The long history of legal discrimination against women is not something to be proud of. But we have to be careful about what we do to eradicate it – good intentions do not always lead to good results.
The English common law, which we inherited in the United States, often treated women as incompetent when it came to property rights (see, for example, the law of “coverture”, which held that married women couldn’t own property in their own name). The law often excluded women from certain professions or treated them as needing special protections because of their alleged weakness or fragility (see, for example one of the dumbest Supreme Court decisions from the 19th Century, which held that otherwise qualified women had no right to be admitted to the bar).
It took a long time for these injustices to be eliminated in American law. The signal achievements, of course, were the 19th Amendment in 1920 (voting rights), the Fair Pay Act of 1963 (equal pay), the Civil Rights Act of 1965 (ban on employment discrimination). These were extended further in subsequent statutes like the Pregnancy Discrimination Act (1978) and Title IX of the Education Amendments Act (1972). New York banned sex discrimination under its civil rights laws decades ago. Virtually every state has also done so, along with many municipalities like New York City. The Supreme Court, applying the Equal Protection Clause, has held since 1978 that any law that involves unequal treatment due to sex will be struck down unless it satisfies a high standard of review.
Thanks to these legal developments, there is extremely robust legal protection for women against discrimination, and these protections are subject to both to private lawsuits and government enforcement. Of course, discrimination against women continues to exist, for example in the insidious form of sexual harassment. But all the legal tools are in place to combat it, and there is no political opposition to the elimination of discrimination. Our Church has consistently taught that since men and women are both created in the image and likeness of God, there is no basis for discrimination against women (see, for example, the beautiful document Mulieris Dignitatem, in which Pope St. John Paul condemned it as an “inheritance of sin”).
Back in 1972, the political consensus in the United States in favor of equal civil rights for women had reached a high point, and Congress passed the proposed Equal Rights Amendment to the Constitution. The states were given seven years to ratify the amendment. When the 1979 deadline arrived, however, only 30 states had ratified (35 originally ratified but 5 then rescinded). This fell short of the requirement prescribed by Article V of the Constitution (three-quarters of the states, which meant 38). Congress tried to extend the deadline, but this dubious legal maneuver failed to garner any more ratifications. Some states have subsequently purported to ratify it, including a recent effort in Virginia that got a lot of media attention and generated the inevitable lawsuit. But that’s legally meaningless – as of 1979, the ERA was dead, although it will probably take a Supreme Court decision to lay it to its final rest.
The idea is not dead, however. In New York, our Governor has proposed an ERA to the state constitution. I certainly don’t want to question the good intentions behind any effort to eliminate invidious discrimination. However, when you look carefully at what this would really mean, an ERA would be a very dangerous thing.
- Constitutionalizing Abortion
New York already has pretty much the most liberal abortion laws in the United States, if not the world. But the passage of an ERA would not only reinforce those laws but extend them even further. The explicit goal of the supporters of the national ERA is to ensure that any restriction on abortion would be struck down as violating the fundamental right to equality for women. So it would eliminate any limitation on the availability of abortion drugs, even to the point of requiring them to be distributed over the counter, and it would also probably invalidate any limit on who can perform abortions.
An ERA would formally elevate the right to kill an unborn child to the same level of legal protection as the right to free speech, religion, voting, and so on – all rights that have been respected for as long as our nation has existed. It is a legal blasphemy to equate abortion with these sacred rights.
- Constitutionalizing Gender Ideology
I have written many times about the absurdity and irrationality of gender ideology. Remember, the basic argument of gender ideology is that gender is not determined by one’s biological sex, but is a separate matter that is defined according to the subjective feelings of an individual. One’s biological sex is an arbitrary classification that is “assigned” at birth. Thus one can choose to be any gender one likes – and demand that others accept that decision and act as if it were true.
Bizarrely – since “sex” and “gender” are supposedly completely different things – our Governor has already issued a decree that all state agencies must interpret the word “sex” to also mean “gender”. Welcome to Wonderland, where words mean whatever Humpty Dumpty decides they mean. But in the real world, this has already led to government agencies insisting that private organizations “affirm” gender ideology or risk losing access to programs and contracts, and public schools are already indoctrinating young children and pretending that sex doesn’t matter when it comes to health class, private facilities and sports programs.
If the ERA passes, there will be no way to resist this indoctrination. It is a short step to gender totalitarianism.
- Threatening Religious Liberty
This is where it all leads – the ERA is a very grave threat to religious liberty and more generally to freedom of thought and conscience. With the constitutionalization of abortion and gender ideology, no private institution will be able to resist. Our state law explicitly bans any private party from interfering with a person’s exercise of their “civil rights” (Civil Rights Law § 40-c). In fact, anyone who violates that law can be prosecuted and put in jail (Civil Rights Law § 40-d). Free speech could also be a victim – any talk that shows opposition to gender ideology could be viewed as a civil rights violation.
In addition, any religious or conscience exemption from offensive laws like abortion or contraception mandates or transgender “affirmation” policies would have a hard time surviving under an ERA. Advocates for the national ERA have already been speaking about how it would overturn Supreme Court cases that respect religious liberty. If that were to happen on the state level, the ERA would put at risk the government funding that supports Catholic Charities, our health care institutions and our schools. Given recent attempts by the state government to exert control over private school curricula, there’s clearly an opening for a mandate of “gender inclusive” policies and instruction in our Catholic schools. It may even threaten our tax-exempt status – see the example of the case in which the Supreme Court upheld the denial of tax exempt status for a religious school that prohibited interracial dating. It would also put at risk the liberty of employees of public institutions, like teachers – their jobs would be at risk for any perceived resistance to gender ideology and they will be forced to say things that they know to be lies. And parents would also have little or no recourse if they object to the indoctrination of their children in public schools.
It’s difficult to say publicly that you oppose an Equal Rights Amendment. It makes you look as if you’re some kind of troglodyte throwback to the unenlightened days of bigotry and superstition. But the dangers of this proposal are so real and serious that we cannot ignore them. The ideology behind abortion and transgenderism are directly contrary to a Catholic understanding of what it means to be human, and how we are to relate to each other and to God.
Certainly, we must credit the good intentions of ERA supporters. But we must resist the dangerous path that they wish to lead us down.