The Equal Rights Amendments and Its Possible Meanings

In the 1970s, the proposed Equal Rights Amendment passed both houses of Congress with the requisite two thirds supermajority and then went to the states for ratification.  The proposed Amendment then quickly secured numerous ratifications (ultimately securing 35 of the requisite 38 state ratifications) and looked sure to pass.  But then the momentum for the Amendment stopped and it never secured the necessary ratifications.

A big part of the arguments against the proposed Amendment were that it would lead to certain consequences, which were generally regarded at the time as extremely unattractive.  While opponents of the Amendment argued it might or would have these consequences, proponents generally denied it.  This is a common phenomenon, which has occurred many times during debates about proposed constitutional provisions.  (After the provision passes, the sides often switch.)

Perhaps the most common of these controversial consequences were that the Amendment would require same sex marriage, women in combat, and unisex bathrooms.  At the time, these were extremely unpopular and significantly contributed to the failure of the proposed Amendment.  It is interesting to note that today these issues are thought of quite differently.

Let’s start with same sex marriage.  Obviously, this has been a politically controversial matter, which the Supreme Court recently took out of the political realm to decide on constitutional grounds.  If same sex marriage is required by the Equal Protection Clause, it would certainly have been required by the Equal Rights Amendment.  Thus, something that seemed quite unrealistic when raised as an objection to the Equal Rights Amendment, turned out to be required by the Constitution and accepted by significant percentage of the nation.

Now consider women in combat.  The history of this area is usefully summarized by this recent Congress Research Service report:

Over the past two decades of conflict, women have served with valor and continue to serve on combat aircraft, naval vessels, and in support of ground combat operations. The expansion of roles for women in the Armed Forces has evolved since the early days of the military when women were restricted by law and policy from serving in certain occupations and units. Women are not precluded by law from serving in any military unit or occupational specialty. However, a 1994 Department of Defense (DOD) policy prevented women from being assigned to units below brigade level where the unit’s primary mission was to engage directly in ground combat. This policy barred women from serving in infantry, artillery, armor, combat engineers, and special operations units of battalion size or smaller. On January 24, 2013, then-Secretary of Defense Leon Panetta rescinded the rule that restricted women from serving in combat units and directed the military departments to review their occupational standards and assignment policies for implementation no later than January 1, 2016. On December 3, 2015, Secretary of Defense Ashton Carter ordered the military to open all combat jobs to women with no exceptions.

We have been moving over time towards women in combat and it seems that we are now taking the last few steps in that direction.  Unlike same sex marriage, this was not required by constitutional law, but instead through policy (implemented largely by Democratic administrations).

Finally, there is unisex bathrooms.  While such bathrooms do not exist in most places, except some college dorms, the related question of bathrooms for transgendered individuals is now a matter of hot controversy.  So far this has not involved constitutional law, but state laws such as North Carolina’s or court decisions interpreting Title IX.  If a transgendered person who identifies with one gender, but has the sex organs of another, is allowed to use the bathrooms, locker rooms, and showers of the sex that person identifies with, that will be a significant step towards such unisex bathrooms (although it will obviously not result in full unisex bathrooms).  Depending on how many transgendered people there are, this will no doubt lead to different norms and facilities in bathrooms, locker rooms, and showers.

Forty years later, the world has changed.  What were once regarded as fringe positions are now controversial but mainstream positions.