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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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