On November 20, 2018, the Prince William County Board of Supervisors chose not to endorse a resolution about the Equal Rights Amendment and instead chose to pass an “Equality Resolution” of their own that, unfortunately, contained a number of false statements.
Below are excerpts from the letter and a response from VAratifyERA with a link to a complete copy of their resolution at the bottom of this page.
A portion of the 14th Amendment is correctly quoted, but the application of the 14th Amendment in our justice system does not live up to the ideals stated in the quotation. This is, in part, because the 14th Amendment was added to the Constitution at a time when women were excluded from it.
After the 14th Amendment was added, the U.S. Supreme Court upheld Illinois’ statute barring women from admission to practice law. Also, if the 14th Amendment truly covered gender equality America would not have needed the 19th Amendment to guarantee women the right to vote.
The court’s current interpretation of the 14th Amendment ensures “strict scrutiny” for discrimination based on race, religion, and country of origin. However, gender discrimination cases do not enjoy this same level of judicial scrutiny. Instead, under the 14th Amendment, gender discrimination receives an intermediate level of scrutiny. Under intermediate scrutiny it is easier for the government to discriminate on the basis of sex than it would be to discriminate on the basis of race, religion, or country of origin.
The second section of the 14th Amendment specifically uses the word male to exclude women from the right to vote. Obviously that was rectified by the addition of the 19th Amendment.
Statutes can be repealed as quickly as legislators change their seats/minds. Courts have retreated from or reversed decisions. Explicitly guaranteeing gender equality in our Constitution is an enduring statement that has a value in its own right.
The Equal Rights Amendment gives citizens another resource to challenge discriminatory practices.
Just as current protections for minorities are not jeopardized by the 14th Amendment we do not expect to see similar programs for women jeopardized by the Equal Rights Amendment.
While we celebrate the progress made, we feel the statement “parity for women has been afforded in workplace protections, equal pay and employment security,” does not match the data points of academic studies (one such recent study is here). Nor does it match the real life experience of many women on our VAratifyERA team who have experienced pay inequity firsthand.
Not so fast…
The time limit was extended once before and many constitutional scholars believe it can be again. Indeed Congress has pending legislation to do just that. Virginia’s Attorney General provided a formal opinion on this matter that included the following:
It is my opinion that the lapse of the ERA’s original and extended ratification periods has not disempowered the General Assembly from passing a ratifying resolution.
Five states attempted to rescind but there is nothing in Article V that allows such an action. Of note is the fact that the 14th Amendment was added to the Constitution despite two rescissions — they were ignored/invalidated.
This is a nice idea, but unfortunately not quite true. All citizens living in Prince William County, as with any place in America, will continue to receive intermediate scrutiny in the judicial branch for a sex discrimination case versus strict scrutiny for discrimination based on race, religion, or country of origin. This means, in simple terms, it is easier for the government to discriminate based upon gender than it is for race, religion, or country of origin.
CONCLUSION: Prince William residents are disappointed the Prince William Board of County Supervisors passed a resolution with a number of inaccuracies in an attempt to avoid an affirmative statement on true/explicit constitutional gender equality.
Presumably they intended to make an affirmative statement for men and women in the county while simultaneously disavowing the Equal Rights Amendment via their action. Unfortunately they chose to turn away from a resolution that, based on the latest polling data from the Wason Center for Public Policy, enjoys the highest level of support (81%) amongst Virginians of any issue polled for the 2019 General Assembly Session. This strong level of support is across party lines and demographic groups.
As noted by one Republican supervisor in another part of the state, localities that affirm the Equal Rights Amendment will have an important talking point to share with potential employers for their area. We hope the Prince William Board of County Supervisors will reconsider or at least correct the inaccuracies in their resolution that was passed.