“We don’t need it anymore.”
- Legislation advancing equal rights may be repealed or amended. Court decisions may be retreated from or abandoned. By contrast, a constitutional amendment is far more enduring.
- Legislation and court decisions without a constitutional backstop do not protect equality. Government agencies and courts must apply and interpret these statutes. Currently they do so without the guiderails of the Equal Rights Amendment.
- The Fourteenth and Fifth Amendments require equal protection of the laws, but courts do not hold state and federal governments discriminating on the basis of sex to the same high standard courts apply to government discrimination on the basis of race, national origin, or religion. Sex discrimination currently receives “intermediate scrutiny” in the courts, whereas other forms of discrimination receive “strict scrutiny.” Under intermediate scrutiny it is much easier for the government to discriminate.
- The late Justice Scalia once remarked that gender discrimination is not prohibited in the Constitution.
- Justice Bader Ginsburg has said that the Equal Rights Amendment is the one Amendment she would like to see added to our Constitution.
- The American Bar Association formally reaffirmed support for the Equal Rights Amendment in 2016. In a June, 2018 letter submitted for inclusion in the Congressional Record the ABA identified three immediate effects of the addition of the Equal Rights Amendment to the Constitution:
- gender equality would be established under the law as a fundamental and irrevocable tenet of society;
- judges would be required to apply the highest standard of scrutiny when deciding cases involving sex discrimination; and
- existing gender equity laws would be protected, and enforcement of these laws would be reinvigorated.