2018 ERAM Press
If women want to be treated with respect and Americans want women to be safe from sexual violence and free from sexual harassment, we have a lot of work to do.
In the Brett Kavanaugh hearings, we heard a story not uncommon in our culture: a 15-year-old girl was sexually assaulted, but too terrified to report the event. At the root of that culture is an unequal system of justice. And supporting that justice system is an 18th-century constitution, written by and intended for white men.
Nowhere in our Constitution are the rights of women and girls protected from discrimination due to their gender. Our Constitution should support the values that Americans aspire to today, not those of two centuries ago. When the Constitution falls behind the times, we amend it. Now is the time for an Equal Rights Amendment that extends equal protection under the law to women.
It states simply: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Maine was one of the 35 states that ratified this Amendment in the 1970s. However, to become law the amendment needed to be ratified by three additional states. Now, with two recent state ratifications, we are only one state away from full ratification.
The U.S. Constitution provides protection against discrimination by race, religion, national origin and even gives us the right to carry a gun. It does not protect a person from discrimination based on sex. The victims are mostly women and girls. The #MeToo movement is a stark reminder that sex discrimination is widespread and destructive.
The Kavanaugh hearings have also shown how politically charged the process of selecting a Supreme Court justice has become. Political ideology has divided the court on most issues and has politicized the issue of sex discrimination. If sex-based assault were treated more seriously, the Senate would not have dragged its feet in ordering a thorough investigation of the assault allegationsagainst Kavanaugh.
One reason sexual assault is not treated seriously is that laws governing sex-based violence are not as effective as they should be. They are patched together on a state-by-state basis, inconsistent and incomplete. Federal statutes like parts of the Violence against Women Act have been ruled to have an inadequate constitutional basis. This would change with an Equal Rights Amendment. The importance of this amendment cannot be overstated.
Imagine a culture in which women and men doing the same work would be paid the same, based on their merits and not on their gender. Imagine paying fairly for equal access to medical care, regardless of one’s gender (the Affordable Care Act prohibited in the individual health insurance market “ gender rating,” where women are charged higher insurance premiums than men). Imagine a culture that considers domestic violence, sexual assault and child prostitution as violations of basic human rights, protecting victims with the full force of the law.
Although most Americans believe that women and men should be treated equally by the law, our courts fall far behind in upholding this principle. When the Constitution lags behind the culture in the country it serves, the people must change it. That is what the amendment process was intended for.
Our Constitution has been amended 27 times in the past 230 years. The 27th Amendment prohibited Congress from raising salaries mid-term. Surely a future 28th Amendment granting equal justice to women has greater importance than those pay raises.
Outrage gathering force after generations of abuse and silence is loud and clear. Legal equality is at the bedrock of the struggle. That should be our focus. That is where our despair, anger and energy can be directed. Women will continue to be second-class citizens until they become fully equal persons under the law. The Equal Rights Amendment is the straight path to that equality.
Nancy Murdock is a founding member of Equal Rights Maine. She lives in Brooklin.
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It’s 2018, and our so-called civil society is still dithering over the most basic of human rights for more than 50 percent of its citizenry: equality for women.
More than 170 countries include explicit verbiage in their constitutions that speaks to women’s equality or protects against gender discrimination. The idea that equal protection for men and women in the U.S. is not guaranteed under the supreme law of our land is appalling and, in a global context, downright embarrassing. We need an Equal Rights Amendment now.
Legislation like the Equal Pay Act can be rolled back. Congress could refuse at any time to re-authorize the Violence Against Women Act as well as repeal other protective legislation with a simple majority vote. Constitutional amendments specifically protect critical provisions like these acts from being easily reversed. This is why we need an Equal Rights Amendment.
Sex, as a legal category, is not considered a suspect classification before the Supreme Court as are race, religion and national origin, meaning that the court more strictly analyzes any action that discriminates against these classes. While these categories are held to the highest standard of judicial review, strict scrutiny, sex is not. As a classification, sex is held only to “intermediate” scrutiny, where the responsibility of proving intent to discriminate falls on the plaintiff claiming discrimination. Under strict scrutiny, the burden of proof weighs more heavily on the entity accused of discrimination. This is why we need a constitutional amendment.
Opponents who proffer slippery slope arguments that an Equal Rights Amendment will increase litigation should look to the 14th Amendment, a bulwark of our Constitution that has certainly generated substantial litigation. But few would argue it should not have been enacted. And while it has also been argued that the 14th Amendment’s equal protection clause protects against sex discrimination, this has only been applied since 1971, when the Supreme Court in Reed v. Reed applied it to prohibit against sex discrimination. And it has never been interpreted to grant equal rights on the basis of sex to the extent an Equal Rights Amendment would.
For those who maintain that the Constitution protects against discrimination based on sex, the late Justice Antonin Scalia would have disagreed. He observed: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” This is why we need an Equal Rights Amendment.
Thirty-eight states are required to ratify an amendment before it can be made part of the Constitution. We are only two states shy of this goal. In a surprise move last year, Nevada voted to ratify the Equal Rights Amendment. And recently, the Illinois Senate voted overwhelmingly for ratification. A vote in the Illinois House is due any day.
If Illinois ratifies, we would be one state away from seeing equality for women guaranteed under the Constitution, the highest instrument of law in the U.S. We know there will be lawsuits challenging that the Equal Rights Amendment has passed its 1982 deadline. We’re ready for that fight, with strong constitutional precedent that challenges the legality of the deadline.
The 27th Amendment, involving congressional compensation, was passed by Congress in 1789, but wasn’t ratified by the states until 1992. If an amendment governing congressional salaries can become law after more than 202 years, why is it legal to impose a deadline granting equality for women?
There is currently proposed joint legislation in Congress that would effectively eliminate any deadline on the Equal Rights Amendment. Rep. Chellie Pingree has signed on to this legislation, while Rep. Bruce Poliquin has not. And both Sens. Susan Collins and Angus King have failed to sign on to the corresponding resolution in the Senate.
The avalanche of protests from groups like the #MeToo movement and Indivisible has spotlighted the need for equitable treatment of women in our society, including within our criminal justice and legal systems. The women’s marches that began in 2017 clearly indicate that women are a force to be reckoned with, especially in our next election cycle.
What may we as Maine residents do? We can call on Collins and King to officially support the Equal Rights Amendment and sign on to the Senate resolution. We can remind Poliquin that this is an election year and that Maine voters in the 2nd Congressional District want to see him support the House resolution. And we should be contacting our local state representatives, calling for their support for an Equal Rights Amendment to the Maine Constitution.
How much longer must we wait?
Susan Snider is a founding member of Equal Rights Maine, a group of Maine residents advocating for the passage of an Equal Rights Amendment.
2017 ERAM Press
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We can do this one thing to guarantee the protection of women’s rights
The Maine House of Representatives will soon vote on an equal rights amendment to the Maine Constitution. Twenty-three states have equal rights language in their constitutions but Maine is not one of them.
If you think American men need the protection of their rights under the law, they are. If you think American women have those same protected rights, you are mistaken. They do not. The U.S. Constitution and the Maine Constitution were written to protect the rights of men. They do not specify rights for women other than the right to vote. Equal rights for women are not specifically protected in either our state or U.S. constitutions.
A proposed Equal Rights Amendment to the Maine Constitution, LD 197, narrowly passed in the Legislature’s Judiciary Committee in a party-line vote. The Maine House of Representatives will vote on the bill as early as May 10.
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The inspiring language in the Maine Constitution, stating the equality of its people, was clearly directed at its (white) men, as rights for women, such as the right to vote, came by federal amendment, 100 years later. As long as we have a judicial system in which laws are based on the literal and intended meaning of the constitution, women are not protected as they should be.
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The wording of the proposed amendment to Maine’s Constitution is: “Equality of rights under the law may not be denied or abridged based on the sex of an individual.”
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Do we really need equal rights language because we already have the 14th Amendment in the U.S. Constitution? What is clear from the past is that the 14th Amendment has not been effective in protecting women from sex discrimination. It was passed in 1868, to give rights to recently-freed slave men. In a literal interpretation of the Constitution, the 14th Amendment was never intended to address sex discrimination and it doesn’t.
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There have been many laws passed to address gender discrimination. They are a patchwork, they are incomplete, and they have an enormous burden of proof for the women they are supposed to protect. If we believe that equal rights for women are a matter of respect that should not be left to the politics of the changing legislatures, that they belong at the core of our democracy, then we need to update the Maine Constitution.
Issues about who uses which bathroom, whether women should fight in battle, who we love and marry, who belongs at home with the children, and who should decide family-planning and health care are a sideshow. Who would vote against this bill and why? Businesses profiting from unfair lower wages, insurance interests, religious interests, political interests? What about the interests of half our country, the women and girls?
Our elected representatives need to hear from the people of Maine. The Republican legislators are being heavily lobbied to hold party lines and not join the Democrats and Independents on this sensible, non-partisan issue. Call your representatives and senators and tell them who you are, where you live and that women should have the respect of being protected by our Maine Constitution. Speak up.
Nancy Murdock is a founding member of Equal Rights Maine, citizen advocates for the Equal Rights Amendment. She lives in Brooklin.
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Support ERA
Every Republican Senator at the State House except two – Sens. Roger Katz and Dana Dow - voted against LD 197, an amendment to the Maine Constitution to explicitly protect Mainers from sex discrimination, LD 197.
This bill proposes a long-needed updating of the Constitution to show respect for women and for their equal rights under Maine law. The House will vote in a couple of weeks and many more Republicans will need to stand up for equality for women to reach the required two-thirds vote to proceed.
Republicans will continue to vote along party lines to block the vote unless their constituents call and say, " Respect women. Vote for this bill." Senators are supposed to represent their constituents not their political party. Recent polls say that over 90 percent of Americans think that women and men should have equal rights under the law.
Now, Republicans are using scare tactics to rationalize voting against the bill, saying an Equal Rights Amendment means that the state would have to fund abortions. Really? Should women be second-class citizens in the eyes of the law in order to prohibit abortion? Abortion is a legal issue that will be decided in the courts. Equal rights are fundamental to democracy.
Are Republicans going to use the abortion reason to prevent women from receiving equal pay and fair insurance premiums?
Voters need to let their state legislators know that a vote for LD 197 is a vote for respecting the equal rights for women in the state of Maine and putting it in the Constitution, where it belongs. Call them.
Posie Cowan
Brooksville, Maine