A great democracy has got to be progressive, or it will soon cease to be great or a democracy."

- Theodore Roosevelt, 1910

12 May 2012

Structural Inequality, "Equal Rights," and "The Feminist Case AGAINST the Equal Rights Amendment"

Thank you for your comments and criticisms against "The Feminist Case AGAINST the Equal Rights Amendment."
Also, please consider supporting alternatives to the Equal Rights Amendment like the Margaret Sanger Reproductive Rights Amendment, and other reforms that directly improve the status of women: http://nationalprogressive.blogspot.com/2011/05/enact-reproductive-rights.html. To express your support, click the Change.org petition box on the right side of this page. 

First, I especially appreciate Kathie's quote from the law review article by Linda Wharton. I agree with Wharton that the Supreme Court has applied the 14th amendment to race and sex discrimination in a crabbed, formalistic, and ultimately unjust way that negates the ultimate reasons the Amendment was adopted. 

Instead, I prefer the approach of Prof. Laurence Tribe, who thinks the 14th Amendment should be interpreted to "liberate" people in terms of increasing their real opportunities, not merely some theoretical concept like "Equal Rights," which ignores the unequal distribution to status and resources needed to capitalize on legal equality to actually enjoy the benefits of "equal opportunity." By analogy, I have the same right as, for example, Donald Trump to dine at the Four Seasons restaurant in New York, but compared to Trump, I do not have an equal opportunity to enjoy the Four Seasons because I could not afford to pay the bill. 

On the other hand, if Mitt Romney, a white man who grew up in Michigan, had been the son of a UAW worker assembling Chevrolet cars, does anyone think he would be the Republican nominee for President? Moreover, what is less likely than a man with Romney's speaking skills or knowledge about society winning ONE state primary in 2012? Indeed, other than having the right to give away all his wealth, is Mitt Romney any less a prisoner of social inequality than you or I?  
Feminists, even at the price of being denounced as "socialist feminists," need to be honest and say we want greater "Equality" (like that demanded in Britain by "The Equality Trust"), and not merely the "Equal Rights" guaranteed by the current interpretation of the 14th Amendment and the proposed "Equal Rights Amendment." We must be forthright and challenge groups like the Heritage Foundation who mock "Equality of Outcome," and instead insist that most women and disadvantaged minorities do not have an equal chance to succeed as people who enjoy the privilege of gender, race, sexuality, and family background. Furthermore, as The Equality Trust points out, the NATION is as much disadvantaged by the "structural inequality" of the United States as the individuals who bear the brunt of deprivation.

Second, while I am concerned about what Justice Scalia said out of Court in a magazine interview about the 14th amendment, I am also confident that 1) Scalia cannot get FOUR other justices to agree with him in a real case before the U.S. Supreme Court, and 2) if he did, the American people would stampede Congress and the President to restore the current law by Constitutional amendment. 

Our Constitution is not chiseled in stone: The 26th amendment, guaranteeing all 18, 19, and 20 year-olds the right to vote in all elections, and ALSO partly overruling a 1970 U.S. Supreme Court decision, was ratified by 37 states in 101 DAYS. Organizing for that eventuality is a better alternative, under current political conditions, than pushing for the adoption of a constitutional amendment we all might come to despise.

Third, in regards to the effect of the ERA, as you know, I live in Hawai'i, and I have been active in feminist/LGBT issues in Hawai'i since I arrived in 2005. Hawai'i not only was the first state to ratify the ERA, but it is one of the states that includes the same words in its state constitution.

In 1993, the Hawai'i Supreme Court relied on the Hawai'i state ERA, not guarantees of due process, to rule in Baehr v. Lewin that the state of Hawai'i could not deny the benefits of marriage to same-sex couples (at the least) without showing a *compelling* public interest in discrimination on the basis of SEX.*
Not only did the Baehr case start the entire same-sex marriage controversy (if you exclude the 1975 Baker case in Minnesota), if reinforces two of my points, one voiced, and one implied:
  • The ERA would prohibit all discrimination on the basis of sex, unless the GOVERNMENT establishes a COMPELLING public interest, up from the EXISTING standard of "Important" public interest, and thus making eliminating the effect of centuries on sexism through law and agency policies very difficult.
  • The ERA liberates people when used by "Good" judges who really "Get It" (to use the phrase from the Anita Hill Controversy; I still have my "I Believe Anita" button") when it comes to feminism and ending the effects of racism, AND it is a trap when used by "Bad" judges who don't "Get It," i.e., like FOUR or FIVE judges on the U.S. Supreme Court.

If the ERA were adopted, does anyone expect the U.S. Supreme Court would eagerly follow the lead of the Hawai'i Supreme Court and strike down all the federal and state Defense of Marriage Acts, anti-marriage equality state constitutional amendments, and require one universal recognition of same-sex marriage rights, without discrimination or hindrance, in all 50 states?

I don't, although I am an optimist and expect the U.S. Supreme Court will strike down discrimination against same-sex couples on the basis of Due Process, consistent with its rulings in Romer v. Evans (1996) and Lawrence v. Texas (2003). I especially anticipate the decision of the U.S. Supreme Court in the Perry v. Brown case on California's Proposition 8 after the Ninth Circuit Court of Appeals (happily for me, HI and CA are in the same appeals court circuit) finishes its rulings.
The difference between Due Process and the equal protection concerns of the ERA are that the Supreme Court is striking down laws hurting homosexuality because it has found that there is NO reason for laws against gays and lesbians other than a wrongful desire to hurt homosexuals. Laws against homosexuality, at least since 1996, do not even protect a "LEGITIMATE" public interest--the LOWEST standard for judging the validity of a law.
Regardless, the main reason why Hawai'i ERA has not created mischief is that we have "Good" judges who don't let the ERA turn into an anti-equality monster the way the U.S. Supreme Court has done with RACE/ETHNICITY equality under the 14th amendment. 
Thus the real question for us in 2012 should be, "How do we put 'Good' judges on the U.S. Supreme and lower federal courts who will use the laws of the land to liberate the People (not just Corporations) and advance EQUALITY (not just "Equal Rights") for women and racial/ethnic minorities in the U.S."
Clearly, we must not only put all our energy into reelecting President Obama, but ALSO elect a pro-woman, pro-justice majority in the U.S. Senate. While we might not be able to touch the existing four justice arch-conservative bloc--although Justice Clarence Thomas should be impeached for judicial misconduct--Justice Ruth Bader Ginsburg (although she has apparently recovered from pancreatic cancer) may have to resign soon for health reasons. If Romney is elected, the Democrats would otherwise have no choice but to filibuster every nominee, leaving the Court with only 8 justices for at least two years.

Finally, it is clear to me is that I need to put together a post on race-based and sex-based affirmative action. I am not surprised that few people know about these cases, since the mass media rarely spotlights the U.S. Supreme Court for very long.

However, this will have to wait because I am involved in organizing a major recognition of the 92nd anniversary of the adoption of the Susan B. Anthony Woman Suffrage Amendment in 1920, which I'll be posting here first. Please keep discussing this and other articles on National Progressive Review. Thank you!

* Note: Don't ask me why pro-ERA groups insist the adoption of the ERA would not affect marriage equality, although most state courts would stretch the bounds of rationality to maintain marriage inequality.

1 comment:

  1. Hannah!
    Your presentation of the issues is brilliant and deserves a larger audience.