in mind?

As I noted upthread, the expiration of VAWA would not have been prevented by the ERA.

Originally Posted by JoeMorgue View Post
It's why we still needed the 13th amendment, because the Emancipation Proclamation...wasn't "good enough."
It also wasn't a law passed by Congress.

Originally Posted by JoeMorgue View Post
Laws can be removed easily and are often removed/altered on whims and for greater political purposes and squabbling. Amendments cannot, at least not with anything even approaching the ease.
Which laws currently on the books are you hoping to see protected from repeal?

Originally Posted by JoeMorgue View Post
Why have amendments if "Well we have laws, aren't they good enough?" is the argument?
I don't know who made that argument, but it certainly wasn't me. My argument would be that an expansive judicial interpretation of the 14th is more than enough to get the job done, that is, the job originally envisioned by the framers of the ERA.
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Old 9th January 2020, 11:32 AM   #67
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Originally Posted by Meadmaker View Post
The problem with Oliver's piece is that it doesn't actually talk of any practical consequence of having the amendment.
Who knows? How did the founders think "free speech" applied to internet porn when the wrote it?

What is your problem with it as a principle? How it plays out in terms of case law is an open question but I get that you think discrimination based on sex is an important option to keep open for congress. that is why we need to not have bans on it in the constitution.

This isn't an amendment to do a specific thing but to establish a principle in the constitution. So why shouldn't this be a principle of individual rights in the constitution?
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Old 9th January 2020, 11:35 AM   #68
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Originally Posted by d4m10n View Post
My point was that you don't seem to envision this amendment actually changing anything, in theory or practice, right now. Are you missing my point?
It established a clear new legal right, that is not a small change. Why are you so opposed to the idea that people should be treated the same without regard to sex?

This is a principle that I support, and think should be enshrined in the constitution even if nothing changes.
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Old 9th January 2020, 11:36 AM   #69
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Originally Posted by bruto View Post
I would suppose that it would depend on what the law was about. In the issue of equal rights, despite what the scare mongers who oppose the ERA have said for years, I doubt it would mean that a law concerning the actual, biological differences between sexes would be impossible. A law that guarantees equal rights does not necessarily mean that nothing specific can be legislated where things other than civil rights are at issue. If a law was passed, for example, to establish standards for wheelchair safety, it's clear that it addresses only the users of wheelchairs. Do you think that this would be in violation of rights for the handicapped?

In any case, I find it odd that in this issue you are addressing the practical consequences of laws, since you seem in the past to have made a career here of disparaging consequences and espousing pure theory.

Perhaps in my previous post I should have said it differently. Even if you see unwanted consequences, and even if you don't personally care about the outcome, do you not at least perceive that there is an abstract difference between an amendment and a body of laws?
My post is focused solely on the terms and not the consequences.

If after the ERA, a hypothetical law that treats women differently survives the supreme court the same way affirmative action has (gritter v. Bollinger), do the sexes have equal rights or not?

Prestige says that is unequal. Does everyone agree?

I don't have a sense of how equal rights advocates mean when they say equal rights. Do they perceive laws that survive judicial review as not equality issues, or as equality, or as inequality?
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Old 9th January 2020, 11:44 AM   #70
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Originally Posted by ponderingturtle View Post
Why are you so opposed to the idea that people should be treated the same without regard to sex?
Because there are obvious differences between the sexes which often require separate but equal treatment, e.g. collegiate sports leagues, communal showers, etc.
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Old 9th January 2020, 11:47 AM   #71
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Originally Posted by BobTheCoward View Post
My post is focused solely on the terms and not the consequences.

If after the ERA, a hypothetical law that treats women differently survives the supreme court the same way affirmative action has (gritter v. Bollinger), do the sexes have equal rights or not?

Prestige says that is unequal. Does everyone agree?

I don't have a sense of how equal rights advocates mean when they say equal rights. Do they perceive laws that survive judicial review as not equality issues, or as equality, or as inequality?
I thought I had sort of addressed that first question. Not all laws that concern differences concern equal rights. There are laws, for example, that regulate how traffic is to behave when a driver sees a blind person with a white cane. Does enforcement of those laws, which are certainly special to the blind, curtail the rights of the blind?

But again why argue the point about what constitutes a right and what does not, if you have no concern for consequences? It's at least partly a matter of theory, as I think has been pointed out above: currently a law may protect people, and as it stands it may do all that needs to be done. But the law itself is not protected. A constitutional Amendment protects the law.
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Old 9th January 2020, 11:50 AM   #72
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Originally Posted by bruto View Post

But again why argue the point about what constitutes a right and what does not, if you have no concern for consequences?
Two answers

1) I enjoy discussion of trivial things

2) in general, I view rights as the ends and not the means to an end. So a right that does nothing or does harm versus a right that does something are the same.
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Old 9th January 2020, 11:52 AM   #73
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Originally Posted by d4m10n View Post
Because there are obvious differences between the sexes which require separate but equal treatment, e.g. collegiate sports leagues.
The answer there is simple they are not dirrectly covered at all by the constitution, they would be covered like they are now by Title 9. So in your opinion Title 9 would be ruled unconstitutional by this amendment?

Personally I don't see how a constitutional amendment affects private organizations, I mean how does the third amendment affect the NFL? It is only when laws get written that this matters.

Where exactly do you want laws to treat men and women differently? I mean sure it has been almost 40 years since married women could legally get their own credit cards, that kind of banning of married women from being able to legally sign contracts is totally not a big deal. And like a lot of these liberal crap rulings we will see it overturned soon.
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Old 9th January 2020, 12:13 PM   #74
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Originally Posted by ponderingturtle View Post
The answer there is simple they are not dirrectly covered at all by the constitution, they would be covered like they are now by Title 9. So in your opinion Title 9 would be ruled unconstitutional by this amendment?
No, in my opinion the jurists would avoid using overly simplistic language like "treated the same" when ruling on such matters.

Originally Posted by ponderingturtle View Post
Personally I don't see how a constitutional amendment affects private organizations...
Many (if not most) American colleges aren't private.

Originally Posted by ponderingturtle View Post
Where exactly do you want laws to treat men and women differently?
I'd like to a state law which mandates 1.5x as much floor space for ladies restrooms, with a waiver for unisex layouts.
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Old 9th January 2020, 12:18 PM   #75
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Originally Posted by d4m10n View Post
Which laws currently on the books are you hoping to see protected from repeal?
I don't think this is the right way to look at it.

I don't think constitutional articles and amendments should have the effect of locking in specific laws. Congress should still be able to change how they legislate within the boundaries of the constitution. If an amendment makes it so that you can't repeal a law, then the law itself should be an amendment.
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Old 9th January 2020, 12:19 PM   #76
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Originally Posted by BobTheCoward View Post
My post is focused solely on the terms and not the consequences.

If after the ERA, a hypothetical law that treats women differently survives the supreme court the same way affirmative action has (gritter v. Bollinger), do the sexes have equal rights or not?

Prestige says that is unequal. Does everyone agree?
Do you agree?
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Old 9th January 2020, 12:36 PM   #77
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Originally Posted by Meadmaker View Post
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.
Really? Never mind that the vast majority of the overall population supports it? The processes for amending the Constitution were made absurdly hard. Our government structure and rules leads to absurdities like this.

Do we really let a tiny majority in a lightly populated state dictate the rights of half the population?
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Old 9th January 2020, 12:39 PM   #78
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Originally Posted by Loss Leader View Post
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."
That is a terrible law nerd joke, and I love it.
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Old 9th January 2020, 12:44 PM   #79
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Originally Posted by theprestige View Post
I don't think this is the right way to look at it.

I don't think constitutional articles and amendments should have the effect of locking in specific laws. Congress should still be able to change how they legislate within the boundaries of the constitution. If an amendment makes it so that you can't repeal a law, then the law itself should be an amendment.
Yes.

The way to look at the ERA is that it serves as an additional barrier to prevent government action contrary to sex equality and as a potential justification for government action meant to promote sex equality.

If congress feels like repealing the sex equality provisions of the Civil Rights Act or scrapping title IX, this amendment isn't going to stop them.
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Old 9th January 2020, 12:51 PM   #80
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Originally Posted by theprestige View Post
It seems like you don't understand what strict scrutiny is for.
You are far too kind.
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