Anna at Dakota Women and I have been engaged in a discussion of the proposed WEA. Here is my last post on this topic, and here is Anna's recent reply. I think that our positions are reasonably clear, and that makes the discussion worth while. I have only a few things to add.
Anna seems to think that the ERA would have made the VMI case unnecessary. I think the opposite. The Virginia Military Institute's male-only would have had to be challenged on the grounds of the ERA as it was on the grounds of the 14th Amendment equal protection clause. As the outcome would have been the same, the VMI case cannot support the need for an equal rights amendment.
Whether the Court uses a strict scrutiny standard in cases of sexual discrimination (or racial discrimination), or some less exacting standard, is not determined by what is in the Constitution, but by how the Court wants to apply what is in the Constitution. Likewise, the question of sexual equality, like the question of racial equality, etc., is settled as a matter of constitutional law. The only live questions are clearly policy questions, like Title IX issues of athletic funding. These questions will be settled by courts and Congress regardless of whether WEA is added to the Constitution.
Anna says this:
I am probably not the right person with whom to have this discussion, because to me the symbolic reasons for adding the WEA to the Constitution are enough for me to support it. I can't see any reason why the Constitution should not specifically state the fact that Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. This is personal to me and to a lot of other women.
I think Anna is the right person for this discussion. I have no quarrel with her passion. I just don't think that "symbolic reasons" are sufficient for amending the founding document. It has been necessary several times to amend the Constitution to enlarge the franchise. We did so to abolish slavery, extend the right to vote and equal protection to freed men and women, to give women the right to vote. These were not symbolic additions, but extensions of clear and real powers. So far, no one has shown me what powers or privileges the WEA would extend. I haven't seen a single issue where the WEA would make a difference.
Do we need a specific statement regarding women? If so, then why not another for homosexuals? And while we are at it, why not the Irish?
On a second question, I did not urge Anna to be civil with me. I emphatically stated that she was being civil. I did complain of the ad hominem elements in her argument, and she defends them.
I think conservatives tend to believe the WEA will do big scary things that it really won't. Phyllis Schlafly thinks we'll all be peeing in the same bathrooms, Bob Ellis thinks this will open the door to same-sex marriage, and Ken Blanchard wonders if the WEA will remove the presumption of innocence from men in rape or sexual harassment cases. Prof. Blanchard's fear is without a doubt more reasonable, but I think the thought process that prompted the comment is not that different from Schlafly's or Ellis's. (I would like to point out here that I do not believe Blanchard, Schlafly, and Ellis have the same or even similar opinions of women or women's rights - but, again, all three of them seem to think "Good Heavens! Whatever will we do?" while most Americans are surprised the ERA wasn't passed the first time.)
Anna is taking some care to be fair to me here, and I cannot demand more. I think her posts are models of what political conversation among left and right ought to be like. I am convinced that Anna and I, and most Americans on both sides of the blue/red divide, agree about a lot more than we disagree about. I think women have exactly the same constitutional rights as men. The equal protection clause protects persons, not men or women as such.
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