Posted by Eugene Volokh:
Phyllis Schlafly Said It Would Be Like This:
As I note below, a California trial court has just held that the
California opposite-sex-only marriage requirement is unconstitutional;
and part of its argument -- though only part -- was that it violated
the ban on sex discrimination in the state constitution, since the
opposite-sex-only rule necessarily discriminated based on sex. (Eve
can marry Adam, but Steve can't; the only difference between the two
is that Eve is a woman, the opposite sex from Adam's, and Steve is a
man.)
This leads me to repeat [1]a point that I raised when one of the
Massachusetts Supreme Judicial Court judges made a similar argument in
2003. Consider these quotes:
1. "What foes of ERA contend were valid arguments and what advocates
claim were emotional scare tactics also seemed to sway sentiment
among the women against the amendment [in North Carolina].
Opponents, for example, suggested passage of ERA would mean
abortion on demand, legalization of homosexual marriages,
sex-integrated prisons and reform schools -- all claims that were
hotly denied by ERA supporters." U.S. News & World Report, Apr.
28, 1975.
2. "Discussion of [the ERA] bogged down in hysterical claims that the
amendment would eliminate privacy in bathrooms, encourage
homosexual marriage, put women in the trenches and deprive
housewives of their husbands' support." N.Y. Times, July 5, 1981
(excerpt of a book by Betty Friedan).
3. "The vote in Virginia [against the ERA] came after proponents
argued on behalf of civil rights for women and opponents trotted
out the old canards about homosexual marriages and unisex
restrooms . . . ." Wash. Post, Feb. 19, 1982 (column by Judy
Mann).
There are many more examples from that era, including, if I recall
correctly a quote from leading constitutional law scholar Larry Tribe.
(By the way, I have no reason to doubt the sincerity of these claims;
my post refers solely to their inaccuracy.)
Yet it now looks like the "hysterical" "emotional scare tactic"
"canards" may well have been quite reasonable predictions: It looks
like courts are indeed treating opposite-sex-only marriage rules as
involving sex classifications, and as thus being presumptively
unconstitutional. Had the ERA been enacted at the federal level, it
would have further raised the bar against sex classifications, and
thus made decisions like the California and Massachusetts one more
likely.
True, the U.S. Supreme Court has itself interpreted the federal
constitution as presumptively prohibiting sex discrimination, even
without the ERA. Federal courts may still use that as an argument to
reach the same result as the California trial court did, again even
without ERA. (The California trial court's decision was based on
California constitutional law, which is largely based on a general
"equal protection" provision of the state constitution -- one whose
text is similar to the federal Constitution's, though California
courts have interpreted the text in a more demanding way.) Still, the
ERA would have strengthened the "no sex classifications" rule, and
would thus have made it more likely that courts would adopt broad "the
government must be sex-blind" positions.
Now I think it would have been good had the ERA been adopted, though
perhaps with a few modifications. (For instance, I don't think the
coalition that supported the ERA knew that it would be helping resolve
the same-sex marriage question; had they known this, they should
presumably have carved out an exception for this. It may also have
been worthwhile to carve out exemptions, perhaps to specifically
protect certain privacy rights, protect girls-only sports teams, and
probably allow the exclusion of women from combat, though that's a
tough question.) I also think it's good for same-sex marriages to be
allowed, though I don't think this should be enacted by courts.
But the California decision -- and the Massachusetts decision, and a
similar Hawaii decision that has since been reversed by the Hawaii
voters -- shows us that we shouldn't lightly dismiss plausible,
facially valid textual arguments (the text bars discrimination based
on sex, and the marriage laws do treat people differently based on
their sex) as "canards," "scare tactics," or "hysteric[s]." The
anti-ERA forces, much as I probably disagree with most of them on many
things, have proved prescient.
References
1. http://volokh.com/2003_11_16_volokh_archive.html#106917664607446885
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