No constitutional equality proves we need the ERA
DIANNE POST | 4/16/2018, 2:46 p.m.
That hope came tumbling down a scant two years later in 1996 in a decision written by Justice Ruth Bader Ginsberg. The U.S. argued and the court agreed that restricting entrance to the Virginia Military Institute to males violated the Equal Protection Clause. The “exceedingly persuasive justification” standard was used for the third time, the first time for women. But Ginsberg made it clear that sex was not race and they were not elevating the standard to strict scrutiny.
From 1869 to 2000, women brought 10 cases under the 14th Amendment, and men brought nine. Of the 10 that women brought, they won six. Of the nine that men brought, they won seven. Even the fight for women’s rights benefits men more than women.
It’s clear that litigation, statutory changes and the 14th Amendment won’t bring equality to women. As of 2011, 35 countries had an equality provision for women in their constitution; 49 a nondiscrimination provision for women, and 29 countries had both. The U.S. remains the outlier.
The Equal Rights Amendment is the only method left to ensure women’s constitutional equality. Two states remain to obtain the needed 38 state ratifications. Let’s get it done.
Dianne Post works in international law primarily doing gender-based violence work including training, drafting and analysis. She was a family lawyer for 18 years, representing mostly battered women and abused children, before beginning a career .