so educate me ... on the ERA

[iverglas]

(subject line edited to be more informative, now that we're off the Latest page )

The ERA -- from the perspective of this Group, "History of Feminism".

http://en.wikipedia.org/wiki/Equal_Rights_Amendment

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.

Canada's much newer Constitution does have a provision like that in the Canadian Charter of Rights and Freedoms, Part I of the 1982 Constitution:

http://laws-lois.justice.gc.ca/eng/charter/FullText.html

Rights guaranteed equally to both sexes
28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

Canadian women's groups fought hard for that provision to be included -- but the draft already had this section, which is in the present Charter (and is continually interpreted by the courts to expand the non-exhaustive list of prohibited grounds of discrimination, e.g. to include sexual orientation):

Equality Rights

Equality before and under law and equal protection and benefit of law
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

This provision has had far-reaching effects on Canadian law and society. Same-sex marriage and employment insurance-paid parental leave for fathers are examples.

http://en.wikipedia.org/wiki/Section_Twenty-eight_of_the_Canadian_Charter_of_Rights_and_Freedoms

One reason for the battle for section 28 was to preclude any efforts to have collective rights (e.g. Aboriginal or other minority group rights) applied to discriminate against women; the Constitution also contains:

Aboriginal rights and freedoms not affected by Charter

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including ...

That consideration would be unique to Canada as collective / minority group rights are not really an issue in the US, as would the other considerations described in the wiki article, I think.

And in Canada, Part II of the Constitution Act now includes subsection 4:

RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA

Recognition of existing aboriginal and treaty rights
35. ... Aboriginal and treaty rights are guaranteed equally to both sexes
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

So all the bases are kind of covered in Canada.

The US does not have a general guarantee of equality under the law (different from equality before the law) or equal benefit of the law (different from equal protection of the law) without discrimination on the basis of the usual suspects - sex, race, religion, etc. In constitutional interpretation in the US, things are a little complicated and I've relied on this as a bit of a primer (and it could be a little out of date):

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm

Levels of Scrutiny Under the Three-Tiered Approach to Equal Protection Analysis
1. STRICT SCRUTINY (The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.):
A. Suspect Classifications:
1. Race
2. National Origin
3. Religion (either under EP or Establishment Clause analysis)
4. Alienage (unless the classification falls within a recognized "political community" exception, in which case only rational basis scrutiny will be applied).

-- sex/gender isn't there; it comes later:

2. MIDDLE-TIER SCRUTINY (The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.):
Quasi-Suspect Classifications:
1. Gender
2. Illegitimacy

So with that as my not too simple statement of context ... what I'm wondering is:

What practical effect would people see from adoption of an equal rights amendment in the US?

Put another way: what harms could be attributed to the absence of such a formal recognition and protection of equality?


(edited to make some of the excerpts a little more concise)

[eridani]

1. The problem with ERA these days is--

--that people are too busy putting out brushfires to act on moving forward.

[iverglas]

2. I can certainly see that's true!

I'm still curious.

From that perspective, would having the ERA in place have prevented, or made it easier to fight, some of the war-on-women brush fires, I wonder?

Not the kinds of questions that are easily or immediately answered, I'm just wondering whether anybody has thought about the ERA and what effects it could or could have had, lately.

[Warren DeMontague]

4. I'm wondering which brush fires, specifically.

For instance, I could see places where it might be interpreted to apply to contraception mandates in the HC Bill. That's one.

I think one thing the defeat of the ERA did mark was another turning point between the 70s and the age of Reagan. It was an early victory for the religious right and reactionary authoritarians like Phylis Shlafly, leading to the creation of groups like the AFA and the CWA.

[Nikia]

3. I am not sure what effects it would have but it would make a powerful statement

The fact that it is absent from the Constitution also makes a statement.
For many, the Constitution is the embodiment of American values.

[iverglas]

5. that is a definite effect in Canada

-- less for the "ERA" element of the Canadian Charter, but lots for the general equality provision.

Equality is regarded as a fundamental Canadian value, and having it expressly entrenched in the Constitution both provides that formal recognition, which then informs public discourse, and generates discourse about equality.

The courts talk a lot about the reasons why equality is so fundamental -- society's basic concern for the dignity of each individual and the respect owing to each individual. And that analysis leads to continual expansion of the equality provision to cover groups that have historically been stereotyped and disadvantaged and can now bring their claims under the constitutional guarantee of equal treatment.

And it is then apparent that groups that oppose equal treatment in whatever situation -- e.g. same-sex marriage -- are taking positions that are contrary to the fundamental values of Canadian society. Their various ridiculous arguments never manage to directly address that constitutional guarantee, or demonstrate that their positions are consistent with it.

[Warren DeMontague]

6. It sounds to me like the Canadian charter and the us constitution are slightly different in terms of

How they function.

Is that correct, or incorrect?

[iverglas]

7. my primer on the Cdn Charter of Rights and Freedoms

a little thread about the history of Canadian feminism ...

In both countries, the courts interpret legislation and apply the constitution and can rule that legislation is unconstitutional and inoperative.

The main differences are:

(1) We still have the 1867 Constitution that deals with 19th century subjects like the division of powers between levels of government, but we also have the 1982 Constitution which includes the Charter of Rights and Freedoms, and incorporates some much more moddern concepts in that regard than are found in the US Bill of Rights (like equality rights and democratic rights).

and

(2) We do not look to "original intent" for much of anything, and people would point and laugh if somebody started quoting the Fathers of Confederation in the areas covered by the Charter. Although their groundbreaking work on fashioning a country out of different nations and accommodating cultural and language differences is highly regarded, when it comes to individual rights and freedoms, we went with late 20th century notions, and we continue to develop them without being constrained by what words meant when they were written, or what any person involved in writing them meant by them.

So the courts interpret the constitution in the context of the present day, not the past.


The other major (although not truly significant) difference is that we have retained the doctrine of parliamentary supremacy in compromise form -- certain parts of the Charter are subject to override by Parliament or a provincial legislature if they expressly say they are doing it. Basically, if we've ever elected ourselves a government that decides to override freedom of expression or equality under the law, we've got ourselves a bigger problem than just that, is my opinion.