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Old 6th November 2019, 08:58 PM   #1
Puppycow
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Equal Rights Amendment?

Back in the 1970s in America there was a big push to add an equal rights amendment to the constitution. It got close, but ultimately failed to make it across the finish line at the time. The opposition was led anti-feminist Phyllis Schlafly who argued that it would lead to outcomes that were actually harmful to women, such as women becoming subject to military conscription and many other things. Now there seems to be some talk about trying again. Is it really needed though? Would it actually change anything?

Quote:
The amendment gained momentum in the 1960s and ’70s, culminating with passage in the US Senate and the House of Representatives in 1972, which put it on track to become what would have been the 27th Amendment of the Constitution. It was sent to the states for ratification and put on a seven-year deadline.

Support was, initially, bipartisan and broad. In the first year after the amendment was passed, 22 states ratified it.

But opposition began to organize, led by anti-feminist conservative leader Phyllis Schlafly, who argued the ERA would erase legal differences between men and women and would lead to an America where men wouldn’t be required to support their wives, anyone could walk into any bathroom, women could be drafted, and same-sex marriage would be legalized. Schlafly died in 2016 at the age of 92.

“Since the women are the ones who bear the babies, and there’s nothing we can do about that, our laws and customs then make it the financial obligation of the husband to provide the support,” Schlafly said in 1973. “It is his obligation and his sole obligation. And this is exactly and precisely what we will lose if the Equal Rights Amendment is passed.”

Schlafly’s line of attack caught on, as did others — that the ERA’s passage would expand abortion rights, that it would infringe on states’ rights, that it would be costly to businesses. Indiana became the 35th state to ratify the ERA in 1977. Then its momentum stalled.
I'm kind of skeptical of this idea that since 35 states ratified it back in the 1970s, that if only 3 more states ratify it in the 2010s that it would become effective. The "seven-year deadline" has passed, and some of the states that originally ratified it have since "unratified" it. So it seems that it would require starting the process over from scratch. But it's conceivable that could happen. It almost happened the first time.

A lot has changed for women and men since the 1970s.
  • The draft isn't really a thing anymore, so I doubt that argument would be very compelling.
  • Schlafly argued that husbands have some kind of financial obligation to support their wives (something not reciprocal according to her original argument: the husband was obliged to support his wife, never the other way around, according to Schlafly). If that was ever true, it certainly isn't true any more. So that reason no longer seems to be relevant.
  • Same-sex marriage happened anyway, which now enjoys strong majority support, upwards of 60%. No longer a relevant argument.
  • Transgender issues are still possibly relevant. If they start an ERA over from scratch, perhaps it would be helpful to clarify what exactly it means when it comes to transgender people.
The original text states:
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.
Would that mean by the plain letter of the amendment that you can no longer have separate public restrooms segregated by sex?

Is it necessary or desirable to amend the constitution this way?
Would it be necessary to clarify anything or to change the original wording or add anything more to it?
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Old 6th November 2019, 09:34 PM   #2
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Originally Posted by Puppycow View Post
The original text states:
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.
Would that mean by the plain letter of the amendment that you can no longer have separate public restrooms segregated by sex?
It could have far more reaching consequences than that. It could outlaw "affirmative action" programs and outlaw provisions by employers such as maternity leave or child care facilities (on the grounds that women are more likely to benefit from them).

And that is just in the work place. The lawyers would have a field day on this one.
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Old 6th November 2019, 09:51 PM   #3
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Originally Posted by psionl0 View Post
It could have far more reaching consequences than that. It could outlaw "affirmative action" programs and outlaw provisions by employers such as maternity leave or child care facilities (on the grounds that women are more likely to benefit from them).

And that is just in the work place. The lawyers would have a field day on this one.
Maternity leave does not need to impact the sexes differently. When my kids were born I took paternity leave. Same thing, the option would be available to both parents equally. This would be different from sick leave that might be used to recover from the physical aspects of childbirth and pregnancy.

The same goes for child care facilities. Last time I checked, parents come in both types. So long as fathers exist, there is nothing inherently gender-specific regarding child care facilities other than outdated attitudes.
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Old 6th November 2019, 09:52 PM   #4
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Originally Posted by psionl0 View Post
It could have far more reaching consequences than that. It could outlaw "affirmative action" programs and outlaw provisions by employers such as maternity leave or child care facilities (on the grounds that women are more likely to benefit from them).

And that is just in the work place. The lawyers would have a field day on this one.
In most countries, Parental Leave is able to be taken by either parent, and regardless of who might benefit more, child care facilities can be used by member of any gender if they have a child. As such this amendment would not really do any harm to either thing other then enshrine the rights of both parents to have access to them, which they should or do already have.

Ninja'ed by Crescent....
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Old 6th November 2019, 09:54 PM   #5
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I got leave when my wife delivered; it was never a big deal.

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Old 6th November 2019, 09:59 PM   #6
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Originally Posted by psionl0 View Post
It could have far more reaching consequences than that. It could outlaw "affirmative action" programs and outlaw provisions by employers such as maternity leave or child care facilities (on the grounds that women are more likely to benefit from them).

And that is just in the work place. The lawyers would have a field day on this one.
This reminds me of the hyperbole I heard when the American Disability Act was first passed.

I was working for the National Park Service at the time, and many employees were certain, very certain, that every hiking trail would need to be made fully wheelchair accessible, and trails which could not be converted would need to be closed. No hiking allowed in any place ordinary wheelchairs could not get to.

It didn't happen that way, I don't think anything overly drastic would happen with this either.
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Old 6th November 2019, 10:00 PM   #7
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Originally Posted by Ranb View Post
I got leave when my wife delivered; it was never a big deal.
Not prior to ERA. But if the amendment was ratified then it might (or might not) lead to a lot of court cases and if that happens, the statistics used will have a much bigger sample size than one.
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Old 6th November 2019, 10:11 PM   #8
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As a lawyer, I see no reason not to pass the Amendment. Is it necessary? I don't know. Courts have pretty much read it into the 14th Amendment anyway. But courts can and do change. Adding the Amendment would make it inviolable, of which I approve.
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Old 6th November 2019, 10:30 PM   #9
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Originally Posted by psionl0 View Post
Not prior to ERA. But if the amendment was ratified then it might (or might not) lead to a lot of court cases and if that happens, the statistics used will have a much bigger sample size than one.
Originally Posted by wiki
In the U.S. parents and family are federally protected under The Family and Medical Leave Act of 1993 (FMLA) to go on maternity or family leave after the adoption or birth of a child. Under this law, legal parents are protected for up to 12 weeks of unpaid leave (per year). The FMLA ensures the job security of parents/employees but does not protect employees who go on paid leave with their employers. Receiving the correct payment from being on leave is between the firm and the employee. However, some state laws that do protect and guarantee employees for paid family leave (see State Legislation section). Additionally, the FMLA defines “parents” as biological, adoptive, step or foster parent who stood in loco parentis or “in the place of a parent”.
Care to explain how the ERA would change any of this?
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Old 6th November 2019, 11:32 PM   #10
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Originally Posted by psionl0 View Post
It could have far more reaching consequences than that. It could outlaw "affirmative action" programs and outlaw provisions by employers such as maternity leave or child care facilities (on the grounds that women are more likely to benefit from them).

And that is just in the work place. The lawyers would have a field day on this one.
It could conceivably outlaw any sex-based affirmative action.

As for maternity leave, just call it parental leave and allow any parent of either sex to take it. Problem solved.

As for child care facilities, whether women are more likely to benefit from them is irrelevant. As long as both men and women are equally allowed to use the facilities, it's not discriminatory. If more women than men actually take advantage of it, it's still not discriminatory in my opinion. If an employer offered free tickets to sports events to employees, more men than women might take advantage of it, but as long as anyone has an equal opportunity to use the benefit, I don't see an inherent problem.
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Old 7th November 2019, 12:25 AM   #11
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Originally Posted by Puppycow View Post
As for child care facilities, whether women are more likely to benefit from them is irrelevant. As long as both men and women are equally allowed to use the facilities, it's not discriminatory. If more women than men actually take advantage of it, it's still not discriminatory in my opinion. If an employer offered free tickets to sports events to employees, more men than women might take advantage of it, but as long as anyone has an equal opportunity to use the benefit, I don't see an inherent problem.
It is questions like these that will have the lawyers raking in money for a long time to come.

The argument has been made in the past that a level playing field discriminates against women. This argument and the counter argument could be raised many times before the whole thing is played out.
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Old 7th November 2019, 01:15 AM   #12
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Well of course anyone can make any harebrained argument they want, but I don't think a sensible court would accept that argument.
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Old 7th November 2019, 01:40 AM   #13
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Originally Posted by Puppycow View Post
Well of course anyone can make any harebrained argument they want, but I don't think a sensible court would accept that argument.
What is a "sensible" court?
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Old 7th November 2019, 04:44 AM   #14
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Originally Posted by psionl0 View Post
What is a "sensible" court?
I'm at a bit of a loss here. Is that word not in your vocabulary? I really don't feel like having one of those back-and-forths over something silly.

I'll try to restate my position in other words:

I don't think an argument based on "one sex benefits from policy X more than the other" would hold water. And I wish people wouldn't see every possible benefit as a zero-sum thing. Why oppose a policy that helps women but doesn't exclude men just because you aren't a woman? If someone else gets something nice but I am unaffected: neither harmed nor benefited, why should I oppose that simply because I am not the person benefiting directly? Maybe we can all have something nice eventually if we don't see every thing as zero sum?
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Old 7th November 2019, 07:00 AM   #15
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Originally Posted by Puppycow View Post
Is it necessary or desirable to amend the constitution this way?
Unless we can come up with a couple salient examples wherein women are currently and systemically being denied or abridged "[e]quality of rights under the law" in either state law or the United States Code, then I'd be inclined to say this is a solution in search of a problem to solve.

ETA: To the best of my recollection, the only "privilege" given solely to men under federal law is the requirement to sign up for Selective Service, but even that may soon be overtaken by events.
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Old 7th November 2019, 07:20 AM   #16
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Originally Posted by d4m10n View Post
Unless we can come up with a couple salient examples wherein women are currently and systemically being denied or abridged "[e]quality of rights under the law" in either state law or the United States Code, then I'd be inclined to say this is a solution in search of a problem to solve.

ETA: To the best of my recollection, the only "privilege" given solely to men under federal law is the requirement to sign up for Selective Service, but even that may soon be overtaken by events.
The Equal Rights Amendment (ERA) is a proposed amendment to the United States Constitution designed to guarantee equal legal rights for all American citizens regardless of sex. It seeks to end the legal distinctions between men and women in terms of divorce, property, employment, and other matters. - https://en.wikipedia.org/wiki/Equal_Rights_Amendment
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Old 7th November 2019, 07:27 AM   #17
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Which "legal distinctions between men and women in terms of divorce, property, employment, and other matters" are still enforceable in 2019?
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Old 7th November 2019, 07:43 AM   #18
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Originally Posted by d4m10n View Post
Which "legal distinctions between men and women in terms of divorce, property, employment, and other matters" are still enforceable in 2019?
Which are constitutionally protected vs being protected by mere federal law?
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Old 7th November 2019, 07:45 AM   #19
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Originally Posted by ponderingturtle View Post
Which are constitutionally protected vs being protected by mere federal law?
Even one example where federal or state law formally distinguishes between men and women would be worth talking about, if it hasn't yet been rendered unenforceable by the courts.
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Old 7th November 2019, 07:49 AM   #20
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Originally Posted by d4m10n View Post
Even one example where federal or state law formally distinguishes between men and women would be worth talking about, if it hasn't yet been rendered unenforceable by the courts.
The point isn't that such laws exist, it is that such laws are constitutional, especially under strict orrigionalist interpretations of the 14th amendment.

And which were overturned as unconstitutional vs violating federal law?

You can certainly say it is redundant with the 14th amendment but of course interpretations of the 14th have changed over time, and can certainly change back.
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Old 7th November 2019, 07:54 AM   #21
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Originally Posted by crescent View Post
This reminds me of the hyperbole I heard when the American Disability Act was first passed.

I was working for the National Park Service at the time, and many employees were certain, very certain, that every hiking trail would need to be made fully wheelchair accessible, and trails which could not be converted would need to be closed. No hiking allowed in any place ordinary wheelchairs could not get to.

It didn't happen that way, I don't think anything overly drastic would happen with this either.
Having done some engineering for the National Parks, some of their employees still seem to be under that impression.
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Old 7th November 2019, 08:04 AM   #22
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Originally Posted by ponderingturtle View Post
The point isn't that such laws exist, it is that such laws are constitutional, especially under strict originalist interpretations of the 14th amendment.
We would need to look at an existing law (or at least the language of a bill) before we could attempt to judge whether it is constitutional or not.

Consider United States v. VirginiaWP (518 U.S. 515) for example. In that case, only Justice Scalia was willing to say that sex-based exclusion is acceptable in the context of state supported military training, the rest were persuaded that the equal protection clause forbade such a system.

Would the ERA have led to the same result? Probably, though perhaps it would've brought even Scalia over to the majority.

At any rate, I've yet to see an example (even a hypothetical example) of a law that needs to be struck down but which would likely withstand a 14th Amendment challenge.
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Old 7th November 2019, 08:31 AM   #23
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Originally Posted by ahhell View Post
Having done some engineering for the National Parks, some of their employees still seem to be under that impression.
Sure they do.


I do one hell of a lot of hiking in State and National parks and I don't know any employees who think that.
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Old 7th November 2019, 09:31 AM   #24
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[quote=crescent;12883913]

Originally Posted by acbytesla View Post
Sure they do.


I do one hell of a lot of hiking in State and National parks and I don't know any employees who think that.
It was a joke,

Based in part on reality because I have had to design accessible facilities in some pretty absurd locations in the national parks. Literally, a handicap accessible toilet for where the materials needed to be flown in or carried on donkey. To be fair, it never got built because someone realized how silly it was.

Also, a wheel chair lift for a building that was not itself accessible and only meant for use by the park rangers. I'm not sure if that got built.
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Old 7th November 2019, 09:32 AM   #25
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[quote=ahhell;12884325]
Originally Posted by crescent View Post


It was a joke,

Based in part on reality because I have had to design accessible facilities in some pretty absurd locations in the national parks. Literally, a handicap accessible toilet for where the materials needed to be flown in or carried on donkey. To be fair, it never got built because someone realized how silly it was.

Also, a wheel chair lift for a building that was not itself accessible and only meant for use by the park rangers. I'm not sure if that got built.
Sure.
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Old 7th November 2019, 10:03 AM   #26
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Originally Posted by ahhell View Post
It was a joke,

Based in part on reality
Schrödinger's joke!
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Old 7th November 2019, 10:26 AM   #27
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[quote=ahhell;12884325]
Originally Posted by crescent View Post


It was a joke,

Based in part on reality because I have had to design accessible facilities in some pretty absurd locations in the national parks. Literally, a handicap accessible toilet for where the materials needed to be flown in or carried on donkey. To be fair, it never got built because someone realized how silly it was.

Also, a wheel chair lift for a building that was not itself accessible and only meant for use by the park rangers. I'm not sure if that got built.
What people thought the ADA required initially had this effect. The requirement for handicapped parking spaces at government buildings had an odd effect in the Air Force. The number of spaces specified was based on the number of employees, and customers the building served. Our Aircrew Life Support building, where our helmets, oxygen masks and so forth were cared for, served about four hundred flyers, and flight qualled support personnel. On that basis it had it's parking lot rearranged with most of the first two rows handicapped spots (the rest were VIP or Alert Crew). There are no handicapped active duty flyers. Later they got a reinterpretation of the requirement and fixed the parking.
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Old 7th November 2019, 10:32 AM   #28
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Originally Posted by d4m10n View Post
We would need to look at an existing law (or at least the language of a bill) before we could attempt to judge whether it is constitutional or not.

Consider United States v. VirginiaWP (518 U.S. 515) for example. In that case, only Justice Scalia was willing to say that sex-based exclusion is acceptable in the context of state supported military training, the rest were persuaded that the equal protection clause forbade such a system.

Would the ERA have led to the same result? Probably, though perhaps it would've brought even Scalia over to the majority.

At any rate, I've yet to see an example (even a hypothetical example) of a law that needs to be struck down but which would likely withstand a 14th Amendment challenge.
The point being that courts change. While the majority of the current court is happy to apply the 14th to cover most things that would be covered by an ERA, later courts may not feel so bound. As evidenced by Scalia's dissent.
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Old 7th November 2019, 12:07 PM   #29
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[quote=acbytesla;12884326]
Originally Posted by ahhell View Post

Sure.
So believe I am a liar. Fair enough, I guess. I haven't got any evidence I'm willing to give you. I'm sure your experience as a hiker provides more incite into how the national parks facilities are designed and construction than my experience as a design engineer working for the national parks.
Originally Posted by ahhell View Post

What people thought the ADA required initially had this effect. The requirement for handicapped parking spaces at government buildings had an odd effect in the Air Force. The number of spaces specified was based on the number of employees, and customers the building served. Our Aircrew Life Support building, where our helmets, oxygen masks and so forth were cared for, served about four hundred flyers, and flight qualled support personnel. On that basis it had it's parking lot rearranged with most of the first two rows handicapped spots (the rest were VIP or Alert Crew). There are no handicapped active duty flyers. Later they got a reinterpretation of the requirement and fixed the parking.
There were similar things in the Navy, most of the piers my ship tied up to had handicap spots. For an aircraft carrier this would mean the infirm could park next to the two stories of stair and 30 or so feet of gang plank made mostly of tripping hazards or I suppose use a crane.

@belz, its a joke mostly because in 10 or so years of doing projects with the National Parks, I dealt with that maybe 3 times, so they aren't really indicative of how the parks as a whole operate, just a few west coast parks. A more common failing was assuming that if something is old it most be valuable. Lots of designs trying to save old New Deal era out houses and what not. There was also one project that my boss was involved with. After the maintenance manager of a park retired it was discovered that he'd built a building with the surplus budget. He kind of knew what he was doing in terms of construction but not so much in terms of design. The task my boss an our architects had was in figuring out how to bring the thing into compliance with the building code. I also don't know what happened with that building either.

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Old 7th November 2019, 12:13 PM   #30
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Originally Posted by Dr. Keith View Post
The point being that courts change. While the majority of the current court is happy to apply the 14th to cover most things that would be covered by an ERA, later courts may not feel so bound. As evidenced by Scalia's dissent.
Fair point, but do we have any reason to believe the Roberts court is looking to cut back existing jurisprudence on sexual equality? I know they are further right than their predecessors on many issues (e.g. corporate rights) but have we seen any indication that they want to lower the bar from intermediate scrutiny to something more like rational basis when it comes to systematically discriminating based on sex?
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Old 7th November 2019, 12:39 PM   #31
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Originally Posted by d4m10n View Post
Fair point, but do we have any reason to believe the Roberts court is looking to cut back existing jurisprudence on sexual equality? I know they are further right than their predecessors on many issues (e.g. corporate rights) but have we seen any indication that they want to lower the bar from intermediate scrutiny to something more like rational basis when it comes to systematically discriminating based on sex?
You say "fair point" then ask questions that completely disregard that point.
Originally Posted by Dr. Keith View Post
The point being that courts change. While the majority of the current court is happy to apply the 14th to cover most things that would be covered by an ERA, later courts may not feel so bound. As evidenced by Scalia's dissent.
Only a fool would suggest a constitutional amendment as a solution that is only intended to deal with a problem that will go away by itself (e.g., the current configuration of the US Supreme Court). The purpose of the amendment is to prevent mis- or re-interpretation of the Constitution in a way that limits the rights of women (or men), forever or until very bad people take control of the government and eliminate the amendment. As a bonus, the ERA should also protect the rights of transgender people.

That said, it won't pass anytime in the near-future precisely because too many people claim it's not necessary.
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Old 7th November 2019, 12:48 PM   #32
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Originally Posted by Babbylonian View Post
The purpose of the amendment is to prevent mis- or re-interpretation of the Constitution in a way that limits the rights of women...
What proposed laws (or dead letter laws) are currently threatening the rights of women but would clearly be unconstitutional (to folks like Scalia and Thomas, because courts change) under the ERA as proposed in the OP? Can you demonstrate the ERA would solve even one legal problem here in the United States? If not, I just don't see why we should pour loads of activist energy into this project, given that we've a few other fairly pressing issues currently on our plates (e.g. abolishing the electoral college in favor of one person, one vote).
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Old 7th November 2019, 12:59 PM   #33
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Originally Posted by d4m10n View Post
What proposed laws (or dead letter laws) are currently threatening the rights of women but would clearly be unconstitutional (to folks like Scalia and Thomas, because courts change) under the ERA as proposed in the OP? Can you demonstrate the ERA would solve even one legal problem here in the United States? If not, I just don't see why we should pour loads of activist energy into this project, given that we've a few other fairly pressing issues currently on our plates (e.g. abolishing the electoral college in favor of one person, one vote).
Here's a better question for you: Why should such an obviously benign amendment require "loads of activist energy?"
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Old 7th November 2019, 01:16 PM   #34
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Originally Posted by d4m10n View Post
Fair point, but do we have any reason to believe the Roberts court is looking to cut back existing jurisprudence on sexual equality? I know they are further right than their predecessors on many issues (e.g. corporate rights) but have we seen any indication that they want to lower the bar from intermediate scrutiny to something more like rational basis when it comes to systematically discriminating based on sex?
I'm not worried about the Roberts Court. I don't think these fundamental rights should be left up to the discretion of any court. They should be concrete, not subject to the whims of even an august body such as the Supreme Court. Recent history shows that revered institutions sometimes fall on rough times.
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Old 7th November 2019, 01:18 PM   #35
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Originally Posted by d4m10n View Post
What proposed laws (or dead letter laws) are currently threatening the rights of women but would clearly be unconstitutional (to folks like Scalia and Thomas, because courts change) under the ERA as proposed in the OP? Can you demonstrate the ERA would solve even one legal problem here in the United States? If not, I just don't see why we should pour loads of activist energy into this project, given that we've a few other fairly pressing issues currently on our plates (e.g. abolishing the electoral college in favor of one person, one vote).
We really should have told all those foolish suffragettes that they didn't need a constitutional amendment to vote they already had their voting rights in the 14 amendment, hence the 19th amendment was totally redundant and pointless.
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Old 7th November 2019, 01:39 PM   #36
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Originally Posted by ponderingturtle View Post
We really should have told all those foolish suffragettes that they didn't need a constitutional amendment to vote they already had their voting rights in the 14 amendment, hence the 19th amendment was totally redundant and pointless.
This is obviously disanalogous to our present situation, since the suffragettes did not already enjoy equal treatment under law.

Originally Posted by Babbylonian View Post
Here's a better question for you: Why should such an obviously benign amendment require "loads of activist energy?"
I'm just going off last time around, when conservatives found (or fabricated) several things to moral panic about.

Originally Posted by Dr. Keith View Post
I'm not worried about the Roberts Court. I don't think these fundamental rights should be left up to the discretion of any court.
In that case, you're bound to be troubled by the vague and open-ended wording of the ERA, which is going to require plenty of judicial interpretation in specific cases—probably even more than Title IX has.
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Old 7th November 2019, 01:45 PM   #37
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Originally Posted by d4m10n View Post
This is obviously disanalogous to our present situation, since the suffragettes did not already enjoy equal treatment under law.
But they were entitled to it by the constitution as it was already written at the time. Clearly they just needed the right court case and not any mess around with amendments.
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Old 7th November 2019, 01:52 PM   #38
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Originally Posted by d4m10n View Post
In that case, you're bound to be troubled by the vague and open-ended wording of the ERA, which is going to require plenty of judicial interpretation in specific cases—probably even more than Title IX has.
It is far more clear than the 14th is on this issue. Baby steps.
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Old 7th November 2019, 02:21 PM   #39
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Originally Posted by ponderingturtle View Post
ETA: To the best of my recollection, the only "privilege" given solely to men under federal law is the requirement to sign up for Selective Service, but even that may soon be overtaken by events.
I've always thought the draft laws were blatantly discriminatory against men, and was not impressed at a 1982-ish opinion written by Bill Rehnquist saying it wasn't. At the least I thought women should have to register just like men.
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Old 7th November 2019, 02:21 PM   #40
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It might raise the level of scrutiny applied to sex/gender discrimination.

Beyond that, I don't know.

I'm in favor simply because this seems like the sort of thing that ought to be constitutionalized.
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