Law
7:00 am
Mon September 16, 2013

How Florida Could Save The U.S. Equal Rights Amendment

Suffragist Alice Paul wrote the Equal Rights Amendment. It was introduced in every session of Congress from 1923 until 1972, when it finally passed.
Credit Network 355/flickr

The Equal Rights Amendment (ERA) may be making a comeback.

A proposed resolution filed in Tallahassee asks lawmakers to ratify a proposed U.S. constitutional amendment stating that civil rights may not be denied based on one's sex.

For now, the move is largely symbolic.

If the legislature passes the resolution when it convenes early next year, Florida would become the 36th state to ratify the ERA.

The amendment would then be just two states short of being eligible for inclusion in the U.S. Constitution.

Rep. Lori Berman, D-Boynton Beach, and Sen. Arthenia Joyner, D-Tampa, filed the legislation.

“Florida women are at the forefront of research, medicine, engineering, law, politics and even military operations overseas – yet without any constitutional protections of their right to equality,” Joyner said in a news release. “In the 10 years I’ve sponsored this bill, I have yet to hear a reasonable explanation for why this state should not ratify the ERA.”

In the years that Joyner has sponsored the legislation, it has never gone to the full chambers for a vote.

Meanwhile, Supreme Court rulings have extended the Equal Protection Clause of the 14th Amendment to the U.S. Constitution in order to protect women from gender discrimination. But ERA supporters say the 14th Amendment, the Bill of Rights and the Civil Rights Act of 1964 don't go far enough.

The ERA was discussed during a House committee workshop last spring, where Berman told lawmakers that no legal remedy exists for sex discrimination without it.

"The wording of this amendment is quite simple. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex," Berman said.

In spite of previous court rulings and federal statutes prohibiting sex discrimination, she said that "under current law, gender is not considered a protected class and therefore does not rise to a stricter standard of judicial scrutiny."

Berman says her concerns are based in part on personal, off-the-bench comments made by Supreme Court Justice Antonin Scalia in early 2011. Scalia told California Lawyer magazine that when the 14th Amendment was passed in 1868, it wasn't intended to include protection against sex discrimination and sexual orientation.

Scalia said:

"Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey, we have things called legislatures, and they enact things called laws." 

The ERA was introduced to the U.S. Congress in 1923. In the early 1970's, the amendment was approved by both chambers of Congress.

But it couldn't become the part of the U.S. Constitution without ratification by three-quarters of the states. It fell short by three votes. Only 35 of the necessary 38 states consented ahead of the 1982 deadline imposed by Congress. 

Even though the deadline has passed, supporters believe the ERA still has a chance if just three more states get on board. They've come up with the "three-state strategy." It seeks to overturn the deadline.

The ERA website states:

This strategy is based on the fact that the "Madison Amendment," concerning congressional pay raises, became the 27th Amendment to the Constitution in 1992, after a ratification period of 203 years. Therefore, the ERA's ratification period of less than three decades would surely meet the "reasonable" and "sufficiently contemporaneous" standards required by several Supreme Court decisions. 

Legal issues stand in the way, though.

What happens if states that ratified the ERA more than thirty years ago want to rescind their vote?

They can't, according to Sandy Oestreich with the national Equal Rights Amendment Alliance.

"The U.S. Constitution does not allow it," Oestreich told the House panel. 

Florida State University law professor Franita Tolson told lawmakers that Congress has the discretion to decide whether the decades-old ratifications by the states still stand.

"The status of those ratifications are actually legally contested," Tolson said. "It's not entirely clear whether or not they are valid."

This is Berman's fourth try at getting the amendment passed in Florida.  

"I am confident that if Florida and two other states were to ratify the ERA," Berman said, "Congress and/or the courts would determine a mechanism to make the ERA the 28th Amendment to the U.S. Constitution."

Questions For A Legal Analyst

Nova Southeastern University law professor Bob Jarvis says women have more rights than in Florida than in most other states.
Credit http://nsulaw.nova.edu/

We wondered whether the ERA has a chance of being ratified anytime soon and whether there really is no legal recourse against sex discrimination. We checked in with Bob Jarvis, professor of law at Nova Southeastern University.

Q: Is there a misunderstanding of current law by ERA supporters who say there is no other legal remedy available?

Jarvis: Although the U.S. Constitution does not specifically mention gender discrimination - that does not mean that such discrimination is permissible.  Instead, it means that laws that discriminate against women are not subject to the highest level of judicial scrutiny. (There are three ascending levels of judicial scrutiny; gender discrimination falls into the middle category.)

Berman is technically correct when she says that laws that discriminate on the basis of gender are not currently subject to strict scrutiny, but saying so without adding that they are subject to intermediate scrutiny leaves out an important caveat. 

Moreover, while the U.S. Supreme Court has so far opted to apply intermediate scrutiny to laws that discriminate on the basis of gender, it could change its mind in the future and switch to the strict scrutiny standard even if the federal ERA is never passed.

Q: Is Berman wrong to say there are no legal remedies for those who face sex discrimination?

Jarvis: In fact, there are many (federal) laws that outlaw gender discrimination, including the Equal Pay Act of 1963, the Civil Rights Act of 1964, and the Pregnancy Discrimination Act of 1978. 

Additionally, the U.S. Supreme Court - although using the intermediate test when reviewing laws that discriminate on the basis of gender - has been skeptical of such laws and has not been at all hesitant to strike down such laws.

Q: Does the ERA have any chance whatsoever with this Legislature?

Jarvis:  No.  Congress has reintroduced the federal ERA every year since 1982 without success.  As for the Florida Legislature, its current conservative make-up dooms any such effort - as it has on multiple occasions since 1995.

While most people don’t know it, Florida is one of 21 states that has outlawed gender-based discrimination in its state constitution. Article I, section 2, of the Florida Constitution (adopted in 1968) provides in relevant part:  “All natural persons, female and male alike, are equal before the law.” 

So, oddly enough, even though Florida is one of the 15 states that has refused to ratify the federal ERA, women in Florida have more rights than women in most of the U.S.