Wednesday, January 22, 2020
The Historical and Legal Significance of Virginia's Recent Ratification of the Equal Rights Amendment
In this interview, I offer my thoughts on the history and future of the ERA.
Wisconsin NPR, Central Time, Virginia Just Ratified The Equal Rights Amendment: What Does That Mean?nt-what-does-mean
Virginia’s General Assembly passed the Equal Rights Amendment recently, becoming the 38th state to do so, nearly four decades after a controversial deadline passed. A legal scholar shares the history of the ERA, what the Virginia vote means and where the effort goes from here.
History of ERA Passage
The Equal Rights Amendment (ERA) was passed by Congress in 1972. The original Amendment contained a 7-year deadline in the preamble to the resolution reaching to 1979. Congress extended the deadline to 1982. President Carter signed the extension as a symbolic gesture, as the Constitution gives the President no formal role in amending the Constitution. The Office of Legal Counsel at the time opined that Congress had the power to grant the extension as a procedural move by majority vote. See Memorandum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Extending the Time Period for Ratification of the Proposed Equal Rights Amendment (Oct. 31, 1977).
Only 32 states ratified the ERA by 1982—3 states shy of the 38 required by the Constitution of ¾ of the states. Momentum from the Women’s Marches, #MeToo movement, and the 2016 Presidential election triggered renewed interest in an equal rights amendment. Nevada then ratified the ERA in 2017, Illinois in 2018, and Virginia in 2020, thus now reaching the 38 states. Five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) attempted to rescind their ratification in the late 1970s.
Current Challenges to ERA Ratification
In December 2019, three Attorney Generals, two from states that never ratified the ERA (Alabama and Louisiana), and one that attempt to rescind (South Dakota) sued in federal court in the Northern District of Alabama to prevent the National Archivist from recording the ERA, arguing that the deadline had expired and that the rescinded votes could not be counted. Alabama v. Ferriero (N.D. Ala., filed Dec. 16, 2019). They also argued that the ERA would hurt women, undermine state sovereignty, and threaten anti-abortion laws, expand to LGBT rights, and invalidate gender segregation in schools, prisons, sports, and domestic violence shelters.
The National Archivist sought an opinion from the Office of Legal Counsel as to the status of the ERA. Office of Legal Counsel, Memorandum, Ratification of the Equal Rights Amendment (Jan. 2020) The OLC opinion issued in January 2020 advised that Congress did not have the authority to modify the original deadline, disagreed with the prior 1977 OLC opinion supporting extension, and declined to issue an opinion on rescission.
Arguments in Support of Ratification Today
So what do proponents of ERA say? There are good arguments that the ERA remains open for ratification now, despite the past deadlines, and does not require a complete restart of the amendment and ratification process.
1. The original deadline is not mandatory.
a. Deadlines are not required for constitutional amendments. The first 17 amendments did not have a deadline.
b. The deadline is contained in the preamble to the resolution, and not the text of the amendment itself, and therefore is not binding as part of the ratification.
c. The Supreme Court’s decision in Dillon v. Gloss, 256 U.S. 368 (1921) upholding Congress’s power to attach deadlines to constitutional amendments, is incorrect. In Dillon, the Court addressed a challenge to the deadline added for the first time for the Eighteenth Amendment for prohibition.
i. The textual basis for the Court’s holding stemming from Article V of the Constitution is incorrect. Congress’s power to determine the “mode of resolution” means only that Congress can decide whether to amend the Constitution by Congressional proposal or state legislative convention.
ii. Dillon’s conclusion that amendments implicitly require “contemporaneity” was disproven by the 27th Amendment which passed in 1992 after pending for over 200 years. The 27th Amendment prohibits Congress from voting itself pay raises, requiring an intervening election before such raises take effect. It was originally proposed in 1789 as the Second Amendment. While the 27th Amendment did not include an express deadline, its long open ratification period contradicts the Supreme Court’s holding that all amendments must be passed in relatively short time period.
2. Congress has the power to modify the deadline
a. The deadline is merely a procedural adjunct to the amendment, which Congress can modify, extend, or nullify. As a procedural matter, only a majority of the congressional houses is required.
b. The 1977 OLC decision concluded that Congress has the power to extend and thus alter initial deadlines.
c. The Supreme Court held in Coleman v. Miller, 307 U.S. 433 (1939), that in the absence of a deadline, Congress may determine after receiving 38 ratifications whether too much time has passed. In Coleman, the Child Labor Amendment was pending for thirteen years. It did not include a deadline. The Supreme Court held that Congress had the authority to determine matters of time and expiration, after ratification by 38 states.
d. Coleman also held, in fractured opinions, that the question of a reasonable time for ratification is a non-justiciable political question, left to Congress and not the courts.
If the deadline does not apply, then the question is whether states can rescind their past ratification. The precedent of the Fourteenth Amendment suggests no. Several states which had ratified the 14th Amendment attempted to rescind their vote. The National Archivist and Congress refused to accept the rescissions, essentially finding them to be irrevocable.
In the context of the ERA, a federal district court in Idaho concluded that states could rescind their votes. Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981); but see John Carol Constitutional Amendment: Idaho v. Freeman, 16 Akron Law Rev. 151 (1983) (arguing Freeman was wrongly decided). The decision was appealed, and granted cert by the Supreme Court, but was dismissed as moot after expiration of the 1982 deadline.
Friday, January 17, 2020
The Supreme Court grant cert today in Trump v. Pennsylvania and the related Little Sisters of the Poor regarding religious exemptions for the federal healthcare mandate that employers provide women employees birth control.
From the Petition for Cert, Questions Presented:
The Patient Protection and Affordable Care Act (ACA), 42 U.S.C. 18001 et seq., requires many group health plans and health-insurance issuers that offer group or individual health coverage to provide coverage for preventive services, including women’s preventive care, without cost-sharing. See 42 U.S.C. 300gg-13(a). Guidelines and regulations implementing that requirement promulgated in 2011 by the Departments of Health and Human Services, Labor, and the Treasury mandated that such entities cover contraceptives approved by the Food and Drug Administration. The mandate exempted churches, and subsequent rulemaking established an accommodation for certain other entities with religious objections to providing contraceptive coverage. In October 2017, the agencies promulgated interim final rules expanding the exemption to a broad range of entities with sincere religious or moral objections to providing contraceptive coverage. In November 2018, after considering comments solicited on the interim rules, the agencies promulgated final rules expanding the exemption. The questions presented are as follows:
1. Whether the agencies had statutory authority under the ACA and the Religious Freedom Restoration
Act of 1993, 42 U.S.C. 2000bb et seq., to expand the conscience exemption to the contraceptive-coverage mandate.
2. Whether the agencies’ decision to forgo notice and opportunity for public comment before issuing the interim final rules rendered the final rules—which were issued after notice and comment—invalid under the Administrative Procedure Act, 5 U.S.C. 551 et seq., 701 et seq.
3. Whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.
“What happens in Virginia impacts the entire country and will reverberate across the globe,” said Betty Folliard, the founder of ERA Minnesota, who traveled to Richmond to watch the votes.
Tuesday, January 14, 2020
Catharine MacKinnon & Kimberle Crenshaw, Reconstituting the Future: An Equality Amendment , Yale Law Forum (Dec. 26, 2019)
A new constitutional amendment embodying a substantive intersectional equality analysis aims to rectify the founding U.S. treatment of race and sex and additional hierarchical social inequalities. Historical and doctrinal context and critique show why this step is urgently needed. A draft of the amendment is offered.
A new constitutional amendment offers a new beginning. The equality paradigm proposed here recognizes the failures of what is, turns away from language and interpretive canons rooted in an unjust past, and imagines a fully functioning democracy as the inheritance of future generations. This proposal reenvisions constitutional equality from the ground up: it centers on rectifying the founding acts and omissions of race and sex, separately and together, and incorporates similar but distinct inequalities.2 It is informed by prior efforts to integrate equality into the constitutional landscape that have been decimated by political reversals and doctrinal backlash. It aggregates the insights, aspirations, and critiques of many thinkers and actors who have seized this moment to breathe new life into the nation’s reckoning with inequality. It neither looks back to celebrate amendments whose transformative possibilities have been defeated nor participates in contemporary hand-wringing over equality’s jurisprudential limitations. It seeks to make equality real and to matter now. We argue that a new equality paradigm is necessary and present one form it could take.
Justice Department OLC Issues Opinion Declaring Equal Rights Amendment Dead Due to Expired Ratification Deadline
The Equal Rights Amendment has been dead for more than four decades, the Justice Department ruled Wednesday, and neither ratification by Virginia nor an effort to revive it by Congress can bring it back to life.
The Office of Legal Counsel, which serves as the in-house lawyers for the Executive Branch, said the deadline Congress set in 1972 for ratification is still valid, and has long since expired. Attempts to circumvent the deadline are futile, the lawyers said.
“We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the states,” wrote Assistant Attorney General Steven A. Engel.
The opinion is binding on the National Archives, which is the federal agency tasked with certifying new amendments.
But activists are still expected to press their case in court, asking judges to rule the deadline illegal and the ERA still viable.
The opinion is Office of Legal Counsel, Ratification of the Equal Rights Amendment (Jan. 6, 2020). From the summary abstract:
Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment. It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States. Accordingly, even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption under 1 U.S.C. § 106b.
Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution.
The Equal Rights Amendment, which would ban discrimination on the basis of sex, was first proposed in 1923. Since then, 37 states have passed the amendment, or added a version to their state constitutions, but 38 are needed to enshrine it in the U.S. Constitution. Nearly 100 years later, Virginia could become that final, 38th vote in a matter of weeks. But three GOP attorneys general have filed a lawsuit to stop the Equal Rights Amendment from being added to the constitution — a move that ERA supporters have called anti-equality.
Virginia Attorney General Mark Herring tells Bustle that the lawsuit is "ridiculous." "The ERA is something that should have been passed and ratified a long time ago," he says. "It is past time for women's equality to be constitutionally guaranteed."
Congress first passed the Equal Rights Amendment in 1972 with a seven-year deadline for states to approve it. That deadline was later extended to 1982, but by then only 35 states had ratified it, according to NPR. The House has since introduced legislation to eliminate the deadline, and in the last few years, Nevada and Illinois passed the ERA, bringing the total number of states to ratify it to 37. When Virginia Democrats took back control of the state legislature in November 2019, the incoming House speaker, Eileen Filler-Corn, told The Hill that passing the ERA would be a "top priority" when the legislature started its next session.
In December, three GOP attorneys general from Louisiana, Alabama, and South Dakota filed a preemptive lawsuit in Alabama, arguing that the original ratification deadline is still enforceable and that five states — Nebraska, Tennessee, Idaho, Kentucky, and South Dakota — rescinded their ratifications. Alabama Attorney General Steve Marshall, one of the three who filed the lawsuit, said in a statement that adding the ERA to the constitution 40 years later ignores those recissions and the deadline. “The people had seven years to consider the ERA, and they rejected it," Marshall said in the statement. "To sneak it into the Constitution through this illegal process would undermine the very basis for our constitutional order."***
Herring also notes that the constitution isn't clear on whether states can rescind their ratification — the issue isn't specifically mentioned in Article V. But in the past, states that have revoked their support for amendments have still been included in official tallies by both the secretary of state and Congress, suggesting that you can't really take back that decision.
In Marshall's statement about the lawsuit, he also said that the policy impacts of ratifying the ERA would promote a "far-left" agenda. "Where states have passed their own state-law versions of the ERA, courts have interpreted them to invalidate reasonable restrictions on abortion, require states to fund abortions, and mandate that boys be allowed to compete in sports against girls," he said.
Tuesday, January 7, 2020
Richard Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It, Georgetown L.J. (forthcoming)
This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s 100-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the amendment merely prohibits states from enacting laws that prohibit women from voting, once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees.
This piece argues the Nineteenth Amendment does more. A thick understanding of the Nineteenth Amendment’s substantive right is consistent with the Amendment’s text and history, as well as with a synthetic interpretation of the Constitution and its expanding guarantees of voting rights. The thick understanding of the Nineteenth Amendment would allow voting rights plaintiffs to attack restrictive voting laws burdening women, especially when those laws burden young women of color, who are guaranteed nondiscrimination in voting on the basis of age and race as well. And a thick understanding of Congress’s power to enforce the Nineteenth Amendment offers a way to redeem the Amendment from some of its racist origins and entanglement with the sexism that limited the Amendment’s reach, and to reinforce the democratic legitimacy of the Constitution. The thick understanding of Congress’s enforcement power would give Congress the ability to pass laws protecting women from voter discrimination and promoting their political equality. Nonetheless, the current Court is unlikely to embrace a thick understanding of the Nineteenth Amendment.
Monday, December 9, 2019
Theme for March for Life 2020 Relies on Questionable Women's History, Incorrectly Claiming Early Feminist Leaders as Pro-Life
The old claims that feminist suffrage leaders like Elizabeth Cady Stanton, Susan B. Anthony, and Alice Paul were pro-life, are getting dusted off and used as the basis for pro-life advocacy, seeking a connection to the 2020 centennial of women's suffrage. One problem, however, is that they are not true.
Organizers of the March for Life have chosen "Life Empowers*: Pro-Life Is Pro-Woman" for the 2020 rally and march in Washington.
In embracing the theme, Jeanne Mancini, president of the March for Life Education Fund, cited the coming centennial of the 19th Amendment, which gave women the right to vote, and the views of early suffragists, including the best-known figure of the movement, Susan B. Anthony.***
Leaders of the suffrage movement, Mancini said, knew that "mothers and babies were not at odds with each other." Citing Alice Paul, leading strategist of the 19th Amendment, Mancini said Paul "referred to abortion as "the ultimate exploitation of women."
This was reinforced by another panelist, Serrin Foster, president of Feminists for Life, who said early American feminists condemned abortion "in no uncertain terms."
Abortion, Foster said, "was constantly referred to as child murder," and it was a frequently discussed topic in the feminist newspaper edited by Elizabeth Cady Stanton and to Anthony, the best known feminist leader of her age, was a frequent contributor.
A page on the website of the Susan B. Anthony House and Museum in Rochester, New York, disputes the notion Anthony can be considered a heroine to the pro-life movement, insisting her writings for the paper, called The Revolution, were mostly appeals to support the publication.
Similar claims have been made by the pro-life movement since the mid-1990s, in prior political campaigns, in college recruitment -- and in amicus briefs to the U.S. Supreme Court. This is not merely political rhetoric, but is being used as historical evidence to advocate for legal truth in the courts of law.
I've written extensively to dispute this claim, particularly the claim of pro-life as applied to pioneering feminist leader Elizabeth Cady Stanton. See Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. J. 1 (2012); Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law, chp. 5 (NYU Press 2016).
As I explained the general context:
The appeal to historical figures in the abortion debate is powerful because it utilizes the gravitas of feminist heroines to challenge the existing legal and political assumption that abortion is a cornerstone of sex equality. The use of feminist leaders suggests that women themselves, even radical feminist women like Elizabeth Cady Stanton and Susan B. Anthony, have traditionally opposed abortion. If these feminist leaders indeed opposed abortion, the historical story would seem to bolster the claim that abortion is not in the best interests of women.
The need to create a history of antiabortion feminists seems important today because abortion has come to be equated with women’s rights. Since the second wave of the women’s liberation movement in the late 1960s, feminists have identified abortion as a foundational right for women upon which all other economic and educational rights rest. The appeal to feminist history by prolife advocates offers a counter-narrative in which women dedicated to improving the economic and educational rights of women reject abortion as a gender-based right. This story of women leaders opposing abortion is thus aimed at undermining the prevailing feminist and legal view that a woman’s right to bodily autonomy and reproductive choice is a privacy right of constitutional dimension going to the heart of gender equality.
The lack of popular knowledge about the lives and work of women’s rights leaders facilitates the co-opting of the historical feminist narrative by antiabortion activists. Most people, politicians, and policymakers lack a familiarity with these women’s lives or their work, much less the details of their philosophies and speeches. It is therefore easy to make the claim that a feminist leader had a particular belief because few are able to challenge it.
Despite the ease and utility of creating a feminist history against abortion, the narrative is simply not true.
The evidence alleged of Stanton's position is meager, a handful of quotes, only 2 of which can be attributed to Stanton, and the two do not endorse a pro-life stance. The other anonymous articles published in Stanton's newspaper were more likely written by, and selected by, the male managing editor of the paper, Parker Pillsbury, a former minister who was on the record as opposing abortion (although against criminalization of it).
What Stanton did talk about was women's reproductive choice, and voluntary motherhood. Maternity was woman's sole choice, unrestricted by men or government. Stanton also took up the public defense of Hester Vaughn, a young woman convicted of infanticide. Her extensive writings on both these subjects reveal a strong support for women's autonomy and choice in reproduction, a precursor to the modern pro-choice movement.
As to Susan B. Anthony, scholars of her life and work -- eminent historians Ann Gordon, Lynn Sherr, Stacy Schiff, and Christine Stansell, all strongly refuted that Anthony was pro-life, or said much of anything about it at all. These historians concluded that “Anthony spent no time on the politics of abortion. It was of no interest to her despite living in a society (and a family) where women aborted unwanted pregnancies.”
- Ann Gordon & Lynn Sherr, Sarah Palin is No Susan B. Anthony, WASH. POST (May 21, 2010)
- Stacy Schiff, Desperately Seeking Susan, NYT (2006)
- Christine Stansell, Meet the Susan B. Anthony List, the Anti-Abortion Group Pushing Presidential Politics to the Extreme Right, New Republic (2011)
As I concluded:
It is simply not the case that nineteenth-century feminist leaders expressed explicit and unanimous support for the criminalization of abortion because of the concern of the morality of prenatal life. . . . [T]he few feminist voices joining the periphery of the abortion debate did not support the regulation of abortion. Instead, these writers defended women against the abortion campaign’s attack and shifted the moral blame to men and to society’s oppression of women. What feminists did unanimously endorse was voluntary motherhood and the right of women to control procreation through abstinence. Stanton expanded on this idea, arguing for a woman’s right to be the “sovereign of her own person,” which meant the right to choose when and under what conditions she would become pregnant. Stanton empathized with women who had unwanted pregnancies and argued against a legal system that imposed punishment upon women for infanticide. This advocate of women’s individual right to control makes an unlikely leader for today’s antiabortion movement.
Wednesday, December 4, 2019
Legal History Section, A Century of Women's Suffrage
2020 marks one hundred years since the Nineteenth Amendment was ratified, ushering in a century of women's suffrage in the United States. This program brings together scholars writing on the history of women's suffrage, including scholars who will explore the suffrage movement that culminated in the Nineteenth Amendment; address how the Nineteenth Amendment affected political parties in the subsequent century; and compare the women's suffrage movement to analogous social movements.
Speaker: Dr. Martha S. Jones, Johns Hopkins University
Speaker from a Call for Papers: Elizabeth D. Katz, Washington University in St. Louis School of Law
Speaker: Holly McCammon, Vanderbilt University Law School
This session will explore the legal accomplishments and failures of the women’s movement since 1920. A century ago, women won the right to vote. Since then, women garnered additional rights in virtually every legal area, including in the realms of employment, property, reproduction, education, care taking, sexual freedom, and protection from violence. Despite significant success, much work remains. This session will consider the future of the women’s movement through a critical examination of our past.
In honor of the 100th anniversary of the Nineteenth Amendment and the 150th anniversary of the Fifteenth, the Constitutional Law Section is putting on a joint program with the Section on Election Law (co-sponsored by the Section on Legal History). The program will run from 2 pm – 5 pm on Thursday, January 2nd in Virginia Suite C.
The overall program is described as follows:
While the constitutional amendments related to voting rights have suggested that all citizens ought to be included in the franchise, the modern right to vote has nonetheless been heavily contested. The efforts to meaningfully include all citizens in the franchise in the century after the Nineteenth Amendment (and the 150 years after the Fifteenth Amendment) have been complicated, fraught, and have often diverged from the underlying idea of inclusion. Tensions still exist in modern voting rights law regarding the meaning of the right to vote, as illustrated by the litigation and activism around issues such as partisan and racial gerrymandering, voter identification, and proof of citizenship requirements. These examples reveal the complexities of the project of democratic inclusion, and this panel will explore how those complexities have evolved and are manifest in today’s right-to-vote doctrine.
Panel 1 (2:00 pm - 3:30 pm): This panel will explore the Nineteenth Amendment’s role in constitutional interpretation both inside and outside of the courts in the century after suffrage.
Steven Calabresi, Northwestern University Pritzker School of Law
Paula A. Monopoli, University of Maryland Francis King Carey School of Law (selected from a Call for Papers)
Reva B. Siegel, Yale Law School
Julie C. Suk, The Graduate Center, City University of New York
Moderator: Louis J. Virelli III, Stetson University College of Law
Monday, November 25, 2019
Woman Challenges UT Lewdness Statute as Unconstitutional, Stemming from Charge from Being Topless in her own Home in front of Step-Children
A Utah woman has been charged with lewdness in her own home after her stepchildren walked into the room and saw her bare chest.
Attorneys for the American Civil Liberties Union of Utah argued this week that the statute under which Tilli Buchanan, 27, was charged is unconstitutional, and they have asked a judge to drop the charges against her and change the state law.
Buchanan and her husband had been installing drywall in the garage and had taken off their shirts that were itchy from the fibers, she told The Salt Lake Tribune.
When her stepchildren, aged 9, 10 and 13, walked in, she "explained she considers herself a feminist and wanted to make a point that everybody should be fine with walking around their house or elsewhere with skin showing," her lawyers wrote in court documents, The Associated Press reports.
Now the state had charged Buchanan with three charges of lewdness involving a child. The charge is a Class A misdemeanor.
Though her husband was similarly clad, he was not charged with a crime.
The state's lewdness statute criminalizes exposure of "the female breast below the top of the areola" in the presence of a child in a private place "under circumstances the person should know will likely cause affront or alarm."
If convicted, Buchanan faces imprisonment, fines and the requirement to register as a sex offender for 10 years.
The charges were filed after the children's mother told that authorities she was "alarmed" by the incident, according the AP.
Buchanan's case raises a number of constitutional concerns, says Leah Farrell, an attorney at the ACLU of Utah.
To begin with, "the criminalizing of behavior that many people don't consider criminal, and is normal."
Most people wouldn't consider, for instance, that they "might be brought into court because of their dealing with their dirty clothes within their house. Anything that really extends the criminal justice system into people's homes in this way is something that we're interested in looking at closer," Farrell says.
And then there's the gender issue.
"Simply because Miss Buchanan is a woman, she is facing this charge," Farrell says. "Therefore, women throughout Utah are at higher risk of facing a criminal charge simply because of their gender. There are different ideas around what morality is or is not. But the state's reach to criminalize morality based on gender and gender stereotyping is incredibly problematic."
Farrell notes that the statute's language requiring women to predict whether going topless is likely to cause "affront or alarm" imposes an additional burden that is not required of men.
Wednesday, November 20, 2019
Here is a short piece I wrote for the American Bar Association's public education online magazine:
Tracy Thomas, From the 19th Amendment to ERA: Constitutional Amendments for Women's Equality, ABA Insights (Nov. 2019)
The Nineteenth Amendment to the U.S. Constitution guaranteeing women’s right to vote was passed by Congress one hundred years ago on June 4, 1919. Many[JD1] states quickly ratified the amendment, though it would be a close call when the final state, Tennessee, pushed the amendment into law in August 2020. When first proposed, the vote or “suffrage” was just one of many civil and social rights demanded by women. But it became the primary focus of the women’s rights movement in the late nineteenth and early twentieth centuries, fueled by political allegiances with conservative temperance women and supported by focus on the vote as the primary right of citizenship as embodied in the new Fourteenth and Fifteenth Amendments.
One year after the passage of the Nineteenth Amendment, women’s rights leaders resurrected the demands for gender equality in aspects of society by proposing the first Equal Rights Amendment (ERA) in 1921. The ERA would have guaranteed that civil and legal rights cannot be denied “on the basis of sex.” From the beginning, however, the ERA was met with opposition including from women themselves, with conservative women concerned about impact on the family and progressive women concerned about impact on labor and union rights. It would take another fifty years before both national political parties would endorse the ERA, and Congress passed the ERA in 1972 guaranteeing that “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The necessary two-thirds of the states, however, failed to ratify the ERA, even after an extension of the deadline.
A modern movement has renewed efforts to pass the ERA, still believing in the necessity of a constitutional guarantee of the broad legal and social equality of women first advanced 171 years ago. This essay traces the history of the women’s constitutional demands for equality, from its origins in Seneca Falls, the adoption of the Nineteenth Amendment, the proposed ERA, and modern efforts for a new amendment to secure gender equality.
The blue wave that flipped the Virginia Legislature last week was a victory for Democrats in the commonwealth, who will now be in control for the first time in more than 20 years.
But this milestone could affect more than just Virginia. It’s a potentially historic turning point for women and their equal rights. Because now that Democrats are in charge of both houses of the Virginia General Assembly, the Equal Rights Amendment might finally be approved there, which would mean it has been approved by three-fourths of the states — the threshold set for changing the U.S. Constitution.
The decades-long effort to amend the Constitution to explicitly outlaw sex discrimination seemed hopelessly stalled until 2017, when the Nevada Legislature unexpectedly voted to ratify — 45 years after Congress sent the amendment to the states for approval. Then, in 2018, the Illinois Legislature did the same, and suddenly it seemed that the ERA might actually reach the constitutional threshold. But efforts to get a 38th state to approve the amendment this year failed. A ratification bill in Virginia’s House of Delegates by Democrat Jennifer Carroll Foy was squashed by her Republican colleagues, who wouldn’t even let the proposal get out of a subcommittee.
Crazy as it seems, Republicans continue to oppose an amendment guaranteeing equal rights for women even in the 21st century. But their argument has shifted from decrying its threat to traditional gender roles to claiming that the ERA is unnecessary because of past Supreme Court rulings on discrimination. Even if passing the ERA were only a symbolic act, and we think it would be much more than that, then what’s the harm in enshrining it in the country’s most enduring statement of values?
Danaya Wright, "Great Variety of Relevant Conditions, Political, Social and Economic": The Constitutionality of Deadlines on Amendment Proposals Under Article V, 28 Wm. & Mary Bill Rts. J. 1 (2019)
Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing deadlines on amendment proposals began in 1917 with the Eighteenth Amendment, but has not been consistent since. Deadlines appear to have originated as an effort to torpedo amendments by opponents, but have since become almost pro forma. Some argue deadlines ensure finality and closure;8 others argue they infringe on the power of states to control the ratification process free of unconstitutional limitations imposed by the national legislature.
With the 1992 ratification of the Twenty-Seventh Amendment after 203 years, and state ratifications of the ERA after 35 years,11 the issue of congressional deadlines is both front and center and of potentially enormous consequence. This Article examines the history, theory, and policy of amendment deadlines and argues that they are unconstitutional limitations on state power, inconsistent with the federalism guarantees of the founding. This issue will almost certainly require resolution by the Supreme Court, which needs to give the issue of congressional deadlines its most thoughtful attention.
Monday, November 18, 2019
Pleased to see that my recent article, Leveling Down Gender Equality, in the Harvard Journal of Law & Gender (2019), was reviewed favorably today in JOTWELL Chao-Ju Chen, Equality for Whom: The Curious Case of RBG's Equality and Morales-Santana's Nationality.
Sessions v. Morales-Santana is a curious case of gender equality, simultaneously celebrated for refining the Supreme Court’s view on sex-classification while condemned for providing the plaintiff “the mean remedy.”1 Striking down a gender-based distinction in the Immigration and Nationality Act (“INA”) by arguing against legislating based on gender stereotypes, it is a landmark success for Justice Ruth Bader Ginsburg and the liberal feminist brand of equality jurisprudence. Refusing to grant the plaintiff citizenship by offering a leveling-down remedy, it is a cruel blow to the plaintiff, whose win in the nation’s equality law is a loss in his unequal life. Tracy A. Thomas’ Leveling Down Gender Equality provides a deliberate critique that details the Court’s decision in the historical context of immigration laws and gender equality review, sheds light on the dark sides of celebrity Justice Ginsburg’s gender equality jurisprudence, and proposes a way forward: “leveling up” as the presumption. It is a must-read for anyone who wonders what has happened to Ginsburg’s gender equality jurisprudence and what to do about the Court’s mean remedy.***
The core mission of Leveling Down Gender Equality is to rebut the Court’s remedy presumption that leveling-up (extension) and leveling-down (nullification) are equally valid remedies for a violation of equality and to argue for the presumption of leveling up to protect the right to a meaningful remedy. From Thomas’ point of view, the answer to the curious case of Ginsburg’s equality and Morales-Santana’s nationality lies in the Court’s choice of remedy, rather than in its choice of equality review (anti-classification or anti-subordination). She began her adventure by first explaining the Court’s mean remedy and alternative remedies considered but not adopted in detail (Part I), then argued for the presumption of leveling up (Part II) and reasoned why leveling down should be treated as a rare exception (Part III).
The highlights of Part I lie in its success in locating the mean remedy in the context of Ginsburg’s gender equality jurisprudence and judicial philosophy. Thomas refuted the convenient guess that the mean remedy was a pragmatic strategy to achieve majority, and argued instead that Ginsburg’s choice of eliminating preference for women “fits within her bigger concern about stereotypes, backlash, and denial stemming from protectionism” (P. 190) and was guided by her “deeper jurisprudential concerns about systematic gender norms” (P. 191) and preference for judicial constraint. Comparing what “then-professor Ginsburg” had said to what “Justice Ginsburg” did in Morales-Santana, Thomas showed how Justice Ginsburg, while maintaining then-professor Ginsburg’s preference for the “legislative-like role of the court” in remedial decisions, failed to employ then-professor Ginsburg’s proposed guidelines, which would have supported leveling up. She forcefully demonstrated that Justice Ginsburg “had the precedents for leveling up on her side, yet she adopted the countervailing view in the name of judicial restraint” (P. 193), and criticized Ginsburg’s omission, misreading and non-engagement with gender equality precedents which would have required stronger evidence of legislative intent and evaluations of equitable considerations as well as their implications that extension, rather than nullification, had been a generally preferred choice.***
The second step of Thomas’ mission is to establish the presumption of leveling up and leveling down as the rare exception. Relying on the familiar feminist critique that equality means more than mere formal equal treatment, Thomas argued for equality as equal concern. She contended that leveling down for gender equality is normatively inconsistent with constitutional requirement, because “denying a benefit in order to rectify inequality . . . fails to honor or effectuate the ultimate meaning of the operative constitutional right.” (P. 200.) She cited Palmer v. Thompson as an example to show how closing down all pools to remedy racially segregated swimming pools serves to perpetuate and reinforce, rather than abolish, racial inequality. On top of leaving inequality intact, she argued, leveling down will also discourage legal actions for justice and compromise citizens’ ability to “act as private attorney generals to help enforce the public laws of gender equality.” (P. 201.)
In her arguments against leveling down as a meaningful remedy for plaintiffs, Thomas invoked Ginsburg’s own judicial record to demonstrate how Justice Ginsburg has deviated from her professional past. In United States v. Virginia, Ginsburg made clear that the plaintiff’s rightful position was the targeted goal of equal protection remedy, which demanded to eliminate both the ongoing discrimination and the discriminatory effects of the past. Writing for the majority, Ginsburg rejected the defendant’s choice of remedy to provide a separate military education for women, and emphasized that the key question for the Court was the plaintiff’s denied benefit. Again, should Ginsburg have done what Ginsburg did in Virginia, an extension would have been the remedy for Morales-Santana. Besides, Ginsburg’s decision does not survive the test of valuing equitable concerns relevant to overcoming leveling up (cost or economic impact, harms to third parties, and broader national policy concerns). The legislative history of intent to discriminate against Mexican and Asian people should have been taken into account.***
At the end of the article, Thomas delivered her final blow to the case and concluded that “such a case does not leave a promising legacy for gender equality jurisprudence, but instead takes one giant constitutional step backwards.” (P. 218.)
Wednesday, October 23, 2019
Elizabeth Warren reported that her contract as a teacher was not renewed when she was visibly pregnant at the end of her first year. The crowd went wild—not with sympathy for her plight, but with accusatory disbelief. Why would she get fired just for being pregnant? Because that’s what happened to pregnant women until 1978, when pregnancy discrimination became unlawful. Warren’s pregnancy was in 1971. But the public’s reaction to Warren’s report about her experience suggests that this country’s long history of legal and widespread pregnancy discrimination may need to be excavated. After all, if we don’t believe that women were discriminated against in an era in which such behavior was overt and commonplace, what is the likelihood that we will believe women who continue to experience discrimination today? We have come a long way, but there is still much work to be done.***
Pregnant women were subject to a particular set of whims. The idea of pregnant women doing paid work triggered a few common reactions, ranging from a paternalistic desire to protect them from the perils and demands of paid labor, to stereotypes about their physical capacity or willingness to service the “ideal worker” norm, to concerns about “lewdness” because pregnancy resulted from sex. These reasons, though varied, all led to the same outcome: the partial or full exclusion of pregnant women from the workforce. Actual and potential pregnancy was the justification for innumerable laws and policies that disadvantaged working women.***
In the first half of the twentieth century, many states imposed special limits on working women, most designed to protect and preserve women’s reproductive function. The Supreme Court upheld such a law in Muller v. Oregon (1908), permitting the state of Oregon to restrict the number of hours women, but not men, could work per day in a factory or laundry, notwithstanding having struck down a New York law that restricted the hours of all bakery employees under the now-defunct theory of economic substantive due process. Workers in general had a constitutional right to negotiate the terms of the labor, but women could be subject to special “protection” required by “her physical structure and a proper discharge of her maternal functions.” A brief filed in that case recited four ways in which a long work day was incompatible with womanhood: “(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home–are all so important and so far reaching that the need for such reduction need hardly be discussed.”***
At the height of the second wave women’s rights movement, pregnant women were in dire straits. There was only one shining light during the first half of the 1970s. During the same year it rejected an equal protection-based right against pregnancy discrimination in Geduldig, the Supreme Court invalidated aspects of public school mandatory leave policies for pregnant teachers. At issue in Cleveland Board of Education v. LaFleur were policies from two school districts forcing pregnant teachers to leave work early in their pregnancies. One school district also forced teachers to wait three months after childbirth before returning to work, regardless of their individual condition or capacity. The Court invalidated both rules under the Due Process Clause, which is the home for privacy-based rights related to reproduction—contraception, abortion, and childrearing. The Court’s concern was not that pregnant women were being singled out for adverse treatment, but that they were presumed to be incapable of work based on their condition without regard for their individual capacity. The Court thought it arbitrary that a pregnant woman who was not disabled by pregnancy would have to leave her job nonetheless just because other pregnant women might have been disabled at the same point in pregnancy. The oral arguments in that case revealed some of the bizarre notions that animated these rules. The lawyer for one of the districts explained that pregnant teachers had to be removed from the classroom because their swollen bellies would be confusing for the students, who might think their teacher had “swallowed a watermelon.” During the same term, the Court invalidated Utah’s unemployment compensation rules that prohibited a pregnant woman from collecting benefits because of presumed incapacity. These rulings ushered in an anti-stereotyping principle that meant it was fine to fire pregnant women who actually had some level of incapacity due to pregnancy or childbirth, but unacceptable to presume their incapacity simply from the fact of their condition.
Nicholas Mignanelli, Equal Protection and the Male Gaze: Another Approach to State of New Hampshire v. Lilley, 22 Journal of Gender, Race & Justice (2019)
This Article uses New Hampshire v. Lilley, a case recently decided by the New Hampshire Supreme Court, as a starting point for an equal protection analysis of indecent exposure laws that distinguish between women and men. After discussing contemporary equal protection jurisprudence and historicizing these laws, this Article uses the film theorist Laura Mulvey’s concept of the “male gaze” to demonstrate how overbroad generalizations about sex and sexuality serve as the foundation for this legal distinction. This Article concludes by emphasizing that municipalities and states may continue to enact and enforce indecent exposure laws that reflect community standards, so long as they apply equally to women and men.
Friday, October 4, 2019
Getting up to Speed on the Issues in June Medical Services, the Abortion Case Just Granted Cert by the Supreme Court
The US Supreme Court granted cert on Oct. 4, 2019, in June Medical Services v. Gee, https://www.supremecourt.gov/orders/courtorders/100419zr_onkq.pdf
The issue is " Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt."
The case page from SCOTUSblog is here, including the docket and prior commentary.
Justice Kavanaugh's opinion dissenting from the grant of a stay in the case in Feb. 2019 is here.
[T]he status quo will be effectively preserved for all parties during the State’s 45-day regulatory transition period. I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period if the Fifth Circuit’s factual prediction about the doctors’ ability to obtain admitting privileges proves to be inaccurate.
Louisiana’s new law requires doctors who perform abortions to have admitting privileges at a nearby hospital. The question presented to us at this time is whether the law imposes an undue burden under our decision in Whole Woman’s Health v. Hellerstedt, 579 U. S. ___ (2016). All parties, including the State of Louisiana, agree that Whole Woman’s Health is the governing precedent for purposes of this stay application. I therefore will analyze the stay application under that precedent. Louisiana has three clinics that currently provide abortions. As relevant here, four doctors perform abortions at those three clinics. One of those four doctors has admitting privileges at a nearby hospital, as required by the new law. The question is whether the other three doctors—Doe 2, Doe 5, and Doe 6—can obtain the necessary admitting privileges. If they can, then the three clinics could continue providing abortions. And if so, then the new law would not impose an undue burden for purposes of Whole Woman’s Health. By contrast, if the three doctors cannot obtain admitting privileges, then one or
two of the three clinics would not be able to continue providing abortions. If so, then even the State acknowledges that the new law might be deemed to impose an undue burden for purposes of Whole Woman’s Health.
The law has not yet taken effect, so the case comes to us in the context of a pre-enforcement facial challenge. That means that the parties have offered, in essence, competing predictions about whether those three doctors can obtain admitting privileges.
My prior blog post on the Kavanaugh dissent in the grant of the stay, and his inversion of the usual standard of the status quo for preliminary injunctions, is here at Understanding More About Justice Kavanaugh's Dissent.
An excellent symposium and deep dive on the implications of the case is at the Take Care blog, here.
June Medical Services v. Gee is the Supreme Court’s next opportunity to weigh in on women’s constitutional right to decide to end their pregnancies
Alicia Bannon & Jennifer Weiss-Wolf, June Medical Services’ Double Threat to the Rule of Law
In recent months, commentators and the justices themselves have raised concerns about declining public confidence in the judiciary. But confidence has to be earned. Enforcing the law and summarily reversing the Fifth Circuit is an essential first step.
Ideological lower court judges have challenged the Supreme Court by defying its precedent. There is one way for the Court to keep from being put in this position time and again. It should summarily reverse, making clear that only the Court will decide when its own precedent is no longer good law.
Mary Ziegler, The Anti-Abortion Movement's Unworkability Strategy
Antiabortion lawyers think that they can turn a fact and evidence-based legal standard into an argument against stare decisis, which would advance their ultimate goal of overturning Roe. In June Medical, it is time for the justices to prove them wrong.
What is clear in June Medical Services v. Gee, as with the other antiabortion measures making their way through the courts, is that these targeted regulations of abortion providers have nothing to do with protecting women or their health
Mary Bonatuo & Shannon Minter,Pavan and June Medical Services
Pavan and June Medical Services are both examples of lower courts bending over backwards to avoid the clear command of Supreme Court precedent. Both merit the same treatment from the Supreme Court – summary reversal.
Leah Litman, June Medical And The End of Reproductive Justice
While June Medical does not ask the Court to overturn Roe v. Wade or Planned Parenthood v. Casey, the practical effect of the state’s positions would allow states to regulate abortion out of existence
Wednesday, October 2, 2019
Providing an excellent macro-level account of how the 19th Amendment is relevant to constitutional interpretation today, in reading the 19th Amendment and its history into a jurisprudence of equality.
This year marks the one hundredth anniversary of the ratification of the Nineteenth Amendment to the United States Constitution, a radically pro-democratic amendment that empowered roughly ten million women to vote in a general election for the first time. Given the practical and expressive significance of the Amendment, it is appropriate that the United States is honoring the occasion. But Americans might do more than honor their shared past. They might be encouraged to think about why the story of the Nineteenth Amendment matters to Americans living today. That story includes a half-century of social movement contestation over whether permitting women to vote would destroy or democratize the American family and the American constitutional structure. This Essay revisits the story of the Nineteenth Amendment—an unfinished narrative of both disappointment and hope—in the service of identifying reasons why that story relates to the lives of contemporary Americans. Its overarching objective is to suggest that the full story of the Amendment has always involved much more than a narrow debate over a determinate decision rule regarding women’s access to the franchise. To accomplish that objective, the Essay makes four points in four parts. The first two explain when and how voting rights for all women slowly became a reality, and the final two identify some implications of that history for American constitutional law and contemporary constitutional politics.
Part I considers which women were enfranchised when and why it matters. Part II considers some of the groups (men) and structures (federalism) that both impeded and facilitated woman suffrage. Part III explains the link between restrictions on woman suffrage and the social subordination of women to men, showing how the anti-subordination rationale of the Nineteenth Amendment bears on both its own interpretation and the interpretation of the Equal Protection Clause by the courts. Part IV turns to the contemporary implications of the story of the Nineteenth Amendment for American constitutional politics, including debates over the Equal Rights Amendment, unequal pay for equal work, paid family and self-care leave, and restrictions on access to contraception and abortion.
Thursday, September 26, 2019
Throughout the year, the justices meet periodically to decide if they want to add more cases to the short list of lawsuits that are argued before the Court. Monday is the Court’s “long conference,” the annual meeting where the justices consider the backlog of petitions that were filed while the Court was on its summer break, each of which ask the Court to hear a particular case.
One of those petitions concerns June Medical Services v. Gee, a case involving a Louisiana abortion restriction that will be very familiar to anyone who’s followed the last several years of abortion litigation.
To recap: Three years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court considered a Texas law that imposed burdensome restrictions on abortion clinics that, at least on the surface, appeared to be ordinary health regulations. One provision required any physician performing an abortion in Texas to have admitting privileges at a nearby hospital (a credential that is especially difficult for abortion providers to obtain). Another required abortion clinics to maintain expensive facilities, such as “a full surgical suite with an operating room.”
Whole Woman’s Health was a challenge to what abortion-rights advocates often refer to as “targeted restrictions on abortion providers” or “TRAP” laws — laws that masquerade as efforts to make abortions safer but whose real purpose is to drive up the cost of operating abortion clinics until they shut down.
Many abortion clinics, for example, only offer medication abortions — a non-surgical abortion induced by pills. As Whole Woman’s Health explained, “the surgical-center requirement provides no benefit when complications arise in the context of an abortion produced through medication” because “complications would almost always arise only after the patient has left the facility.” Simply put, it makes no sense to require facilities that perform no surgeries to have a full surgical suite.***
Which brings us back to Gee, the case the Court will discuss next week. The Louisiana law at issue in that case is nearly identical to the admitting privileges law struck down in Whole Woman’s Health. Nevertheless, a panel of the conservative United States Court of Appeals for the Fifth Circuit upheld this extraordinarily similar law, largely resting its decision on a contested factual claim that it may be easier for doctors to obtain admitting privileges in Louisiana than it is in Texas.
That prompted a strongly worded dissent from Judge Patrick Higginbotham, a Reagan appointee. The Fifth Circuit majority, Higginbotham wrote, ignored the Supreme Court’s command that “‘unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden’ on the exercise of that right.”