Camille Hayes, a Sacramento writer, is a domestic violence activist who works for the California Partnership to End Domestic Violence. The views expressed here do not represent those of the partnership or its member agencies. Read her blog, Lady Troubles, about politics and women's issues at www.ladytroubles.com. Reach her at chayes.bee@gmail.com.

Viewpoints: Would the ERA change anything for women?

Published: Saturday, Mar. 30, 2013 - 12:00 am | Page 9A
Last Modified: Friday, Jul. 5, 2013 - 8:06 pm

In grade school, I proudly wore a colorful array of political T-shirts, ranging from presidential candidates to the plight of agricultural workers, in a complex rotation based on a combination of campaign cycles and Ms. Magazine cover stories.

I loved those shirts and fondly remember a dramatic black and white number festooned with chains and manacles, which declared women "the oppressed majority." But my hands-down favorite: a plain blue tee with minimal graphics that simply said, "ERA is For Everyone."

On March 5, U.S. Sen. Bob Menendez, D-N.J., reintroduced the Equal Rights Amendment in Congress, to see if it would have better luck than it did 30 years ago, when it briefly looked like it might be ratified by the 38 states needed to make it into the Constitution. Those hopes died in 1982, when the amendment ultimately failed.

Since then, various Democratic members of Congress have occasionally reintroduced it, with little fanfare and to no avail. Without the impetus to launch a national campaign, the ERA invariably languishes in committee for several months, then dies at the end of session without being brought to a vote.

In light of that legislative history, taking the amendment for another turn around the floor of Congress might seem quixotic, but there's reason to think this year could be different. Not because Menendez has shown special enthusiasm for promoting the bill (he hasn't), but because of the strange national campaign we just endured. With its attacks on reproductive rights and chillingly casual talk of "legitimate rape," the 2012 election might have been just what the ERA needed to get popular sentiment behind it.

While still a supporter, I wonder whether a constitutional amendment is necessary now the way it was in earlier eras.

Since the ERA last got serious consideration, literally hundreds of laws against sex discrimination have been passed at state and federal levels. It's illegal to discriminate against women in more ways than even a highly motivated sexist would attempt, yet statistics tell us that gender oppression still goes on in the workplace, in politics and in our homes.

So the question can reasonably be asked: What is the ERA for anymore? Leaving aside the historic value of adding women's equality to the Constitution, what practical difference would the ERA make for women?

Lawyers will tell you – in fact, a lawyer told me – that constitutional rights are more stable over time than legislation or court decisions. Amber Maltbie, a Sacramento attorney with Nossaman LLP, said that once something makes it into the Constitution it's generally there to stay, unlike laws, which can change, or court rulings, which can be overturned.

"All legislation has to adhere to the Constitution," Maltbie said. "Once you have a protection embedded in the Constitution, or the Constitution is interpreted to protect a certain right, then all legislation – state, city, county, it doesn't matter what level – has to adhere to that. You can't put a price on that level of validation for the equal rights movement."

The argument that an amendment would provide better protection than mere laws is persuasive from a legal standpoint. But I'm not a lawyer, I'm a social activist, and my policy advocacy experience has made me slightly skeptical of the ability of any legal remedy – be it legislative or constitutional – to change people's opinions or the mores of the time.

For example, what we've seen happen at the state level to abortion access, which is supposedly guaranteed by the right to privacy, puts the lie to any notion that constitutionally protected rights are safe from legislative rollbacks. When you're talking about women's rights in particular, you have to take into account the powerful and formidably organized network of anti-feminist organizations ready to mobilize at the slightest whiff of progressive legislation.

I'm of two minds about the Equal Rights Amendment. The 10-year-old feminist in me would love to see it ratified, if for no other reason than it's kind of embarrassing that one of the world's great democracies doesn't formally acknowledge gender equality in its Constitution. At the same time, the pragmatic activist I've grown up to be has some doubts that the amendment would create the kind of change ERA proponents seem to hope for.

But in the aftermath of the 2012 campaign, when even people who don't identify as feminists feel moved to speak out against hostile rhetoric against women and retrograde policies, perhaps the country is primed for another ERA push. Regardless of the outcome, a re-energized national equality movement might be necessary, because as long as women's basic rights are still negotiable, we're going to need one.

Camille Hayes, a Sacramento writer, is a domestic violence activist who works for the California Partnership to End Domestic Violence. The views expressed here do not represent those of the partnership or its member agencies. Read her blog, Lady Troubles, about politics and women's issues at www.ladytroubles.com. Reach her at chayes.bee@gmail.com.

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