The new ERA is even worse than the original

OPINION:

America is facing some serious problems. The inflation rate, for example, has more than tripled this year, the steepest spike in 100 years. The average price of gasoline rose 41% in the first nine months of this year, the second-highest jump in three decades.

Yet some in Congress would rather address non-existent problems of the past. The House Oversight and Reform Committee, for example, recently held a hearing on the Equal Rights Amendment (ERA), which expired 40 years ago and had not been needed for decades before that.

The Judiciary Committee, not the oversight committee, has jurisdiction over constitutional amendments. The oversight committee held the hearing solely because it is chaired by Rep. Carolyn Maloney, New York Democrat, the ERA’s most prominent congressional advocate. She made sure that, at the witness table, ERA advocates outnumbered critics by six-to-one.

Unsurprisingly, this stacked hearing did not reveal the two things people need to know about the ERA today. First, the ERA’s purpose of legal equality between men and women was achieved even before Congress proposed it in 1972. In a 1932 hearing, the National Woman’s Party conceded that “the whole trend of legislation is toward equality.” The Supreme Court changed its precedents in this area so thoroughly that, in a 1997 interview, Justice Ruth Bader Ginsburg said that there is now “no practical difference between what has evolved and the ERA.”

Second, the hearing obscured the fact that the ERA currently pending before Congress is very different than the one that expired without sufficient ratifications four decades ago. You’d think that issue would have come up in this hearing because Ms. Maloney is the one introducing the new ERA, which would use a new method to enforce a new concept of rights.

Even before the ERA was first introduced in 1923, the Supreme Court held that the basic concept of “equal” protection of the laws means that “all persons similarly situated should be treated alike.” That’s why the ERA was written to ensure equal rights between men and women. The first version, introduced from the 1920s to the 1940s, read: “Men and women shall have equal rights ….” The second version, introduced since the 1940s, read: “Equality of rights shall not be denied or abridged … on account of sex.”

The new ERA, however, begins this way: “Women shall have equal rights….” ERA supporters confirm that this would be used to create substantive rights for women alone, allowing them to pursue an agenda through the courts in the absence of sex discrimination. Professor Julie Suk, for example, writes that this agenda includes addressing issues such as violence against women and “women’s underrepresentation in positions of decision-making power” in politics, business and even Hollywood. Witnesses testifying at the Oct. 21 hearing referred to “gender-driven injustices” and healing “intergenerational wounds generated against the most marginalized.”

ERA advocates had been arguing since the 1970s that the measure would provide additional constitutional protection for abortion rights, even requiring taxpayer funding. The new ERA, with its women-only language, would strengthen this connection to abortion even more.

The new ERA also would create a new way to enforce this new concept of rights. The seven operative provisions in the Constitution with enforcement language give authority to Congress alone. The 1972 ERA proposed by Congress gave authority to Congress and the states “within their respective jurisdictions.” The new ERA, however, deletes that important caveat, appearing to give Congress and the states identical, and completely overlapping, authority to enforce its new concept of rights anywhere. It would be difficult to imagine an approach more at odds with the system of federalism that is central to our system of government.

The 1972 ERA failed because its purpose of establishing legal equality between men and women was being accomplished without it, leaving the potential for pursuing a very different agenda. The new ERA, with its new concept of rights, makes that potential its purpose.

• Thomas Jipping is a senior legal fellow in The Heritage Foundation’s Meese Center for Legal and Judicial Studies.

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