Originalism and the ERA

I want to continue my posts about the ERA, as there are many fascinating questions raised by the possibility (whatever it is) that more states will join Nevada and ratify this year.

Here’s an example of why I say that ascertaining the original meaning of the ERA will be almost impossible given the long span between its proposal and ratification. During the ratification debates of the 1970s, a major bone of contention was whether the ERA would protect gay rights, including same-sex marriage. Since most people opposed those ideas then, supporters of the ERA denied that legal distinctions on “account of sex” included sexual orientation.

Today, though, there is litigation arguing that employment discrimination based on sex under the Civil Rights Act of 1964 does include sexual orientation discrimination. The Seventh Circuit accepted this logic, and the Supreme Court will probably weigh in next year. Suppose that the Court affirms the 7th Circuit. The states that ratify the ERA after that will be doing so against that backdrop. Under a usual way of interpreting original public meaning, we would say that those states were endorsing that new view of sex equality.

Extending the hypothetical, which original understanding should control–the one from the 1970s or the one from the 2010s? Is sexual orientation in or out?

In the next post, I’ll talk about how this sort of problem poses a challenge to constitutional theory.

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7 Responses

  1. Joe says:

    Reference is specifically made that “sex” was denied to include “sex orientation.” I don’t know what everyone said but I’ll grant that minor point. But, original understanding in that sense, what was expected from the text, does not bind us. The Electoral College was expected to be applied in ways it is not. Just one thing. And, an honest accounting of such an open-ended provision, like “cruel and unusual” would not be too sure of how the future will play out.

    But, opposition of the ERA concerned a range of matters, including support of protectionist legislation and what was seen as traditional cultural values. Sexual equality was in some fashion going to advance gay rights in that respect, once you remove barriers, the two are just too connected. And, there was a growing support of some minimum of gay rights. Even Reagan opposed the Briggs initiative.

    The ERA, e.g., would make it clearer that a range of legal matters should not turn on traditional sex roles. Some at the time already realized this affected sexual orientation. Opposition to gays in some basic sense is opposition to “wrong” sex roles. If equality of rights should not be abridged by sex, it will affect gay rights somehow.

    The ERA was defended and opposed for various reasons. I have my doubts sexual orientation itself was the deal breaker one way or the other over something like thinking women would now have to fight in the army or not get “special rights.” But, like some who opposed the 14A and said it would set up some parade of horribles about blacks and whites dating, yes, ultimately opponents were right on that point. And, in both cases, people pushed back, in part because they at the time honestly thought the amendments didn’t go that far. But, the text was open enough to develop. Rightly so.

  2. Joe says:

    Since I don’t think we should be bound by “original understanding,” the ultimate question to me is easier, but I guess we would be bound by the understanding at the time of ratification. That is, when the last state ratifies. And, this might be notable even if the ERA was ratified in 1981 — a lot happened in the 1970s that advanced equal protection of women. This would factor into the judgment of Congress before it extended the deadline.

  3. Brett Bellmore says:

    If there’s no way to know before ratifying it what an amendment is going to be interpreted to “mean”, why would the states ever ratify another amendment? They wouldn’t be making an intended change to the meaning of the Constitution, they’d just be writing the courts a blank check! The very idea of “we have to ratify it to find out what it means” contradicts the purpose of amendment.

    ” But, like some who opposed the 14A and said it would set up some parade of horribles about blacks and whites dating, yes, ultimately opponents were right on that point. ”

    “Ultimately”? It isn’t as though it took decades, or was some universally dismissed as absurd result of the amendment. Plenty of people thought that interracial marriage should be legal, it wasn’t universally illegal at the time of ratification, the way same sex marriage was at the 14th’s ratification and for over a century afterwards. (Though to say that same sex marriage was “illegal” at the time the 14th amendment was ratified is to understate the situation; It wasn’t even dreamed up yet to outlaw, it had about the same legal status as marriage to broccoli has today.)

    And it was immediately interpreted to mean that. Burns v State, Alabama 1872. Bonds v Foster, Texas, 1872. It only took four years! For the judiciary that was a sprint. Ten states repealed their laws against interracial marriage after the ratification of the 14th amendment. That the 14th amendment prohibited laws outlawing interracial marriage was, in fact, the dominant legal view up until the Supreme court neutered the 14th amendment in a series of cases intended to deny it any application.

    Finally, of course, the reconstruction era amendments are kind of a unique case in constitutional law in regards to intent, because they were not actually ratified voluntarily. This makes talking about the intent of the states in ratifying them rather questionable; We know that for some of the states that ratified, the only intent was to escape military rule, or perhaps avoid being shot.

    Anyway, I continue to think that this proposal to ratify based on ratifications that have expired or been rescinded is a nasty business, the sort of thing that’s done when winning it the only goal, and one doesn’t care if the win is seen as legitimate.

  4. Joe says:

    It might bother Brett, but that is the nature of constitutional law — there was a general understanding of what many constitutional provisions meant, but it took practice to provide a true understanding of how it work.

    Gave an example as to the Electoral College. The same applied to free speech and a range of other matters. James Madison et. al. explained how practice alone would determine how things would work specifically, applied by the institutions set in place. Some provisions was intentionally open-ended, the details filled in case by case, often in ways that surprised the original people. John Marshall noted this in an important constitutional case.

    And, if something happens that is bothersome, there was a means to clarify with new amendments. This was the case, e.g., with the first two amendments after the Bill of Rights & somewhat with the failed original 13th.

  5. Joe says:

    The fact that there were various people who thought equal protection included full social equality up to and including marriage does not change that it was not the “dominant” view at the time. At the very least, the supporters of the 14A assured people that it was not required. Congress allowing segregation in schools in the 1870s, multiple Supreme Court opinions in the 1870s providing a narrow understanding and a unanimous Supreme Court decision in 1883 upholding a miscegenation law (greater punishment for interracial fornication) — John Harlan, dissenter in Plessy included, didn’t hurt the case there.

    The usual game here is that it is shown that such and such had some support at the time. But, that covers a lot of ground, and even there the examples repeatedly are mixed. Bonds v. Foster, e.g., didn’t involve some couple who wanted to be married. A slave owner had children with a slave, freed her, she movied to a free state & he provided financial support and recognized them in the will. OTOH, looking it up, Burns v. State is cited as the ONLY court that overturned a criminal prohibition of miscegnation in the 19th Century. [Racial Union: Law, Intimacy, and the White State in Alabama, 1865-1954]

    Likewise, jokers are tossed in — here some sort of coercion changes the intent balancing. But, why? Granting some sort of coercion so Confederate states could have full standing with other states, they still accepted amendments with a certain generally understood meaning, as far as we can take that. Finally, should the Republican Reconstruction courts cited be tained by the same brush? Are they truly a reflection of general understanding or that of a select group with more radical leanings? Anyway, what the 14A as well as any other constitutional provision would mean would develop over time.

    [As to same sex marriage, the general understanding of sexual orientation was in its infancy in the late 19th Century. A book was written recently about two women who lived together in basically a state of marriage in the mid-1800s. References to how it was like a “marriage” was found by the author. But, over time, using the general principles of the Fourteenth Amendment, homosexuals obtained more security of their rights. Marriage changed over time, including the basic understanding that it required women and men to have certain roles, including coverture, which was deemed natural, what ‘marriage’ meant.]


    Anyway, I continue to find a renewal of the deadline problematic on policy grounds & think this whole thing is a thought experiment not likely to actually occur. Plus, changes in the law and social practice made the ERA much less required, though I very well might have found singling out one category of equality like that dubious at the time.

    • Brett Bellmore says:

      Obergefell was a thought experiment at one time. The difference between a thought experiment and a trial balloon often isn’t apparent until you neglect to shoot the balloon down, and find the courts adopting it as a serious doctrine.

      • Joe says:

        Such is true for many things that are the product of our constitutional process, which its creators knew would include things — as John Marshall once noted — ” if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.” Less dim the closer you are.