The only thing more futile than flogging a dead horse is trying to revive that dead horse before flogging it.
That’s the path some Louisiana legislators want to take with the moribund Equal Rights Amendment. Originally proposed in 1972 with a seven-year window for ratification, even with that time period extended another three years not enough of the 38 states required for ratification followed through. During this period, 35 states did so, although five revoked their assents.
But as the aura of identity politics has raced through campuses, Hollywood, and febrile far-left Democrats, liberal lawmakers have urged what they allege as another attempt to ratify the original ERA. In the past two years, Nevada and Illinois have passed resolutions to do so, leading some of their Louisiana counterparts to desire doing the same.
Author of SCR 2 state Sen. J.P. Morrell says Louisiana has the chance to put the amendment over the top by becoming allegedly the 38th state approving. Which, if you ignore history, fact, and logic, makes perfect sense.
Essentially, Morrell peddles the imbecilic notion that – despite the facts that Congress for a century routinely has placed seven-year windows on amendment ratifications in its resolutions, it doesn’t prohibit rescinding ratifications within that window as the five states did, 26 states in their resolutions ratifying acknowledged the deadline, and that the judiciary says Congress and states have these abilities (although it has ruled the extension was not legal) – amendments automatically have an indefinite ratification period without the possibility of rescinding. By these rules, everything eventually would pass over the millennia even if every state rescinded their ratifications of a particular amendment.
In reality, the count of states ratifying ERA isn’t 37, not 35, not 32, or not even 30. It’s zero, which congressional Democrats begrudgingly admit by their continued efforts to reintroduce the amendment (of course, without a ratification deadline).
Compounding the uselessness of the exercise, now as then ERA would create exceptionally unwise policy. Proponents who say it only writes women into the Constitution with equality in rights –it actually doesn’t mention “women” but uses the broader placeholder “sex” – misdirect, if not deliberately deceive. Instead, it would address a much broader range of issues.
Putting aside for the moment that the judiciary expands the 14th Amendment to provide equal protection under the law affecting the federal government and states for both men and women, already courts have ruled that state-level versions force those states to use taxpayer money to pay for abortions. Laws that the courts have upheld as constitutional that treat the sexes differently, such as forbidding use of women in direct combat, age of consent limits, different benefit levels and tax treatments, and taxpayer support of single-sex schools, among others, the ERA would make unconstitutional.
It also effectively would give the behavioral choice of sexual expression, which isn’t an immutable biological imperative, constitutional status. For example, this would make those claiming “gender dysphoria” – wanting to project themselves as the gender they physically aren’t – a protected class. Thus, as one consequence, physical males calling themselves females could compete in contests with other females.
So, even disregarding the blatantly unconstitutional aspect of ratifying an amendment that doesn’t exist, SCR 2 would endorse creating deleterious policy outcomes with which a vast majority of the public would wish to avoid. Indeed, a series of past federal courts rulings acknowledge adjudicators use a different level of scrutiny when reviewing whether the law can discriminate in its treatment by sex, termed “intermediate scrutiny.” This deems the differing treatment legitimate under law when this serves an important state interest and that the classification scheme (sex in this case) is at least substantially related to serving that interest.
The doctrine of intermediate scrutiny as well as the 14th Amendment’s protection of “persons” provide adequate means to prevent unconstitutional discrimination by sex, so there’s no controversy. That scope could expand by new court interpretations as early as next year. Therefore, no good reason exists for Louisiana legislators to pass an unconstitutional SCR 2.