In our opinion: Why Utah should not pass the current version of the Equal Rights Amendment

In this June 22, 2011, file photo, women hold up signs on Capitol Hill in Washington during a news conference in support of the re-introduction of the Equal Rights Amendment. | AP

The Beehive State must continue to rally for equality and genuine women’s rights.

Local supporters of the Equal Rights Amendment plan to rally at the Utah State Capitol Tuesday. There’s no question Utah and America should uphold and protect women’s rights, but that does not mean ratifying the Equal Rights Amendment, which has raised concerns even among avowed feminists.

There are two significant challenges with the ERA:

First, there are far-reaching unintended consequences that could ultimately harm women. It could, for example, change family law — including child custody rights in divorce — impact abortion law and potentially draft women into military service during times of war.

The second is a procedural problem for a proposed amendment that was not ratified when it was introduced in the 1970s. Serious doubt remains whether the expired amendment can be picked up more than 40 years later and whether recent state votes in favor of it, in addition to the states that have since rescinded their votes, are valid.

Even Supreme Court Justice Ruth Bader Ginsburg seems to agree the process would need to begin from scratch if the amendment were to be ratified. At a Georgetown Law School event, Ginsburg stated, “I was a proponent of the equal rights amendment. I hope someday it will be put back in the political hopper and we’ll be starting over again collecting the necessary states to ratify it.”

The ERA may seem like an innocuous way to memorialize the rights of women in the U.S. Constitution. Ginsburg has said she’d like to take out her pocket Constitution and show her three granddaughters “that the equal citizenship stature of men and women is a fundamental tenet of our society, like free speech.”

That’s a worthy sentiment. The problem, however, is that the effect of the Equal Rights Amendment isn’t limited to an affirmation of women’s rights. In fact, the ERA never even mentions women. In substance, the ERA represents a significant change to the Constitution. Based on Ginsburg’s own early research, as well as the research of former U.S. Solicitor General Rex Lee and others, the ERA would affect literally hundreds of federal and state statutes.

The Equal Rights Amendment also risks constitutionalizing abortion once and for all. Since, under the ERA, governments arguably couldn’t treat abortion differently than any other medical procedure performed on a man, certain state abortion regulations would likely be struck down as unconstitutional. Many maternal feminists such as Erika Bachiochi, a recent visiting scholar at Harvard Law School, argue that genuine advocacy for women must include protecting the life of unborn women.

While some disagree the ERA would materially change the state of the abortion debate, most informed observers point to judicial rulings suggesting the ERA would in fact be a substantive victory for pro-abortion advocates. The New Mexico Supreme Court, for instance, ruled that a policy restricting public funding of abortion violated New Mexico’s ERA. A similar ruling occurred in a Connecticut court.

The potential effect on abortion law is likely a big reason why Arizona, for the third year in a row, has not allowed the ERA to come to a vote.

Apart from the issue of abortion, the Equal Rights Amendment, which states that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex,” could make the sexes “equal” in ways counter to the intent of the ERA. For example, the ERA may deny women preferences in state laws pertaining to alimony, spousal support or child custody. Laws regulating public modesty differently for men and women would likely be unconstitutional.

During times of war, women would be conscripted into military combat, just like men. The amendment could also affect federal social security benefits specific to wives and widows, and the ERA would have unpredictable effects on laws regulating how men establish paternity and on laws requiring employers to provide medical leave for childbearing mothers but not childrearing fathers.

And, as drafted in the amendment, what exactly would “sex” mean these days? Does it mean just male and female, or does it also include sexual orientation and gender identity? And what would the consequences be?

Proponents, of course, argue state laws on some of these issues could simply be salvaged by making them gender neutral — for example, child support statutes would replace words like “mother” with, say, “caregiver.” But we’re skeptical that this will fix every potential harm to women, and it also fails to fully appreciate the way the ERA risks federalizing state family law.

The second section of the ERA currently reads, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” By most interpretations, this shifts the legal review and enforcement of intimate family matters away from the states and into federal courts. While federal enforcement is necessary and helpful in many instances, with regard to the unique character of family law, a federal lens can often become detached from the rich community roots that nourish families and inform state law.

A constitutional amendment such as the ERA cannot be easily changed or amended like legislation, and it presents a host of potential dangers outlined by even self-described feminists.

Since 1895, Utah’s constitution has read: “Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.” Because such statements are understood within a community context, they have not been weaponized to eliminate reasonable abortion laws and reimagine commonsense policy.

Women’s rights are essential, and our nation and state must tirelessly protect them. If a law or public policy harms women, it should be changed. The problem is that a constitutional amendment such as the ERA cannot be easily changed or amended like legislation, and it presents a host of potential dangers outlined by even self-described feminists. Although Utah should not pass the ERA, the Beehive State must continue to rally for equality and genuine women’s rights.

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