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Expert Brief

The Benefits of Equity in the Constitutional Quest for Equality

The greatest ERA-related “controversy” may be the narrowness of the debate and the important questions left out of it.

Published: October 9, 2019

Recent high-profile scandals have prompted a national conversation about male privilege, gender-based disparities, and sexual violence in the United States. Relatedly, within an 18-month period, two states ratified the Equal Rights Amendment, proposed by Congress in 1972, thereby reviving the chances of securing a constitutional guarantee of gender equality.1 Unlike the broader national conversation, however, the renewed debate over the ERA has been fairly limited, mainly focused on two types of questions. On one hand, there are questions about the ratification process, in particular, the merits of picking up where the initial campaign left off—the “three-state strategy”—versus beginning anew with the “fresh start” approach.2 On the other, advocates and opponents have sparred over whether, given the progress over the last 50 years, the U.S. Constitution needs an ERA.3 To be sure, these are valid concerns that demand resolution. The process issue, likely a political question, merits consideration because it implicates not just the ERA, but future battles in amendment politics and even democratic legitimacy. The substantive concern, whether there is a present need for an ERA, is fundamentally a question about our values, and addressing it properly requires deep reflection about the type of nation we have been, are, and aspire to be.

Yet, these are not the only issues raised by the prospect of an ERA. Instead, the greatest ERA-related “controversy” may be the narrowness of the debate and the important questions left out of it. For example, is the ERA sufficient to meet today’s gender discrimination challenges? And if not, what else could help? Drawing on the development of American law and history, I conclude that the answer to the first question is “no,” and to the second, “equity.” Due to the differences between legal equality and equity, parties might invoke an Equal Rights Amendment in certain cases but remain aggrieved, whereas equity might result in a more just remedy.

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