Steve Sanders: We have a living Constitution. Do we need the ERA?

Democrats took control of Virginia’s state government in elections earlier this month, and, as a consequence, some people are speculating that Virginia’s lawmakers might revive the Equal Rights Amendment.

The ERA is a proposed amendment to the U.S. Constitution that was approved by Congress and sent to the states for ratification way back in 1972. A centerpiece of the women’s movement of the 1960s and ’70s, the ERA would inscribe into the Constitution a seemingly simple principle: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

It takes 38 states to ratify a constitutional amendment, and Virginia’s assent after all these years, if it comes, could mean the ERA had finally hit that number. I say “could mean,” because, even if Virginia legislators approve the ERA, major constitutional questions still stand in the way. For example, Congress provided a deadline for ratification of 1982, and several states that once voted to ratify the ERA have since voted to rescind their ratifications. The U.S. Supreme Court likely would need to decide whether such deadlines or rescindments can apply to constitutional amendments.

Those uncertainties aside, it is doubtful we actually still need the ERA. That is because, for almost 50 years, a series of Supreme Court decisions about sex equality has given us what legal scholars have called a “de facto ERA.”

David Strauss, a constitutional law professor at the University of Chicago Law School, has written that “it is difficult to identify any respect in which constitutional law is different from what it would have been if the ERA had been adopted.” That’s because, since the early 1970s, “the Supreme Court has acted as if the Constitution contains a provision forbidding discrimination on the basis of gender.”

Specifically, the court has used language in the Fourteenth Amendment guaranteeing all persons “equal protection of the laws” to strike down most forms of sex discrimination in the laws or practices of governments at all levels. Just a few of many examples include laws that treated men and women differently in divorce, the ability to strike women from juries based on stereotypes about how men and women might view a particular case or client, and the exclusion of women from public universities like the Virginia Military Institute.

Justice Ruth Bader Ginsburg wrote the opinion in the VMI case, holding that the school had failed to provide an “exceedingly persuasive justification” for why women should be denied the opportunities and challenges made available to men at VMI. Ginsburg later commented on the constitutional law about sex equality that the court’s decisions had been creating since the 1970s, remarking that there was “no practical difference between what has evolved and the ERA.”

The phenomenon of the de facto ERA illustrates what is sometimes called a “living Constitution”: Through a series of decisions that build on one another over time, the Supreme Court takes a timeless and capacious concept like “equal protection of the laws” and applies it to contemporary problems.

Of course, sex discrimination was widely accepted when the Fourteenth Amendment was adopted in 1868. But a living Constitution means it is the enduring values embedded in the Constitution that are relevant—here, the value of equality, and how we understand its requirements today—not the particular social prejudices at the time the words of the Constitution were written.

Adopting the ERA might still send a powerful message about our nation’s commitment to sex equality. But our Constitution evolves even without formal amendment.•

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Sanders is professor of law at the Indiana University Maurer School of Law in Bloomington.Send comments to ibjedit@ibj.com.

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