Left out of my piece on the Equal Rights Amendment -- a proposed constitutional amendment that would explicitly ban sex-based discrimination -- today is the interesting question of whether it would, down the road, protect the rights of LGBT Americans as well as women. The text of the 14th Amendment hasn’t changed, but contra Justice Scalia, it has been interpreted to extend equal rights to women. In the same way, an Equal Rights Amendment could grow to protect LGBT individuals.
Recently, and increasingly, the courts have been interpreting the term “sex” to mean more than men versus women, and are beginning to include sexual orientation. As a report from the Center for American Progress recently stated, "Some judges are increasingly willing to recognize that certain forms of ... discrimination are motivated by perceived failures to conform to gender stereotypes, thus falling within the scope of current sex discrimination laws." As Felice Batlan of Chicago-Kent Law School told me, the meaning of "the word 'sex' is up for grabs."
There are few laws left on the books that explicitly single out women for discrimination, making the impact of the ERA on women’s equality hard to gauge. However, LGBT individuals are currently singled out by our laws for unequal treatment. Laws prohibiting same-sex marriage, (i.e., my partner and I can’t marry because we happen to be of the same sex), would have a hard time surviving an ERA-based challenge. Same goes for the Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages performed in the states. If the ERA were construed to protect LGBT people, the need for an Employment Non-Discrimination Act and laws that ban housing discrimination would also vanish.
This is not to say that the gay-rights movement should take up the fight for the ERA. Just as advocates of civil rights for African Americans have, gay-rights advocates have been working in the courts for years to build legal precedent for full equality under the law; a movement that is currently succeeding at bringing gay Americans under the Equal Protection Clause. Currently, with federal cases challenging both California’s ban on same-sex marriage and DOMA, as well as the recent repeal of “don’t ask, don’t tell,” it seems likely that legal doctrine will expand to protect gay rights, as it did women's without an ERA.
The allure of a cure-all amendment is great, but the gay-rights movement is better off sticking to its current track of individual cases to secure equal rights. The ERA has historically served to galvanize the conservative wing of America and any real push for an ERA would add an anti-gay-rights element to that backlash. Indeed, any viable push for an ERA would have to choose whether or not to throw gay rights under the bus or include them in the movement and deal with the incredible, double backlash it would incur from the right. Politically, it’s not a viable strategy. Instead, LGBT Americans will hopefully soon find themselves in the same boat as women are today: not yet equal, but past the point where the Equal Rights Amendment is necessary.
-- Pema Levy
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