Should the ERA become part of the Constitution?
There’s a better way to achieve equality while preserving desirable distinctions between the sexes, says Rex. E, lee, Dean of the Brigham Young University law School and former assistant U.S. attorney general.
In his book, “A lawyer Looks at the Equal Rights Amendment” published recently by the BYU Press at Provo, Utah, Lee makes a strong use for “fine-tuning” present legal and legislative machinery in preference to the less flexible route of locking the rights question into a constitutional amendment.
Given the Supreme Court’s modern-day view of the 14th Amendment’s equal protection provisions, Lee says the approach should be a case-by-case adjustment of present laws and regulations under existing constitutional guarantees and authority to pass new laws.
In other words, he says, “The situation calls for a scalpel and not a sledgehammer.” He reasons this way:
“By far the most inflexible source of law is a judicial decision interpreting a constitutional provision . . if we are still at the stage when we need to feel our way. committed to equality in the large matters like employment and promotion opportunity, educational opportunity, political activity, and equal pay for equal work, but still uncertain about such things as the draft, military combat, and promiscuity in state college dormitories, then a constitutional amendment is the worst possible choice . ..”
Lee’s volume outlines the history of the Equal Rights movement which first reached Congress in 1923; reviews congressional testimony of the early seventies; notes modern-day use of the 14th Amendment’s equal protection language, and analyzes court cases on the subject.
The ERA proposal passed the House of Representatives in 1971 and the Senate in 1972. The traditional seven-year period for ratification by the necessary 38 states expired March 22, 1979. In an unprecedented step, Congress extended the deadline to June 30, 1982.
Thirty-five states have ratified the proposal — 22 of them in 1972, 8 in 1973, 3 in 1974, 1 in 1975, and the last one in January 1977. Meantime, five state legislatures have voted to rescind ERA ratification. The legality of both the deadline extension and the revisions has never been ruled on by the Supreme Court. Both issues are pending in a U.S. District Court suit in Idaho, Lee notes.
Citing confusion over the “vague” language of the proposed 27th Amendment, lee says proponents and opponents differ sharply on such questions as whether ERA would invalidate laws prohibiting homosexual relations, forcible rape, and inter-sexual occupancy of sleeping facilities in public institutions. “Concerning mandatory use of women in combat, even the proponents are in disagreement.”
The truth, asserts the author, is that “neither during the present pre-ratification period nor, if ratified, for decades after can anyone on this planet know what the ERA will mean.”
An important question, he says, is the “standard of judicial review” which might range from “judicial scrutiny” to “absolutism.” No one knows now what that standard will be, he declares, and even when it is identified, the people won’t know what they’ve bought until new rulings and regulations are forthcoming through interpretation by non-elected jurists.
As assistant attorney general 1975-77. Lee headed the Justice Department’s civil division. He has been a practicing lawyer and for a time was clerk to Supreme Court Justice Byron R. White.
Thomas L. Shaffer, professor of law at Washington and Lee University and former dean of the Notre Dame law School, writes the foreword to Lee’s 140 page book and comments:
” … I am persuaded that supporters of the amendment should have second thoughts about their support, and that opponent … will find it (the book) the sort of balanced, rational lawyer’s assessment that their party has so often done without. But no rational reader will put it lightly aside.”
Lee is a member of the LDS (Mormon) Church which has spoken out for women’s rights but opposes ERA.