Possible ratification of the Equal Rights Amendment and related legal controversy

[Suddenly]

Originally Posted by d4m10n

No, in my opinion the jurists would avoid using overly simplistic language like "treated the same" when ruling on such matters.



Many (if not most) American colleges aren't private.



I'd like to a state law which mandates 1.5x as much floor space for ladies restrooms, with a waiver for unisex layouts.

If it helps, discrimination based on sex is at present subject to an intermediate rather than strict level of scrutiny and a lot of the more imaginative concerns about this law would require at a minimum that this change.

[ponderingturtle]

Originally Posted by Suddenly

If it helps, discrimination based on sex is at present subject to an intermediate rather than strict level of scrutiny and a lot of the more imaginative concerns about this law would require at a minimum that this change.

It needs to be put into a sports context for that to make sense to d4m10n.

[d4m10n]

Originally Posted by JoeMorgue

Laws can be removed easily and are often removed/altered on whims and for greater political purposes and squabbling.

Originally Posted by d4m10n

Which laws currently on the books are you hoping to see protected from repeal?

Originally Posted by theprestige

I don't think this is the right way to look at it.

Tell that to Joe. I'm not the one saying that the ERA is necessary to either repeal or protect existing laws.

[d4m10n]

Originally Posted by Suddenly

If it helps, discrimination based on sex is at present subject to an intermediate rather than strict level of scrutiny and a lot of the more imaginative concerns about this law would require at a minimum that this change.

Intermediate scrutiny is rooted in the 14th Amendment's equal protection clause, and has recently been trending towards something more like "exacting scrutiny."

https://en.wikipedia.org/wiki/Interm...lassifications

This trend is a good thing (IMO) but I would expect to see it reversed relatively soon.

It remains unclear to me whether the ERA would help keep things going, or merely lock in the status quo.

ETA: As a side note, a former skeptic blogger and friend of mine was the plaintiff in a landmark case on point.

[d4m10n]

Originally Posted by ponderingturtle

It needs to be put into a sports context for that to make sense to d4m10n.

If there are other popularly supported areas of human endeavor in which sex-segregation is both traditional and justified, I'd be happy to talk about them as well.

[ponderingturtle]

Originally Posted by d4m10n

If there are other popularly supported areas of human endeavor in which sex-segregation is both traditional and justified, I'd be happy to talk about them as well.

Good then it should actually pass strict scrutiny and there will be no problems with it.

[theprestige]

Originally Posted by d4m10n

Tell that to Joe. I'm not the one saying that the ERA is necessary to either repeal or protect existing laws.

I don't think that's what Joe is saying.

The way I'm reading him, the argument is thus:

Laws can be repealed. Any minority protection granted by a law vanishes the moment the law is repealed. On the other hand, constitutional amendments tend to have more staying power. And they supersede laws. So if you repealed a law that granted equality, something like ERA would ensure that the equality was still protected under the constitution even without a specific law. ERA means the protection remains, even if the law providing it is removed.

[theprestige]

Originally Posted by ponderingturtle

Good then it should actually pass strict scrutiny and there will be no problems with it.

That's not how to pass strict scrutiny. Popular support and tradition are not factors in strict scrutiny. Only:
- Does the government have a compelling interest in solving the problem?
- Is there no less intrusive way to solve the problem?
- Does this particular inequality actually solve the problem?

That's all.

I suppose you could argue that "popular support" and "tradition" are closely coupled with "the government's compelling interest". I'd be open to an argument along those lines.

[d4m10n]

Originally Posted by theprestige

So if you repealed a law that granted equality, something like ERA would ensure that the equality was still protected under the constitution even without a specific law. ERA means the protection remains, even if the law providing it is removed.

Only if the law protected equality between the sexes in a way that the courts are likely to interpret the ERA to protect equality between the sexes. In point of fact, you'd probably have trouble naming a law which does so, outside of certain provisions in Title IX^WP, which are unlikely to face repeal.

ETA: https://www.law.cornell.edu/uscode/text/20/1681

[Meadmaker]

Originally Posted by ponderingturtle

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?

In principle, it's great, but constitutional amendments aren't principles. What did the founders think? They didn't foresee anything like the current situation. We, on the other hand, have 230 years of precedents and experience to draw upon, so we don't have to do a lot of guessing. A little bit here and there around the fine points, but determining the general consequences are not that difficult.

So, one problem with your statement above is that you are talking about options for Congress. Constitutional amendments don't just apply to Congress, but to every government at every level within the United States.

I've participated in an awful lot of threads over the years at this forum that debated whether someone's constitutional rights were violated. It was very rarely the case that the debated violations dealt with laws or with acts of Congress. On the home page of this forum you can see a link to a trial that occurred challenging an action by a school board. It was a little bit rare among those threads because it involved an action that actually involved a written policy, a sort of pseudo-legislative action. Other threads have dealt with statements made by teachers in the classroom. One teacher was sued because he called creationism "superstitious nonsense". (He lost, but the verdict was overturned on appeal.) Others have involved after school clubs and speeches made by valedictorians at graduations. Those sorts of actions are not even school policy, much less congressional action. No laws are involved. However, modern jurisprudence holds that anyone acting on behalf of any government within the United States must follow the Constitution, not just in their written policies, but in every action they take.

So, you might be looking at it as something that doesn't do a specific thing, but in fact it will do a lot of very specific things. Every lawsuit that is brought will be about a specific thing, and if any of those specific things are found to favor one sex or another, we can examine precedents and see how the court is very likely to rule. If there is any discrimination involved in those laws, or policies, or actions taken by teachers, policemen, or any other government employee or official, then it cannot discriminate between sexes, except in very narrow circumstances defined by the "strict scrutiny" standard.

So I go back to the example I have brought up twice now, an all girls robotic competition. There's one held every year in October in my state. It's at a public school and public funds are used. If this amendment passes, and a boy sues saying that a girl has a state-sponsored privilege that he cannot enjoy, I don't think the school districts participating in the competition would have a prayer. What possible defense could they mount? I can't think of one.

It's conceivable that even more extreme rulings might come out of it. Any situation at all where boys and girls, men and women, are treated differently in any way could come under judicial review. Some of the most bizarre ones will, I believe, be rejected. However, the example of the all girls competition? I definitely think that would be a violation of that amendment. You might not be specifying which things will be considered a violation of people's rights under the amendment, but the courts will have to examine all sorts of specific things, and we can be certain that they will make rulings on specific cases.

[BobTheCoward]

Originally Posted by Meadmaker

In principle, it's great, but constitutional amendments aren't principles. What did the founders think? They didn't foresee anything like the current situation. We, on the other hand, have 230 years of precedents and experience to draw upon, so we don't have to do a lot of guessing. A little bit here and there around the fine points, but determining the general consequences are not that difficult.

So, one problem with your statement above is that you are talking about options for Congress. Constitutional amendments don't just apply to Congress, but to every government at every level within the United States.

I've participated in an awful lot of threads over the years at this forum that debated whether someone's constitutional rights were violated. It was very rarely the case that the debated violations dealt with laws or with acts of Congress. On the home page of this forum you can see a link to a trial that occurred challenging an action by a school board. It was a little bit rare among those threads because it involved an action that actually involved a written policy, a sort of pseudo-legislative action. Other threads have dealt with statements made by teachers in the classroom. One teacher was sued because he called creationism "superstitious nonsense". (He lost, but the verdict was overturned on appeal.) Others have involved after school clubs and speeches made by valedictorians at graduations. Those sorts of actions are not even school policy, much less congressional action. No laws are involved. However, modern jurisprudence holds that anyone acting on behalf of any government within the United States must follow the Constitution, not just in their written policies, but in every action they take.

So, you might be looking at it as something that doesn't do a specific thing, but in fact it will do a lot of very specific things. Every lawsuit that is brought will be about a specific thing, and if any of those specific things are found to favor one sex or another, we can examine precedents and see how the court is very likely to rule. If there is any discrimination involved in those laws, or policies, or actions taken by teachers, policemen, or any other government employee or official, then it cannot discriminate between sexes, except in very narrow circumstances defined by the "strict scrutiny" standard.

So I go back to the example I have brought up twice now, an all girls robotic competition. There's one held every year in October in my state. It's at a public school and public funds are used. If this amendment passes, and a boy sues saying that a girl has a state-sponsored privilege that he cannot enjoy, I don't think the school districts participating in the competition would have a prayer. What possible defense could they mount? I can't think of one.

It's conceivable that even more extreme rulings might come out of it. Any situation at all where boys and girls, men and women, are treated differently in any way could come under judicial review. Some of the most bizarre ones will, I believe, be rejected. However, the example of the all girls competition? I definitely think that would be a violation of that amendment. You might not be specifying which things will be considered a violation of people's rights under the amendment, but the courts will have to examine all sorts of specific things, and we can be certain that they will make rulings on specific cases.

Suppose amendment passed and the science thing was rules against. Would you describe that as the amendment making things less equal or more equal?

[ponderingturtle]

Originally Posted by Meadmaker

In principle, it's great, but constitutional amendments aren't principles. What did the founders think? They didn't foresee anything like the current situation. We, on the other hand, have 230 years of precedents and experience to draw upon, so we don't have to do a lot of guessing. A little bit here and there around the fine points, but determining the general consequences are not that difficult.

Except for all that crap in the bill of rights. Clearly there is no right to treat women like real people.

Clearly the bill of rights was meaningless and pointless just like this.

Quote:

So, one problem with your statement above is that you are talking about options for Congress. Constitutional amendments don't just apply to Congress, but to every government at every level within the United States.

Which ones need to be able to discriminate based on sex, where do you want this discrimination?

Quote:

So, you might be looking at it as something that doesn't do a specific thing, but in fact it will do a lot of very specific things. Every lawsuit that is brought will be about a specific thing, and if any of those specific things are found to favor one sex or another, we can examine precedents and see how the court is very likely to rule. If there is any discrimination involved in those laws, or policies, or actions taken by teachers, policemen, or any other government employee or official, then it cannot discriminate between sexes, except in very narrow circumstances defined by the "strict scrutiny" standard.

Except that sex discrimination is not under strict scrutiny right now.

Quote:

So I go back to the example I have brought up twice now, an all girls robotic competition. There's one held every year in October in my state. It's at a public school and public funds are used. If this amendment passes, and a boy sues saying that a girl has a state-sponsored privilege that he cannot enjoy, I don't think the school districts participating in the competition would have a prayer. What possible defense could they mount? I can't think of one.

Only if they don't have a boys robotic team.

Quote:

It's conceivable that even more extreme rulings might come out of it. Any situation at all where boys and girls, men and women, are treated differently in any way could come under judicial review. Some of the most bizarre ones will, I believe, be rejected. However, the example of the all girls competition? I definitely think that would be a violation of that amendment. You might not be specifying which things will be considered a violation of people's rights under the amendment, but the courts will have to examine all sorts of specific things, and we can be certain that they will make rulings on specific cases.

Yep like the courts preserved the right for individuals to own nuclear weapons as directly stated by the second amendment. Damn cowards not following the constitution.

[Meadmaker]

Originally Posted by ponderingturtle

Except for all that crap in the bill of rights. Clearly there is no right to treat women like real people.

Clearly the bill of rights was meaningless and pointless just like this.

Given the way your post started, the rest of it clearly was not worth reading, so I didn't.

[d4m10n]

So I’ve been trying to work up a list of possible pros and cons of the ERA. Here’s what I’ve got so far.

________

PROs:

Would encourage future legislators to expand federal protections analogous to Title IX^WP to various other areas of human endeavor, as enabling legislation

Would permit future (progressive) iterations of the Supreme Court to expand LGBTQ rights in various areas, whenever sex-based discrimination plays some role

________

CONs:

Would possibly (likely?) undercut the ongoing expansion of 14th Amendment rights into areas uncontemplated by the drafters thereof

Would suck up some amount of feminist activist energy which could be better used elsewhere (e.g. codifying Roe into constitutional or statute law)

________

Right now I’m thinking the pros outweigh the cons, but not by all that much. Thoughts?

[Meadmaker]

Originally Posted by d4m10n

So I’ve been trying to work up a list of possible pros and cons of the ERA. Here’s what I’ve got so far.

________

PROs:

Would encourage future legislators to expand federal protections analogous to Title IX^WP to various other areas of human endeavor, as enabling legislation

Would permit future (progressive) iterations of the Supreme Court to expand LGBTQ rights in various areas, whenever sex-based discrimination plays some role

________

CONs:

Would possibly (likely?) undercut the ongoing expansion of 14th Amendment rights into areas uncontemplated by the drafters thereof

Would suck up some amount of feminist activist energy which could be better used elsewhere (e.g. codifying Roe into constitutional or statute law)

________

Right now I’m thinking the pros outweigh the cons, but not by all that much. Thoughts?

Constitutional amendments don't "encourage" or "permit" things.

They are requirements, not suggestions.

[d4m10n]

Originally Posted by Meadmaker

Constitutional amendments don't "encourage" or "permit" things.



They are requirements, not suggestions.

See the OP.

Congress is not required to pass legislation, AFAIK, merely empowered to do so.

[JoeMorgue]

Originally Posted by d4m10n

See the OP.

Congress is not required to pass legislation, AFAIK, merely empowered to do so.

That's not what that means.

If the ERA is passed Congress can't just simply decide not to enforce it. The "May pass laws" thing isn't giving Congress the right to sit on it.

[acbytesla]

Originally Posted by JoeMorgue

That's not what that means.

If the ERA is passed Congress can't just simply decide not to enforce it. The "May pass laws" thing isn't giving Congress the right to sit on it.

Congress doesn't enforce laws. The courts and the administration branch do that.

[theprestige]

Originally Posted by acbytesla

Congress doesn't enforce laws. The courts and the administration branch do that.

The Executive branch.*

Technically speaking, the courts don't enforce laws either. They provide interpretation of the enforcement requirements of the law, for the executive to follow.

[d4m10n]

Originally Posted by JoeMorgue

The "May pass laws" thing isn't giving Congress the right to sit on it.

I'll have to defer to your legal expertise, as I've never heard of a case in which an Amendment legally required Congress to pass enabling legislation.

Out of curiosity, what would you say is the legal penalty for failure to do so, in the case of the ERA?

[Ziggurat]

Originally Posted by JoeMorgue

That's not what that means.

If the ERA is passed Congress can't just simply decide not to enforce it. The "May pass laws" thing isn't giving Congress the right to sit on it.

Yes, actually it is. There is no mechanism to force Congress to pass any laws in relation to the ERA. I think Congress is likely to pass laws in response to the ERA, but they don't have to. Seriously, what do you think is going to happen if Congress does nothing in response to the ERA? Do you think the courts will make them pass a law? They can't do that.

[acbytesla]

Originally Posted by theprestige

The Executive branch.*

Technically speaking, the courts don't enforce laws either. They provide interpretation of the enforcement requirements of the law, for the executive to follow.

Exactly. See we agree on something and Hell didn't freeze over.

[acbytesla]

Originally Posted by Ziggurat

Yes, actually it is. There is no mechanism to force Congress to pass any laws in relation to the ERA. I think Congress is likely to pass laws in response to the ERA, but they don't have to. Seriously, what do you think is going to happen if Congress does nothing in response to the ERA? Do you think the courts will make them pass a law? They can't do that.

Why would they have to? More likely than not, the courts might start reinterpreting some laws as they are currently written.

[Ziggurat]

Originally Posted by acbytesla

Why would they have to?

The only way I can make any sense of Joe and Meadmaker's claim that Congress would be compelled to pass laws is if they think the courts would force them to.

Quote:

More likely than not, the courts might start reinterpreting some laws as they are currently written.

Yes, that is likely.

[Meadmaker]

Originally Posted by Ziggurat

The only way I can make any sense of Joe and Meadmaker's claim that Congress would be compelled to pass laws is if they think the courts would force them to.



Yes, that is likely.

Meadmaker made no such claim.

Joe didn't either.

Eta: although, reading Joe's post, thinking he meant that would be an easy mistake to make.

[Ziggurat]

Originally Posted by Meadmaker

Meadmaker made no such claim.

Let's look at where I got that from:

Originally Posted by d4m10n

PROs:

Would encourage future legislators to expand federal protections analogous to Title IX^WP to various other areas of human endeavor, as enabling legislation

Originally Posted by Meadmaker

Constitutional amendments don't "encourage" or "permit" things.

They are requirements, not suggestions.

It sounded to me like you were saying that, contra d4m10n's post, future legislators would not be encouraged to expand federal protections by passing new laws, but would be required to do so. I think that's a reasonable reading of those posts, but I'm open to clarification if you intended something else.

[Meadmaker]

Originally Posted by Ziggurat

Let's look at where I got that from:




It sounded to me like you were saying that, contra d4m10n's post, future legislators would not be encouraged to expand federal protections by passing new laws, but would be required to do so. I think that's a reasonable reading of those posts, but I'm open to clarification if you intended something else.

What I meant was that no congressional action is required. If the amendment is part of the Constitution, and some governmental action, statute, or policy is contrary to that amendment, then a court can step in and demand compliance. Congress isn't involved.

[Ziggurat]

Originally Posted by Meadmaker

What I meant was that no congressional action is required. If the amendment is part of the Constitution, and some governmental action, statute, or policy is contrary to that amendment, then a court can step in and demand compliance. Congress isn't involved.

OK, I can agree with that.

I still think I'm right about Joe's post, but he can clarify if I'm not.

[d4m10n]

Originally Posted by Meadmaker

If the amendment is part of the Constitution, and some governmental action, statute, or policy is contrary to that amendment, then a court can step in and demand compliance.

Do any (actual or hypothetical) governmental actions, statutes, or policies come to mind? If so I may have to put that in the PRO column.

[Meadmaker]

Originally Posted by d4m10n

Do any (actual or hypothetical) governmental actions, statutes, or policies come to mind? If so I may have to put that in the PRO column.

Holding an all girls robotics competition in a public school. That's an actual policy.

[d4m10n]

Originally Posted by Meadmaker

Holding an all girls robotics competition in a public school. That's an actual policy.

You think it's a policy "contrary to that amendment," such that "a court can step in and demand compliance" with the amendment by either adding a boys competition or integrating the sexes?

Sent from my SM-T560NU using Tapatalk

[Meadmaker]

Originally Posted by d4m10n

You think it's a policy "contrary to that amendment," such that "a court can step in and demand compliance" with the amendment by either adding a boys competition or integrating the sexes?

Sent from my SM-T560NU using Tapatalk

Yes. Either of those steps would bring the policy into compliance.



They would also totally defeat the purpose of the event, but I'm sure some people would think that's a good thing. (Just for reference, a robotics team will compete in 1-5 "official" events per year, and anywhere from 0-5 "off season" events. One of the off season events will be all girls, for the teams who choose to go. All the others are integrated. There are no all boys competitions.)

[BobTheCoward]

Originally Posted by Meadmaker

Yes. Either of those steps would bring the policy into compliance.



They would also totally defeat the purpose of the event, but I'm sure some people would think that's a good thing. (Just for reference, a robotics team will compete in 1-5 "official" events per year, and anywhere from 0-5 "off season" events. One of the off season events will be all girls, for the teams who choose to go. All the others are integrated. There are no all boys competitions.)

The question isn't if it is a good thing or not but is stopping that event a more equal thing?

[Meadmaker]

Originally Posted by BobTheCoward

The question isn't if it is a good thing or not but is stopping that event a more equal thing?

That's one question, but it's not a question that I, personally, care about.

[d4m10n]

Video editorial from Ken Burns:

https://www.nytimes.com/2020/01/15/o...amendment.html

[JoeMorgue]

Not that it really matters (or more not that it wasn't already a forgone conclusion) but Virginia ratified the ERA last night, which depending on which side you listen to, ratifies it.

I'd wager the courts are gonna start weighing in on it soon.

[Meadmaker]

Interesting. It doesn't even show up on my Google news feed.

I think there are none opinions that matter at this point, but the possible ways it will play out could be fascinating. Who will sue to overturn it? Who has standing.

My predictions:. It will make it to the Supreme Court. It will be rejected by the court. It will be immediately reintroduced in Congress.

After that? I don't know what to expect.

[ChristianProgressive]

The 14th Amendment renders the ERA redundant and unnecessary.

[acbytesla]

Originally Posted by ChristianProgressive

The 14th Amendment renders the ERA redundant and unnecessary.

I think it's necessary.

It should be noted that Women didn't have the right to vote for another half a century after the 14th Amendment was passed.

[d4m10n]

Originally Posted by ChristianProgressive

The 14th Amendment renders the ERA redundant and unnecessary.

...whenever SCOTUS happens to be dominated by progressive jurists who will interpret it broadly, well beyond the original intent of those who penned and ratified it.