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FlyingScotsman
12-30-2010, 04:03 PM
As someone who was too young at the time to fully appreciate the complexities of the political process at the time, I never understood why the Equal Rights Amendment was never passed. On the one hand, it seems a no-brainer, a basic statement of obvious human rights. However, trying to research online the reasons why it wasn't passed produces a whole bunch of feminist fruitcakery, including some who insist the amendment technically passed and is in effect. The Wikipedia entry states that the original support for the amendment was among conservative women, while labor unions and "New Deal" types virulently opposed it--an exact flip-flop of the typical cliches and stereotypes of the political left and right.

My idle speculation is that the trouble stems from the second clause of the amendment as proposed: "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." That seems, in an era when people are arguing the constitutionality of mandating health insurance coverage, a loophole big enough through which to ram all sorts of trouble.

friedo
12-30-2010, 04:17 PM
Well, a clause allowing for congressional enforcement is par for the course for most constitutional amendments.

Really, the reason it was not ratified is twofold:

1. After approval by Congress, it had a deadline for state ratification of seven years, and was considered a low priority amongst the turmoil of the 1970s.

2. It was largely pointless. Every state already has some recognition of equal rights for the both sexes in its constitution or statutes, and a body of caselaw supporting the same. (Obviously the term "equal rights" is very broad and open to a great deal of interpretation; the ERA would not have changed that in any respect.) Many state legislatures were wary of ratifying an amendment that would expand federal power without really accomplishing anything.

TriPolar
12-30-2010, 04:19 PM
By the time the ERA began to reach the level of popularity that would make ratification politcally feasible, its perceived necessity had begun to diminish. Many of the traditional gender inequities had already begun to dissolve. At the same time, the new conservative movement allied itself with the traditional anti-ERA forces to stop the process, symbolizing the end of liberal ideas. Stories were spread that the ERA would force the end of seperate bathrooms for men and women and force young women to serve in the military. So it didn't pass, and it's turned out to be unnecessary anyway.

alphaboi867
12-30-2010, 05:06 PM
...Stories were spread that the ERA would force the end of seperate bathrooms for men and women and force young women to serve in the military. So it didn't pass, and it's turned out to be unnecessary anyway.

There was also concern that it would somehow negatively affect things like child support, alimony, and maternity benifits. IANAL, but if passed the ETA would raise the standard of review for sex discrimination from "intermediate scrutiny" to "strict scrutiny" (on par with racial discrimination). I'm not sure what the actual effect would be in practice.

gaffa
12-30-2010, 05:14 PM
My memory was that it was a non-issue and would have passed overwhelmingly until Phyllis Schlafly (http://en.wikipedia.org/wiki/Phyllis_Schlafly) made it one. From her Wikipedia article:

By the time Schlafly began campaigning in 1972, the amendment had already been ratified by 30 of the necessary 38 states. However, Schlafly was successful in organizing a grassroots campaign to oppose further states' ratifications. Five more states ratified ERA after Schlafly launched her opposition campaign, though an additional five state legislatures voted to rescind their ratifications. The last state to ratify was Indiana, where then State Senator Wayne Townsend, a Democrat, cast the tie-breaking vote for ratification in January 1977.

FlyingScotsman
12-30-2010, 05:24 PM
Your answers prompt more questions:

What are/were the "traditional anti-ERA forces"? What, aside from pure misogyny, is the justification for opposing equality for all?

What were Schlafly's grounds for opposing the ERA?

Why did some states ratify it and then rescind their ratification? The various websites and histories are eager to explain the what and how, but not the why.

Zsofia
12-30-2010, 05:28 PM
I don't know about the climate at the time (I'm too young) but I know every time it comes up in conversation somebody says "But what about the DRAFT?"

TriPolar
12-30-2010, 06:49 PM
Your answers prompt more questions:

What are/were the "traditional anti-ERA forces"? What, aside from pure misogyny, is the justification for opposing equality for all?

What were Schlafly's grounds for opposing the ERA?

Why did some states ratify it and then rescind their ratification? The various websites and histories are eager to explain the what and how, but not the why.

The anti-ERA forces got their passion from traditionalists who had never accepted the idea, and were still unsettled by women's suffrage (http://youtube.com/watch?v=-uPcthZL2RE). Besides the draft and bathrooms, there was the job situation. Women had been excluded from many jobs that were considered dangerous or too physically taxing. Women were also still considered to emotional for positions of authority, and if given jobs they would just get pregnant and quit, or even worse, not quit and leave their children to be raised by strangers.

Added to that were the anti-liberal forces who opposed anything liberals were for, and they didn't need further justification. Among the others were some who simply felt the Constitution already granted women equal rights and considered the ERA unnecessary.

ETA: I couldn't tell you why any individual made their decision, but at that level, it was probably just the politics of the moment.

Shagnasty
12-30-2010, 06:59 PM
Your answers prompt more questions:

What are/were the "traditional anti-ERA forces"? What, aside from pure misogyny, is the justification for opposing equality for all?.

We have had Great Debates on the ERA a few times over the years free for the searching if you want some more info from here. My basic take is that there is symbolic equality made as a statement and pure legal equality.

The basic problem is that many people, both male and female, are concerned what the ERA would actually DO and it isn't up to the people that drafted it to get to pick after the fact. That depends on the court cases brought before the Supreme Court and the decisions based on those decide its effects. You can't add symbolic amendments into the U.S. Constitution without expecting literal interpretations of them at some point no matter what any one group wants. We haven't had a draft for a long time but it seems obvious to many that any future draft or anything to do with the U.S. military would have to be sex blind and few people truly want that. Likewise, many people dismiss the idea of same sex bathrooms as being an issue with the ERA but it would have to be on federal property at least because the idea that things can be separate and equal at the same time was shot down a long time ago.

The list goes on and on and it isn't always dependent on misogyny. The fact that you say that indicates a bias as well. You are making the assumption that it would tend to benefit females when that isn't known. It could be the opposite in many contexts. Listing things physical job requirements by sex could be forbidden and hurt female candidates and federally sex based affirmative action initiatives could all be struck down in one fell swoop. Divorce and child custody arrangements may have to change from their present defaults although that could be a good thing from the male perspective. No one knows the end result so that is a big reason to let things be handled by specific circumstances rather than by a sweeping constitutional amendment.

Arnold Winkelried
12-30-2010, 07:09 PM
Every state already has some recognition of equal rights for the both sexes in its constitution or statutes, and a body of caselaw supporting the same.

Likewise, many people dismiss the idea of same sex bathrooms as being an issue with the ERA but it would have to be on federal property at least because the idea that things can be separate and equal at the same time was shot down a long time ago.
Shagnasty, it seems pretty clear to me that the idea of same sex bathrooms can be dismissed as being an issue, because otherwise all those states that have recognition of equal rights for both sexes in their constitution or statues would have same sex bathrooms.

NDP
12-30-2010, 07:15 PM
The anti-ERA forces got their passion from traditionalists who had never accepted the idea, and were still unsettled by women's suffrage (http://youtube.com/watch?v=-uPcthZL2RE). Besides the draft and bathrooms, there was the job situation. Women had been excluded from many jobs that were considered dangerous or too physically taxing. Women were also still considered to emotional for positions of authority, and if given jobs they would just get pregnant and quit, or even worse, not quit and leave their children to be raised by strangers.

Added to that were the anti-liberal forces who opposed anything liberals were for, and they didn't need further justification. Among the others were some who simply felt the Constitution already granted women equal rights and considered the ERA unnecessary.

ETA: I couldn't tell you why any individual made their decision, but at that level, it was probably just the politics of the moment.

On a related note, it's important not to leave out the Religious Right as a force that eventually stopped passage of the ERA dead in its tracks when it sought approval in the Bible Belt states. In fact, opposition to the ERA was one of the issues that Jerry Falwell, Pat Robertson, and others used to organize Christian conservatives into a political bloc whose influence is still important more than 30 years later (esepcially in the Republican Party).

Little Nemo
12-30-2010, 07:17 PM
One of the arguments used by ERA opponents was homophobia. The proposed amendment said "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." While this was written to mean that there could be no discrimination based on gender, some opponents argued it could be interpreted to cover sexual orientation.

Saint Cad
12-30-2010, 07:19 PM
Here is my question, would ERA have added anything to the Constitution not seen in the 14th and 19th Amendment?

TriPolar
12-30-2010, 07:20 PM
On a related note, it's important not to leave out the Religious Right as a force that eventually stopped passage of the ERA dead in its tracks when it sought approval in the Bible Belt states. In fact, opposition to the ERA was one of the issues that Jerry Falwell, Pat Robertson, and others used to organize Christian conservatives into a political bloc whose influence is still important more than 30 years later (esepcially in the Republican Party).

Quite right. I just lumped them in with the other traditionalist forces. But at that time their strength was growing, and they were becoming a more dominant force than the old 'country club' and 'good old days' types.

SeldomSeen
12-30-2010, 07:26 PM
As others have said, a lot of the equality issues had been addressed at the state level and a majority of people felt that a new, overlapping federal mandate was neither necessary or desirable. I also recall a perception that the ERA as written would dictate not equality but special rights and privileges for a certain segment of the populace. I don't recall enough of the particulars to know whether that was actually the case or just conservative scare-mongering, but a lot of people thought that way.
SS

The Other Waldo Pepper
12-30-2010, 07:41 PM
Shagnasty, it seems pretty clear to me that the idea of same sex bathrooms can be dismissed as being an issue, because otherwise all those states that have recognition of equal rights for both sexes in their constitution or statues would have same sex bathrooms.

What's the black-text language banning racially-segregated bathrooms?

Arnold Winkelried
12-30-2010, 07:55 PM
Here is my question, would ERA have added anything to the Constitution not seen in the 14th and 19th Amendment?
I know that in the US, there was an Equal Pay Act (1963) to guarantee that women would get paid the same as men for the same job and the Civil Rights Act (1964) prevented discrimination against women by companies. So even after the 19th Amendment there was need of laws to guarantee women equal rights.

Arnold Winkelried
12-30-2010, 07:57 PM
What's the black-text language banning racially-segregated bathrooms?I'm not sure I understand the question. What do you mean by "black-text language"?

The Other Waldo Pepper
12-30-2010, 08:08 PM
I'm not sure I understand the question. What do you mean by "black-text language"?

I'm asking for the exact wording of the prohibition that currently bars various establishments from maintaining separate restrooms for, um, "whites" and "coloreds".

Shagnasty
12-30-2010, 08:14 PM
So even after the 19th Amendment there was need of laws to guarantee women equal rights.

Calling it a women's rights initiative today shows bias in and of itself and is not referenced anywhere in the actual amendment. That is an actual GQ answer.

The ERA text:

"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."

It is an extremely vague amendment calling for equality among all people regardless of sex and presuming it would have benefits for one sex more than another or possibly even undesirable outcomes for females is not known based on the amendment itself.

Arnold Winkelried
12-30-2010, 08:19 PM
I would assume it's implied by either Title II or Title III of the Civil Rights Act (http://ourdocuments.gov/doc.php?flash=true&doc=97&page=transcript).
TITLE II--INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION
SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.
...

TITLE III--DESEGREGATION OF PUBLIC FACILITIES
SEC. 301. (a) Whenever the Attorney General receives a complaint in writing signed by an individual to the effect that he is being deprived of or threatened with the loss of his right to the equal protection of the laws, on account of his race, color, religion, or national origin, by being denied equal utilization of any public facility which is owned, operated, or managed by or on behalf of any State or subdivision thereof, other than a public school or public college as defined in section 401 of title IV hereof, and the Attorney General believes the complaint is meritorious and certifies that the signer or signers of such complaint are unable, in his judgment, to initiate and maintain appropriate legal proceedings for relief and that the institution of an action will materially further the orderly progress of desegregation in public facilities, the Attorney General is authorized to institute for or in the name of the United States a civil action in any appropriate district court of the United States against such parties and for such relief as may be appropriate, and such court shall have and shall exercise jurisdiction of proceedings instituted pursuant to this section. The Attorney General may implead as defendants such additional parties as are or become necessary to the grant of effective relief hereunder.
...

Arnold Winkelried
12-30-2010, 08:21 PM
Calling it a women's rights initiative today shows bias in and of itself and is not referenced anywhere in the actual amendment.
All right, you can change my post #17 to say "So even after the 19th Amendment there was need of laws to guarantee both sexes equal rights."

Rachellelogram
12-30-2010, 08:21 PM
What is feminist fruitcakery?

Arnold Winkelried
12-30-2010, 08:23 PM
Those horrible dessert confections imposed upon us by well-meaning wimmenfolk at Christmas time, and used for doorstops by most people?

P.S. My post 21 was supposed to be a reply to post 19.

marshmallow
12-30-2010, 08:28 PM
How much of an impact do you think Phyllis Schlafly had?

alphaboi867
12-30-2010, 08:30 PM
I know that in the US, there was an Equal Pay Act (1963) to guarantee that women would get paid the same as men for the same job and the Civil Rights Act (1964) prevented discrimination against women by companies. So even after the 19th Amendment there was need of laws to guarantee women equal rights.

Somewhere I have a legal self-help book from circa 1970. There were still alot of laws treating men & women differently when it was written. For example there were different minimum ages for marriage (eg males had to be at least 14 to marry with parental consent and 21 without, but females only had to be 12 with parental conset and 18 without). Some states also had different drinking ages for men and women (it was lower for women).

According to the family law chapter some states made alimony automatic for for women (unless she was deemed "at fault" in the divorce), but (even in theory) did not allow a man to claim alimony from his wife unless he was "crippled" and would otherwise become a public charge. Also a husband could be held liable for any of his wifes debts, but not vice versa. It advised men seperating from their wives to place a notice in local newspapers warning local merchants to extend credit to his estranged wife to avoid this.

That was anothe issue, credit. It was all but impossible for a married woman to obtain credit in her own name. Even if both spouses worked (& even if the wife had a higher salary) mortgages would be based on the husband's income alone ("because the wife could stop working at any moment"). In some states a married woman wasn't even allowed to open a bank account in her own name. Her husband had to give permission.

The Other Waldo Pepper
12-30-2010, 08:35 PM
I would assume it's implied by either Title II or Title III of the Civil Rights Act (http://ourdocuments.gov/doc.php?flash=true&doc=97&page=transcript).

So if that act forbids race-segregated bathrooms by dint of forbidding "discrimination or segregation on the ground of race, color, religion, or national origin", then couldn't the Amendment plausibly be read to forbid sex-segregated bathrooms by forbidding sex-based discrimination or segregation?

Arnold Winkelried
12-30-2010, 08:48 PM
So if that act forbids race-segregated bathrooms by dint of forbidding "discrimination or segregation on the ground of race, color, religion, or national origin", then couldn't the Amendment plausibly be read to forbid sex-segregated bathrooms by forbidding sex-based discrimination or segregation?I would assume that it wouldn't happen, seeing as how unisex bathrooms are rare in the US, even though many states guarantee equal rights to women. Do you know of any states where this has become an issue?

Susanann
12-30-2010, 09:17 PM
There was also concern that it would somehow negatively affect things like child support, alimony, and maternity benifits. .

Women already got everything they wanted, so why take a chance to lose the extra benefits? When we are already MORE than equal...... why go back to just equal?

Guinastasia
12-30-2010, 09:22 PM
The anti-ERA forces got their passion from traditionalists who had never accepted the idea, and were still unsettled by women's suffrage (http://youtube.com/watch?v=-uPcthZL2RE).




I don't think that video shows what you think it does.

Padua Academy incident (http://homelandstupidity.us/2006/04/03/students-sign-petition-to-end-womens-suffrage/)

qazwart
12-30-2010, 10:42 PM
I remember the battle for the Equal Rights Amendment (ERA). ERA was originally supported by both parties and looked like a shoe in. At the time, there was a lot of legal discrimination against women.

For example, in Texas, all property was community property, but in marriage, the husband had complete control over the funds and could do whatever he wished. If he got into debt, it was his wife's debt too. If his wife died, he had full access to her safety deposit box, but not the other way around. If the husband died, the wife had to get a court order to open the safety deposit box.

There were laws that limited what jobs women could have, and women were very likely to get paid less than a man for an equivalent job.

The ERA originally had fairly easy passage, then came the campaign. Suddenly, conservatives saw the ERA as a threat to American society. It would encourage lesbianism, tear apart the family. Women would no longer be on a pedestal. Marriage would fall apart. The sky would fall. People would stop believing in God. Communists would take over. The Catholic church would be forced to elect a woman as Pope.

With the scare tactics, opposition to the ERA rose. Several states that had earlier passed the ERA rescinded their passage. The deadline for approving the ERA passed with just three states short, and Congress extended the deadline. That actually increased the opposition to the amendment. Once Reagan was elected, the ERA was given up for dead. Women were protected and their special status in society was preserved! Now shut up and get me a beer.

In the end, it really made little difference. Women were given equal rights at work by Congressional statute and many legal scholars now say it can't really be taken away. Women now serve in the military -- something opponents of the ERA said would happen if it passed. The Supreme Court has ruled that women and men should be treated equally before the law in most circumstances.

There are groups trying to employ what they call the three state strategy. The idea is that it really doesn't matter that the amendment wasn't passed in the time line. If three more states approve it, it'll be passed anyway. I'm not 100% sure of the legal standing. After all, we passed the 27th amendment in 1992 and it was introduced in 1789.

I personally would rather assume amendments have an implied lifetime -- maybe 20 years. Otherwise, we could suddenly find amendments passed that were implemented back in the 19th century. These include the Title of Nobilities amendment which gets a lot of right wing press now. (Pass it and all lawyers will lose their citizenship!). Heck, as far as I know, the Corwin amendment which would prohibit Congress from interfering with slavery in the states is still alive and kicking.

Now that I think of it, there was another amendment introduced at the same time of the 27th amendment. This regulated the number of Congressional representatives to a maximum of 1 per 50,000 voters. If that passed, there would be over 5,500 members of Congress.

gaffa
12-30-2010, 10:55 PM
How much of an impact do you think Phyllis Schlafly had?
She was the dominant factor behind the defeat of the ERA. I just turned 50, and the defeat of the ERA was very early in my political consciousness. She, more than any other person, made it an issue and defeated it. She was the anti-Maude.

Lynn Bodoni
12-30-2010, 11:11 PM
That was anothe issue, credit. It was all but impossible for a married woman to obtain credit in her own name. Even if both spouses worked (& even if the wife had a higher salary) mortgages would be based on the husband's income alone ("because the wife could stop working at any moment"). In some states a married woman wasn't even allowed to open a bank account in her own name. Her husband had to give permission. Yep. What's more, the husband had access to his wife's account, whether she wanted to allow it or not. He could allow or deny her access to his account, though. In real life, it was fairly common for women to sign checks with their husband's name, even if they weren't on the account.

For example, in Texas, all property was community property, but in marriage, the husband had complete control over the funds and could do whatever he wished. If he got into debt, it was his wife's debt too. If his wife died, he had full access to her safety deposit box, but not the other way around. If the husband died, the wife had to get a court order to open the safety deposit box. My grandmother had some real estate of her own. Or so she thought. It turned out that her husband could and did sell it without her permission, or even telling her about it. She had counted on the income and the sales proceeds for a certain amount of money, and she found out that he'd sold it. And it was legal, because he was her husband, and legally, he was allowed to make all financial and legal decisions in the marriage, without consulting her. See, women were considered to be sub adults...they could make some decisions, but they were all featherheads, and needed the firm hand of a male guiding their decisions. And, supposedly, Texas HAD a state ERA.

Crafter_Man
12-30-2010, 11:48 PM
Women already got everything they wanted, so why take a chance to lose the extra benefits? When we are already MORE than equal...... why go back to just equal?
Exactly.

I think many people realized an ERA would nullify many internal biases that already exist in the courts, and hence hurt women. Reminds me of an old saying: "Be careful what you wish for… it might come true."

TriPolar
12-30-2010, 11:52 PM
I don't think that video shows what you think it does.

Padua Academy incident (http://homelandstupidity.us/2006/04/03/students-sign-petition-to-end-womens-suffrage/)

Yes it does. It's an illustration of people's lack of reasoning when picking a side in a political issue.

Saint Cad
12-31-2010, 12:01 AM
I know that in the US, there was an Equal Pay Act (1963) to guarantee that women would get paid the same as men for the same job and the Civil Rights Act (1964) prevented discrimination against women by companies. So even after the 19th Amendment there was need of laws to guarantee women equal rights.

But wouldn't those have been covered by the 14th Amendment and equal 't protection and in fact aren't sexual discrimination lawsuits filed as a 14th Amendment violation?

Northern Piper
12-31-2010, 12:06 AM
No, because the 14th Amendment does not apply to private corporations, only to governments.

Guinastasia
12-31-2010, 12:14 AM
Yes it does. It's an illustration of people's lack of reasoning when picking a side in a political issue.

Did you read my link? They didn't know what "suffrage" was.

TriPolar
12-31-2010, 12:25 AM
Did you read my link? They didn't know what "suffrage" was.

That's right. That's my point. They have as much sense as the people who think women shouldn't have the right to vote.

qazwart
12-31-2010, 12:33 AM
Exactly.

I think many people realized an ERA would nullify many internal biases that already exist in the courts, and hence hurt women. Reminds me of an old saying: "Be careful what you wish forů it might come true."

And what would those benefits be exactly? Getting paid less for doing the same job. Having your husband get a big debt and after divorce, having your wages garnished?

There were two biggies that were always mentioned: Alimony and the draft. But, the original purpose of alimony was originally created because women weren't suppose to be in the workforce, thus couldn't have an income. In a day and age where women are more than capable of working, does this concept still hold?

Besides, there is nothing that says alimony can't be applied in a gender neutral way. All you have to do is apply to the spouse who makes less income and may have sacrificed their ability to earn income in order to support the other spouse.

Imagine a situation where one spouse drops out of college, so the other spouse can go to law school. But after law school, they get divorced. One spouse can now join a law firm and make $200,000 per year, the other is stuck in a series of menial jobs.

Does it matter if the spouse who went to law school was the husband or wife? If the wife was the one who went to law school, would it be fair for the husband to give his well-to-do wife 1/2 of his Walmart salary because the law says that the husband gives his wife alimony?

The other is the draft, but we haven't had a draft since the end of the Vietnam war. In fact, the military is currently against a draft because a volunteer military is better trained and more motivated. And, women are doing just fine in almost all positions in the military. There may still be a ban on women taking "front line" positions, but we've moved beyond trench warfare year ago and its hard to decide exactly where the front line position ends and where one begins. The first Gulf War was the first war where women served in large numbers and a few were even taken as prisoners of war.

There were originally some concerns about how the public would react to women fighting in the war, but in the end, most of the public not only supported women solders, but were proud of them. There were no calls after the first Gulf War to restrict women's role in the military. In fact, the opposite happened, and rules and regulations were loosened allowing women to take more and more roles.

What if there is a draft? The military's current position is that they rather not have one and they don't see one in the foreseeable future. That could change if a major war did happen, but it would require massive public support. It would have to be a situation much like World War II. And, it is very likely that if such an occasion does happen, the public, the military, and the policy leaders would all probably support drafting women too.

There are those who talk about the original intent when it comes to interpreting the Constitution. Well, the original intent of our Forefathers was to pretty much have a government much like a country club. The Senate's original purpose was to represent the very well to do class. And, I am sure all those slave holding founding fathers never had an intention that a man like Obama would be president.

The Constitution is an evolving document, and we interpret it much as a reflection of our society. 40 years ago, we thought women needed protection because they were the weaker sex. Discriminatory laws abound. Women were natural homemakers as God intended. They couldn't handle the stress of a daily job. It would mess up their ...whatever... baby making machines.

Believe it or not, I remember being in high school and that argument came up whether we should allow the girls to play full court basketball. They might fall and injure their womb. Then they'd never have a baby and live a fulfilling life. We can laugh about it now, but I remember the school board hearings. I remember girls in our school agreeing with this very sentiment.

I doubt the ERA is needed now. Our society simply wouldn't accept the discrimination that women faced back when I was a kid. Unless the Supreme Court makes some cockamamy decision that allows gross sexual discrimination, the lack of the ERA is no longer an issue.

fumster
12-31-2010, 01:36 AM
It was a conservative campaign of lies similar to death panels. People who were for it were for it, people who were against it were against it, and anyone too stupid to have an opinion was influenced by the lies.

Crafter_Man
12-31-2010, 08:58 AM
Did you read my link? They didn't know what "suffrage" was.
Then why did they sign the petition? Would you sign a petition if you had no idea what it was about?

Schnitte
12-31-2010, 09:03 AM
Then why did they sign the petition? Would you sign a petition if you had no idea what it was about?

Oh, a lot of people do that. Often they do so just to please the person asking you to sign the petition, or to get rid of him or her. Signing a petition doesn't cost you anything, but refusing to sign it will either give you a bad conscience because you think you should be supporting what might be a good cause, or will expose you to annoying "But how can you be against this?" question from the person who asked you to sign. And some people simply dislike denying others a favour.

In fact, I think that accounts for more signatures on all these petitions which circulate each day than actual conscious decision-making about the issue does.

Schnitte
12-31-2010, 09:09 AM
As to the OP: I have no idea about the historical background of that proposed amendment, but I second what Northern Piper said: Horizontal application of constitutional rights might be an issue. Traditionally, constitutional rights are binding on the government and its institutions only, not on other corporations or individuals since these others are protected, but not obligated, by these rights. Individuals and corporations may thus merrily abrogate free speech or discriminate on all sorts of grounds the government would never be allowed to discriminate on. I know that in some respects, horizontal application of constitutional rights has been adopted judicially, and there seems to be a worldwide trend in that direction, but the binding nature of these rights on private persons is still weaker than it is on the government. Maybe many people felt that the ERA could be read as a further step towards horizontal application with all sorts of annoying, and actually liberty-encroaching, effets this would have.

fumster
12-31-2010, 10:54 AM
I know that in some respects, horizontal application of constitutional rights has been adopted judicially, and there seems to be a worldwide trend in that direction, but the binding nature of these rights on private persons is still weaker than it is on the government. Maybe many people felt that the ERA could be read as a further step towards horizontal application with all sorts of annoying, and actually liberty-encroaching, effets this would have.I miss those days when I could sit at the lunch counter and not be surrounded by colored people. Not that I have anything against them, I just believe in freedom.

qazwart
12-31-2010, 11:56 AM
I miss those days when I could sit at the lunch counter and not be surrounded by colored people. Not that I have anything against them, I just believe in freedom.

Actually, this reminds me of an important point about Constitutional Rights. (Yes I know this remark was done in snark mode).

The Fourteenth and Fifteenth amendments were suppose to guarantee that African-Americans had equal rights. However, after Reconstruction ended, African-Americans certainly did not have equal rights or equal treatment -- separately or otherwise until the mid-1960s and the process was far from complete until the mid-1980s.

Lynching, separate facilities, forced segregation all took place under the 14th amendment which guaranteed all rights and privileges of citizenship to anyone born in the U.S. The fifteenth amendment guaranteed voting rights, but grandfather clauses, poll taxes, literacy tests, all white primaries, and mob rule kept African Americans from voting.

If the Thirteen, Fourteenth, and Fifteenth amendments disappeared tomorrow, society would not revert back to its pre-1860s existence. Slavery would not be tolerated and neither would racial discrimination. The courts would not tolerate it and neither would society at large. There are many countries with strong guarantees of freedom, and they don't have to state in their constitutions, "By the way, slavery is a no-no". It is simply assumed.

When the ERA was first proposed in 1972, the tide against sexual discrimination was beginning to turn. Women were demanding equal treatment. It was no longer okay for businesses to discriminate against older women (like the old airline did with stewardesses) or for colleges to insist that women wouldn't succeed in the hard sciences. No one jokes any longer that women go to college to earn their MRS.

The ERA may have been defeated, but by that time, its doctrine had already been accepted by society as a whole.

alphaboi867
12-31-2010, 03:02 PM
Unisex bathrooms never caught on, but coed gyms sure did. Before the '80s they were the exception rather than the rule. Even colleges often had two sets of facilities or made men and women use them at seperate times. That changed fast. Oddly while women can join the YMCA, I still got turned away by a very confused staffmember when I tried to do to the local YWCA.

Saint Cad
12-31-2010, 04:16 PM
No, because the 14th Amendment does not apply to private corporations, only to governments.

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.

And how does that apply to corporations or is more expansive than 14th/19th Amendment taken together?

Fenris
12-31-2010, 04:31 PM
I'm trying to find a cite now, but one thing used against the ERA was feminists screaming that the "Equal pay for equal work" thing would include "equal worth" as decided by Congress.

So, if congress decided that, say, a schoolteacher's job was of "equal worth" to say, a banker's, they could declare the jobs were of "equal worth" and just automatically raise every teacher's salary in the country.

Whether feminists actually were calling for that or if it was a scare message from the right, that was a message I really remember from the time.

Saint Cad
12-31-2010, 04:36 PM
No, because the 14th Amendment does not apply to private corporations, only to governments.

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.

And how does that apply to corporations or is more expansive than 14th/19th Amendment taken together?

Frylock
12-31-2010, 04:36 PM
feminists screaming

Aw come on! :(

Arnold Winkelried
12-31-2010, 04:44 PM
And how does that apply to corporations or is more expansive than 14th/19th Amendment taken together?

SaintCad, I'm confused now. Are you saying that the Equal Pay Act was necessary because of the 14th and 19th amendments, or are you saying that adopting the Equal Rights Amendment is unnecessary because of the 14th and 19th amendments?

In either case, I disagree. You might as well say that Amendment 14 (" All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States") made Amendments 15 (race no bar to vote) and 19 (women's suffrage) superfluous. Nevertheless, the people in this country found it necessary to add those two subsequent amendments.

Northern Piper
12-31-2010, 05:20 PM
No, because the 14th Amendment does not apply to private corporations, only to governments.

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.

And how does that apply to corporations or is more expansive than 14th/19th Amendment taken together?

The ERA wouldn't have applied to private businesses or corporations, either. If ratified, it would have barred the federal and state governments from discriminating on the basis of sex, but it wouldn't have created any right of individuals against other private individuals, businesses or corporations: that's clear from the first paragraph.

Private businesses and corporations are forbidden from discriminating based on sex because of statutes passed by Congress and the state Legislatures. Passage of the ERA wouldn't have affected that.

Saint Cad
12-31-2010, 05:53 PM
SaintCad, I'm confused now. Are you saying that the Equal Pay Act was necessary because of the 14th and 19th amendments, or are you saying that adopting the Equal Rights Amendment is unnecessary because of the 14th and 19th amendments?

In either case, I disagree. You might as well say that Amendment 14 (" All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States") made Amendments 15 (race no bar to vote) and 19 (women's suffrage) superfluous. Nevertheless, the people in this country found it necessary to add those two subsequent amendments.

The latter. The 14th and 19th would make the Equal Pay Act constitutional (probably the ICC too) but the ERA is nothing more than a cobbling together of the 14th and 19th.
And aren't you forgetting the last line in the 14th Amendment
nor deny to any person within its jurisdiction the equal protection of the laws.

The 19th Amendment was necessary since the 14th specifically refers to men having the right to vote. I think it is very clear that (at least at the time passed) that the right to vote was not considered under "equal protection" hence the 15th and 19th Amendments.

Arnold Winkelried
12-31-2010, 06:12 PM
I think it is very clear that (at least at the time passed) that the right to vote was not considered under "equal protection" hence the 15th and 19th Amendments.And at the time that the 15th and 19th Amendments were passed, you think that things like the issues mentioned in post 26 in this thread were considered? I guess your argument is that the text of the ERA would have made its passage meaningless, but then I'm baflled by all the opposition to it. Are you saying that all those people saying the ERA would create huge changes in society (see a sample list at this page http://equalrightsamendment.org/era.htm ) were misinformed or uneducated?

Guinastasia
12-31-2010, 07:50 PM
Then why did they sign the petition? Would you sign a petition if you had no idea what it was about?


Because they were morons, obviously, who didn't know what "suffrage" meant. That was what caused the whole media blunder. Apparently, they thought it had something to do with oppression to women.

IIRC, it made the news and the school was pretty embarassed about it.

Guinastasia
12-31-2010, 07:57 PM
Editing time gone. I mean WHEN it hit the media, the school was embarassed.


(And obviously, there are going to be stupid people who'll sign anything. Stupid people certainly aren't all that scarce. I think that was the point of the experiment)

Saint Cad
12-31-2010, 08:16 PM
And at the time that the 15th and 19th Amendments were passed, you think that things like the issues mentioned in post 26 in this thread were considered? I guess your argument is that the text of the ERA would have made its passage meaningless, but then I'm baflled by all the opposition to it. Are you saying that all those people saying the ERA would create huge changes in society (see a sample list at this page http://equalrightsamendment.org/era.htm ) were misinformed or uneducated?

I think there a 2 points to be made.
1) Despite the 14th Amendment, women were still treated differently than men under the law as shown in #26. Think of it like how Blacks were treated like second class citizens until the civil rights movement despite the 14th Amendment. In this case, the ERA is pure propaganda. Incidently, legal sexual discrimination still exists. By the statutory language, in Idaho although men and women can both be guilty of abandoning their spouse, only men are penalized for it.

2) The ERA as an amendment added nothing new. Think of it this way, under a state law, a woman cannot own land in her own name. Would that law be Constitutional? If not, what amendment does it violate? A woman finds out that she makes 80% of a guy hired the same day and doing the same work. Could she sue? Would the Equal Pay Act be declared unconstitutional? Let's say it is and the ERA passes, then is the Equal Pay Act now constitutional? In fact, can you think of a single scenerio that would be ruled in one direction with the existing constitution and differently under the ERA? Education? Driving privileges? Anything?

Arnold Winkelried
12-31-2010, 08:53 PM
Saint Cad, I notice that you fail to address the issue of why this amendment was so adamantly opposed it it was meaningless.

The ERA would have added nothing new: it would have made explicit, what you claim is implicit from the 14th Amendment. To take my previous example, it would seem obvious that the 15th Amendment is implicit from the 14th Amendment, and unnecessary. But to many people at the time, it wasn't obvious. The equality between the genders is a fundamental principle, and as such deserves to be enshrined in the US constitution. One can say "well it's obvious from the 14th Amendment", but that is not true since many unequal laws existed after the 14th Amendment was passed.

Either the Amendment would accomplish something, in which case it's useful, or it accomplishes nothing, in which case it is harmless, but still enshrines a fundamental principle in the Constitution, one which is not explicit from the rest of the Constitution. In either case its adoption would be a good thing.

Arnold Winkelried
12-31-2010, 09:17 PM
Change my first sentence of the second paragraph:
Wrong: The ERA would have added nothing new
Correct: The ERA would have added something new

Shagnasty
12-31-2010, 09:53 PM
Either the Amendment would accomplish something, in which case it's useful, or it accomplishes nothing, in which case it is harmless, but still enshrines a fundamental principle in the Constitution, one which is not explicit from the rest of the Constitution. In either case its adoption would be a good thing.

No, it may not be harmless and could induce the law of unintended consequences and not even be advantageous to females or anyone for that matter. A literal interpretation would mean that there would be no concept of sex under federal or state law. All laws that reference sex could be invalidated and that includes a lot of things including simple record keeping like birth certificates, job qualifications on both sides, all sex-based affirmative action programs, no sex separate sports competitions for any institutions that receive state or federal funding and much more.

If I were a Supreme Court Justice, I would see at as my job to take the amendment to its logical extreme as some of them do in their position. Almost everyone could think of something they find undesirable about the potential consequences of possible Supreme Supreme Court interpretations of the ERA because Constitutional amendments are not simply feel good measures. They will have consequences as cases cases are brought to the Supreme Court based on the wording of the amendment and the ERA is very lacking in that regard.

Don't discount that idea automatically because that is the way the U.S. Constitution is supposed to work. The 2nd amendment is another example of another very vague amendment and picked up steam over two hundred years later when it was ruled that Washington D.C. had no right to have an effective handgun ban for private citizens and future cases are waiting to overturn similar laws in other cities and states.

Cayuga
12-31-2010, 10:07 PM
and that includes a lot of things including simple record keeping like birth certificates

Can you explain how recording the sex of a newborn could be construed as denial or abridgment of equality of rights under the law?

Saint Cad
12-31-2010, 10:34 PM
Change my first sentence of the second paragraph:
Wrong: The ERA would have added nothing new
Correct: The ERA would have added something new

And what would that "something" be except for turning the Constitution into a "let's talk about our feelings" The problem was not that the Constitution needed to be amended but rather followed. Did Southern states deny Blacks the right to vote? Yep. What did Congress do about it? Not a damned thing even though it could have reduced their Representatives under the 14th Amendment. So did we need a new Constitutional amendment in 1960 or simply enforce the ones we had?

I was too young while ERA was being considered to have a first hand knowledge of why it didn't pass but I do remember my dad was pissed when Congress extended the deadline and declared that ratification rescissions were invalid (later a federal judge said rescinding prior approval was legal) that he turned against the ERA since the gov't was shoving down our throats no matter what.

I think it didn't pass for the same reason that the Child Labor Amendment didn't pass, that it was considered unnecessary as time went on because the consideration of the amendment itself caused the problem to be resolved.

Shagnasty
12-31-2010, 10:37 PM
Can you explain how recording the sex of a newborn could be construed as denial or abridgment of equality of rights under the law?

It is a logical extreme sure, but there is no need to record sex at all if there is no reason for the government to ever consider it. It would be recorded as key information about the individual throughout government and private databases for life which never results in pure equality. I am not actually saying that would ever happen but not recording the sex to begin with would be a good place to start if you ever wanted to have a true sex-blind society.

Guinastasia
01-01-2011, 12:51 PM
Then why do we still record race on documents (like birth certificates and things like this)? :dubious:

Arnold Winkelried
01-01-2011, 01:05 PM
No, it may not be harmless and could induce the law of unintended consequences and not even be advantageous to females or anyone for that matter.I think it is important for the Constitution to include fundamental principles, especially if these are principles describing rights that were suppressed in the past, and one shouldn't be stopped from stating fundamental rights with the fear that "someone might interpret this the wrong way". You could say that about any fundamental right. The details of legislation are something for legislatures to deal with.

And what would that "something" be except for turning the Constitution into a "let's talk about our feelings" The problem was not that the Constitution needed to be amended but rather followed.Well, as a I said before, you could apply the same argument to the 15th amendment. Anyway, this view that the ERA is redundant because of the 14th amendment seems to be the minority view, seeing the amount of support (and opposition) it had gathered - those people sure seemed to think it wasn't redundant. And I hate to call the statement of a fundamental right (one that was not always respected in the history of the USA) as a "feel-good" measure.

fumster
01-01-2011, 01:28 PM
It is a logical extreme sure, but there is no need to record sex at all if there is no reason for the government to ever consider it. INo, it's an illogical extreme.

Saint Cad
01-01-2011, 02:30 PM
Well, as a I said before, you could apply the same argument to the 15th amendment. Anyway, this view that the ERA is redundant because of the 14th amendment seems to be the minority view, seeing the amount of support (and opposition) it had gathered - those people sure seemed to think it wasn't redundant. And I hate to call the statement of a fundamental right (one that was not always respected in the history of the USA) as a "feel-good" measure.

And like I've said before, the 15th amendment was necessary because the right to vote was not considered the same as equal protection of the law. Today in 2011, we may consider them the same but obviously the writers of the amendments did not and I'm assuming there is good case law from women arrested during the sufferage movement that agrees with my point of view.

In addition (or an alternative view if you disagree with the above), nothing in the 14th actually gives anyone the right to vote - hence the need for the 15th and 19th amendment. What the 14th amendment did was allow Congress to penalize a
state for not allowing men over 21 to vote. A southern state could have legally disenfranchise all Blacks or a New England state could have disenfranchised all non-property owners legally and all that could have happened was they lose representatives.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.


The point you fail to explain is how the wording in the 14th Amendment
nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws.
along with the 19th
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
is different than the wording of the ERA
Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Schnitte
01-01-2011, 03:35 PM
I miss those days when I could sit at the lunch counter and not be surrounded by colored people. Not that I have anything against them, I just believe in freedom.

I can understand your sarcasm with a view to assholes who discriminate on the basis of race or sex under the pretext of freedom, but direct horizontal application of equality provisions can and does cause trouble if enforced by means of legislation. I think most people agree that private individuals should have the right to choose freely who to contract with when buying or selling goods or services, for instance, and equality provisions make it difficult or at least risky for people to do so - especially if they are coupled with burden of proof rules whereby discrimination is presumed unless proven otherwise, as is often the case in that sort of legislation. Imagine a landlord, for instance, who offers an apartment for rent and has to choose between different candidates of different ethnic origins. Our landlord might not at all care about the tenant's race, but legal provisions enforceable by other private individuals may make, as a matter of fact, risky for him to exercise his freedom of choice if he faces the risk of being sued by a rejected candidate on the grounds of alleged discrimination.

In the EU, there are now legal provisions prohibiting discrimination on the grounds of a number of criteria (race, ethnicity, sex, religion, age, sexual identity) unless there is sufficient grounds for discrimination (quite a vague benchmark judicially) among private parties, and the prohibition is enforceable by means of actions for damages, or an action forcing the other party to conclude a contract, on the side of the party claiming to have been discriminated against. I'm not advocating discrimination, I'm just saying that as a matter of fact that sort of legislation causes a lot of litigation and legal uncertainty for everyone involved and does, in my opinion, more harm than good. And as a matter of policy, I simply think that the purpose of constitutional rights is primarily and foremost to protect private parties against the states, not to restrict their freedom when dealing with other private parties.

Arnold Winkelried
01-01-2011, 08:17 PM
And like I've said before, the 15th amendment was necessary because the right to vote was not considered the same as equal protection of the law.And how many other things might be considered in the future as not falling under "equal protection of the law", and denied to either gender? I don't know. But if someone can look at "equal protection of the law" and conclude that "obviously, this doesn't apply to voting", I don't put it past someone to argue something like this: "obviously, the writers of the 14th amendment didn't mean equal protection of the law to apply to women, since many laws discriminating against women existed after the 14th amendment."

But I'll tell you what. If you convince the opponents of the amendment to agree that its passage would actually be redundant to what's actually in the constitution, then maybe you'll come closer to convincing me. For example, Shagnasty in this thread thinks that passage of the amendment could give rise to bad case law, even though you seem to say that the same thing could happen now because ERA = 14th + 19th. Is Shagnasty wrong?
What you have never explained is why people were so opposed to it, if it was meaningless.

Saint Cad
01-01-2011, 08:37 PM
What you have never explained is why people were so opposed to it, if it was meaningless.

Yes I have! I said that the perceived injustices were dealt with with statutes and changing attitudes brought about from considering the ERA. Except for the Bill of Rights, there have only been 17 amendments to the Constitution, 3 of which took the Civil War to pass and method of passage is questionable. Most people do not believe that the Constitution should be amended on a lark but rather as a last resort. Why were people oppsed to the ERA? Because it was viewed as unnecessary and the Constitution is not a feel-good document.

Why didn't the Congressional Appointment Amendment, Title of Nobility Amendment or probably more germane to the discussion Child Labor Amendment pass?

qazwart
01-01-2011, 11:58 PM
Why were people oppsed to the ERA? Because it was viewed as unnecessary and the Constitution is not a feel-good document.

Naw. People were really scared of that amendment. Remember that 3/4 of the states have to pass an amendment which is really, really hard to do.

Imagine around the last national campaign if we had to vote for a constitutional amendment to proclaim that Obama was born in the U.S. and not in Kenya. Could we have gotten 3/4 of the states to even agree with that? Remember that top Republicans were refusing to say that the whole born in Kenya thing was a bunch of garbage.

The same with the ERA. The ERA was supported by both major parties. It was innocuous, and it was pretty much what a vast majority of Americans believed at that time -- that we should not discriminated against people because of their sex.

However, the opposition simply spread lies. The ERA, they claimed, would


Take away the dependent wife social security benefit.
There would be unisex restrooms.
It is supported mainly by radical feminists, abortionists, and lesbians.
It would abolish the presumption that the husband should support his wife.
It would also give federal courts and the federal government enormous new powers to reinterpret every law that makes a distinction based on gender, such as those related to marriage, divorce and alimony.


All of this was pure scare tactics. The social security benefit could easily be rewritten to allow for dependent spousal benefits (which it later was). The unisex restroom didn't occur even in states that passed their own ERA.

I can't say that abortionists and lesbians supported or didn't support the ERA, but opinion polls at the time stated that a majority of Americans supported the ERA.

As for the last two, it made no difference in the end. Courts have pretty much on their own eliminated discrimination based upon sex. Much of this is due to interpreting public law and some of it is just the presumption that all citizens deserve the same protection independent of their sex.

The only possibly legitimate claim you can make against this amendment is that you can't have a male only draft with an ERA. I am not sure what the courts would rule in this case. Maybe they would allow for a draft that excluded women.

However, I believe the American people, now after seeing women in combat in three separate wars, no longer have a concern about women serving in combat. And, that if we as a country ever find ourselves in a position where we must have a draft, I don't believe that a majority of Americans would object to including women in the draft.

fumster
01-02-2011, 12:16 AM
I can understand your sarcasm with a view to assholes who discriminate on the basis of race or sex under the pretext of freedom, but direct horizontal application of equality provisions can and does cause trouble if enforced by means of legislation. I think most people agree that private individuals should have the right to choose freely who to contract with when buying or selling goods or services, for instance, and equality provisions make it difficult or at least risky for people to do so - especially if they are coupled with burden of proof rules whereby discrimination is presumed unless proven otherwise, as is often the case in that sort of legislation. Imagine a landlord, for instance, who offers an apartment for rent and has to choose between different candidates of different ethnic origins. Our landlord might not at all care about the tenant's race, but legal provisions enforceable by other private individuals may make, as a matter of fact, risky for him to exercise his freedom of choice if he faces the risk of being sued by a rejected candidate on the grounds of alleged discrimination.

In the EU, there are now legal provisions prohibiting discrimination on the grounds of a number of criteria (race, ethnicity, sex, religion, age, sexual identity) unless there is sufficient grounds for discrimination (quite a vague benchmark judicially) among private parties, and the prohibition is enforceable by means of actions for damages, or an action forcing the other party to conclude a contract, on the side of the party claiming to have been discriminated against. I'm not advocating discrimination, I'm just saying that as a matter of fact that sort of legislation causes a lot of litigation and legal uncertainty for everyone involved and does, in my opinion, more harm than good. And as a matter of policy, I simply think that the purpose of constitutional rights is primarily and foremost to protect private parties against the states, not to restrict their freedom when dealing with other private parties.The loss of freedom to people who need to worry about poor interpretation of anti-discrimination laws is far, far outweighed by the freedom available to Black people, Jews, women and other groups that were historically denied access to the things that moist of us take for granted.

So yeah, it sucks that a landlord needs to worry about being falsely accused of discrimination, but compare that to the plight of my High School art teacher who could not rent or buy a house in the city that she worked for because she was black.

Saint Cad
01-02-2011, 09:54 AM
The only possibly legitimate claim you can make against this amendment is that you can't have a male only draft with an ERA. I am not sure what the courts would rule in this case. Maybe they would allow for a draft that excluded women.

However, I believe the American people, now after seeing women in combat in three separate wars, no longer have a concern about women serving in combat. And, that if we as a country ever find ourselves in a position where we must have a draft, I don't believe that a majority of Americans would object to including women in the draft.

Rostker v. Goldberg (http://en.wikipedia.org/wiki/Rostker_v._Goldberg). Not sure how the ERA would have affected that ruling.

Arnold Winkelried
01-02-2011, 09:58 AM
What you have never explained is why people were so opposed to it, if it was meaningless.

Yes I have! I said that the perceived injustices were dealt with with statutes and changing attitudes brought about from considering the ERA.

What you've been saying is "the amendment is redundant because the constitution already has language equivalent to the ERA, so passing the ERA would not put anything in the constitution that isn't already there". I have never heard that from anyone except you. What I have heard before is "we don't need it, because it already exists in fact, though not explicitly stated in the constitution" or else arguments that it would introduce dramatic (and harmful) changes. I mentioned a link in post 55 showing some of the anti-ERA arguments, let me quote what they say at that page:
Anti-ERA organizers claimed that the ERA would deny woman’s right to be supported by her husband, privacy rights would be overturned, women would be sent into combat, and abortion rights and homosexual marriages would be upheld. Opponents surfaced from other traditional sectors as well. States’-rights advocates said the ERA was a federal power grab, and business interests such as the insurance industry opposed a measure they believed would cost them money.

As i mentioned before, you seem to be in a very small minority saying that the ERA would do nothing. You may have noticed that posters in this very thread saying that passage of the ERA would give rise to all kinds of bad laws.

If your argument were "we don't need the ERA because nowadays no one would discriminate based on sex due to changing attitudes" my reply would be "those who do not learn from history are doomed to repeat it."

Saint Cad
01-02-2011, 10:13 AM
As i mentioned before, you seem to be in a very small minority saying that the ERA would do nothing. You may have noticed that posters in this very thread saying that passage of the ERA would give rise to all kinds of bad laws.

I'm not necessarily saying that the ERA would do nothing. What I am saying is that what Americans want out of the ERA is already in the Constitution given current interpretation of "equal protection". I agree with Shagnasty that passing a new amendment could open the door for new rulings that were never intended with the ERA. Previous examples:

The 14th Amendment: Some legislators thought it wouldn't apply to children of illegal immigrants and others did. SCOTUS feels it does.
ICC: Interstate commerce means I can't grow wheat on my farm in Nebraska for my own private use since it affects the price of wheat in Iowa.
Eminent Domain: Thanks to Kelo, a city can take away your property and give it to someone else if they will pay higher taxes on it.

Arnold Winkelried
01-02-2011, 10:13 AM
Rostker v. Goldberg (http://en.wikipedia.org/wiki/Rostker_v._Goldberg). Not sure how the ERA would have affected that ruling.I thought your point was, passage of the ERA would not have affected this ruling, because the meaning of the ERA is already in the constitution? Or are you agreeing now that passage of the ERA might affect court cases? :confused:

Arnold Winkelried
01-02-2011, 10:27 AM
I'm not necessarily saying that the ERA would do nothing. What I am saying is that what Americans want out of the ERA is already in the Constitution given current interpretation of "equal protection". I agree with Shagnasty that passing a new amendment could open the door for new rulings that were never intended with the ERA.This post also answers my question from post 77.

If that is what you are saying now, then I'll give the obvious reply that the current interpretation could change, so it is important to make equality between the genders explicit in the constitution.

To the argument that passage of the ERA might lead to bad laws, I'll just repeat what I said in post 66, already addressing this point:
I think it is important for the Constitution to include fundamental principles, especially if these are principles describ[e] rights that were suppressed in the past, and one shouldn't be stopped from stating fundamental rights with the fear that "someone might interpret this the wrong way". You could say that about any fundamental right. The details of legislation are something for legislatures to deal with.

Bridget Burke
01-02-2011, 03:58 PM
On a related note, it's important not to leave out the Religious Right as a force that eventually stopped passage of the ERA dead in its tracks when it sought approval in the Bible Belt states. In fact, opposition to the ERA was one of the issues that Jerry Falwell, Pat Robertson, and others used to organize Christian conservatives into a political bloc whose influence is still important more than 30 years later (esepcially in the Republican Party).

Beverly LaHaye formed Concerned Women for America (hhttp://rightwingwatch.org/content/concerned-women-americattp://) in response to NOW--& to oppose the ERA. She's married to Tim LaHaye (http://en.wikipedia.org/wiki/Tim_LaHaye), leading light of the religious right & co-author of the Left Behind books. (They met at Bob Jones University.)

CWFA's current issues include opposition to abortion & homosexuality. They're also agin' teaching Evolution in school & the War on Christmas. (In fact, much of that latter fake issue was first publicized by them.)

Arnold Winkelried
01-05-2011, 01:20 PM
Saint Cad, since you were arguing that the 14th + the 19th is equivalent to the ERA (thus rendering passage of the ERA unnecessary), you may be interested in this new Great Debates thread:
Scalia says the 14th amendment doesn't apply to women (http://boards.academicpursuits.us/sdmb/showthread.php?t=591783)

Annie-Xmas
01-05-2011, 01:25 PM
Getting credit was a major problem for women. No mortgage would be issued to a woman by herself. There were cases of women taking their senile old fathers out of nursing homes to the bank to co-sign their mortgage loans. Apparently the only qualification was having a penis.

Schnitte
01-06-2011, 06:18 AM
Getting credit was a major problem for women. No mortgage would be issued to a woman by herself. There were cases of women taking their senile old fathers out of nursing homes to the bank to co-sign their mortgage loans. Apparently the only qualification was having a penis.

I've never heard of anything like that (admittedly, I'm too young so I'm ready to be corrected by someone who experienced that, but so far I doubt that). I would guess that banks would care about an applicant's creditworthiness, not their sex, when approving or rejecting a loan. Granted, there certainly was, and arguably still is, a correlation between sex and income, and certainly there is a correlation between income and creditworthiness; in other words, banks may have rejected a lot of loan applications from women because these women were not considered to have a sufficient income to ensure repayment. But even in the days before the feminist movement, there certainly were women of independent means, or even of considerable wealth, around, and I would find it hard to believe that banks would not give these women a loan simply because of their sex.

doreen
01-06-2011, 07:38 AM
I've never heard of anything like that (admittedly, I'm too young so I'm ready to be corrected by someone who experienced that, but so far I doubt that). I would guess that banks would care about an applicant's creditworthiness, not their sex, when approving or rejecting a loan. Granted, there certainly was, and arguably still is, a correlation between sex and income, and certainly there is a correlation between income and creditworthiness; in other words, banks may have rejected a lot of loan applications from women because these women were not considered to have a sufficient income to ensure repayment. But even in the days before the feminist movement, there certainly were women of independent means, or even of considerable wealth, around, and I would find it hard to believe that banks would not give these women a loan simply because of their sex.

The issue was that banks would not consider a woman's income- she might get married, have kids and stop working and therefore that income could disappear at any time. If a married couple wanted to buy a house, only the husband's income would be considered when determining how much of a mortgage they qualified for. I'm sure there were some women it didn't affect - if their wealth/income didn't depend on them working, then the bank needn't worry that they would stop working.

Frylock
01-06-2011, 08:22 AM
I would guess that banks would care about an applicant's creditworthiness, not their sex, when approving or rejecting a loan.

And I would guess that restaurants would care about a potential customer's wallet size and ability and desire to masticate and swallow--not their skin color--when approving or rejecting an attempt to order from the menu.

Turns out my guess is wrong though. :(

Schnitte
01-06-2011, 08:32 AM
And I would guess that restaurants would care about a potential customer's wallet size and ability and desire to masticate and swallow--not their skin color--when approving or rejecting an attempt to order from the menu.


That analogy fails because the restaurant owner might worry about other patrons, who may well be racist assholes with a dislike for dining in the presence of members of another race. Thus, the restaurant might turn down a black customer in the hope of retaining the other, white, ones. But you don't have that effect in banking - even the most chauvinist male client A will not care, and indeed not even know, about whether female customer B also got a loan from that bank or not.

Frylock
01-06-2011, 09:58 AM
That analogy fails because the restaurant owner might worry about other patrons, who may well be racist assholes with a dislike for dining in the presence of members of another race.

It's an empirical question whether individual restaurant owners refused to serve black people because of their own prejudice, that of others, or some complicated mess of those factors and others.

But it's almost certain that very many of the restaurant owners were themselves racists who wouldn't choose on their own to serve black people. It would be really strange if most people in the south except for restaurant owners were racists!

So the point of the analogy--that you can't account for business behavior completely just by looking at the ledgers--still finds its mark.

even the most chauvinist male client A will not care, and indeed not even know, about whether female customer B also got a loan from that bank or not.

Says you. ;)

EristicKallistic
01-06-2011, 10:01 AM
So your claim is that, prior to desegregation and the civil rights movement, banks would happily grant mortgage loans to non-white applicants?

Schnitte
01-06-2011, 10:33 AM
So your claim is that, prior to desegregation and the civil rights movement, banks would happily grant mortgage loans to non-white applicants?

My claim was about discrimination by gender, not by colour of skin. But if you want to transpose the argument, then my claim is that even prior to desegregation and the civil rights movement, banks would look at an applicant's creditworthiness, and not their colour of skin, when making the decision. I concede that the income of black applicants was, on average, lower and less secure than that of white applicants as a result of segregation and discrimination, which made it more difficult for blacks to achieve the same level of creditworthiness. But I think that, all else equal, a sufficiently creditworthy black applicant would have got a loan.

Frylock
01-06-2011, 10:58 AM
But I think that, all else equal, a sufficiently creditworthy black applicant would have got a loan.

That looks like a fairly objectively answerable question. Ima ax it on the GQ.

Lynn Bodoni
01-06-2011, 12:45 PM
I've never heard of anything like that (admittedly, I'm too young so I'm ready to be corrected by someone who experienced that, but so far I doubt that). I would guess that banks would care about an applicant's creditworthiness, not their sex, when approving or rejecting a loan. Granted, there certainly was, and arguably still is, a correlation between sex and income, and certainly there is a correlation between income and creditworthiness; in other words, banks may have rejected a lot of loan applications from women because these women were not considered to have a sufficient income to ensure repayment. But even in the days before the feminist movement, there certainly were women of independent means, or even of considerable wealth, around, and I would find it hard to believe that banks would not give these women a loan simply because of their sex. You would guess wrong.

If a woman was married, her money didn't belong to her, but to her husband. If she wasn't married, she could get married at any time, and her money would then belong to her husband, not to her. He had control of the money, legally.

Now, some wives had pretty much exclusive control of the money, either because she was better at it or because he was henpecked. But legally, all the money was under his control, even money that she had earned or inherited.

My claim was about discrimination by gender, not by colour of skin. But if you want to transpose the argument, then my claim is that even prior to desegregation and the civil rights movement, banks would look at an applicant's creditworthiness, and not their colour of skin, when making the decision. I concede that the income of black applicants was, on average, lower and less secure than that of white applicants as a result of segregation and discrimination, which made it more difficult for blacks to achieve the same level of creditworthiness. But I think that, all else equal, a sufficiently creditworthy black applicant would have got a loan. You'd be wrong here, too. Bank loan officers DIDN'T look past the color of the applicant's skin, in most cases. Being black meant that the applicant didn't stand a chance of getting a loan in most banks. If he could get a loan, then he had to pay a much higher interest rate than an applicant who was almost identical in all ways except race.

It was a different world back then, with very different rules. It was considered perfectly acceptable to judge a person by race, religion, and sex. People were put into pigeonholes, and woe betide the square peg that was being forced into a round hole.

TriPolar
01-06-2011, 01:04 PM
If a woman was married, her money didn't belong to her, but to her husband. If she wasn't married, she could get married at any time, and her money would then belong to her husband, not to her. He had control of the money, legally.


I'm not sure that was the case during the time frame of the ERA. Maybe in some states, but I think you have to go a long way back to find those kinds of laws. The problem at 40 years ago was that there were no regulations stopping banks from behaving in that manner.

Please correct me if I am mistaken.

Schnitte
01-06-2011, 01:27 PM
If a woman was married, her money didn't belong to her, but to her husband. If she wasn't married, she could get married at any time, and her money would then belong to her husband, not to her.

You're probably referring to the common law doctrine of femme couverte, aka coverture, whereby on marriage the woman's legal personality was merged into that of the husband. But this principle was overridden statutorily in both England and the U.S. over the course of the 19th century (cite (http://britannica.com/EBchecked/topic/366305/Married-Womens-Property-Acts)). It might still be that, as a matter of practice, men would interfere in the management of their wives' wealth, but after the abandonment of coverture there was no question that a woman's money was legally hers, not her husband's. Community property principles may restrict her freedom to dispose of it, but they don't transfer that freedom to the husband either.

Saint Cad
01-06-2011, 01:31 PM
Saint Cad, since you were arguing that the 14th + the 19th is equivalent to the ERA (thus rendering passage of the ERA unnecessary), you may be interested in this new Great Debates thread:
Scalia says the 14th amendment doesn't apply to women (http://boards.academicpursuits.us/sdmb/showthread.php?t=591783)

I read the original article. SCOTUS ruled unanimously in 1971 that the 14th Amendment outlawed sexual discrimination. Thank you for pointing out a source that says I'm correct :p

Lynn Bodoni
01-06-2011, 06:39 PM
In the 1960s, my grandmother inherited some property. My grandfather was able to legally sell this property, against her wishes, because he was her husband. She hadn't given him the property, or even put him on the deed. However, because he was her husband, he was able to sell it. She consulted a lawyer, who told her that this was perfectly legal in Texas. Maybe the lawyer, the real estate agent, and everyone else were wrong about the law...but this happened, and apparently it was legal in Texas at that time.

TriPolar
01-06-2011, 06:50 PM
That sounds something like community property (IANA lawyer, don't know the exact definition of community property). But are you saying your grandmother could not have sold property jointly owned by your grandfather without his permission?

Arnold Winkelried
01-06-2011, 06:50 PM
I read the original article. SCOTUS ruled unanimously in 1971 that the 14th Amendment outlawed sexual discrimination. Thank you for pointing out a source that says I'm correct :pIt also shows that even a Supreme Court justice is not convinced that the 14th amendment outlaws sexual discrimination, which to my mind indicates an obvious need for an amendment such as the ERA.

TriPolar
01-06-2011, 06:59 PM
Ok guys, why doesn't the equal protection clause rule out gender discrimination?

Una Persson
01-06-2011, 07:07 PM
I'll testify, having been alive and pretty politically aware at the time, that I heard an enormous amount of protests from people which fell into the two issues brought up earlier:

1) Mandatory same-sex bathrooms.
2) Women being drafted.

Another thing which I would hear older people say was a somewhat simpleminded statement that "if the Government declares men and women equal, then men will stop holding doors for women." I shit you not, I heard older adults say this while their peers would nod their heads sagely. There was this bizarre notion among "the Greatest Generation" that the continual decline of Society from their Pleasant Valley 1950's world would be accelerated by not treating women as second-class citizens.

alphaboi867
01-06-2011, 08:39 PM
...You'd be wrong here, too. Bank loan officers DIDN'T look past the color of the applicant's skin, in most cases. Being black meant that the applicant didn't stand a chance of getting a loan in most banks. If he could get a loan, then he had to pay a much higher interest rate than an applicant who was almost identical in all ways except race...

The location of the house was also a factor. Even after restrictive covenants became legally unenforceable banks would often refuse a black client a loan to buy a house in a white neighborhood even if he somehow manged to get a real estate agent to show in the house or arranged a private sale with the owner.

...But even in the days before the feminist movement, there certainly were women of independent means, or even of considerable wealth, around, and I would find it hard to believe that banks would not give these women a loan simply because of their sex.

I had a maiden great aunt. She was a teacher/missionary and had "some family money". After moving back to the US from Brazil circa 1960 she decided to buy her first house (having already inherited "the family house" in another state and renting to my grandparents). Her loan officer was new and initially insisted that her little brother (grandpa) cosign the loan. He came close to getting fired after she made a senior VP review her financial info and personally wait on her.

medstar
01-07-2011, 07:04 PM
In the 1960s, my grandmother inherited some property. My grandfather was able to legally sell this property, against her wishes, because he was her husband. She hadn't given him the property, or even put him on the deed. However, because he was her husband, he was able to sell it. She consulted a lawyer, who told her that this was perfectly legal in Texas. Maybe the lawyer, the real estate agent, and everyone else were wrong about the law...but this happened, and apparently it was legal in Texas at that time.

Lynn, do you know if your grandfather ever admitted it was wrong of him to sell the property? Did your grandmother ever retaliate against him for that? I know that when I was a teenager (about 35 years ago), my mother was angry that my father didn't legally have to list her as a beneficiary of his pension (but did, because she yelled at him until he did). That was when she became in favor of the ERA.:D

Arnold Winkelried
01-07-2011, 08:21 PM
Ok guys, why doesn't the equal protection clause rule out gender discrimination?
I am no legal expert, but I think the answer is this: nowadays we interpret it to rule out gender discrimination, but the 14th amendment doesn't explicitly say it. Which is why people like Justice Scalia think you can justify an argument that the amendment is not meant to guarantee the equivalent of the ERA.

Lynn Bodoni
01-08-2011, 03:59 AM
That sounds something like community property (IANA lawyer, don't know the exact definition of community property). But are you saying your grandmother could not have sold property jointly owned by your grandfather without his permission? Grandma could not have sold HER property without HIS permission. And this was not community property, for some reason, it was definitely not jointly owned. But Grandpa was able to sell it anyway, because he was her husband.

Lynn, do you know if your grandfather ever admitted it was wrong of him to sell the property? Did your grandmother ever retaliate against him for that? I know that when I was a teenager (about 35 years ago), my mother was angry that my father didn't legally have to list her as a beneficiary of his pension (but did, because she yelled at him until he did). That was when she became in favor of the ERA.:D On the contrary, Grandpa maintained that he was the man, and that his judgement was better than hers because he was male and she was female, and that it was his right to sell that property no matter what she wanted.

And I became a feminist because of this and other things that I've seen and experienced in my lifetime.

Captain Amazing
01-08-2011, 04:51 AM
Grandma could not have sold HER property without HIS permission. And this was not community property, for some reason, it was definitely not jointly owned. But Grandpa was able to sell it anyway, because he was her husband.

What year was this? Because as early as around the turn of the century in Texas, if the property was acquired by her before her marriage, it was hers, and he had no legal right to sell. Likewise, if the property had been bought by money of hers before her marriage.

Lynn Bodoni
01-08-2011, 11:38 PM
I believe it was in the 1960s.

Schnitte
01-09-2011, 06:06 AM
This page (http://tshaonline.org/handbook/online/articles/jsw02) gives a summary of Texan law relating to the property of married women. Seems that until 1967, a husband would have a great deal to say in the way his wife managed her property, and he could even conclude employment contracts on her behalf, but he did not have the power to dispose of her property without her consent.

Lynn Bodoni
01-09-2011, 08:45 AM
Well, I guess her lawyer was mistaken, then. Or her lawyer thought that Grandpa knew best, which was a pretty common notion back then, that the husband knew best.

Frylock
01-09-2011, 10:04 AM
Well, I guess her lawyer was mistaken, then. Or her lawyer thought that Grandpa knew best, which was a pretty common notion back then, that the husband knew best.

It's more important in this conversation to note what the actual practices were rather than what the laws said. Your story may be very illustrative of the former.

Lynn Bodoni
01-10-2011, 12:31 AM
Yeah, I guess you're right. I mean, supposedly non-whites were legally equal to white people during this time frame, but even as a kid, I noticed that the non-whites didn't get equal treatment in practice. And a lot of white people were OK with this. Not all whites, probably not even most, but a lot of them.

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