Comments made at LWV Charleston Connects Event ... 01.20.2022
First off … let’s make something absolutely clear.
With the exception of the right to vote, women are not in the U.S. Constitution. Women do not have the same legal protections in our founding document as men. And even though we’ve made considerable progress over the years through legislation — or through judicial interpretation of rights others have been given — as recently as 2011, Supreme Court Justice Antonin Scalia confirmed that nothing has changed. Women still do not have the same legal protections in the United States Constitution — the foundational document where all our laws originate from — as men. We just don’t.
Our Constitution was written over 230 years ago by wealthy, white, men. They wrote the document to protect themselves. Those not like them — poor white men, women, African Americans and native people — were all left out. In fact, at the time, women, like slaves, were considered property, owned by either their fathers or husbands; their masters.
And unfortunately, our attempt to gain equal rights through the years has become political, and depending upon who is in power, has bounced between political parties for nearly a hundred years. A Republican woman wrote the Equal Rights Amendment; and the Republican Party was the first to include it in its political platform — where it remained for 40 years! The Democratic Party was the hold-out, and really did not embrace the ERA until the late 1960’s. But for the most part, Democrats continue to support it to this day.
You know … when you talk about the ERA, what it would and would not do, and you push through all the “what if’s” and “how ‘bouts” — the scare tactics and the wishful thinking — it really comes down to only one thing we know for sure. Ratifying the Equal Rights Amendment would elevate “sex” to the highest level of judicial review as “race” and “religion” currently have, when cases of discrimination are heard. One universal standard, not open to interpretation, regardless of state or jurisdiction.
That’s a BIG deal, because neither race nor religion were originally in the Constitution. They are but 2 of the 27 amendments that have been ratified and added to the document over time. The ERA will be the 28th.
It wasn’t until after the Constitution was written that the founders realized while the document defined the workings of the new form of government — it said nothing about the individual liberties and freedoms that the Declaration of Independence had so eloquently espoused. So the fellas sat down and began enumerating those individual rights — as amendments to the Constitution — to make them legally enforceable. The first ten amendments became the Bill of Rights. First among them was the right of citizens to practice the religion of their choice.
But it wasn’t until after the Civil War that the Declaration of Independence concept of “all men are created equal” actually became law. Three amendments were made at that time to 1) abolish slavery (13th); 2) make African American “males” citizens (14th); and 3) to not deny those new citizens the right to vote on account of their “race.” (15th)
It’s important to note, that the 14th Amendment's “equal protection clause” has been challenged multiple times in court in an attempt to give women constitutional protection. But the amendment’s original intent was to exclude women. And to make that crystal clear, the word “male” was inserted three times into the text, to assure there was no confusion as to just “who” those new citizens were. It wasn’t until the 19th Amendment was ratified, 70 years later, that discrimination on account of “sex” was finally introduced, but only to allow women the right to vote. That’s it. The vote — as specified within the Constitution — is the only right women have.
Now bear with me on this … When race and religion were amended to the Constitution, they became a “suspect classification,” which entitled them to the highest level of judicial review when cases of discrimination are heard. That level is called “strict scrutiny.”
Suspect classification and strict scrutiny are legal terms that for the non-lawyer, are difficult to grasp. But you should think of them as the gold standard of legal review. It’s where you want to be when seeking judicial relief.
To qualify as a suspect class, the court has determined that an individual group needs to meet certain criteria:
#1) The group has an inherent trait that is highly visible.
Sex — fairly easy to ascertain.
#2) The group is part of a class which has been historically disadvantaged.
Not a stretch by any means. We started out as property, owned by the men in our lives; and then it took us 120 years to get the vote! And finally,
#3) The group has historically lacked effective representation in the political process.
Fun Fact: In 1917, the state of Montana elected the first woman to serve in Congress. Since then a total of 395 women have served in the House and the Senate combined. So in just a little over a century, the number of women who have served in both chambers, is less than one session of the House of Representatives, which has 435 members. Not what I would call effective representation.
So women clearly meet the criteria of a suspect classification, and are therefore entitled to the highest level of judicial review — strict scrutiny. The ERA would give us that protection, thus clarifying the legal status of sex discrimination for every court, throughout the land. No longer would women’s rights be held hostage to interpretation as well as revocation by whichever legislative body, court or administration is currently in power.
At this point, 38 states have ratified the ERA, which satisfies the number required for an amendment to become law. However, several states have attempted to rescind their ratifications, which while technically not feasible, needs to be resolved. Should that not go our way, it’s important that every state ratifies. Every state should stand up and recognize that women deserve equal justice under law.
Here in South Carolina, we’ve been given the opportunity to do just that, through bipartisan legislation. The women of the Senate have filed a joint resolution — supported by a constitutional law scholar — for ratification of the ERA. The House has an identical resolution that last session had wide bipartisan support. They’ve done their part. Thank you Representative Cobb-Hunter and Senator Senn.
Now it’s time for us to act. This is the last year of a two-year session, so we have to move fast. Come April, we better be done. It’s up to each one of us, to contact our legislators NOW, and ask them to support their chambers’ resolution. And tonight, we will give you the tools and all the support you need to do just that.
Together, we can get this done.
Equal Means ERA (SC)
SC Senator Tom Davis Testimony
Why the 14th Amendment isn’t enough
14th Amendment and ERA
Connects Event Recording