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Kathianne
03-28-2007, 03:03 PM
While under the guise of 'reintroduced' it's being ignored that it couldn't be passed within the timeline, even with an extension. It's funny, not haha, that it's not showing up on Yahoo or Google news:

So here we go. Lots of links:


http://volokh.com/archives/archive_2007_03_25-2007_03_31.shtml#1175094025


[Eugene Volokh, March 28, 2007 at 11:00am] Trackbacks
The Equal Rights Amendment

has been reintroduced. My sense is that the public, even in relatively conservative states, is much more open to the core principle of the government's generally not discriminating based on sex than it was back when the ERA stalled a couple of decades ago.

On the other hand, I suspect that there'd be much less of a sense of need, given that the Supreme Court's sex equality jurisprudence is now itself decades old, and pretty clearly not going anywhere. The formal test is that sex classifications are constitutional only if the government shows an "exceedingly persuasive" justification, which consists of showing "at least that the [challenged] classification serves 'important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement of those objectives,'" and that the justification "not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." In practice, the test is very hard to meet, so it's hard to point to many sex classifications that are now constitutional but that the ERA would clearly or even likely ban.

What's more, those current sex classifications that are most vulnerable are also ones that many people -- including ones who are far from antifeminist -- may have qualms about invalidating:

1. Limits on Women in Combat: It's generally assumed that the Court would uphold such limits under the current "intermediate scrutiny" test, possibly on the theory that allowing women in combat would pose extremely high risk that captured women will be raped, and that this will not only hurt the women but lead to undue pressure not to surrender, or to launch even very risky rescues. Whether or not this theory is clearly correct, I expect that the Court would defer to the political branches' judgments on this score, even if the limits on women in combat are tightened back to what they were some years ago. Would most ERA backers support constitutionally invalidating these limits, as the ERA may well do, given its categorical language?

2. Sex-Based Affirmative Action Programs: Such programs are in many situations constitutional under the Court's current caselaw. But they would be clearly forbidden by the text 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." And my guess is that the current Court's relatively strong focus on text, coupled with its relative hostility to affirmative action programs (compared to the views of the 1970s and early 1980s Court), would lead it to read the ERA as outlawing legal preferences either for women or men, whether or not the preferences are billed as "remedial."

3. Exclusion of Boys from Girls' Sports Teams: This too is generally seen as constitutional, and I suspect it's even more popular than affirmative action in other contexts. Yet the flat language of the ERA would likely ban it.

4. Limitation of Marriage to Opposite-Sex Couples: Many supporters of same-sex marriage, including those who challenge the opposite-sex-only rule as unconstitutional, argue that the opposite-sex-only rule discriminates based on sex. Some (though not most) state judges that have considered the question have indeed concluded that state constitutional ERA provisions mandate sex-blind marriage laws. It seems quite plausible (though not certain) that enactment of the ERA would increase the likelihood that courts would indeed mandate recognition of same-sex marriages. The arguments that the ERA would lead to such a result can no longer be dismissed, as it once was, as a "hysterical" "emotional scare tactic" "canards."

So it's not quite clear to me what will likely happen given all this (and given the other objections that might be raised, such as the perennial but nontrivial questions related to single-sex locker rooms and the like). Nor is it clear to me what people should do if they believe -- as I do -- that the government generally shouldn't discriminate based on sex, but that some narrow exceptions are proper.

On the one hand, enacting the ERA will cement the broad antidiscrimination principle, and perhaps defeating it might in some measure undermine the principle, among some members of the public or even among some judges; and it's possible that judges will carve out some sensible exceptions from the ERA's flat ban if the ERA is enacted. On the other, it seems highly likely that the constitutional nondiscrimination rule is here to stay, and maybe it's better for judges to continue developing exceptions from this rule when it's basically a judicially developed interpretation of the Equal Protection Clause, rather than for judges to create exceptions from a categorical guarantee.

My preference would be for an ERA that has explicit exceptions for the few areas where exceptions seem necessary, but I doubt that this is a politically viable option. The question then is which is better -- the status quo, under which there is a broad but not securely textually anchored constitutional prohibition of most forms of sex discrimination, or an ERA that expressly bars sex discrimination but goes literally further than I think it should. My sense is that the status quo is probably good enough, because it seems so solidly entrenched; but it's not an open-and-shut matter, it seems to me.

Thanks to Bob Krumm for the pointer.

5stringJeff
03-28-2007, 03:09 PM
There's no need for the ERA. Laws already cover such things, and it would only be used to enforce affirmative action programs.

Kathianne
03-28-2007, 03:17 PM
There's no need for the ERA. Laws already cover such things, and it would only be used to enforce affirmative action programs.

Agreed. Not to mention that 10 years were given to get it passed, couldn't make that threshold. Then there is the little publicised fact that it would pave the way for gay marriage. Still absent in records.

Hagbard Celine
03-28-2007, 03:17 PM
Does this mean co-ed showers like in Starship Troopers?

Little-Acorn
03-28-2007, 03:30 PM
It means Hooters "girls" http://www-cgi.cnn.com/US/9512/hooters_eeoc/male_hooters_waiter.jpg,women drafted (and killed) in equal numbers as men for the next major war, and endless lawsuits for major league sports teams that don't hire as many women as men. The fact that most women can't tackle a 260-pound linebacker as well as men can, will be deemed irrelevant. The lawsuits will shortly drive all such teams out of existence as legal fees skyrocket.

Hagbard Celine
03-28-2007, 03:35 PM
It means Hooters "girls", women drafted (and killed) in equal numbers as men for the next major war, and endless lawsuits for major league sports teams that don't hire as many women as men. The fact that most women can't tackle a 260-pound linebacker as well as men can, will be deemed irrelevant. The lawsuits will shortly drive all such teams out of existence as legal fees skyrocket.

Yes, I agree. This is definately a reasonable and feasible point of view.

Kathianne
03-28-2007, 03:42 PM
Yes, I agree. This is definately a reasonable and feasible point of view.

Yeah, I can see. I'm over 50, so are lots of the guys here, with or without service. I'm pretty good shape, strong for woman. Upper body, not so much. Pitiful actually, but working on it.

However, as a 'kid' I was gymnast and on swim team. For a 'girl' I was strong. Still, couldn't compete with guys, but some could, they were rare. I'm not in favor of having women in combat, as they cannot across the board back up the backs of our men. They would want to, would die trying, but can't.

Gaffer
03-28-2007, 04:18 PM
Yeah, I can see. I'm over 50, so are lots of the guys here, with or without service. I'm pretty good shape, strong for woman. Upper body, not so much. Pitiful actually, but working on it.

However, as a 'kid' I was gymnast and on swim team. For a 'girl' I was strong. Still, couldn't compete with guys, but some could, they were rare. I'm not in favor of having women in combat, as they cannot across the board back up the backs of our men. They would want to, would die trying, but can't.

I agree kath. The desire might be there but the physical ability isn't. The one area I can't see women ever going into as far as the military is concerned is the infantry. Or anything that requires upper body strength.

Kathianne
03-28-2007, 04:25 PM
I agree kath. The desire might be there but the physical ability isn't. The one area I can't see women ever going into as far as the military is concerned is the infantry. Or anything that requires upper body strength.

Thanks Gaffer. It always seems to be so 'against' women to say so. Truth is, women just aren't as strong. Not the average on average. I was above average, still couldn't come close to stopping a male from doing what he wanted, luckily for me, with one exception, none crossed my will.

Women, even those in great shape, do not have the upper body strength of most men. Then there is the problem with periods, not a small problem depending on the individual. Many would have problems with cramps, more with hygiene. Privacy comes into play, which just is not on the menu in combat.

Little-Acorn
03-28-2007, 04:34 PM
There are also issues such as workplace attendance. When a man's wife gets pregnant and has a baby, he might miss a few weeks work. But a woman in the same job with the same skill levels, will likely miss months, sometimes many months, or even quit altogether to stay home and raise the child. And it's good and right that she do so, of course.

Occasionally, it's the man who decides to stay home and raise the child, Fine also. But that happens far less often than the woman staying home.

So an employer looking to hire someone, who has two applicants (a man and a woman) with equal skill, training, etc., might hire the man because he knows there's more CHANCE the woman will leave, simply because she's a woman and therefore might someday get pregnant and have a baby. The employer (and the woman herself) can't predict if this might happen years in the future or not. But obviously there's more CHANCE the woman will create a major disruption of her job by laking long leave, than the man will. If the employer hires a hundred women, he will almost certainly have more such disruptions than if he hired a hundred men.

The ERA will quash the employer's ability to make that hiring decision, though it obviously won't solve the attendance problem.

Fair? Unfair? The employer MUST deal with it, one way or another. No amendment can change that.

Kathianne
03-28-2007, 04:44 PM
There are also issues such as workplace attendance. When a man's wife gets pregnant and has a baby, he might miss a few weeks work. But a woman in the same job with the same skill levels, will likely miss months, sometimes many months, or even quit altogether to stay home and raise the child. And it's good and right that she do so, of course.

Occasionally, it's the man who decides to stay home and raise the child, Fine also. But that happens far less often than the woman staying home.

So an employer looking to hire someone, who has two applicants (a man and a woman) with equal skill, training, etc., might hire the man because he knows there's more CHANCE the woman will leave, simply because she's a woman and therefore might someday get pregnant and have a baby. The employer (and the woman herself) can't predict if this might happen years in the future or not. But obviously there's more CHANCE the woman will create a major disruption of her job by laking long leave, than the man will. If the employer hires a hundred women, he will almost certainly have more such disruptions than if he hired a hundred men.

The ERA will quash the employer's ability to make that hiring decision, though it obviously won't solve the attendance problem.

Fair? Unfair? The employer MUST deal with it, one way or another. No amendment can change that.
Correct on so many levels. For the start, those women that can change 'maternity leave' to permanent leave are the exception nowadays. More are choosing that. I know when I left my managerial position at AT&T in 1981, i was 'ahead' of my husband. To me, that wasn't an issue.

We had a new baby, that we both thought needed caring for. If I knew that 14 years later I would be screwed financially, much less my kids, whom I gave up alot for to put aside money for college they would never see, I would have made very different decisions.

While today I agree that kids should have a parent at home, at least for the first 5 years, I'd never advise such.

Gaffer
03-28-2007, 05:20 PM
Thanks Gaffer. It always seems to be so 'against' women to say so. Truth is, women just aren't as strong. Not the average on average. I was above average, still couldn't come close to stopping a male from doing what he wanted, luckily for me, with one exception, none crossed my will.

Women, even those in great shape, do not have the upper body strength of most men. Then there is the problem with periods, not a small problem depending on the individual. Many would have problems with cramps, more with hygiene. Privacy comes into play, which just is not on the menu in combat.

I knew a Marine Colonel that was having the discussion with a woman marine who insisted she could do the same job as a man. The colonel suddenly fell against her they both fell to the ground. He was laying on top of her and said he had just been shot by a sniper, what was she going to do to save them both? He weighed about 200 pounds. She couldn't even get him off of her, let alone drag him to safety. He made his point very clearly.

Kathianne
03-28-2007, 05:44 PM
I knew a Marine Colonel that was having the discussion with a woman marine who insisted she could do the same job as a man. The colonel suddenly fell against her they both fell to the ground. He was laying on top of her and said he had just been shot by a sniper, what was she going to do to save them both? He weighed about 200 pounds. She couldn't even get him off of her, let alone drag him to safety. He made his point very clearly.

Yep. I remember to the day, being at Michigan Dunes, in lime green bikini. I was strong, really. With a guy that was no where in equivalent shape. I could not throw him off. Really. He had a gut, me not. Problem was 105 vs. 185. I could bench press over 185, just not without spotter I guess.

Luckily for me, he wasn't into rape.

avatar4321
03-28-2007, 05:58 PM
Why are democrats so eager to make the government draft women into combat?

Nienna
03-28-2007, 06:07 PM
Why are democrats so eager to make the government draft women into combat?

Watch Sitarro's video. It answers that question.

Gaffer
03-28-2007, 06:14 PM
Why are democrats so eager to make the government draft women into combat?

They want a draft period, so they can make everyone feel guilty. That's a critical missing element in the Vietnam comparison. Soldier victims. If they can add women to that element it makes it even better.