The Equal Rights Amendment: Then and Now

Administrative Law & Regulation Practice Group Teleforum

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First proposed in 1923 – yes, nearly one hundred years ago - the Equal Rights Amendment was finally passed by the U.S. Congress nearly 50 years later, in 1972, with a seven-year deadline for its ratification. With the deadline approaching, but the requisite 38 states not having voted to ratify, Congress approved, and President Carter signed, a three-year extension, to 1982.

Several states and the U.S. Congress are now revisiting the ERA, raising a variety of issues:

  • Whether it is constitutionally possible at this point to extend or eliminate the deadline for ratification of the 1972 ERA; the effectiveness (or not) of five states’ revocations of their votes to ratify; the effectiveness (or not) of the three states’ ratifications that came more than 35 years after the extended deadline;
  • The pros and cons and wisdom (or not) and necessity (or not) and ramifications of amending the United States Constitution with the ERA.

These and related matters will be discussed by Rep. Steven Andersson, founder of GOP4ERA.org, and Jennifer Braceras, Director of the Independent Women’s Law Center.  Hon. Eileen J. O'Connor will moderate the discussion.

Featuring:

  • Rep. Steven Andersson, Founder, GOP4ERA.org
  • Jennifer Braceras, Director, Independent Women's Law Center
  • Moderator: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC  

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society’s virtual event. This afternoon, June 1, we discuss “The Equal Rights Amendment: Then and Now.” My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

      Today, we are fortunate to have with us a very distinguished panel. I will introduce our moderator, the Honorable Eileen J. O’Connor, and she will introduce our panelists this afternoon. Eileen is currently in private practice at the Law Office of Eileen J. O’Connor, PLLC. She was previously an Assistant Attorney General for the Tax Division of the DOJ. She’s also the chair of The Federalist Society’s Administrative Law & Regulation Executive Committee Practice Group, the sponsor of today’s event.

 

      After our speakers give their opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along. If you have a question, please enter it into the chat or the Q&A box at the bottom of your screen, and we will answer those questions as we’re able as the event proceeds. 

 

      With that, thank you for being with us today. The floor is yours, Lee.

 

Hon. Eileen O’Connor:  Thank you, Evelyn. It’s a pleasure to be with you all today. Thank you for joining us. I know this will promise to be and does promise to be a very interesting discussion.

 

      First proposed in 1923, the Equal Rights Amendment was finally passed by the U.S. Congress in 1972 with a seven-year deadline for its ratification. With the deadline approaching, but the requisite 38 states not having voted to ratify, Congress approved, and President Carter signed, a three-year extension to 1982. At the end of the extended ratification period, however, only 35 states had voted to ratify the amendment, and 5 of those had already voted to rescind their votes.

 

      Several states and the U.S. Congress are now revisiting the Equal Rights Amendment, raising a variety of issues which our speakers will address. But before introducing the speakers, let me provide a bit of context for 1972’s introduction of the Equal Rights Amendment.

 

      Roe v. Wade was being argued in the United States Supreme Court. Congress was enacting Title IX to provide female students the same opportunities to participate in school sports as were provided for boys. Gloria Steinem founded Ms. magazine and erased from U.S. society the requirement to identify a woman by her marital status, Miss or Mrs., as men are always Mr. without regard to whether they’re married. Finally, a tax attorney by the name of Martin Ginsburg got his wife, a law professor named Ruth Bader Ginsburg, interested in a tax court decision denying a never-married man a deduction to which the tax code entitled any similarly situated woman.

 

      With that backdrop firmly in mind, our panelists today will each provide ten minutes or so of opening remarks, followed by their discussion with each other and with me, and then we will turn to your questions.

 

      Our speaker are, first, Steve Andersson, who is Executive Director of GOP4ERA.org. Appointed by Illinois Governor Pritzker, he served as Human Rights Commissioner for the state. A retired member of the Illinois House of Representatives, Representative Andersson was floor leader for the House Republican caucus, overseeing all debates on the House floor.

 

      During his last session in the Illinois House, Representative Andersson was the chief Republican sponsor of the Equal Rights Amendment, which passed the Illinois legislature, making that state the 37th to vote to ratify the Equal Rights Amendment to the United States Constitution. Since its passage in Illinois, Representative Andersson has travelled the country advocating for the ERA’s ratification in additional states. He’s been a practicing lawyer since 1992 and is licensed to practice in Illinois, the Seventh Circuit, and the United States Supreme Court.

 

      Going second will be Jennifer C. Braceras. She directs the Independent Women’s Law Center and has served on the United States Commission on Civil Rights. An expert on Title IX of the Education Amendments of 1972, Ms. Braceras has taught courses on civil rights and constitutional law at both Boston College Law School and Suffolk University Law School. A graduate of the Harvard Law School, Ms. Braceras served on its Law Review. After law school, she clerked for two federal judges and practiced labor and employment law with the Boston law firm Ropes & Gray.

 

      Ms. Braceras’s columns have appeared in a variety of publications, including The Wall Street Journal, The Boston Globe, The Hill, and National Review Online. Along with her colleague Inez Stepman, she hosts “At the Bar,” a bimonthly virtual happy hour discussion about issues at the intersection of law, politics, and culture. The Federalist Society is proud to have her a member of its Board of Visitors.

 

      With that, Steve, let me turn the discussion to you.

 

Rep. Steven Andersson:  Thank you so much, Eileen. It’s a pleasure to be here and an honor to be asked to be a part of this Zoominar or Zoom conversation.

 

      As we get started in this conversation, I think it is important to talk about really the purposes of the Equal Rights Amendment, why it was ever proposed, why we continue to advocate for it. And I would characterize there to be three reasons, in my mind, for doing that, the first being, perhaps, the softness, which is as an inspirational document. We are, amongst modern Western democracies, I believe, the only country that lacks a statement in its founding documents regarding the equality of rights under the sexes.

 

      When we talk about young people, young women and young men, quite honestly, we oftentimes refer to the fact that it is important for them to see people who look like them in positions of power as role models. And I know that with the recent election of President Biden and Vice President Harris, many observations were made for young persons of color, young women of color, who said, “Now look at what I can observe. I can see a person in the second highest position in the land who looks like me,” that aspirational or inspirational aspect.

 

      Well, the same is true of our founding documents, is that right now, you will not find a reference to women in the Constitution. And that is something that needs to be corrected, and the ERA does that. Now, admittedly, that’s a fairly soft reason for an amendment, but I still think it is of value and is worth talking about.

 

      The second, though, is what I would characterize as more the hard reasons for it, the second and the third. So the second reason is the fact that right now, we know that the levels of scrutiny that the courts apply to a variety of classes of discrimination are not the same. When we talk about race discrimination, the standard is the most high standard possible, which is strict scrutiny.

 

      But we also know that under the Fourteenth Amendment, which is where that case law evolved, that is not the case for discrimination based on sex or gender. That operates under an intermediate or heightened standard of scrutiny, and then for reference, of course, there is the lowest standard, which is rational basis review. So sex-based discrimination claims are not evaluated at the same heightened level that race is. That is something that needs to be changed. It’s important. It’s critically important that sex is evaluated at that same heightened level.

     

      But I talked about a third reason, and the third reason is this. It is that I would never deny that we have made incredible leaps forward in the rights of all people, no question about that. We’ve made statutory leaps. In Illinois, we recently passed updates to our Equal Pay Act, for example, that prohibit inquiries into prior wages, the belief being that prior wages set the stage for what one might make in the future. So we continue to make strides. Our case law, even the creation of the doctrine of intermediate scrutiny, is an example where we have made strides forward.

 

      And then, of course, culture itself. Culture is always evolving, and I would say that the views and the perspectives of people from the 1970s when the ERA was originally passed in Congress are dramatically different than what they are now, and certainly dramatically different than what they were in 1923 when Alice Paul originally started proposing this. So we have made great strides, no question about it.

 

      But all of those strides are subject to reversal because none of them are permanent. The only thing that is reasonably permanent in the United States as far as law is concerned is the Constitution. And of course, not even that is permanent, but it’s about as close as we can get. We have seen in recent years backsliding on a variety of issues. We saw during the Trump administration rollbacks with regard to the military and transgender rights. To suggest that because we have made progress in these areas is to suggest that we will never reverse or go back, I think, is a miscalculation on people’s part. We need to be able to continue to be assured that there is a backstop, and that backstop is the Equal Rights Amendment, or would be.

 

      Now, of course, one of the questions that I’m sure we’re going to get into in more detail after my remarks is the question of could we even do this? Didn’t it already expire? Wasn’t there already an expiration? And I want to address that at the outset because if I believed that, I wouldn’t have been the chief co-sponsor for it in Illinois in 2018 when we passed it.

 

      And in fact, my belief is strong that if one looks at the original language of our Constitution when it talks in terms of what is required to amend our Constitution, it is clear. And what is that? It requires a two-thirds passage of the given resolution for the amendment by Congress, and then three-quarters of the states to ratify it. That’s it. There’s no deadlines. There’s no anything else that’s proposed in the Constitution.

 

      Now, for me, and I will readily admit case law doesn’t agree with me on that right now, but that doesn’t mean that I have to concede the point that as a fairly strict constructionist myself, I read that when the Constitution makes explicit and it’s clear and there’s no vagueness to it, you apply it as written. And in this case, there’s no vagaries as to what was required. There’s just those two elements. So the concept of a time frame is one that I think is a great question, at least, and in my opinion, not really appropriate.

 

      But then, the other questions that we’ll probably confront as we go forward concern where that deadline actually lies in the resolution, and then, of course, what do we do with recissions that have occurred, and what do we do with an archivist? But I think that’s going to be the basis of our conversation, so at this point, I will pause, and I believe it’s to turn it over to Jennifer. Thank you all.

 

Jennifer Braceras:  Thank you, Steve.

 

Rep. Steven Andersson:  My pleasure.

 

Jennifer Braceras:  I want to thank you for your presentation, but also for acknowledging the great amount of progress that has been made in the decades, indeed, the half century since the Equal Rights Amendment was proposed by Representative Martha Griffiths in 1971.

 

      I would argue that 50 years ago, the world was almost a completely different place for women and girls. I was four and a half when the Equal Rights Amendment was introduced by Representative Griffiths, and I would content that the world my mother lived in was very different than the world that I grew up in, and the world that I live in today, and the world that my daughters will inherit. Because of the seismic social and legal change during this time, it’s my contention here today that the ERA is not only no longer necessary, but that it is actually dangerous for women and girls, and ultimately void.

 

      So let’s start with the fact that the ERA is unnecessary in 2021. Lee talked a little bit about what was going on during the 1970s in her introduction, but just to remind people, most of whom probably don’t have a large consciousness of what it was like in the ’70s—I certainly don’t from personal memory, being only four at the time—but in 1971, it was perfectly lawful to discriminate against pregnant employees. It was perfectly lawful to discriminate against women in granting credit. It was lawful to refuse to sell or rent housing to women, to refuse to provide them equal educational opportunities. Women could be banned from serving on juries or from working in certain professions.

 

      And indeed, the government could treat men more favorably than women for almost any reason. Workplace sexual harassment was not considered to be a form of discrimination, and there were few athletic opportunities for women and girls. The ones that did exist were extremely poorly funded.

 

      So these legal inequities and the Supreme Court’s unwillingness to strike down policies that discriminated against women were really the driving force behind the effort, which began in the 1920s almost immediately after women earned the right to vote, to pass a constitutional amendment to guarantee equality of the sexes.

 

      But as both Lee and Steve have acknowledged, around the time that the ERA starts being debated, both in the Senate and then in the states, things began to change. The Supreme Court ruled for the first time that unequal treatment of men and women violates the Equal Protection Clause of the Constitution. And over the following three decades, the Court broadly applied the equal protection mandate to sex-specific policies.

 

      From the perspective of 2021, it’s now clear that the Equal Protection Clause, in fact, outlaws government policies that unfairly discriminate on the basis of sex. And that is permanent. That’s not something that can or will change. Moreover, the U.S. Code is replete with prohibitions on both private and public discrimination in employment, education, credit, housing, and more. And as a result, constitutional scholars on both the right and the left have concluded that we are now living under a de facto 1970’s era ERA.

 

      Indeed, no less an authority than the late Justice Ruth Bader Ginsburg, an early supporter of the ERA, observed that, quote, “There is no practical difference between what has evolved and the ERA,” unquote. Not only are women and men today legally equal, but our society has generally embraced the principle that men and women deserve equal access and equal opportunity.

 

      In addition to significant changes in law and attitude, or perhaps because of them, women have achieved enormous social, economic, and political success in the past half century. Prior to the advent of the coronavirus pandemic, it was safe to say that women were more economically prosperous than ever before. Female unemployment was at an all-time low. Women comprised nearly 50 percent of the workforce, 40 percent of managerial positions, up from 20 percent in 1972. They controlled the majority of wealth in America and owned 40 percent of American businesses. Compare that to 5 percent in 1972.

 

      These economic advances are perhaps not surprising, given the massive increase in educational attainment of American women during this same timeframe. Women today earn the majority of bachelor’s degrees, the majority of master’s degrees, the majority of doctorates, and now, just recently, they have begun to outnumber men in both law school and medical school. Women’s strides in the athletic arena, I could go on and on about those. A 545 percent increase in women playing college sports since 1972, or between 1972 and 2016. Increases in the political power and clout of American women.

 

      Now, some might say, “Well, 50 percent of our legislature isn’t female.” Well, that’s true, but we have the largest number of women elected to Congress ever in 2021. And significantly, when women choose to run for political office, they are today as likely to win as men. Also importantly, women are more likely than men to be registered to vote, and they are more likely than men to actually vote. So at the polls, women are the majority and wield great political power in this country.

 

      We did not need to amend the Constitution in order to achieve these successes. But if American law already requires equal treatment of men and women, and it does, what’s the harm, as Steve says, of putting women in the Constitution for aspirational or inspirational purposes? And I would argue, a lot. The Constitution doesn’t mention women, but it also doesn’t mention men. It is as neutral document. And there’s not a single right contained in our governing charter that belongs to my son but not my three daughters, not one. And there’s no compelling reason to start adding groups to the text of the Constitution just so people can feel inspired or acknowledged. So I don’t really buy the aspirational aspect.

 

      But I think there’s a bigger problem with, quote, unquote, “adding women to the Constitution,” and that is that it will more than likely backfire on women and girls because, as I stated previously, our society has achieved the primary goals of the ERA. And because of that, adding it now would likely require something more than equal treatment of similarly situated persons, which the law already requires.

 

      In fact, Steve said in his opening remarks that that’s exactly what he hopes it will achieve, that he hopes it will achieve strict scrutiny for women under the Constitution and that the courts will begin to treat sex in the same way that it treats race. So men and women would be treated the same, irrespective of circumstance; not just equally, but the same.

 

      But I don’t think that’s a good thing, and I don’t think when you think about the implications of that most women would think it’s a good thing because sex and race are not the same. And there are very good reasons why the court has applied a lower lever of scrutiny to sex-based policies.

 

      Biological sex differences sometimes provide extremely important grounds for distinction, whereas race does not. For example, maintaining separate prisons for male and female inmates makes obvious sense, whereas housing black and white inmates separately does not. The same is true with athletic teams and other private spaces where men and women don’t need to be together. By recognizing the difference between race and sex, courts have carved out a space to accommodate these legitimate distinctions between males and females while still prohibiting discrimination that is unfair.

 

      So if the ERA is adopted now, that will almost certainly change, and courts will no longer have the flexibility to consider biology or privacy when determining the constitutionality of sex-based policies. In practice, it could require women not only to register for the Selective Service, but it could require the military to send equal numbers of men and women into combat. I say that because the proponents of the ERA, many of them, have argued that it would allow a disparate impact analysis on the basis of sex.

 

      Another thing the ERA could potentially do now if adopted is prohibit the government from operating or funding any female-only spaces such as women’s shelters, sororities at public colleges, etc. And it could prohibit hundreds if not thousands of programs that are designed to support women and girls, such as federal grants to increase women in STEM or grants administered pursuant to the Violence Against Women Act.

 

      There’s another substantive problem with adding the ERA to the Constitution, one which Steve alluded to, and that is the ever-changing definition of the word sex. In 1971, the meaning of the term was obvious. It referred to biological sex, and the ERA was proposed to prevent the government from favoring one biological sex over another.

 

      Today, particularly after the Bostock decision, that definition is up for grabs. And when Steve referred to backsliding with respect to transgender rights, I think that that sort of sums of the definitional problem of what sex means today. And certainly, our society can choose to protect transgender individuals from discrimination, but before we amend the Constitution, I think we need to have a national conversation on what exactly we are doing and what exactly the word sex means.

 

      Which brings me to my third point, and that is that the ERA has expired. Given the enormous changes in the legal and social landscape over the past half century, as well as changed understandings of language, it’s not clear that the state legislators who voted to ratify the ERA in the ’70s would do so today, or that the American people would support it now if they understood the full ramifications.

 

      At least 62 percent of all eligible voters, including me and my three daughters, were not born or were too young to vote when the ERA was first debated. And we are entitled to a full public conversation and debate about this amendment. Denying us that opportunity would strike a serious blow to the requirement outlined by the Supreme Court that amendments be ratified by reasonably contemporaneous supermajorities. And for these reasons, I believe the ERA expired last century, irrespective of technical disputes about deadlines, which in and of themselves should be dispositive.

 

      But even if I were to concede that the deadline was somehow invalid, I still think that, based on changed circumstances over half a century and current Supreme Court jurisprudence, that the ERA has, in fact, expired. And because of that, I don’t think you can cobble together ratifications from 1971 with ratifications in Illinois, Nevada, and Virginia from this century.

 

      The only way to determine whether large supermajorities of Americans today want the ERA to be a part of the Constitution is, to quote Justice Ginsburg again, “put it back in the political hopper and start over.” Only then can we have a national, contemporaneous conversation about sex discrimination and the advantages and disadvantages of amending our governing charter.

 

      And I think I’ll end by saying it’s worth noting that the last time the citizens of the United States had a conversation like that about the merits of the Equal Rights Amendment, the ERA went from being almost guaranteed passage to dead on arrival once Americans woke up and started really talking about it. So I do not want to allow the proponents of the ERA to short-circuit the constitutionally proscribed process and that national conversation simply because they are afraid to lose the debate again.

 

Hon. Eileen O’Connor:  Thank you so much, Jennifer. Steve, would you like to address some of those points or make some of your new ones?

 

Rep. Steven Andersson:  Sure. Thank you. And thank you, Jennifer, for your comments. I appreciate them greatly.

 

      A couple of observations. One is you had mentioned Selective Service. I suppose you were indicating that that would be a problem or that that was a negative. Quite frankly, back in the 1970s, a woman named Phyllis Schlafly, who most people are familiar with who have any exposure to the ERA, also used that as one of her parade of horribles of things that would happen would we pass ERA. I actually have her “Stop ERA” pamphlet available to me, which goes through the other parade of horribles, which are all fairly ridiculous.

 

      This was the only one that she got right. And I would agree that Selective Service would, in fact, be applicable to -- or the requirement to register for Selective Service would be applicable to men and women, and quite frankly, it should be. We shouldn’t be putting women on a pedestal and saying that they don’t have the same obligations as citizens that men do.

 

      But that is not to suggest that ipso facto, that means that women have to serve on the front lines in the same situations as men. Quite frankly, it means that we’re talking about bona fide occupational qualifications. In other words, if a person qualifies for front line combat because of their physical abilities or acumen, then certainly they will be, regardless of sex, on the front line. On the other hand, if they do not, again, regardless of sex, and they should serve a more back of the field position, that’s where they’ll be put.

 

      It’s no different than any other BFOQ, bona fide occupational qualification, that we employ legitimately in the realm of the human rights arena where we judge it not based on a classification but instead on qualifications. So I would argue very, very vehemently that I think that that’s a great thing. That’s something that should happen.

 

      The other comment that Jennifer made that I -- and I don’t want to rebut absolutely everything because I appreciate your comments, but one of them was that programs that advantage women would be eliminated by the ERA, things like programs for women and girls, things that lift up and enhance opportunities for women. And I would argue that that is also incorrect, the reason being is it’s no more true with race-based selection or race-based discrimination than it is with women. In other words, opportunities for affirmative action continue to exist in law, and the commentary has generally been, remember, we can discriminate if you meet the strict scrutiny test.

 

      And one of the areas where in the realm of the Fourteenth Amendment and race is concerned where that standard has been met, where there is legitimate discrimination, is in the area of uplifting individuals. In other words, positive discrimination when you talk about people who have been historically discriminated against, they have an opportunity to be uplifted. So to suggest that everything will be equal, the idea that bathrooms and everything else, that all distinctions will be erased is not reflective of what the amendment would actually do.

 

      The other thing I would point to in rebutting that rather, in my opinion, extreme view of what the amendment would do is to look to history. We have about 15 to 18—I’ve lost track—states that have identical state-level ERAs in their constitution. Illinois, with the exception of one comma, I believe, that is not identical, does exist. And in those 50 years of state-level constitutional ERAs, there has been no parade of horribles. This idea that we’re going to lose all distinctions between men and women simply didn’t happen. It is not a reality.

 

      And last, on the question of whether or not -- and this is more of a policy question that I think Jennifer brought up than it is a legal question of how should we go about doing this in 2021 versus 1972. The courts really have talked about the idea of consensus when we talk about a constitutional amendment. The key element, if you will, the key nugget is that there is consensus among the states to ratify a new constitutional amendment. Certainly, most of the time, that would indicate contemporaneousness; in other words, that it’s done in a fairly short amount of time. But the reality is that isn’t always going to be the case, certainly in this situation.

 

      And when we look at it, the question is, have our views towards the need for equality changed? I would say that they have not. In fact, they’ve gotten more significant. And I would agree with Jennifer when she says that we have, in many ways, a de facto ERA. I think you were quoting Justice Ginsburg, perhaps. And if so, I think the belief of most people in 2021 is that the ERA is still a consensus-driven idea amongst the states.

 

      So if consensus, which is the core underpinning of the idea of amending the Constitution, I believe it exists. And in fact, I can tell you it exists because in the polling we’ve done on the advocacy side of the ERA, 97 percent of people, regardless of party, agree that the ERA should be a part of the Constitution. And about 86 percent of them believe it already is, believe it or not. So most people --

 

Hon. Eileen O’Connor:  -- Hey, Steve, I think it’s time to let Jennifer respond to your points. Thank you, Steve. Jennifer?

 

Jennifer Braceras:  A couple of things there. With respect to polling, the polling data is interesting because the same was true before Phyllis Schlafly came on the scene. And that is precisely the reason we need to have the conversation because Phyllis Schlafly woke up a lot of people to the dangers of the ERA -- what she saw as the dangers of the ERA at that time. I’m probably unique in Republican or conservative circles in that I think I would have been for the ERA at that time. But I’m against it now for precisely the reasons I articulated in my opening remarks. But Phyllis was able to convince a large number of people not to support the ERA, and that’s why it went down in defeat.

 

      And when the Supreme Court talks about consensus or reasonably contemporaneous consensus of the states, it’s important that that consensus be informed. And our country hasn’t had the conversation that it had in the late 1970s about the ERA. And in fact, I would argue the conversation that Steve and I are having right now is the type of conversation we need to have all over the country and in states across the country.

 

      But the fact that Steve and I disagree on how the ERA would be interpreted and how the ERA would be implemented just goes to show that there is a lack of clarity that needs to be hashed out, and perhaps even rewritten to make clear what it is we would be doing because changing the Constitution is not like changing your mind. You can’t necessarily change it back again. And obviously, there is the one rare exception of Prohibition. You can change it back, but it’s very difficult. And so these things need to be hashed out by society in real time.

 

      The other point I would make about the state ERAs, and I’ll just give you one example. I live in Massachusetts. Massachusetts has a state ERA. And because of the Massachusetts state ERA, boys in Massachusetts can not be prohibited from trying out for girls’ sports teams. And so I will give you a very real example that my daughter, who plays field hockey in high school, competed this year against not one but three teams that had multiple male players on it.

 

      Now, we can have a debate about whether that’s fair or whether that’s not fair, but the bottom line is the ERA compelled it. So you cannot say that it will not have real life implications for my daughters, for your daughters, for athletes across the country, for female prisoners across the country who will be integrated with male prisoners if this happens. It will have these implications. And we need to think long and hard about whether that’s a good thing or a bad thing.

 

Hon. Eileen O’Connor:  Thank you, Jennifer. I’d like to ask a question of Steven. I was interested that you mentioned bona fide occupational qualification. And this is not my area at all, but I read the newspapers and I think I’ve seen news reports of occupational requirements, example, for firemen or firefighters where the requirements have had to be changed because women said they were sexist because they required a certain amount -- that you be able to run at a certain speed, that you be able to carry a certain load. And women said, “No woman can do that. Those are sexist qualifications.” So they had to be loosened so that women could qualify. Would you address that?

 

Rep. Steven Andersson:  Sure. And that really goes to the bona fide part of a bona fide occupational qualification. And the argument in those realms is that it wasn’t bona fide. In other words, if we can determine that what is actually necessary to be a firefighter or to be a policeman—I apologize for my sexist term—a police officer, if we can demonstrate that the standards were set so high that, in fact, women could not qualify for it, but those standards set at those levels were not necessary to actually do the job, that violates the bona fide part of it. In other words, it’s not a good-faith standard.

 

      So there’s always going to be an evaluation of what, in fact, is a bona fide occupational qualification on both sides of that test. And in those cases, there may be some situations where those will be upheld as being appropriate, and maybe some that won’t. But again, as long as it’s a legitimate bona fide qualification, I think that that’s one of those areas where it’s perfectly appropriate to apply those. And that’s not to say that all women will fail in that category. I know quite a number of women who are, quite frankly, way stronger than I am, and were back in high school, even. There are distinct -- individuals are individuals.

 

Hon. Eileen O’Connor:  And so the question is how strong do you have to be in order to do the job? Jennifer, do you have some thoughts on that?

 

Jennifer Braceras:  Well, my thoughts are, particularly with respect to the military, Steve’s right when he says it’s not a foregone conclusion that women and men will be sent to the front lines in equal numbers. Of course it’s not. But the advocacy groups in favor of ERA, and you can look on their websites, explicitly say that they hope that the ERA will be used to allow disparate impact litigation. And under disparate impact litigation, courts will look at percentages. They will look at outcomes, not equal treatment, and they will say, “Well, are equal number of men and women serving in these roles, going to these places, being put on the front lines?”

 

      That challenge will be made to combat policies that don’t evenly distribute the roles between men and women, will be made possible by the ERA if its proponents get their way. That is what they are hoping for. They want the ERA to require strict scrutiny and to require disparate impact claims with respect to sex. And I would argue that because sex is fundamentally different than race, we should not do either of those things.

 

Hon. Eileen O’Connor:  Thank you. It’s interesting, Phyllis Schlafly, who you’ve mentioned, almost singlehandedly got the ERA not to be ratified by its 1982 deadline. By 1977, I think, there were 30 states that had voted to ratify it, 5 of which were -- 35 had ratified it, 5 of which said, “No, never mind. We changed our minds.”

 

      Aside from that, though, Phyllis Schlafly got involved when the ERA was on the brink of ratification, and she, through her speeches and writings, just absolutely turned the tide. And she did that by focusing on a couple of the items that you’ve mentioned. She said that the Equal Rights Amendment will bring about gender-neutral bathrooms, same-sex marriage, and women being drafted.

 

      And we have the first two already, and the third one is actually the subject now of some litigation that’s in the United States District Court for the District of Columbia. It’s the National Coalition for Men v. Selective Service. And it says the fact that only men are required to register for the draft makes it unconstitutional. Steve, do you have a thought on that?

 

Rep. Steven Andersson:  Yeah. And actually, if I could just reflect just a bit on Phyllis Schlafly as well because, obviously, we’ve talked quite a bit about her. When Jennifer talks about her waking the country on the issues -- and you’re certainly right, by the way. I would give her credit where credit is due that she stopped the ERA back at that time. So I will certainly give that credit.

 

      But I’m actually staring right now at the Eagle Forum “Stop ERA” pamphlet that she used. And remember, Phyllis Schlafly is a native of Illinois, of my home state, so I feel particularly compelled on this issue. I want to give you some of the woke examples of what Phyllis argued would happen should the ERA pass. Number one, the age of consent for sex must be lowered to age 12. Apparently, that would happen. Prostitution would become legalized by passage of the ERA. Boy Scouts and Girl Scouts must be sex integrated, even though there’s no state action involved in that. Words like husband and --

 

Hon. Eileen O’Connor:  -- But that’s actually happened.

 

Rep. Steven Andersson:  Words like husband and wife must be eliminated. But my favorites are, like I said, when I look at this, the outright misstatements about the fact that the age of consent for sex has to be lowered, or prostitution legalized, or that the government must provide comprehensive childcare, which I would argue is a good thing, but apparently that was a bad thing as well. But I’ll turn to your --

 

Jennifer Braceras:  -- Well, we can argue till we’re blue in the face about whether Phyllis Schlafly was right at the time or whether her tactics were appropriate or honest or correct. But that doesn’t really matter now because my whole point is that the goals of women like Ruth Bader Ginsburg who supported the ERA have been achieved, and therefore, we don’t need it. And if we add it to the Constitution now, it will go much further.

 

      And I’m not saying that there will be a whole -- well, I am saying there will be some parade of horribles that will befall American women, but what I’m really saying is we need to discuss as a country whether we think those things are horrible. I may think that it’s horrible. You may not think that some of these things are horrible. But we need to have that discussion because the ERA will do much more if passed today than it would have if passed in the ’70s.

 

      So we need to talk about do we want our daughters who play field hockey to have to compete against boys? Do we want our daughters to register for the Selective Service? Do we want our daughters to potentially be sent to the front lines so that we have even numbers of men and women on the front lines? Do we want females to be housed with men in government-run prisons? These are the questions we need to ask, and we can’t just shoehorn the Equal Rights Amendment into the Constitution because three states this century said they are in favor of it; three states.

 

Hon. Eileen O’Connor:  Let’s turn to questions from the audience. I’m not sure -- yep, there’s a question mark at the end of this, so I’ll read it. The Fourteenth Amendment and Equal Protection Clause have been stressed to include women in a way that was never intended. As our courts return to a non-activist interpretation ethos, what is the constitutional basis for the rights women have at the federal level? Jennifer, can you go first on that?

 

Jennifer Braceras:  Well, as I started to say before, and you never really know how you would have behaved or what you would have believed at the time, but I think I may have been for the Equal Rights Amendment in the 1970s precisely because the Equal Protection Clause had not at that time in the very early ’70s been interpreted to apply to similarly situated men and women. Once that changed, and it did change in a case called Reed v. Reed, I certainly don’t see any basis for amending the Constitution further.

 

      Now, you can argue that the Equal Protection Clause was never intended to be applied that way. The fact of the matter is it has been applied that way, and it will continue to be applied that way. That’s precedent. That’s the law of the land. No one’s going back.

 

Hon. Eileen O’Connor:  Excellent. Steve, do you want to weigh in?

 

Rep. Steven Andersson:  Sure. Actually, I appreciate the question, especially when you look at the comment of former Justice Scalia, who made the rather remarkable statement that while the Constitution certainly does not require discrimination against women, it does not prohibit it. In other words, he was reflecting on the fact that perhaps his view was the Fourteenth Amendment had been stretched too far and did not apply to this.

 

Jennifer Braceras:  But it does now.

 

Rep. Steven Andersson:  And when we talk about this concept, this goes back to my initial argument that we need something that is a backstop that is permanent because, quite frankly, precedent does get overruled. Precedent does evolve.

 

      Right now, there’s a huge conversation in the land about whether Roe v. Wade, which may would argue is the stated law of the land for an equally long period of time as the amendment we’re talking about, that, in fact, that could get overturned. I don't know if that’s true or not, but the reality is that question is being asked. If that can be overruled, these other elements can be overrules as well, thus giving rise to, and again, I appreciate the questioner’s maybe implicit comment that if we want to have protection for women in the Constitution, we ought to put it in there, and that is the ERA.

 

Jennifer Braceras:  But it’s funny because you talk about protection for women. And if you pose the question that way, sure, everybody supports protection in the Constitution for women. Everybody supports equal rights for women. I don't know anyone who doesn’t support that in 2021.

 

      The question is what does the text of the Equal Rights Amendment mean in 2021? What does that mean, how will it be implemented, and do we want those things to occur in society? We can’t just shoehorn that into the Constitution and then figure out later what it means. When you’re amending the Constitution, there needs to be consensus and an understanding of what we’re doing.

 

Hon. Eileen O’Connor:  And it’s important to remember that the Supreme Court can revisit and reconsider and overrule its prior decisions, but in order to undo a constitutional amendment, you need another one; think Prohibition.

 

      Let me go to the next question from the audience. What do women do when hostile legislators overturn laws and acts that benefit women such as Title IX, the Lilly Ledbetter Fair Pay Act, and the Violence Against Women Act without a constitutional amendment like the ERA?

 

      Before you answer that, let me mention that one of Phyllis Schlafly’s concerns was that whether legally or by tradition, there were certain protections for women, and she was concerned that an Equal Rights Amendment would mean that men would never have to pay alimony. And another thing that did happen, and I don’t recall whether she was concerned about this or not, that no-fault divorce is something that is considered to have largely harmed women. I don't know whether you can put these together. Jennifer, do you want to take that first?

 

Jennifer Braceras:  Yeah. Nobody’s overruled Title IX or overturned Title IX yet. I think the biggest threat to Title IX, frankly, right now, is the allowance of male-bodies athletes to compete in women’s sports. But that’s not a threat that’s coming from the right.

 

      What I would say is, going back to my opening remarks, women are the majority of the electorate in this country. Women exercise enormous political power. And if the women of America want something to happen legislatively, they have the power to make that happen. They have the power to elect candidates who will support their views. And we shouldn’t presume that all women or the majority of women will vote a certain way, but the point is that women have political power. They are not denied political power in this country, and they can and should exercise it.

 

Hon. Eileen O’Connor:  Thank you. Steve, do you want to comment?

 

Rep. Steven Andersson:  To the listener’s question, again, you’re making a bit of my point. Again, no one is attempting to repeal Title IX that I’m aware of, but the Violence Against Women Act  has yet to be fully renewed, or if it has, it would only have been in the last week or so. I don’t recall. There are opportunities for backsliding.

 

      And while I fully respect Jennifer’s point of view about the advances that equality has made in the last 50 years, for the time that I sat on the Illinois Human Rights Commission, I can assure you, we’re not done. The discrimination that women suffer continues to exist, notwithstanding the advances that have been made.

 

      And so the idea, the very idea that we’re good, we’ve done enough, now let’s just go, is just not based in the reality that I live and I see every day of my life, which is that women continue to be discriminated against, both explicitly and, let’s say, sub rosa where things do not happen that maybe we can’t prove it. And oftentimes, I had to dismiss a lot of cases that came in front of me because of that because I couldn’t prove it explicitly, but pretty certain that there were things that were still happening. So the idea that everything is good is just not true.

 

Jennifer Braceras:  Obviously, there’s still discrimination against women. The point is, though, that now the law provides remedies. And amending the Constitution will not solve the problems you identify of private discrimination. That exists. There are remedies for it. And thankfully, we see much, much, much less of it than we did in my mother’s day. I believe that amending the Constitution is a big deal, and I would argue that we don’t amend our Constitution simply because of a hypothetical that things might backslide in the future on certain topics.

 

      What I would ask people who say they’re in favor of the ERA, I would ask, name one thing that your sons can do in this country that your daughters cannot, one thing. I don't know what it is. My daughters have all the choices in the world. The world is their oyster. It doesn’t mean they won’t encounter problems. It doesn’t mean they won’t encounter discrimination. It doesn’t mean they won’t come across people who are unkind or who treat them poorly. All of those things are part of life.

 

      But my daughters will face hardships the same way that my son will face hardships. And frankly, I’m more concerned about the opportunities and the -- I’m more concerned for my son’s future than I am for my daughters’. I think my daughters have the opportunity to do anything they put their minds to in this country. There’s nothing stopping them.

 

Hon. Eileen O’Connor:  Excellent. We’re getting close to the end. Let me just make one point. It’s sort of a response to something you said, Steve, about Title IX is not being attacked. There is actually -- I read some opinion that letting boys play girls’ sports is actually undoing Title IX, so I think that there might actually be a threat there. I see that Evelyn has popped back up on the screen, which lets me know that we’re reaching the end of our time. So let me ask you for some closing thoughts. Steve, you go first.

 

Rep. Steven Andersson:  Well, number one, thank you to The Federalist Society. Thank you to Eileen and to Jennifer for a really wonderful discussion. I think that one thing I certainly agree with Jennifer about is this sort of a conversation, this opportunity to hear both sides really fully fleshed out is what the people of the United States need to hear, regardless of whether we’re talking about ERA or whether we’re talking about women’s rights in general. So I sincerely want to thank you both, or all, for the opportunity to be a part of this.

 

      I hope that our discussion has helped illustrate the differences between the points of view, but I’ll end where I began, which is simply that this is both inspirational and aspirational. I think that that’s important. But more importantly, if we think that we can continue forward with the threats to our democracy that we have seen in recent years, including January 6 of this year where we saw an attempt at an overthrow, a violent overthrow of our nation’s capital, and just think that we can sit back and be comfortable with the idea that we have statutes and we have case law that protects us, but we don’t have a permanent constitutional amendment, I think that’s a mistake.

 

      But again, I thank you all for the opportunity to be here. This is a wonderful discussion.

 

Hon. Eileen O’Connor:  Thank you. Jennifer?

 

Jennifer Braceras:  Thank you. Yes, I think that the disagreements that Steve and I have here as far as whether or not the ERA is needed, what it would mean, and how it would be implemented, are precisely the reasons that we need to reopen the discussion again and not just add the ERA to the Constitution by judicial fiat at this point.

 

      The debates that my mother and my grandmother had about the ERA are long over. Society has changed, and if we want to talk about amending the Constitution to add specifically a provision that protects women’s rights, then we need to put it back in the political hopper and start again. And I’d be happy to debate Steve all across the country on whether it’s a good idea, but we need to be able to have those debates.

 

Hon. Eileen O’Connor:  Excellent. Thank you so much. Let me just change the topic because Steve did, and I don’t think it should go unanswered. I disagree vehemently with your interpretation of the events of January 6. And with that, I close out this discussion. Evelyn?

 

Evelyn Hildebrand:  Thank you both. I’ll just add my thanks to Lee’s at this point. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today, and I want to thank our audience for participating. We welcome listener feedback by email at info@fedsoc.org. As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events. Thank you all for joining us today. We are adjourned. 

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.