(Note: This is an article I wrote about the proposed Equal Rights Amendment in 1977. It was published in the September 3, 1977 issue of Human Events. I would have just linked to the article, but the Human Events website does not seem to go back that far.)
The current debate over the Equal Rights Amendment is a failure because it is not considering the entire issue. Both proponents and opponents of the ERA argue only about whether "equal rights" is desirable. However, there is another question involved in the ERA. Even assuming "equal rights is a desired goal, is a constitutional amendment the way to accomplish it?
The failure to discuss this question is unfortunate because as Equal Rights Amendment involves both ends and means, and the problem in enforcing an Equal Rights Amendment are so great that they require the defeat of the ERA regardless of how one feels about the question of equal rights itself.
While Section Two of the ERA provides that "Congress shall have the power to enforce by appropriate legislation the provisions of this article," it is most unlikely that Congress with do anything in terms of enforcement. Therefore, if the ERA is ratified, the enforcement burden will fall on the courts.
As soon as the ERA is ratified, there will be innumerable lawsuits challenging all sorts of laws and practices as violating the new amendment. It is, therefore, very important to determine whether the courts are the appropriate instrument to decide what "equal rights’ means in everyday life.
In considering this question, it is important to realize that even the supporters of equal rights differ over what equal rights will mean in specific situations.
For example, in regard to public school athletics, does equal rights mean that boys and girls must be allowed (or required) to compete together, with only one coeducational team in each sport? Or is it permissible to have a boy’s team and a girl’s team as long as they are equally supported?
And what does equal support mean? In terms of finances, does it mean exactly the same amount of money must be spent for each sex, or can funds be divided up on a per-participant basis? And what about money received from gage admissions? Can it be used solely for the team that generates it, or must it too be allocated sexually?
In other words, the meaning of equal rights is not clear, even to its proponents. To reply to this by saying that the courts would have to enforce either an Equal Rights Amendment or an equal rights statute avoids the crucial question of what the courts are enforcing.
It is one thing to enforce a specific prohibition, such as a law requiring equal pay for equal work, and quite another to interpret and apply a broad rule that merely says "equality of rights under law shall not be denied or abridged by the United States or any state on account of sex."
There are two major reasons the courts should not be asked to interpret and apply an Equal Rights Amendment. First, the judiciary is institutionally ill-equipped to perform such a task. Second, because of the judiciary’s institutional inadequacies, an attempt by the courts to interpret and apply the ERA will result in both severe criticism of the courts (regardless of who "wins" the individual cases) and decreased respect for the fairness of the judicial process.
Let me first consider the institutional or structural obstacles that would hinder the courts in the interpretation and application of an Equal Rights Amendment:
A. Lawsuits are a very poor vehicle for answering the type of question here, i.e., what "equal rights" mans in specific situations. A court is limited to making decisions based on the facts presented to it by the litigants. Such a limitation on information can greatly affect the final decision, and if the court tires to get around this limitation by seeking out information on its own, its decisions may be based on information not tested in the crucible of adversarial inquiry.
B. Judicial decisions are basically limited to yes-or-no answers. Courts are hard-pressed to answer questioning shades of gray. A court cannot search for a compromise between competing interests, giving a little from here and taking a little from there. A court can deal with only the specific issue before it, and this forces it into a straightjacket of decisional inflexibility.
(It might be argued that the court operates under similar limitations in interpreting, for example, the 1st Amendment guarantee of freedom of the press. The comparison is not entirely apt, however. In freedom of the press cases, a court only has to determine if a specific law or regulation violates the 1st Amendment. I would have much less difficulty with the ERA if the courts would only be asked to uphold or invalidate specific laws and regulations.)
(However, much of the litigation under the ERA will be seeking affirmative, remedial relief, in addition to the voiding of specific laws and regulations. This kind of affirmative, remedial relief is not involved in freedom of the press case, and it is the seeking of such relief which causes the major problems with judicial enforcement of an Equal Rights Amendment.)
C. Not only are courts generally limited to a yes-or-no result, but also their decisions are limited by the necessity that they be able to enforce the. This means that the courts need to have jurisdiction over a person or agency in order to issue an effective order and that a decision must be such that it is easy to tell if it is being obeyed or not.
A court cannot order something be done it is has no way of ensuring that its order will be carried out. This results in decisions that are rigid and simplistic, such as the kind of meat-axe decisions common in school desegregation cases. The legislature, however, by setting up numerous standards and by considering the whole problem at once, can draw fine lines and make counterbalancing trade-offs, things which a court cannot do.
D. Also, the courts are somewhat isolated from society as a whole. Normally this is desirable because justice should be set apart from the ebbs and flows of everyday political life. But in regard to unsettled questions of first priority, such as the meaning of an Equal Rights Amendment, it is important that the people be involved in the decision-making process. In such cases, judicial isolation can lead to solutions which look good in legal briefs but just do not work in real life.
Even more important then the courts’ institutional inability to interpret and apply an Equal Rights Amendment, however, is the second objection noted above. The courts should not be forced to interpret the ERA because of the damage such a task would do to the courts themselves.
I worry about the effect of the ERA on the courts because of all the braches of government, the judiciary is perhaps the most fragile. In our system it is not fatal if the people become disenchanted with the legislature or executive. They can be replaced at the next election. And in any case, it is expected that they will "play politics" with the issues. This is not, however, true of the courts.
Judges are not easily replaced. Judicial decisions cannot usually be changed at the next election. And, most importantly, people expect a higher level of integrity and fairness from the courts than from the legislature and executive. In sum, if we ask the courts to answer tough, "political"-type questions which should be answered by the legislature and executive, we are playing with fire.
It is important to realize that the meaning of equal rights is a "political" question. It is such because the answer to it will have broad social effects. They will affect jobs and earning abilities, families, and the structure of society in general. When a question has such broad implications, the people should not be limited to just approving or disapproving a broad generality. They should be able to participate, either directly or through their elected representatives, in solving the specific issues involved.
In fact, some supporters of the ERA will argue that one of the reasons they want a constitutional amendments that the legislatures will not pass the necessary to ensure equal rights, apparently because of their members’ political fears. If this is true, it is another reason to oppose the ERA. The courts should not be forced to do what legislators do not have the political courage to do.
The controversy over school busing is a good example of what can happen when the courts try to answer a difficult, essentially political question.
Because of institutional limitations, the courts have been unable to utilize the vast range of enforcement mechanisms that are available to the other braches of government, the use of which would have made busing unnecessary.
Also, the courts have been unable to bring all of the interested parties together and to solve the problem by compromising a number of related issues all at once. Instead, the judicial process has produced a winner and a loser, and the courts have been viciously, even violently, attacked. The result has been greatly decreased respect for the courts land for the judicial process.
Equal rights is an important and emotional issue. It should be solved either by or under the supervision of the political branches of government, the legislature and executive. If the courts are required to interpret and apply an Equal Rights Amendment, the judiciary will become the target of those who are unhappy with what equal rights means in their lives. The result will be reduced respect for the fairness of the courts and for the fairness of our system as a whole.
That is why I am against the ratification of the Equal Rights Amendment.
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