Introduction
1.
How Will Ratification of the Equal Rights Amendments Affect Laws Concerning
Women?
2.
How Will States Be Affected by Ratification of the Equal Rights Amendment?
3.
How Will Courts Be Affected by Ratification of the Equal Rights Amendment?
Introduction
The United States
Commission on Civil Rights first endorsed the proposed Federal Equal Rights
Amendment in 1973, soon after it was adopted by the United States Congress
and reported to the individual States for ratification.
The language of the
Equal Rights Amendment expresses the basic principle that government at
all levels should treat women and men as individuals having equal rights
under law and provides for the implementation of this principle:
Sec.
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.
Sec. 2. The Congress
shall have the power to enforce, by appropriate legislation, the provisions
of this article.
Sec. 3. This amendment
shall take effect two years after the date of ratification.
The Commission reaffirmed
its support for the Equal Rights Amendment in 1978 when Chairman Arthur
Flemming and Commissioner Frankie Freeman testified in support of extending
the period of time in which ratification could be accomplished.
In December 1978
the Commission published its Statement on the Equal Rights Amendment. In
that statement, the Commission documented the continuing need for the Equal
Rights Amendment and the experience of the 16 States that already have
added equal rights provisions to their State constitutions.
On the basis of its
study, the Commission concluded that attainment of full, equal rights for
women and men requires ratification of the proposed amendment.
The need for the
ERA is at least as great today as it was when Congress proposed the amendment
to the States in 1972. Measured by any standard, gender lines have not
been erased, and the history of unequal treatment of men and women has
not been adequately redressed under existing law.
Moreover, as a result
of experiences under State constitutional amendments virtually identical
to the proposed Federal amendment, it is even clearer now than it was in
1972 that the ERA is the appropriate remedial action to address this inequality
and assure women and men equal justice before the law.
In the 2 years since
the Statement was issued, the Commission has viewed with increasing concern
the gap between reality and myth concerning the meaning of the Equal Rights
Amendment.
The Commission believes
that this gap has significantly interfered with efforts to add the amendment
to our Federal Constitution.
The gap is illustrated
by a recent independent statewide poll sponsored by the Salt Lake Tribune,
asking Utah voters whether they approved of the following language: "Equality
of rights under the law shall not be abridged by the United States or by
any state on account of sex."
The language was
favored by nearly a two-to-one margin. Yet when asked whether they favor
or oppose Utah's passing the "Equal Rights Amendment," many of
the same voters who favored the equal rights language stated their opposition
to ratifying the ERA.
Since the language
quoted above is drawn directly from the text of the proposed Equal Rights
Amendment, such conflicting responses to the two questions are not easy
to reconcile.
The gap also is seen
in other independent polls, conducted nationwide, consistently showing
majority support for the Equal Rights Amendment. But nationally, as in
Utah, the support for the principle of equality embodied in the Equal Rights
Amendment is even stronger than support for the amendment itself, indicating
that many persons have not accepted the fact that the ERA is the most effective
way to secure equal rights under law for women and men. Moreover, even
where broad-based support for the ERA is documented, it is ignored by State
legislatures that refuse to ratify the amendment.
Thirty-five States,
representing 72 percent of the United States population, have ratified
the proposed Equal Rights Amendment, approving it as part of the Federal
Constitution. However, the ratification process is stalled 3 States short
of the total number of 38 needed by June 30, 1982, the time set by Congress,
after extending the original ratification period, as the final date for
approval of the amendment.
The 15 States that
have failed to ratify to date are: Alabama, Arizona, Arkansas, Florida,
Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina,
Oklahoma, South Carolina, Utah, and Virginia.
In view of the limited
time remaining in which these States may ratify the Equal Rights Amendment,
the Commission considers it essential to confront directly the concerns
responsible for the gap between support for the principle of equal rights
and support for ratification of the ERA itself.
Many of the arguments
against ratification appeal to fears and ignore facts, confusing voters
and legislators alike about the objectives and positive effects to be secured
by the proposed amendment. The purpose of this report is to make clear
to the women and men of this Nation who believe in the equal dignity of
all individuals before the law that the Equal Rights Amendment is essential
to achieving this goal.
Although State, local,
and Federal government may act without the ERA to promote equal rights,
the reality is that without the amendment, governments at all these levels
have not taken--and most likely will not take--the steps necessary to rid
their laws, policies, and practices of the sex bias that continues to intrude
upon the lives of women and men in this country.
This report discusses
this reality and responds to several questions repeatedly raised by those
who favor equal rights but are uncertain about the ERA:
Is the ERA still
needed and how will it result in changes that are desirable?
Will States be subjected
to undue Federal efforts to enforce the ERA and accomplish these changes?
Will State and Federal
government alike be subject to undue intervention by the courts in this
enforcement process?
With this report,
the Commission renews its call for the Nation to consider the ERA on its
merits, for "such consideration can only result in ratification and
the long-awaited guarantee to women and men of equal justice under law."
1.
How Will Ratification of the Equal Rights Amendment Affect Laws and Governmental
Action Concerning Women?
The system of laws
in the United States is like a patchwork quilt: the rights of individuals
in one State vary greatly from the rights of individuals in another; and
where the actions of individuals are subject to Federal laws, their rights
may be different still.
This Federal system
of government was carefully incorporated in the United States Constitution,
and respect for the coexistence of State and Federal jurisdictions is basic
to the Nation.
Within this system,
however, certain principles of freedom and individual dignity have been
viewed as preeminent. Thus, individual States are free to govern as they
choose, but they may not interfere with freedom of speech; they may not
discriminate on the basis of race, national origin, or religion; they may
not deny an individual the right to vote on the basis of race or of sex.
The proposed Equal
Rights Amendment is consistent with this scheme. It makes clear that men
and women should be treated equally by all levels of government--the exclusive
target of the ERA.
The amendment is
necessary because, historically, discrimination against individuals based
on whether they are female or male has been deeply entrenched in our laws
and persistently reflected in governmental action.
The Senate Judiciary
Committee that successfully recommended the amendment's adoption by Congress
concluded that the ERA is essential because of the extensive sex discrimination
directly attributable to governmental action both in maintaining archaic
discriminatory laws and perpetuating discriminatory practices in employment,
education and other areas.
The social and economic
cost to our society, as well as the individual psychological impact of
sex discrimination, are immeasurable. That a majority of our population
should be subjected to the indignities and limitations of second class
citizenship is a fundamental affront to personal human liberty.
Some States have
already undertaken a basic commitment to equal rights. But the piecemeal
implementation of this commitment has been uneven, and other States have
barely made the commitment at all. There are still "[t]housands of
State laws, most of them historical hangovers, [that] typecast men and
women."
Nor has the Federal
Government fully removed sex bias from its own code and regulations.
Moreover, where States
and the Federal Government have acted through their legislatures and courts
to promote equal rights without regard to whether an individual is female
or male, their actions are not secure. As the American Bar Association
recently stated in explaining the need for the ERA:
No ordinary statute
can provide the bedrock protection assured by a Constitutional Amendment.
No Court decision can provide that protection, for the courts may interpret,
but they may not amend the Constitution.
Ratification of the
Equal Rights Amendment will provide a durable guarantee to women and men
of equal status and dignity under the law. It will allow us to live and
develop free from the government intrusion that historically has classified
and pigeonholed men and women according to stereotypes about their roles
and capabilities. The devastating effect on women of this persistent discrimination
and the changes to be secured by the ERA are discussed below.
How
Will the Equal Rights Amendment Affect Women in the Paid Labor Force?
Women's participation
in the labor force has increased dramatically, with more women employed
outside the home today than ever before in history. By 1979, 43 million
women, or 51 percent of all women in this country, were employed or looking
for jobs. Over 7.4 million held jobs in government alone--at Federal, State,
and local levels.
Statistics show that
the participation of married women in the labor force is similar to that
of all women: in March 1979, approximately 50 percent of all wives were
employed or looking for jobs. For young women, the participation rate is
even greater--64 percent of all women aged 25 to 34 were in the labor force
by the end of the decade, including 54 percent of the mothers who are in
this age group.
Clearly, with a steadily
increasing majority of all women employed, vast numbers of women are vulnerable
to discriminatory employment practices based on sex. Moreover, where job
opportunities and wages are limited by sex bias, the harm is not only felt
by women, but also by the families they support, whether in conjunction
with their husbands or on their own as heads of household.
Yet, despite the
existence of Federal and State equal employment opportunity laws, women
continue to be victims of pervasive discriminatory practices in the labor
force.
The ERA is needed
to help end governmental action that limits opportunities available to
women throughout the labor force and to close loopholes in existing antidiscrimination
laws so as to make it clear that public employment practices that discriminate
against women are illegal.
Laws
Limiting Employment Opportunities for Women
* Equal employment
opportunities for women continue to be limited by remnants of the restrictive
labor legislation passed by the Federal and State governments in the late
19th and early 20th centuries and after the Second World War. These laws
limited the occupations open to women, restricted the number of hours women
could work, and regulated working conditions for women.
Stereotyped beliefs
about women's roles and capabilities were given as the rationale for passage
of these laws: women were seen as physically weak and as occupying only
a transient and secondary role in the labor market. In addition to reinforcing
and perpetuating these stereotypes, such restrictive labor laws also served
to reduce the competition by women for better paying jobs.
Rather than protecting
women, the provision discriminated against them by making it difficult
for qualified women to obtain desirable and high-salaried jobs and by creating
obstacles to promotions and supervisory positions. The restrictive nature
and discriminatory effect on women of protective labor legislation have
been specifically acknowledged by the United States Senate as one of the
reasons the Equal Rights Amendment is needed.
Although many of
these discriminatory statutes have been repealed or invalidated, some still
remain on the books as badges of sex discrimination and symbols of sex
stereotyping operating to deprive women of jobs. For example, statutes
that establish a maximum number of hours women are permitted to work in
certain jobs still exist in Mississippi and New Hampshire. The doors to
certain jobs are still entirely closed to women by laws in Arkansas, Missouri,
Ohio, and by the Federal Code.
These statutes, although
of dubious validity, nevertheless continue to exist and may be tacitly
enforced. The woman who is denied a job because of such State or Federal
laws will not always know enough about her legal rights to challenge the
denial. If she does know her legal rights, she may not have the resources
to pursue the battle to enforce them.
Ratification of the
ERA will require that labor laws treat women and men equally. Not only
will existing Federal and State restrictive laws that discriminate against
individuals on the basis of their sex clearly be invalid, but also ratification
will provide the impetus necessary for Federal and State legislatures to
act at last to eliminate the remaining sex-based laws from their respective
codes during the 2-year legislative transition period.
During this revision
process, protective labor provisions that really protect workers--such
as laws that provide for rest periods, minimum wages, overtime pay, and
health and safety protections-- will, it is expected, be extended to cover
both men and women. This extension of benefits would flow directly from
the legislative intent expressed by Congress in adopting the Federal ERA.
* Sex-based discrimination
also is legislated into government programs intended to give welfare recipients
the training and skills necessary for them to obtain employment and eliminate
their dependence on welfare.
For example, although
three out of four individuals eligible and registered for job placement
in the Federal work incentive program (WIN) are women, the program is required
by statute to give priority to the placement of unemployed fathers. Even
when women are placed in jobs through WIN, their average entry wage is
only $2.97 per hour, less than three-fourths of the average entry wage
of $4.01 per hour earned by men placed by the program.
Wage
Discrimination
* The wage gap that
persists between all employed women and men is even greater than the differential
found among men and women in this Federal job training program. Employed
women today receive, on the average, only 59 cents for every dollar earned
by men.
Among the primary
factors contributing to the creation and perpetuation of this wage gap
are the occupational segregation of women employees and the lower wages
paid in jobs that are, and traditionally have been, held largely by women.
Women workers continue
to be concentrated in the lowest paying, least valued jobs, regardless
of whether their employer is a branch of the State or Federal government
or a private corporation. This job segregation is due, in part, to the
legal barriers that historically barred women from certain jobs and employment
activities and to practices that until recently were sanctioned by law,
such as the posting of job descriptions labeling positions as open only
to men or to women. In some instances the practice of labeling positions
as "women's" or "men's" jobs persists.
The low wages assigned
to traditionally female jobs--paying government secretaries less, for example,
than government parking lot attendants and ranking child care workers on
a par with dog pound attendants --result from and perpetuate women's social,
economic, and legal disabilities.
In some instances,
jobs held by women have been paid less because of overt discrimination.
Yet at present, there is considerable doubt as to whether any of the existing
Federal or State antidiscrimination statutes reach such wage disparity
even when it is directly traceable to sex-based wage discrimination.
The ERA would clearly
prohibit such discrimination by public employers. This, in turn, would
have an immediate effect on narrowing the earnings gap between men and
women, since the Federal, State, and local governments employ more persons
than any single private sector industry.
Loopholes
in Antidiscrimination Laws
* Existing laws prohibiting
sex-based discrimination by public employers contain many loopholes that
would be closed by the Equal Rights Amendment.
For example, while
most government employees are protected from sex discrimination by Title
VII of the Civil Rights Act of 1964," the most comprehensive Federal
statute prohibiting sex discrimination in employment, Congress carved out
exceptions for the employment practices of its Members and other elected
officials.
Similar exemptions
are found in the Federal Equal Pay Act and State antidiscrimination laws
in jurisdictions such as Arizona, Illinois, and South Carolina.
Although legislators
and other elected officials are not included within the scope of these
laws prohibiting employment discrimination by the rest of the country,
and their employees therefore have fewer rights, the evidence is that their
employment practices are not immune from sex bias. A 1980 study revealed,
for example, that Members of Congress pay female employees lower salaries
than male employees and give women fewer top jobs.
Yet another loophole
that exists on the face of Title VII, and has been relied upon to deny
jobs to women, allows sex to be considered a "bona fide occupational
qualification" for a job. On the basis of this exception, the Supreme
Court of the United States held that a woman could be denied a government
job as a prison guard because of her "very womanhood."
Ratification of the
ERA will require the cessation of sex-discriminatory employment practices
by all government personnel and entities, including Members of Congress
and administrators of governmental benefit programs such as WIN. It will
reaffirm and make secure the government's commitment to equal opportunity
for all workers. Adoption of the ERA will close existing loopholes for
claims of discrimination by public employers and, generally, will provide
the impetus for a more vigorous enforcement of antidiscrimination laws
and policies.
How
Will the Equal Rights Amendment Affect Women Who Are Married?
Laws concerning marriage
traditionally have defined woman's rights as those of a second-class citizen.
Although many changes
in such laws over the past century have brought greater equality to the
legal status of husbands and wives, discriminatory provisions still persist
in the patchwork quilt of laws that vary from State to State.
Such laws set different
rules for males and females entering marriage, define different rights
for them during marriage with respect to property, to each other, to their
children, and to third parties and grant different rights at the end of
the marriage.
These laws are rooted
in the English common law view of the married woman as the property of
her husband, destined to be economically dependent upon him and obligated
to provide him domestic services and companionship, which were not recognized
as having any economic value.
Laws Concerning Marital
Property and Rights of Husbands and Wives Under the common law, married
women suffered a total loss of property rights.
In response to this
harsh system, a movement began in the 19th century that led to the piecemeal
passage of reforms. The purpose of the reform laws was to ensure that property
a woman brought to her marriage or acquired afterwards would be her separate
property, and not subject to the domination or improvidence of her husband
or liable for his debts.
These reform laws
varied greatly from State to State. To this day, however, laws governing
property rights during marriage retain outmoded and archaic common law
concepts about ownership, possession, and control of marital property that
discriminate against women.
For example, some
States still follow the common law presumption that household goods that
were purchased, possessed, and used by both spouses during the marriage
belong solely to the husband.
Today in North Carolina,
as was true under common law, real property held jointly by husband and
wife in a form of co-ownership known as "tenants by the entirety"
is under the exclusive control, use, and possession of the husband. Moreover,
the husband is entitled to all the rents and profits produced by this property
Under the ERA, the
equal right of a married woman to ownership, possession, and management
of marital property during marriage will be strengthened. Discriminatory
provisions would be invalidated.
Thus, for example,
applying its State ERA, the Pennsylvania Supreme Court has held invalid
the common law presumption that household goods and furnishings belong
to the husband.
This discriminatory
presumption was similarly rejected in Virginia after the adoption of a
State equal rights provision, when the legislature enacted a statute expressly
prohibiting any presumption favoring one spouse over the other in determining
ownership of tangible personal property.
Laws giving husbands
exclusive rights to control aspects of the marriage still exist in States
such as Oklahoma, where a statute provides that the husband is the head
of the household, that he may select any reasonable place of residence
and the style of living, and that the wife must conform to his wishes.
A Georgia statute
names the husband as "the head of the family and the wife. . .subject
to him."
Louisiana persisted
into 1979 with a law designating the husband as the "head and master"
of all marital property.
The ERA will result
in changes in these and other laws that on their face treat males and females
differently, such as laws that impose a different age of consent for marriage.
In addition, laws
that grant different rights, privileges, or protections to wives and husbands
will be invalid unless extended to both spouses.
For example, laws
that give the husband alone the right to recover damages from a third party
who negligently injures his spouse, or for the wrongful death or injury
of their child, would be extended under the ERA to give the same right
to the wife.
Courts applying State
ERAs in Pennsylvania, Alaska, Texas, and Washington have already extended
the common law right to sue for "loss of consortium" so that
women as well as men may recover from a third party who causes a spouse
to become disabled, holding that husbands and wives are partners in marriage
and must be treated fairly and equally.
Laws
Concerning Support
The common law also
imposed different rights and obligations on husbands and wives based on
the view of husbands as solely responsible for support and wives for homemaking
services and "companionship"
However, the duty
of support that was placed upon husbands never truly protected wives made
vulnerable by the economic dependence imposed upon them.
Courts have refused
to enforce support obligations during marriage, because they are unwilling
to invade the privacy established by the marital relationship. As a result,
even if a husband denies his wife money for her most basic needs--clothes,
health care, food--she cannot, as long as she continues to live with him,
realistically expect to obtain a court order requiring him to provide her
with reasonable support money.
As a practical matter,
before a wife can obtain a support order there must be a breakdown of the
marital relationship and an action commenced for legal separation or divorce.
Contrary to popular
belief, support laws do not help to keep a family intact.
The husband's duty
to support his wife has traditionally been treated more seriously by the
legal system when the victim is a creditor who has furnished the wife with
"necessaries" for her support. Under this common law "necessaries
doctrine," husbands have been held liable to creditors for necessaries
purchased by wives.
As with the duty
of support, however, this legal doctrine does not give the wife any effective
rights. It does not increase her ability to make purchases for which her
husband would be held liable.
Due to the burden
of litigating to enforce the husband's duty, many merchants are not willing
to extend credit to a woman in her own name for the purchase of necessaries;
store owners often require the husband to sign before credit will be granted
to the wife.
The Supreme Court
of the United States and State courts have already signaled the unconstitutionality
of laws imposing different financial responsibilities on married individuals
solely on the basis on whether they are female or male.
Many States have
addressed the inequities inherent in the common law scheme and enacted
statutes that require both spouses to support each other according to their
respective financial means and needs and/or family expense laws making
both spouses responsible to creditors for family purchases.
The Equal Rights
Amendment, similarly, will require that marriage laws be based on functions
performed by spouses within the family instead of on gender.
This would leave
couples free to allocate responsibilities according to their own preferences
and capabilities, so that husband and wife will be responsible to each
other to an extent consistent with their individual resources, abilities,
and the type of contribution each person makes to the family unit. This
analysis is consistent with the reality that marriage is an economic as
well as social and emotional partnership, where each spouse makes equally
valuable, albeit different, contributions.
The ERA will not
require, however, that a husband and wife contribute identical amounts
of money to a marriage. It will not require that the wife obtain an income-producing
job outside the home. As the legislative history of the ERA makes clear:
The support obligations
of each spouse would be defined in functional terms based, for example,
on each spouse's earning power, current resources and nonmonetary contributions
to the family welfare . . . .[W]here one spouse is the primary wage earner
and the other runs the home, the wage earner would have a duty to support
the spouse who stays at home in compensation for the performance of her
or his duties.
The crucial importance
of the homemaker's contribution to the marriage is expressly recognized
in the debates and reports that form the legislative history of the Equal
Rights Amendment.
The ERA's mandate
that this contribution be recognized has been judicially and legislatively
acknowledged in States that already have equal rights provisions in their
constitutions. Such legal recognition is essential for homemakers to gain
meaningful economic security during and after marriage; the ERA will give
such legal recognition an anchor in the Federal Constitution for improving
the status of homemakers in all States.
The ERA will accelerate
legal recognition of modern marriage as a partnership in which marital
property belongs to both spouses and the homemaker's contribution to the
marriage is appreciated. It will also ensure that the persistent remnants
of sex-biased property laws that severely disadvantage and restrict married
women will be eliminated, and it will prohibit their reenactment by the
Federal or State governments.
How
Will the Equal Rights Amendment Affect Women and Children Facing Disruption
of Their Families by Divorce?
There has been a
rising rate of divorce in the United States over the past 20 years. The
Bureau of the Census predicts that if the trend continues, almost 40 percent
of all marriages will end in divorce.
This prospect is
grim for men and women alike, but the reality it signals has its harshest
effect upon women, especially those who accept the responsibility of being
a full-time homemaker during part or all of the married years. By invalidating
sexbased stereotypes and presumptions in family law and encouraging legal
recognition that marriage is an economic as well as social and emotional
partnership, the ERA will help women facing divorce by making the legal
system operate more equitably.
Economic
Survival: Support and Marital Property
Divorce has been
recognized as a primary cause of poverty among women and children. Studies
document the differential effect of divorce on the economic status of men
and women. Even fathers who pay child support are often better off financially
after divorce than they were before. In sharp contrast, many women and
children face severe economic problems at the time of divorce.
* Sex-based presumptions
have traditionally contributed to inequities when divorcing spouses divide
their accumulated property, such as the house, household goods, and bank
accounts. Such presumptions operate to disadvantage most severely the homemaker
spouse.
For example, under
common law, it was presumed that household goods accumulated during the
marriage and used by both spouses belonged to the husband only, unless
the wife could demonstrate her financial contribution. This presumption
often operated to deprive the woman who contributed homemaking services
rather than dollars to the marriage of the property she thought had been
hers.
Similarly, in some
States today, the wife's services to her husband's business are presumed
to be gratuitous; in these States courts will deny a wife's claims for
property rights based on the time and effort she has contributed to her
husband's business.
The ERA would invalidate
such presumptions and encourage recognition of the economic value of homemaker
services, a result already accomplished in Pennsylvania under its State
equal rights amendment.
Relying on the Pennsylvania
ERA, the State's supreme court concluded that the common law presumption
of "husband's ownership" of household goods could not survive
constitutional scrutiny. This one-sided presumption, the court said, failed
to acknowledge the equally important and often substantial nonmonetary
contributions made by both spouses.
Even where the husband
is the "sole provider," the court reasoned that the State's equal
rights amendment requires recognition of the contribution of the homemaker
wife and concluded that, in the absence of evidence to the contrary, it
must be presumed that the property is held jointly.
Thus, the Pennsylvania
ERA has already resulted in establishing as a starting point in the division
of household goods the presumption that the contributions of the homemaker
and the spouse with a paying job are equal.
* In addition to
dividing accumulated marital property, divorcing spouses must determine
their respective responsibilities for alimony and child support.
The Supreme Court
of the United States already has established that statutes imposing different
responsibilities in this area on the basis of sex are invalid under existing
constitutional law.
Consistent with this
rule, many States have already, either through court decision or statute,
revised their laws to provide for alimony or maintenance awards for a dependent
spouse-- regardless of whether the spouse is female or male.
However, few situations
arise where such "sex-neutral" laws result in charging a woman
with the support of her former husband, since the reality is that most
husbands are not economically dependent on their wives. The rare cases
where courts have found such dependency illustrate the fairness of the
"mutual responsibility" doctrine.
Some States have
followed similar reasoning in changing laws that previously assigned child
support duties to fathers only, solely on the basis of sex.
These States have
determined that both parents have the duty to support their children. By
analyzing the facts on a case-by-case basis, the courts in these jurisdictions
are in a position to assess the financial position of each parent and to
award child support realistically.
This gender neutrality
will operate fairly, however, only if a value is placed on the contribution
to child support made by the custodial parent, who is most often the mother.
The way the ERA will
promote this important safeguard for women is already seen in States that
have added equal rights provisions to their constitutions.
While holding that
the State ERA requires that both parents be obligated equally to support
their children, these States are not interpreting such mutual responsibility
as requiring mathematical equality in the monetary contribution of mother
and father.
On the contrary,
for example, one court in a State ERA jurisdiction held that courts need
to consider the importance of the emotional contribution to a child's welfare
provided by a nonworking custodial parent and not merely the potential
monetary contribution that parent might provide if employed.
By not automatically
imposing a financial support burden on both spouses, these rulings have
supported the continued provision of child rearing by custodial parents.
In fact, one Pennsylvania court specifically held that permitting a nonworking
parent to remain at home until the child matures does not violate that
State's ERA.Ratification of the Federal ERA would promote the uniform adoption
of these principles in all jurisdictions, to the benefit of all families.
Child
Custody Determinations
In most States today,
contested custody determinations are made on the basis of the "best
interest of the child" and the fitness of the parent. The analysis
of the child's best interest has traditionally been clouded by sex-based
stereotypes that presumed that the mother was more fit to be the custodial
parent than the father, especially when a child of "tender years"
was involved. These sex-based presumptions are increasingly being rejected.
However, sexual stereotypes
still operate as factors in custody decisions in some States, such as Oklahoma,
where the custody preference is for the mother when the child is of tender
years and for the father when the child is old enough to require education
and preparation for the world of work.
Sex-based stereotypes
also intrude as the changing roles of men and women are viewed as inappropriate
by the courts. For example, women who work outside the home or who attend
school have been penalized for not conforming to a mother's "proper
role."
The ERA's clear rejection
of sex-based stereotypes, and the importance of such a constitutional mandate
to the courts, will provide a basis for arguing that such presumptions
are invalid. Without such overbroad generalizations about a mother's and
father's "proper role" to fall back upon, courts must meaningfully
assess the respective households and, therefore, act more effectively in
the best interests of the child.
The experience in
States with equal rights provisions in their constitutions has demonstrated
that such nonbiased custody determination mandated by the ERA neither requires
nor has resulted in widespread denial of custody to mothers.
In fact, the Colorado
Supreme Court rejected the contention that Colorado's State ERA was violated
because a majority of women in divorce cases were granted custody.
How
Will the Equal Rights Amendment Affect Women Dependent on Pensions, Insurance,
or Social Security?
Single women (those
who never married or are now widowed or divorced) comprise almost three-fourths
of our nation's elderly who are living in poverty. One out of every three
single women over the age of 65 has income below the poverty rate. Unfortunately,
the income protections for old age that individuals can secure from pensions,
insurance plans, or social security are not always available to women.
When they are, the costs are often higher or the benefits are lower for
women than for men.
The ERA will strengthen
the position of women seeking income protection by prohibiting sex-based
discrimination in insurance, pensions, and retirement security programs
that involve governmental action.
The
Social Security System
Social security is
our nation's principal program for providing income security when earnings
are lost due to retirement, disability, or death.
Although over one-half
of all social security recipients are women, the program fails to provide
equitable treatment or adequate protection for women. The debate surrounding
passage and ratification of the ERA has helped to expose the effects of
the social security system's perpetuation of employment discrimination
and the way it operates to penalize women for motherhood and the time they
spend as homemakers.
Full-time homemakers
have never been accorded any independent social security coverage. The
only benefits available for women who have not been employed in the labor
force are derived from their husbands' work. The economic value of a woman's
work as homemaker is ignored. If she becomes disabled, her family may not
receive benefits in the same way it may when the wage earner becomes disabled.
Since she is not
credited with any retirement benefits in her own right, her eligibility
to receive social security is linked permanently to her husband's status,
is limited to a ceiling of 50 percent of his basic benefits, and commences
only after he retires. If she experiences mandatory "retirement"
because of widowhood or divorce, this total dependency is likely to leave
her without adequate income in her old age and in some circumstances may
leave her without any income at all.
If a homemaker is
divorced, the most she can receive under social security is half of her
former husband's benefits (while he receives 100 percent), hardly ever
adequate to support her living alone.
If he chooses to
work beyond retirement age, she must survive without any payments during
that period. If he chooses to retire early, her maximum benefits may be
reduced. If the marriage lasted less than 10 years, she would not even
be eligible for these inadequate benefits.
* A widowed homemaker
is not entitled to any benefits at all until she reaches 60 years of age,
unless she is still caring for minor children -149 or is at least 50 years
of age and disabled.
The average monthly
benefit received by disabled widows in 1978 was only $166--or $1,992 per
year. Since few widows receive private pensions, the resulting poverty
often is inescapable.
The woman employed
in the paid labor force must choose between taking benefits based on her
own work history or as a dependent, based upon her husband's earnings.
Often because of
the job segregation of women in lower paying jobs, women find that dependent
benefits are higher than their own. This problem is compounded by the fact
that women who take time out of the paid labor force (or work part time)
to provide child care and homemaking services for their families are penalized
for motherhood, since their social security benefits are based on average
lifetime earnings lower than those of men who work uninterrupted in the
paid labor force.
As a result, the
average monthly benefit received by women retiring in November 1978 from
work in the paid labor force was only $215, less than two-thirds of the
average payment received by male retirees. -155 Many women, therefore,
forfeit their own contributions, collecting dependency benefits instead.
These women find themselves in the same vulnerable position as the woman
who never worked in the paid work force.
These major inadequacies
and inequities of the social security system--the burden of which falls
most heavily on women--are due in large part to the sex-based assumptions
underlying the program: that the family consists of one "individual
breadwinner" (the husband) and "dependents" (the wife and
children), and that dependents need (or have earned the right to) less
income security than "individual breadwinners."
These assumptions
fail to recognize the value of work in the home and the discriminatory
wage structure in the labor force. They also fail to reflect the diversity
of family roles played by women today: some married women are lifetime
homemakers; others are paid workers throughout their lives; still others
play both roles during different times in the marriage; and many divorced
and widowed women return to work after their marriages end.
The U.S. Department
of Health, Education, and Welfare issued a comprehensive report in 1979
with recommendations targeted at major reform of the system. These proposals,
and changes recommended by others, reflect not only a rejection of the
inherent unfairness of women forfeiting their own contributions to the
system, but also a clear recognition of the economic as well as social
value of the homemaker services.
As discussed above,
the ERA will provide a constitutional basis for urging recognition of the
value of the homemaker's contribution to a marriage. Ratification will
keep the pressure on Congress to adopt reform legislation designed to eliminate
the social security system's inequitable treatment of women.
Pensions
and Disability Insurance
Women often are not
in a position to purchase disability insurance and pension plan coverage,
since they are concentrated in homemaking, service, and clerical jobs that
usually are not accompanied by any insurance benefits program and have
a low rate of pension coverage if available.
Federal law regulating
private pensions allows provisions that result in a loss of benefits by
women. The discrimination women face in employment is thus perpetuated
in retirement. As a result, men are twice as likely as women to be covered
by pensions.
Where coverage is
available, many women are required to pay higher premiums than their male
coworkers to acquire the same benefits, thereby reducing their take-home
pay; other women pay the same premium as male coworkers, but receive lower
benefits.
These disparities
result from the calculation of insurance rates according to sex-based actuarial
tables which show that women, on the average, live longer than men. In
some States the use of such tables is authorized by the government itself.
However, the justification
for resulting discriminatory rates often is not supported by actual facts.
Because of practices such as these, women in the paid labor force and their
families are forced to accept inferior coverage that makes their future
economic security tenuous.
The Supreme Court
of the United States has held that the use of sex-based actuarial tables
to compute premiums for retirement benefits provided by an employer to
all employees violates Title VII's prohibition against sex discrimination
in employment.
The Court found that
charging women higher premiums because of statistics showing that women
on the average live longer than men discriminated against women.
The Court suggested
that other classifications more significantly linked to longevity--such
as smoking, weight, or physical fitness--might be used more fairly than
the employee's sex as a basis for determining rates.
The effect of this
decision is limited, however, since it applies only to employer-operated
insurance plans and not to policies taken by individuals with private insurance
companies.
At least one Federal
district court has already begun to cut back the potential effect of this
decision by exempting certain employer plans from Title VII's coverage.
Further, it is not yet clear whether the discriminatory practice invalidated
by the Court extends to unequal benefit levels.
The ERA will provide
a basis for extending the Supreme Court's analysis to certain insurance
and pension programs not covered by this Title VII ruling. It will prohibit
sex-based discrimination in insurance wherever governmental action is involved.
Pension
Protection for Homemakers
Since the full-time
homemaker typically is unable to secure adequate income protection from
pension plans or social security, she is particularly vulnerable if she
becomes divorced. Upon divorce, a homemaker may discover that she is not
entitled to any portion of the pension benefits in the wage-earner's name,
even though the pension was purchased with marital income. The Employee
Retirement Income Security Act (ERISA), the Federal law governing private
pension plans, makes no provision for the protection of the divorced wife's
rights. Since pensions are often the major marital asset, the consequences
are serious.
Women married to
government employees fare no better. In fact, denial of pension benefits
to divorced wives is imposed by Federal law in some retirement programs.
The United States Supreme Court recently rejected a wife's claim to a portion
of her husband's railroad retirement benefits, holding that the Federal
program precludes division of these retirement benefits as marital property,
even if such division is required by a State's marital property law.
A similar claim is
now before the Court regarding Federal military retirement pay. The United
States Government has taken the position that military retirement benefits
are not divisible, thereby denying to military wives a share of the pension
they helped to build. The net result of such restrictions is that, upon
divorce, many women are accorded no rights to share in the fruits of their
joint labor, although they have spent their married lives building families
and working toward a secure retirement, but were unable to earn pension
credits in their own name.
Here again, by providing
an impetus for recognizing the value of homemaker services, ratification
of the ERA will encourage legislative action in this area to protect women
in divorce. The ERA will strengthen the view of pensions as marital property
to which the homemaker spouse made a nonfinancial but nonetheless valuable
contribution.
Evidence abounds
that our Nation's public schools in many instances do not offer equal opportunities
to females and males as students or as employees. The Equal Rights Amendment
will require public-supported schools at all levels to eliminate regulations
and official practices that discriminate against females.
It will provide the
constitutional basis for requiring public schools to eliminate the present
effects of past purposeful discrimination. It will commit the country to
the principle of equality so girls and boys can learn from the Constitution
that they are considered equals before the law.
As students, boys
and girls in public elementary and secondary schools continue to be steered
into courses that reflect outmoded traditional stereotypes about a "man's
world" and "women's work." Although this division is breaking
down in the adult world, traditional ideas still survive regarding the
suitability of school courses for boys and girls.
Enrollment patterns
of males and females in public vocational education continue to be overwhelmingly
sex segregated.
In the city of Philadelphia,
girls are precluded from attending an all-male public academic high school
with superior science facilities. Course materials used by students throughout
the Nation reinforce the stereotypes about male and female roles.
A number of Federal
and State laws have been enacted to address gender-based inequities in
educational institutions. Title IX of the Education Amendments of 1972
prohibits many forms of sex discrimination in federally funded schools.
The Federal Government
also provides funds for affirmative efforts to encourage sex equity. In
several States as well, statutes expressly address the issue of educational
equity, or constitutional provisions may be relied upon to achieve sex
equity in education. But the extent of coverage varies widely.
Title IX, for example,
applies only to schools that accept Federal financial aid. Its prohibition
of sex-segregated admissions policies does not apply to public elementary
or secondary schools, and its prohibition of sex bias in athletics programs
does not cover all sports.
Moreover, a Federal
district court in Michigan recently held that Title IX did not extend to
athletic teams that were not direct recipients of Federal financial assistance.
In some States--but not all--school admissions policies excluded from Title
IX's nondiscrimination rule are subject to State laws prohibiting sex bias.
Few State and local educational agencies have funded programs to promote
sex fairness.
Where the provisions
of Title IX do apply, serious implementation and enforcement problems limit
the statute's effectiveness. A school that refuses Federal dollars is not
bound by Title IX's mandate for equality. Moreover, schools continue accepting
Federal funds while not implementing the basic requirements of Title IX,
encouraged by the weak record of Title IX enforcement.
The first set of
regulations implementing Title IX was not promulgated until 1975, 3 years
after the law was enacted. Even then, schools were generously given until
1978 to come into compliance with the provisions concerning sex discrimination
in athletics programs.
When many schools
did not meet even this delayed compliance date, the Federal Government
put a freeze on investigating complaints and promulgated a new policy interpretation
at the end of 1979. Investigation of a huge backlog of athletic complaints
has just recently begun--8 years after Title IX became law. The enforcement
record to date is hardly an inducement to compliance.
In the meantime,
sex-biased education practices such as athletic programs that might have
survived Title IX scrutiny because of the statute's loopholes and poor
enforcement record have been invalidated by Federal and State courts relying
on the 14th amendment and State ERAs.
But not all States
have their own constitutional equal rights provisions, and the 14th amendment
cannot be viewed as the solution to loopholes and enforcement difficulties
under Title IX or other Federal or State statutory schemes. In addressing
a 14th amendment challenge to a public school's sex-biased admissions policy,
one district court judge complained:
A lower court faced
with [the Supreme Court's post-1970s] line of gender discrimination cases
has an uncomfortable feeling, somewhat similar to a [player at] a shell
game who is not absolutely sure there is a pea.
The ERA will give
courts a firm handle for deciding constitutional challenges to sex bias
in public schools. Although the ERA will apply only to educational institutions
where governmental action is involved, it does not incorporate the narrow
prerequisite of Federal funding to trigger its application nor does it
incorporate the loopholes of the various State and Federal statutory schemes.
Thus, for example, educational programs that involve State or local action
would be subject to the equality mandate of the ERA. It will be more secure
than statutes that are subject to amendment.
How
Will the Equal Rights Amendment Affect Women in the Military?
Under the proposed
Equal Rights Amendment, women will be assured the equal treatment in the
military currently denied by the Federal Government. This discrimination
creates serious barriers to educational and employment opportunities for
women, jeopardizes the women who must serve in dangerous military situations
without the training and support essential to effectiveness and survival,
and perpetuates harmful, archaic, and overbroad stereotypes about the capabilities
of women and the role of men and women in society.
More than 150,000
American women serve in the armed forces today, carrying on the proud tradition
of women in the military, a tradition that includes more than 350,000 women
who served in the Second World War, 200,000 of them under hostile fire.
Yet these women, who have been shown to be as efficient and effective as
their male counterparts, have suffered serious discrimination in their
jobs.
The vocational and
specialist job training available to women in the military has traditionally
been severely restricted, and a variety of limitations placed on women's
participation in the armed services reduces the number of jobs to which
women may be assigned. In 1977, 73 percent of all authorized military slots
were closed to women entirely. Although justified by the armed services
as necessary because women are prohibited from combat, fully 30 percent
of these restrictions were not combat related.
Discrimination in
the military also results in the concentration of women in lower paying
jobs. Officer training programs are closed to women except in token numbers.
Women in the military suffer discrimination in other ways as well. Some
of the uniforms and equipment provided by the armed services for women
fit so poorly "they constitute health and safety hazards and are inappropriate
and nonfunctional."
Sexual harassment
of female enlisted personnel is pandemic, encouraged by the discriminatory
environment in the military that results from the gender-based regulations
and restrictions.
Access to the armed
services is also restricted for women.
Historically, women
were limited by differential entrance requirements and by highly restrictive
statutory quotas not solely related to combat requirements. Despite the
removal of some impediments, women's enlistment is still limited by recruitment
goals that operate as quotas.
Indeed, a Department
of Defense study found there are more highly qualified women willing to
enlist than are accepted now. Because the military is the largest single
vocational training institution in the Nation-- offering on the job training
at full pay and lifelong postservice benefits as well --it has always been
and continues to be an important route of upward mobility.
In addition, military
pay for men and women is considerably higher than the average annual earnings
of female high school graduates who work full-time year-round.
The women who are
excluded are denied the practical and tangible benefits military service
provides. The exclusion also denies the full citizenship and political
rights historically intertwined with military service. Thus, under the
present system, women are seriously disadvantaged both in enlistment and
once they are in the service.
The ERA will make
illegal the gender bias that remains in the military, which currently limits
opportunities for women and the contribution they can make to our Nation.
It will require that the government allow men and women to be assigned
and to serve on the basis of their skills and abilities and not on the
basis of stereotypes and generalizations about their roles and capabilities.
The statutory prohibition
against women serving on naval ships has already been invalidated under
the equal protection component of the fifth amendment, as has an all-male
military draft registration plan.
In the draft registration
case, Rostker v. Goldberg, which the United States Supreme Court has agreed
to review, the Government attempted to justify the exclusion of women by
arguing that the presence of large numbers of women would hamper military
flexibility in time of mobilization.
Soundly rejecting
this, the district court pointed to testimony by the Director of the Selective
Service System and representatives of the Department of Defense that the
inclusion of women in the pool of those eligible for induction would increase,
not decrease, military flexibility.
In view of the current
standard for scrutinizing sex-based classifications under existing constitutional
law, the steadily expanding utilization of women in the military, the recognition
that women in the military enhance our national defense, and the fact that
Congress has the power today to draft women, it is likely that the issue
of the all-male draft will soon become moot.
The U.S. Supreme
Court could establish this if it affirms the district court's decision
in Rostker v. Goldberg that an all-male registration plan is invalid under
the Constitution's equal protection clause. In any event, however, the
application of the ERA is clear: women may not be excluded from the pool
of individuals eligible for a military draft solely on the basis of gender.
But neither the equal
protection clause nor the ERA will require that all women become soldiers.
The legislative history of the amendment makes clear that "the ERA
will not require that all women serve in the military any more than all
men are now required to serve."
Congressional exemptions
for women and men who are physically or mentally unqualified, and deferments
for individuals because of family or other responsibilities, would apply
to women just as they have always applied to men.
Thus the fear that
mothers will be conscripted from the children into the military service
if the equal rights amendment is ratified is totally and completely unfounded.
Congress will retain
ample power to create legitimate sex-neutral exemptions from compulsory
services. For example, Congress might well exempt all parents of children
under 18 from the draft.
With or without the
ERA, women are sharing and will share with men the responsibility for military
service. The determination of who will be called upon during wartime to
bear the burden of military conscription and of actual combat duty will
be made by Congress and the courts whether or not the ERA becomes a part
of the Constitution. The ERA is needed to guarantee that women and men
are accorded equal treatment and opportunity in the armed forces on the
basis of their individual skills and abilities.
2.
How Will States be Affected by Ratification of the Equal Rights Amendment
The United States Constitution provides
that powers not delegated to the Federal Government, or specifically prohibited
to the States by the Constitution, are reserved to the States or the people.
This exclusive source of States' rights
has meant historically that States have the power to legislate in a wide
variety of areas, notably domestic relations, property, and criminal law.
The Equal Rights Amendment will not alter
this basic constitutional structure.
States will still be free to determine
what their laws should say and how they should say it, with only one important
exception. Just as other amendments prohibit States from discriminating
on the basis of race, so under the ERA the States (and the Federal Government)
will no longer be permitted to disadvantage individuals by means of any
law, government policy, or government practice that discriminates on the
basis of whether the individual is female or male.
This is no different from the interplay
between other constitutional amendments and the power of the States.
For example, the 15th amendment prohibits
the denial of voting rights on the basis of race. Nonetheless, States still
have plenary power to determine the method and manner for voting, consistent
with this nondiscrimination rule and legislation securing its enforcement
and with local needs and customs.
So, too, the ERA does not change the substance
of the State's power; it merely removes one possible basis of classification--gender--from
an almost unlimited variety of available options.
The ERA does not concern the private activities
and personal lives of citizens. The issue is whether governments--Federal,
State, and local--should have the right to discriminate against an individual
solely because of his or her sex.
Even with respect to sex-based classifications,
the prohibition is not absolute where other constitutional rights, such
as privacy and religious freedom, are concerned; or where the classification
is narrowly drawn concerning physical characteristics unique to one sex
or where it is necessary to remedy past discrimination to assure actual
as well as theoretical equality.
Section 2 of the ERA, which gives Congress
the power to enforce the amendment by appropriate legislation, is worded
almost identically to sections found in eight other amendments to the Constitution.
It gives Congress the authority to act
under the ERA to change the hundreds of Federal laws and practices that
discriminate against women. States already have the power to act, consistent
with the ERA's mandate; no special constitutional provision is required
to assure this.
The ERA recognizes the authority of the
States to act by providing a 2-year transition period after ratification
during which States can rid their laws of gender bias without judicial
involvement by State or Federal courts. The experience of State legislatures
indisputably proves they are capable of enacting such change. Some States
have already successfully conformed their codes to the requirements of
the amendment, either in anticipation of the Federal ERA or in accordance
with a State equal rights provision.
The 2-year transition period also provides
the motivation and focus necessary to accomplish comprehensive reform.
A Pennsylvania court commenting on the
Pennsylvania State ERA noted that without it, "total modification
of all gender-based provisions probably would have been a piecemeal and
perhaps not completely successful accomplishment."
Because State legislatures are faced with
so many pressing issues each session, without the ERA some States may never
get around to effecting all the reforms necessary to ensure equality. After
ratification, many States and the Federal Government will be engaged simultaneously
in conformance activity, providing a large pool of resources and expertise
to assist State legislatures. The ERA will also serve as "a general
policy statement prohibiting future enactment of gender-based legislation."
Under the ERA, States cannot decide whether
to grant "equality of rights," but will have wide latitude in
deciding how they will grant equality. Where open debate and broad-based
participation is necessary to formulate and legitimize change, the legislature
provides a good forum. Where a discriminatory law has its roots in common
law or in judicial opinions, courts may be particularly equipped to make
the necessary change.
State legislatures are also free to choose
the best revisions for statutes that conflict with the ERA. Discriminatory
laws can either be invalidated entirely or extended to cover those previously
not protected by the statute.
A Senate report on the ERA stated: "It
is expected that those laws which provide a meaningful protection would
be expanded to include both men and women..." Consonant with this,
the trend in Congress and in State ERA jurisdictions has been to enlarge
the coverage of statutes that confer benefits.
For example, under Pennsylvania's ERA,
a statute granting death benefits to the spouse of a deceased government
employee was interpreted by the State's attorney general to entitle eligible
widowers as well as widows to payment. So too, Massachusetts' "homestead
protection" right, previously available only to men, has been extended
to women as part of the ERA implementation process.
Where a law places a burden on one gender
and not the other, that law can be invalidated. Thus, in Pennsylvania,
the prohibition against girls working as newspaper carriers was ended after
the State attorney general concluded that this practice violated the State
ERA.
Under the ERA, States will continue to
have authority in all areas where they have traditionally had it. The only
power that States will lose is the power to discriminate against an individual
on the basis of his or her sex. The legal reforms required by the ERA produce
positive results for each State's citizens; unreasonable burdens in the
law are eliminated while benefits are retained and extended.
3.
How Will Courts Be Affected by Ratification of the Equal Rights Amendment?
The ERA will have a positive effect on
the judicial system in two important ways. By stimulating legislative reform,
it will help reduce the number of claims to be resolved in the courts.
Where compliance is not achieved through legislative reform, the amendment
will give courts clearer guideposts than currently exist for deciding sex
discrimination claims.
In the many States where gender bias in
the law has not been eliminated through legislative reform, victims of
this bias have been turning increasingly to the courts, relying on existing
Federal and State constitutional provisions for redress. Unfortunately,
most State constitutions do not expressly prohibit sex discrimination,
and without the ERA, the Federal Constitution similarly fails to provide
adequate or sure relief.
The 14th amendment to the U.S. Constitution,
most frequently the basis for sex discrimination suits, offers uneven and
uncertain protection against sex bias.
The 14th amendment together with the 13th
and 15th amendments were added to the Constitution more than a century
ago to abolish slavery and extend civil rights to blacks at a time when
women were denied such basic prerogatives of citizenship as the right to
vote, hold property, serve on juries, and practice certain occupations.
The authors of the 14th amendment did not
intend to change these rules. The legislative history of the amendment's
equal protection clause provides no guide for applying it to sex discrimination
claims.
The standard developed by the Supreme Court
to judge such claims under the 14th amendment is unclear, both to the Court
itself and to other Federal and State courts. Justice Brennan recently
noted, "The standard of review. . .has been a subject of considerable
debate."
In Craig v. Boren, Justice Rehnquist participated
in this debate when he dissented from the majority's adoption of a "middle
tier" standard of review for sex-based classification , stating that
the standard:
apparently comes out of thin air. The Equal
Protection Clause contains no such language and none of our previous cases
adopt that standard. . . .[T]he phrases used [in the standard] are so diaphanous
and elastic as to invite subjective judicial preferences or prejudices
relating to particular types of legislation.
The equal protection analysis developed
by the Court for gender discrimination claims is without precedent. The
Court's creation of an exception to the standard for laws it divines are
"compensatory" to women has only served to compound the confusion.
Other courts have had considerable difficulty
understanding and applying the Supreme Court's analysis of gender-bias
claims under the 14th amendment.
Lower courts attempting to follow Supreme
Court precedent have analyzed these issues incorrectly, necessitating additional
litigation and reversal on appeal. For example, in Wengler v. Druggists
Mutual Insurance Company, one State supreme court judge concluded there
is "no identifiable 'supreme Law of the Land'. . .by which [lower
courts] may adjudicate a claim of alleged gender based discrimination."
The Missouri Supreme Court in Wengler upheld
a statute that provided automatic survivor's benefits to wives but not
to husbands of workers who died in job-related accidents. Citing Supreme
Court decisions, the Missouri court reasoned that the challenged statute
fit the "compensatory" exception -- because it gave survivor's
benefits to women, it was constitutionally permissible.
The Missouri court, however, failed to
address the discrimination women suffered as workers under the statute.
In this case, Mrs. Wengler's labor was denigrated by the State because
her survivors did not automatically receive the full array of benefits
given to the survivors of similarly situated men. The State presumed her
financial contribution to be less important to her family than that of
a man. Recognizing this discrimination, and the discrimination against
Mr. Wengler resulting from the denial of benefits to him, the Supreme Court
of the United States reversed the State court's decision.
In contrast to the uncertain and unsteady
development of 14th amendment sex discrimination jurisprudence, courts
called upon to interpret the ERA will have two major sources of guidance:
the amendment's extensive legislative history and the experience of those
States that have added equal rights provisions to their State constitutions.
After 49 years in Congress, the ERA was
adopted with an ample legislative history specifically designed to guide
the courts in their application of the amendment. Both the Senate and House
of Representatives held hearings, issued comprehensive committee reports,
and engaged in extensive floor debates on the meaning and effect of the
amendment.
Judges and legislators will also be able
to look to precedents established by the courts in those States that already
have enacted State ERAs similar to the proposed Federal amendment. Some
of these courts have had as much as 10 years' experience with the amendment.
In formulating their opinions, State courts have closely adhered to the
legislative history of the Federal amendment and the opinions of other
State ERA jurisdictions.
As this Commission has already reported,
these opinions have greatly benefitted both women and men. This growing
body of ERA jurisprudence will help guide courts in interpreting the Federal
ERA.
Finally, the ERA will be construed in context
with other rights guaranteed under the Constitution. Because rules of constitutional
interpretation dictate that later amendments do not abrogate earlier provisions,
equal rights for women will have to be balanced with other constitutional
concerns, including freedom of religion and the right to privacy. This
means, for example, that the ERA will not require the ordination of women
priests or the sex integration of religious services.
The ERA will be applied in accordance with
settled principles of constitutional adjudication. For example, courts
always avoid reaching the constitutional issue unless it is absolutely
necessary to the resolution of the case. Similarly, when a court finds
that one part of a law violates the Constitution, it will invalidate only
that part of the law; the court will not formulate a rule of constitutional
law broader than that required by the precise facts.
Thus, courts will adjudicate claims under
the ERA within carefully defined parameters and, as described above, on
the basis of many years of careful analysis of equal rights principles.
Those who fear that courts will reach unpredictable decisions based on
a judge's own inclinations and desires truly have the most compelling reason
to seek ratification of the ERA as the best way to assure guidance for
the judiciary when it is called upon to decide sex discrimination claims.
