Dr. Karin L. Zipf: Why we do need the ERA

Regarding the Sept. 8 column “On equal rights, Phyllis Schlafly correct”: The large point of his argument is that Schlafly was right: We don’t and never will need the Equal Rights Amendment. The states, Congress and the U.S. Supreme Court for good or ill have applied in piecemeal equal protection of the laws and due process in accordance with sex.

I disagree. The Equal Rights Amendment would treat sex and gender-based legislation as “inherently suspect,” the same legal category as the Constitution protects race-based legislation.

Currently, courts may allow sex-based legislation to stand if there is a sound “government objective” for that sex-based distinction. Sex-based legislation deserves only “intermediate scrutiny,” a lower-level classification than required of laws based on race. Thus it remains possible for states to legislate on the grounds of sex.

In turn, any legislation protecting sex as a class risks being overturned in later legislative sessions. The upshot is this: States simply cannot legislate on the basis of race.

For example, the federal courts have overruled North Carolina’s voter ID laws by arguing that “we cannot ignore the record evidence that, because of race, the legislature enacted one of the largest restrictions of the franchise in modern North Carolina history.” Clearly, the courts are saying that no matter what the “objective,” race-based legislation is considered “inherently suspect.”

The Equal Rights Amendment intends to provide the same classification to sex-based distinctions in the law.

The amendment was written by Alice Paul and states,simply: Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This amendment shall take effect two years after the date of ratification.

Because the U.S. Constitution does not extend such protections to sex, North Carolina’s House Bill 2 will never submit to that kind of scrutiny. Without an equal rights amendment, the Constitution does not require “strict scrutiny” in a review of HB2 because HB2 distinguishes upon the basis of sex. Legislators who pass such laws cite government objectives that ward off “intermediate scrutiny” and an even lower level classification of “reasonable grounds” for sex-based distinctions.

In fact, “reasonable grounds” is effectively Gov. Pat McCrory’s justification for HB2. His latest advertisement in the race for governor grounds HB2 in “common sense.” “Are we really talking about this?” he inquires about the furor over state intrusions into public bathrooms. “Not on my watch,” he answers.

“Common sense” is McCrory’s synonym for “reasonable grounds,” and here he says that it is constitutionally reasonable for sex-based distinctions. The threat, he understands, is in the political changing of the winds by a new legislature that might overturn HB2. His subtext: Thank goodness there is no ERA.

The length limit was waived to permit a fuller response to the column.

This story was originally published September 12, 2016 at 5:29 PM with the headline "Dr. Karin L. Zipf: Why we do need the ERA."