Resident Scholar  Christina Hoff Sommers

The ERA is back. On March 27 a group of Democratic leaders and feminist activists announced a campaign to resuscitate the Equal Rights Amendment. The constitutional amendment stalled in the 1980s, but supporters think it will sail through in today's political climate. Senator Barbara Boxer told the cheering, mostly female crowd, "Elections have consequences, and isn't it true those consequences are good right now?" But the ERA would have no good consequences--none--and many terrible ones.

The ERA, first introduced in 1923, was passed by Congress and sent to the states for ratification in 1972. It says: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." What could be fairer or more reasonable? But the Equal Protection Clause of the Fourteenth Amendment already bans unreasonable state discrimination against women, while the Civil Rights Act and other federal statutes ban unreasonable private discrimination. A robust body of law has developed since the 1972 banning sex discrimination in jury selection, unemployment benefits, and family property law and promoting women's progress in the workplace, sports, and other arenas. The new campaign has a different purpose: to ban reasonable forms of discrimination. By changing the constitutional standard from "equal protection" to "equality of rights," the ERA would hand radical feminist groups such as the National Organization for Women and the National Women's Law Center a powerful weapon to wage war on what they view as "the gender system."
 
Consider, for example, what happened in 2004 when the U.S. Department of Education changed its regulations to allow public schools to experiment with single-sex classes. Feminist groups were enraged. NOW cited Brown v. Board of Education and compared the new policy to separating children by race. According to NOW, it "perpetuates sex-stereotyping . . . . Girls, as the traditionally subordinated group, are likely to experience a badge of inferiority as a result of being grouped on the basis of sex."

The ERA would constitutionalize NOW's point of view. It would require judges to apply the same "strict scrutiny" they use to evaluate policies that segregate by race. I once debated celebrity lawyer Gloria Allred who was suing the Boy Scouts for excluding girls. She accused the Scouts of practicing "gender apartheid." She lost the case, but the ERA would guarantee its success. Boy Scouts and Girl Scouts would be forced to "integrate." YMCA and YWCA, sororities and fraternities would be eliminated or forced to merge. Religious institutes that do not allow ordination of women would lose their tax exempt status. Single-sex schools and summer camps would be phased out. Tolerating them would be tantamount to tolerating separate but equal schools for blacks and whites or tax deductions for segregationist academies or religious cults.

The fallacy of ERA is that the sexes, unlike the races, really are different in socially pertinent ways. Single-sex schooling and camping are paradigms of wholesome segregation. But to hard-line feminists every form of differentiation--every departure from "equality of rights"--is sexist discrimination. Anyone who believes the ERA would be applied with common sense has not been paying attention.

But wait. The official ERA web site (sponsored by the Alice Paul Institute and the National Council of Women's Organizations) assures us that the ERA "would not make all single-sex institutions unconstitutional . . . only those whose aim is to perpetuate the historical dominance of one sex over the other." For most feminists, however, traditional male groups by definition perpetuate dominance, so what the ERA supporters are saying is that female-only groups can expect to enjoy special protection. This is sometimes called the Wellesley Exception.

Gender activists justify women-only groups on the grounds that they are needed to help women overcome historical subordination. That explains why there are now vast numbers of federal, state, and local educational programs for girls--and few for boys. Deborah Brake, a former senior counsel at the National Women's Law Center, (now teaching at the University of Pittsburgh Law School) has argued that female-only programs and organizations can be permissible "in light of the history of discrimination against women in education and the barriers that female student continue to face based on gender." Never mind those female students no longer face barriers based on gender--and that college enrollments are now 57 percent female.

Women are well protected from invidious discrimination by the Equal Protection Clause and by the Civil Rights Act of 1964. ERA proponents need to explain why existing "equal protection" guarantees are inadequate--and which currently legal institutions and practices they would like to see abolished should the ERA become law.

Christina Hoff Sommers is a resident scholar at AEI.