Equality for women is such an obvious idea that many people do not realize it is not already reflected in the Constitution. But it is not reflected in the Constitution. According to the late Justice Scalia, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” Although the Fourteenth Amendment has been interpreted to provide some protection, it does not provide the same level of scrutiny for sex discrimination as it does for discrimination based on race and national origin. And even the lesser protection that the Fourteenth Amendment currently provides could evaporate if the Supreme Court were to become dominated by those who share Justice Scalia’s approach to constitutional interpretation. This is a matter too important to leave to the prevailing politics of the day. The solution is to do exactly what Justice Scalia himself would recommend in this situation: Amend the Constitution.
The lack of an equality guarantee in the Constitution—the document that serves as the entire basis for our federal system—places a cloud over every push for reform or change that women make, whether we realize it or not. It conveys the message that that it is fine to treat women differently, or even to curtail their rights, as long as those in power believe they have a good reason to do so.
At the same time, progress toward equality for women has been painfully slow, and the underrepresentation of women in positions of power means that important decisions may lack an important perspective. In 2018, women make up roughly half the population but less than 20% of our representatives in Congress. Only six of the 50 states have female governors, and only seven have female Attorneys General. Women remain dramatically underrepresented at the highest levels of business, academia, and law. Across our own industry, the representation of women at the highest levels has stagnated.
At the other end of the economic spectrum, according to the new Poverty Report by Heartland Alliance’s Social IMPACT Research Center, women are still dramatically over-represented among those living in poverty. The disparities affecting women of color are particularly acute. And violence against women remains a grave issue, including for women of color and trans women. Too often, assault against women is minimized by categorizing it as “domestic” or by focusing on the actions (or appearance) of the victim.
Would enacting the ERA solve all these problems overnight? Of course not. In fact, for many kinds of discrimination—by private employers, for example—it would have no direct effect at all. But it would make a powerful statement about the principle of equality—a statement that will necessarily have ripple effects as we continue to work for equality in every corner of our society.
Linda Coberly is the Managing Partner of Winston & Strawn LLP’s Chicago office and chairs the firm’s Appellate & Critical Motions Practice. She handles complex litigation around the country, with particular expertise in product liability and securities law and with a commitment to pro bono work in immigration and civil rights. She is part of a team of Winston lawyers who are actively involved in the push for ratification of the ERA both here in Illinois and in North Carolina, which could become the 38th state. For more information, click here.