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.