To Comfort The Afflicted
And Afflict The Comfortable

To Comfort The Afflicted And Afflict The Comfortable

Saturday, November 28, 2020

New Observercast

Equality Deferred


It was in 1972 that Congress passed the Equal Rights Amendment.

The Amendment provides “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Forty-eight years later, Virginia became the 38th state to ratify the amendment – which would make it law but for the fact that the deadline for ratification passed in 1982.

When the ERA was first passed by Congress and sent to the states, Phyllis Schlafly and other anti-feminist women organized to fight it. Schlafly, while preaching that a woman’s place was in the kitchen and the family room, spent her life giving almost as many speeches in almost as many places as my hero, Gloria Steinem. Hiding behind the curtain of hypocrisy, the Schlafly gang succeeded in frightening millions of women by suggesting that they would end up losing all their benefits while being stuck in unisex toilets.

No legitimate constitutional scholar agreed. Frankly, it was ridiculous. By the time the ERA was passed, the United States Supreme Court had recognized that it needed to look at the 14th Amendment, guaranteeing equal protection of the law, with an enhanced level of scrutiny. They were throwing out gender preferences whether the issue was drinking beer or access to education.

While not applying strict scrutiny, the court has been applying a sort of middle ground, heightened scrutiny if not the “strict scrutiny” [strict in theory and fatal in fact] applied to race. It was never entirely clear what the ERA would do that the Supreme Court was not.

Still, it mattered. It mattered symbolically. It mattered as a measure of where the country was in term of women’s rights. It mattered because the approach of Schlafly was aimed at creating a huge divide between nonworking and working mothers, between single mothers and rich wives, and at frightening traditional women into thinking that they were the targets. The “ladies” versus the “women,” I used to call it.

It was a gap between the women who thought registration for the Selective Service System should apply to everyone and the ones who told the court that they did not want to spend their childbearing years in the infantry. I remember once, as a young Judiciary Committee staffer, suggesting that given the importance of leadership in combat to later promotions, the combat bar on women created a wall to their advancement. Everyone in the room, Kennedy Democrats to a one, told me I was out of my mind.

In 1979, when the ERA deadline was extended, many people figured it was still as good as dead. Then-President Jimmy Carter never made it a priority. In one of the first speeches I wrote after my boss Ted Kennedy announced his entry in the presidential race, I threw in a line about how Carter had never met with women’s leaders to discuss a strategy for ratifying the ERA. And the next week, he did. Hot damn. That was power for a 27-year-old. We used the lack of leadership on the ERA in so many speeches. And Reagan won.

Arguing that the amendment can be ratified after the deadline has passed is the tough side of the argument. Where the country stands at a moment in time is a little bit different than whether you can collect enough ratifications over the next 40-some years. The latter could take years to decide.

Meanwhile, Virginia’s recent ratification – following Democrats’ taking control of both chambers in the Legislature – is bittersweet. So long in coming. So much resistance along the way.

But what troubles me the most in reviewing what happened in Virginia is that the arguments have barely changed.

We know that the Civil Rights Acts of the 1960s did not change the composition of the Power Elite nearly as much as we hoped. Equality, as defined by law, generally means women succeeding under boys’ rules – rules designed for people who do not have primary responsibility for raising their children.

If you ask me, whether equality is strictly defined is not even the right question; it’s whether the demands of a job, for instance, are so all-consuming that they eliminate women [not men] from succeeding.

There were the opponents in Virginia not recognizing any of this, seemingly unconcerned that so many women and children are struggling to survive. What was the issue?

“God, help me. They are still trying to frighten everyone with those unisex bathrooms”?

Been on a plane lately?

Susan Estrich
Susan Estrich
Estrich served as a law clerk for Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia and Justice John Paul Stevens of the U.S. Supreme Court. In 1988, she was the campaign manager for Michael Dukakis' 1988 presidential run, even though she had never before managed a political campaign. She was the first female campaign manager of a major presidential campaign, and the first female campaign manager of the modern era. [5] [6] Estrich appears frequently on Fox News as a legal and political analyst, and has also substituted for Alan Colmes on the debate show Hannity & Colmes. She writes regular articles for the conservative website NewsMax, for which she is a pundit.[7] She is also on the Board of Editorial Contributors for USA Today.[8] She is currently a law professor at the University of Southern California Law School and a political science professor at its affiliated undergraduate school. Before joining the USC faculty in 1989, she was Professor of Law at Harvard University, where she was the youngest woman to receive tenure.[9] On January 10, 2008, Estrich joined Quinn Emanuel Urquhart & Sullivan, LLP, a law firm based in Los Angeles, where she chairs their Public Strategy in High Profile Litigation: Media Relations practice area. [10][11] She writes a nationally syndicated print column distributed through Creators Syndicate.