The failure of ERA

As I was wrapping up the ratified amendments, I had thought I might spend some time on other acts and sections of the United States legal code. Parts I had in mind include Title IX (passed before the Equal Rights Amendment failed, and criticized by many of the ERA's critics), the Civil Rights Act, Voting Rights Act, Fair Housing Act, and the Americans with Disabilities Act.

Previous posts have already covered that this kind of legislation is often a way of detailing how constitutional protections work, and how they will be enforced, as well as how often these principles go back to the Equal Protection clause. Two weeks ago I posted on clear issues of unequal protection.

If people don't believe in the values that the law supports, they are less likely to comply with the law. That can play out differently, based on how widespread the belief is. When the federal government strongly supports school integration, National Guard escorts may be used to force the issue. When the segregationists then switch to private schools, there may be undercover work to see if there is racial exclusion being practiced. Often de facto segregation prevails as people keep finding new ways to support it.

In the case of the Voting Rights Act, it has faced constant challenges. Those challenges eventually reached a Supreme Court that struck down some protections based on the argument that they were no longer necessary. It would be laughable if it hadn't resulted in disenfranchisement that had a direct impact on the election.

In Why We Lost the ERA, Mansbridge admits that in many ways the passage would not have had an impact. This was both because some legislation had already passed and because some areas were unlikely to be affected based on traditional areas of exception.

I still feel like it could have been incredibly important symbolically. When the key issues that prevent us from truly progressing are people stubbornly clinging to the past, symbolically saying "Yes, women are equal and the law will uphold that," can matter.

"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."

Having that language enshrined in the Constitution would have mattered. It's not that there wouldn't constantly be people pushing back against it, just as they have continued to push back against Civil Rights Legislation, but there is still a power.

We had a chance to do something good and we didn't. That echoes.

And it puts me in opposition to my church, so next week will be about that.

ERA opposition - Protecting whom?

Much of the opposition to the Equal Rights Amendment focused on what women would lose if it did pass. That protection largely focused on the legal responsibilities husbands had toward their wives. The first question that comes to mind for me as a single woman is "How does this help me?"

I can handle some self-sacrifice for the greater good, but that is not what we have here.

We are decades past the failure to ratify ERA, and some progress has been made, but consider the response to Donald Trump's bragging about kissing women and grabbing their privates without waiting for consent:

• His white supremacist supporters said (pardon the vulgarity) "Women don't mind men grabbing pussies; just being pussies."
• Comedian Dave Chappelle said the women not stopping Trump sounds like consent to him, without considering whether there might be any elements of fear or shock at play.
• Paul Ryan said “Women are to be championed and revered, not objectified."

That last one sounds better, but it is the crap that enables the first two.

One thing that happens too often is that you will have a guy crudely hitting on a woman, and then when he finds out she is married he will apologize to the husband. The problem is not his boorish behavior and the discomfort it causes, but the lack of respect for previously marked territory.

I submit to you that it is not helpful for women to be property, no matter how fond the owner is of his property.

I went back and read some talks from people speaking against ERA back at the time, and one of the points made was that most women he knew wouldn't want to lower themselves to be equal to men. I'm sure that received a chuckle, and it sounds admiring, but it's patronizing in the most literal sense, because it makes the man the patron of his wife. And he will be benevolent and protect her, but all of that protection depends on his goodness. (It's not particularly respectful of men either.)

In theory, the man will provide for his wife, so she doesn't need equal wages, but very few families can afford to get by on a single income today. Wouldn't it help if her equal work was valued equally?

It goes beyond economics. What if a woman marries an abuser? Laws might allow her to leave and collect alimony, but that's assuming she can get out with her life, and receive support instead of shame, and that he won't quit or work under the table or flee or something to avoid payment. That's a lot of potential pitfalls, all of which have some precedence.

Let's get back to the shame, though, because that is the big catch of being up on the pedestal. They can say as much as they want about how women are naturally better, but do something to make them mad and see how it goes. Suddenly you're "just like a woman", and it is no longer a compliment. When all of your goodness - and the reverence your champion owes you - comes down to you fulfilling his ideas of sweetness and virtue, that sounds like objectification. Not being allowed to be a full person is dehumanization.

And it is a system that is full of ugly things, upholding rape culture and all kinds of abuse, devaluing more than half the population, and keeping it uncomfortable to talk about any of it. ERA opponents were afraid equality would rip apart the traditional family, but wouldn't it be better to have a family where two equals stayed together through mutual affection and respect, rather than lack of options and fear?

If I can't do better than that, I will gladly stay single.

The Equal Protection Clause

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This is from the 14th Amendment, and it seems pretty straightforward. It's kind of not. At the time it did not really cover women. While it covered Black men it did not make people of other races citizens, and soon the government was going to greatly relax enforcement efforts so that they could be better reconciled with the South.

So yes, it seems straightforward, and has been used as a way of holding state laws to a higher standard, but there are constantly decisions being made about who gets to be equal and what is equal enough. I would like to point out three examples where there is not equal protection under the law.

First of all, there is often not equal protection under the law for people with disabilities. While statistics about police shootings frequently focus on race, disabilities are often overlooked. Traumatic brain injuries and seizures have played a role in some shootings, deaf people have been shot for not following orders they did not hear, and people on the autism spectrum are often in danger.

I have no doubt that police response could be improved there, but these incidents often start without them knowing that there is a disability in play. When they are responding to a mentally ill person having a breakdown, or a suicidal person, that should be enough information to handle things differently. Responders still frequently escalate the situation, and then shoot. We know how to do better - Memphis has pioneered progress in how to do better - but too many cities don't choose to improve, making an important segment of the population not protected, but more endangered.

But that race issue is there too. Drug policy has been selectively enforced, showing a clear racial bias. Communities that fund through fines target poor communities, which often includes racial bias, because there is a perception that people of color will be less able to successfully combat the fines. Stop and frisk is a racist and ineffective program. There is compelling evidence that there is not equal protection under the law or from the law by race.

Third, let's talk about rape. A backlog in rape kit testing has been a scandal, but in many cases kits were not prioritized not because there was no budget, or there was too long a wait, but because the responding officers did not find the victim credible. Attacks on other victims may later make the case for some credibility, but there is a pressure on rape victims that other crime victims don't get. What were you wearing? Did you know him? Are you sure you didn't lead him on? Do you really want to ruin his life? Quite possibly the only people to face similar pressure are those complaining of police brutality.

That is not equal protection.

Recently a friend of my sister was mad because a boy kissed her granddaughter - who did not want it - and both the boy and the granddaughter got in trouble. This reminds me of policies in some departments where on a domestic violence call the standard is to arrest both people in the dispute. I believe the justification is to discourage false complaints, but it is a policy that discourages true complaints as well, and punishes someone who is already suffering.

Thinking about that, and how often children asking for help are told to just ignore their bullies, I think the real issue is that we are uncomfortable challenging the power structure. The bully is the one with the power, or the one doing the beating - we can't fight that! Police officers and principals are after all establishment, so it should not be too surprising if they support the traditional power structure.

It should be a little surprising that so many of us put up with a power structure that is disadvantageous to so many, and we make dents in it here and there, but it really isn't satisfactory. We should not be satisfied with "All animals are equal, but some animals are more equal than others."

The Equal Rights Amendment

I did extra homework for this one.

I felt I should. It was the most recent of the failed amendments, happening during my childhood, though while I heard about I certainly didn't have much understanding of it. It was one the church was specifically against, which I believe I would feel conflicted about. When I feel like I don't know enough, my usual solution is to read.

I read Why We Lost the ERA by Jane Mansbridge. Knowing more, I have more to say, and I think there will be more than one post.

If we start out by focusing on the failure of ratification, there were some interesting factors. One point Mansbridge made was that no controversial amendments had passed for years. Child Labor had organized opposition from factory owners.  So just the fact that there was organized opposition - and enough controversy to provide organized opposition - lowered its chances of ratification.

At the beginning the odds still looked good. It received fairly broad congressional support on the federal level, but then opposition heated up in the states.

Part of the problem was disagreement about what it would mean. Opponents focused on how it would force women into the draft and into combat. Mansbridge makes a pretty solid legal argument for why that would not necessarily be true, but the perception was there.

That might seem like the war was lost on a fairly insignificant battle, but at the same time it was significant. Many states had laws giving veterans preferential treatment in hiring, so military service was a jobs issue. Many women were serving in the military, but the most prestigious assignments, with opportunities for higher pay and advancement, were closed off to them.

Over the years from the beginning of the push for an Equal Rights Amendment to the final defeat, the already existing Equal Protection Clause from the 14th amendment had been being referred to more, and being interpreted more generously, where some of the initial benefits one might expect from the ERA would be seen as already resolved. That's an interesting idea, and next week I want to spend more time on Equal Protection. 

For now, one common focus for proponents was the equal pay issue. That brings us back to the issue of whether you always need an amendment or whether other legislation can suffice, with the Lilly Ledbetter Fair Pay Act of 2009, arguing that it can be done without an amendment but making its argument a few decades later.

On that note, I leave you with this ad that I remember from my childhood:

https://www.youtube.com/watch?v=Is5vIf7nwsU

It's not a joke indeed.