Tuesday, January 21, 2020

Does it Matter Whether the ERA is Part of the Constitution?

by Michael C. Dorf

Last week Virginia became the 38th state to ratify the Equal Rights Amendment (ERA), but its action came four decades after the deadline Congress set for ratification and after four of those 38 states purported to rescind their ratifications. Is the ERA now valid as the 28th Amendment? And who decides?

I will address these and related questions in a new Verdict column tomorrow. (Starting at midnight, you'll be able to find the column here.) Although the column will acknowledge substantial uncertainty, I will conclude that such uncertainty should be resolved in favor of ratification. The Article V threshold for amendment is already extremely difficult to satisfy; additional hurdles (such as a deadline that is not in the text of a proposed amendment or the opportunity for rescission despite the failure of the constitutional text to provide one) should not be added.

My argument in the Verdict column will be essentially agnostic with respect to the content of the ERA. It turns on the text of Article V, Supreme Court case law, and normative considerations (rooted in the views of the framers) about how difficult it should be to amend the Constitution. In the interest of full disclosure, I should add that I favor the substance of the ERA.

Putting aside the question whether the ERA should be treated as validly ratified, in this blog post today I'll discuss what practical effect, in any, treating the ERA as part of the Constitution would have. The short answer is probably none. However, I should acknowledge that ERA ratification could have an important symbolic effect that has largely untraceable ripples throughout society. Simply put, support for deeming the ERA validly enacted as the 28th Amendment may be tantamount to support for sex equality (which is why I favor it normatively).

Moreover, ERA ratification could have some surprising practical legal consequences. In a follow-up blog post tomorrow, I shall sketch one such possibility--that ERA ratification could ultimately undercut constitutional protection against forms of discrimination that are not sex-based. For today, however, I want to explain the pretty strong prima facie argument that the ERA will have no practical effect.

Let's start with the ERA's text. The language that was submitted to the states for ratification provides:
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.
We can set aside Section 3, which does not concern the substance of the ERA, only when it goes into effect. Would Section 1 or 2 have any impact once they become operative?

Section 1 does not appear to change existing doctrine. The Supreme Court has treated sex discrimination by the states as presumptively in violation of the 14th Amendment's Equal Protection Clause and sex discrimination by the federal government as presumptively in violation of the equal protection component of the 5th Amendment's Due Process Clause. Nothing in Section 1 of the ERA necessarily adds to that doctrine.

Indeed, concurring in the judgment in Frontiero v. Richardson in 1973, Justice Powell objected that Justice Brennan's lead opinion--which said "that classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect, and must therefore be subjected to close judicial scrutiny" --had "preempt[ed] by judicial action a major political decision," namely ERA ratification. Put differently, Powell thought that Brennan's opinion (illegitimately) accomplished by judicial decision everything that the ERA would accomplish.

And Powell was right about that. To be sure, Brennan wrote only for a plurality in Frontiero. Conventional wisdom holds that in Craig v. Boren, in 1976, the Court applied intermediate scrutiny to invalidate the sex classification at issue there rather than strict scrutiny. Might the ERA ratchet up the level of judicial scrutiny from intermediate to strict? That seems unlikely for two reasons.

First, the Craig Court did not expressly adopt intermediate scrutiny and later cases--especially United States v. Virginia in 1996--have applied something closer to strict scrutiny. In Virginia, Justice Ginsburg's majority opinion characterized the relevant test as asking whether the government has offered an "exceedingly persuasive justification" for a sex-based distinction. In practice, the cases appear to apply strict scrutiny to sex classifications in just about every setting where biological differences between males and females appear irrelevant. So even if the ERA requires strict scrutiny, that's not much of a change.

Second, it's hardly clear that the ERA requires strict scrutiny, either of all sex-based classifications or even just of those that aren't related to biological differences. What it forbids is the abridgment of equality based on sex. That's not a level of scrutiny. It's a conclusion. And it's the same one that the Court's existing jurisprudence aims at via the 5th and 14th Amendments: equality based on sex.

Whether Section 1 of the ERA requires something more than current jurisprudence would thus turn entirely on whether the courts choose to construe it as doing so. They might, but there is nothing in its text or history that foreordains that result.

Meanwhile, Section 2 of the ERA doesn't mark a change either. In Nevada Dep't of Human Resources v. Hibbs, in 2003, the Supreme Court held that Congress, acting pursuant to Section 5 of the 14th Amendment, has substantial latitude to enact laws addressing sex discrimination, even where Section 1 of the 14th Amendment does not directly address the particular acts the statute does. Section 2 of the ERA appears not to add to that power.

Accordingly, although one can imagine a future case in which a court holds that the ERA requires some result that would not otherwise be required under the Fifth or Fourteenth Amendments, such a decision would probably be best characterized as using the ERA as cover for a result the Court would have reached anyway.


Joe said...

I think it is bit too literal to say that the ERA does not state a level of scrutiny.

Early on, even though the text doesn't say that, the 14A Equal Protection Clause, and maybe the 14A, sec. 1 as a whole, was held to be primarily about race because of the history behind it. A clear reference to "sex" to me would similarly state that sex specifically is strongly held to be subject to scrutiny. The fact that there already is existing law that holds sex as protected very well helps that. Surely, one can argue against that, but it seems to have a rather common sense character too.

This doesn't really answer the question (this came up when women law professors discussed a new book on Reproductive Law Stories at a recent event and they too found it a hard question to answer) especially since few sex classifications are upheld even now. There are a few cases where they are such as a few instances that turns on parenthood. There are also cases rejected as not "sex" based that some argue are, such as pregnancy discrimination. I saw a reference that this was flagged in some of the ERA debates. Will this matter? Maybe? Perhaps down the road.

I also fear this: "I shall sketch one such possibility--that ERA ratification could ultimately undercut constitutional protection against forms of discrimination that are not sex-based." Maybe this won't be a thing at this late date. But, we currently have one equal protection provision (applied to the feds primarily via the Due Process Clause). I'm inclined to prefer that at this stage. I also don't really like John Paul Stevens' suggestion of a separate amendment to ban the death penalty.

Anyway, Balkinization Blog has talked some about the ERA and my general sentiment is that at the very least Congress should vote to extend the lapsed deadline. If they do, precedent holds that it should be ratified. I'm wary about doing so after 40 years. I rather they restart the process. But, that's policy minded.

Greg said...

On the Verdict point: Surely the existence of the Corwin Amendment alone is reason enough to allow states to rescind their ratification of a constitutional amendment?

Joe said...

I'm not sure why the never ratified amendment passed in the midst of the Civil War to state that the federal government could not interfere with slavery (which Lincoln at the time accepted as a general principle) would settle that issue.

The amendment never gained much traction, overtaken by events. It is technically still alive, but don't see any chance of it actually passing even if the few states that ratified could not rescind. There is also an argument that too much time passed there for the amendment to still be a live amendment (see Dillon v. Gloss) or at least that Congress could so hold (see Coleman v. Miller).

A time limit helps ensure that changing times does not make this question too problematic. Congress determines if the amendment is still appropriate in that sense. Such was the purpose of certain time limits inside the text of the amendment & the separate resolutions used for the ERA. Authorization by Congress to extend the time limit that lapsed here would also provide a political means to take into consideration the argument that the amendment ratified is no longer contemporaneous.

(Time limits are normal here -- e.g., a bill perhaps might die as the session does.)

Greg said...

Absent a constitutional amendment (which I would support) providing something like a 100 year time limit for the ratification of amendments that applies retroactively, the process leading to ratification of the 27th amendment makes it pretty clear that the Corwin Amendment is still live in a legal sense.

As such, without a procedure to rescind ratification, there is no way for a state that has previously approved an amendment to respond to changing times that render the unratified amendment clearly objectionable to the new legislature. While as a matter of policy I support the ERA, it certainly seems better for a state to be allowed to rescind ratification of an amendment that their state legislature ratified a hundred years ago and is highly objectionable to the current residents of the state.

Joe said...

The Supreme Court in the two cases that I cited didn't think it is "pretty clear" at least to the degree that it could be confirmed without congressional authorization. Congress was not "pretty clear" on that regarding the 27A.

Anyway, it will only matter if there was a chance of it occurring. This is the first time, in over 200 years, even something in a fifth of that time might be ratified. Plus, what is the limit to that logic? Why not two years? Something major might change in a month. But, there is arguments made that rescission should be open.

But, the concern for changing times in that fashion is addressed by the Supreme Court upheld rule that Congress would play a role there if there is good reason that changing times dictate that move. Such a national body has more constitutional authority to do so than a single state in our system.