Does ERA Ratification Trigger the Expressio Unius Canon?

by Michael C. Dorf

Yesterday I argued that the ratification of the Equal Rights Amendment (ERA) probably will not make a difference to constitutional law, because the Supreme Court already construes the Fifth and Fourteenth Amendment to forbid the federal and state governments from denying equal treatment based on sex. There will continue to be questions about whether particular laws or policies deny equality, but that will be true whether or not the ERA is deemed validly adopted (a question I separately address in my latest Verdict column).

Accordingly, I concluded that the primary impact of saying that the ERA is (or is not) part of the Constitution is symbolic. Symbols matter, of course, and insofar as constitutional law eventually reflects social values, treating the ERA as valid law could eventually affect constitutional doctrine. But so could a great many other things.

Yet while the conclusion that the ERA is validly part of the Constitution will have no obvious doctrinal impact with respect to sex discrimination, it could affect how the courts treat discrimination based on other grounds.

To see why, consider how anti-discrimination law generally works. Let's use the federal Title VII as our example. It forbids employment discrimination based on "race, color, religion, sex, or national origin." Suppose a restaurant chain refuses to hire Steve, a highly qualified applicant, for the position of waiter, because Steve is (in the judgment of the person making the hiring decision and in the judgment of nearly everyone else too) unattractive. Can Steve successfully sue under Title VII?

The short answer is no. If Steve could show that the prospective employer's standards for appearance are rooted in racial stereotypes or that men are held to a higher standard than women, then he could bring a Title VII claim for race-based or sex-based discrimination. But absent that kind of evidence, Steve is out of luck. Title VII does not forbid appearance discrimination per se, nor does it contain a catch-all forbidding forms of discrimination beyond those listed; it forbids those forms on the list and no others.

The current Title VII cases before the SCOTUS involving LGBT discrimination nicely illustrate the point. The plaintiffs in those cases do not argue that Title VII applies to discrimination based on sexual orientation and gender identity by analogy to the forbidden categories; they argue that such discrimination is sex discrimination, and thus covered by Title VII. They admit that Title VII applies only to the listed classes of discrimination. The controversy is over what an item on the list means, not over what is on the list. Put differently, Title VII is subject to the Latin maxim expressio unius est exclusio alterius (the expression of the one implies the exclusion of the other).

Not all authoritative texts work that way. Sometimes a legislature will include a catch-all or otherwise make clear that the listed categories are illustrative only. In such circumstances, judges and others quite appropriately generalize from the items on the list.

The expressio unius canon can be disclaimed explicitly (as by a catch-all) but it can also be disclaimed implicitly. And it does not even apply if there is no list, for then there is not the expression of the one and so no exclusion of the other. A municipal ordinance banning "cars, trucks, and buses" from a public park's bike paths might plausibly be construed to allow motorcycles by deployment of the  expressio unius canon. However, an ordinance banning "motorized vehicles" would clearly cover a motorcycle. There is no list from which motorcycles are excluded, only a general category into which they fit.

Turning to the Constitution, we note a striking fact. The Fourteenth Amendment's Equal Protection Clause contains no list. Potential claimants can argue for a constitutional right against sex discrimination, appearance discrimination, height discrimination, disability discrimination, and any other form of ostensibly invidious discrimination without triggering expressio unius.

Yet that could change if the ERA is now the 28th Amendment. When someone argues that, say, age discrimination should be deemed presumptively unconstitutional (and thus urges the overruling of Mass. Bd. of Retirement v. Murgia), it will now be open to the government to say that while the Constitution singles out sex discrimination as invidious, it does not single out age discrimination, so age discrimination will be judged by the very forgiving rational basis test..

Would the expressio unius argument be persuasive in the event that the ERA is deemed valid? No, because the argument proves too much. It would reject heightened scrutiny for paradigmatic cases of illicit discrimination, including discrimination based on national origin and race, which are also not singled out as protected equality grounds.

To be sure, some readers of the Constitution sometimes forget that the Equal Protection Clause does not identify race or any other specifically forbidden grounds of discrimination. In a 2014 post, I explained how Justice Scalia repeatedly described the Equal Protection Clause as "explicitly" establishing racial equality, despite the fact that anyone capable of reading the Clause can see that it does no such thing.

So we have good grounds for rejecting any inclusio unius inference from the ERA if it is treated as part of the Constitution. The fact that the argument would render race discrimination subject only to something like rational basis scrutiny shows that the argument is fundamentally flawed.

If the inclusio unius argument is flawed, might the ERA nonetheless have some related force? In a 2002 article in the Virginia Law Review, I argued for treating those grounds of discrimination the Constitution singles out as invidious for other purposes--mostly voting qualifications--as presumptively invidious for all purposes. I did not argue that the expressio unius canon should apply, but I acknowledged that one could accept a version of my argument in which it does apply. But even if one takes that route--that is, even if one accepts what I called "equal protection incorporation" and then disagrees with my further conclusion that it is not subject to expressio unius--treating the ERA as validly ratified wouldn't change anything because sex discrimination was already on the equal-protection-incorporation list in virtue of the Nineteenth Amendment.

Bottom Line: In this respect as in the more direct respect I addressed in the prior post, the ERA does not change the law.