Someone is trying to dig up the dead-and-buried ERA (Equal Rights
Amendment) and pretend it's alive. Don't be fooled. The U.S. Supreme Court ruled
on October 4, 1982 that ERA is officially dead because its time limit has expired.
(NOW v. Idaho, 459 U.S. 809, 1982) (Also see St. Louis Post Dispatch, October 4,
The original Equal Rights Amendment (ERA) resolution, which passed Congress
on March 22, 1972, set a time limit of "seven years from the date of its submission by
the Congress" for the time period during which ERA advocates could attempt to get
three-fourths of the state legislatures to ratify. When it became clear that 38 states
would not ratify ERA by that deadline, Congress passed a new resolution purporting to
extend the deadline to June 30, 1982.
The ERA Extension resolution was greeted with widespread public condemnation.
The cartoonists and editorialists had a field day, comparing it to adding three more
innings to a baseball game, or a fifth quarter to a football or basketball game, even
though the game was not tied. Public reaction was so adverse that not a single
additional state ratified ERA after the Time Extension was passed. No state has ratified
ERA since January, 1977 -- 24 years ago! -- but five states rescinded their previous
ratifications, and ERA was defeated in statewide referendums in nine states where the
issue was submitted to the voters.
Although Missouri considered and rejected ERA in the 1970s, there is much
recent evidence to confirm the wisdom of Missouri's decision. This evidence comes
from state court decisions in the states that foolishly put a "State ERA" in their state
constitutions. These court decisions provide a "road map" to what is in store for
Missouri and the nation if ERA ever becomes a part of our United States Constitution.
- Abortion Funding: Without an ERA, the U.S. Supreme Court ruled that
there is no right to have abortions paid for by public funds. (Harris v. McRae, 448
U.S. 297, 1980) That's why Congress has been able to pass the Hyde Amendment
each year since 1977, forbidding the use of federal tax funds for most abortions. The
same policy is followed by 34 states, including Missouri, which prohibit the use of state
tax funds used to perform most abortions.
But the law is different in states that have a "State ERA." In New Mexico, the
state supreme court ruled on Nov. 25, 1998 that ERA requires the state to pay for
abortions in exactly the same way as any other medical procedure. The court reasoned
that, since only women become pregnant or undergo abortions, the denial of taxpayer
funding for them can be construed as sex discrimination. That logic dictates the
conclusion that ERA makes taxpayer funding of abortion a constitutional right. (N.M.
Right to Choose/NARAL v. Johnson
, 975 P.2d 841, 1998)
Likewise, the Connecticut Superior Court ruled that its State ERA requires
Connecticut taxpayers to pay for abortions, stating: "Since only women become
pregnant, discrimination against pregnancy by not funding abortions . . . is sex-oriented
discrimination. . . The court concludes that the regulation that restricts the funding for
abortions . . . violates Connecticut's Equal Rights Amendment." (Doe v. Maher, April
And just two months ago, on December 7, 2000, the same result was reached by
a state court in Texas, which also has a State ERA: "We hold that the Medicaid funding
scheme that denies funding for medically necessary treatment that is not reimbursed by
the federal government effects an impermissible form of sex discrimin-ation against
pregnant women. . . . [W]e hold that the State's implicit adoption of the Hyde
Amendment violates the Texas Equal Rights Amendment." (The Low-Income Women
of Texas v. Bost
, Texas 3rd Court of Appeals, No. 03-98-00209-CV, 2000)
- Sodomy Laws: Without an ERA, the Supreme Court has ruled that states are
free to pass laws against sodomy. (Bowers v. Hardwick, 478 U.S. 186, 1986) But on
June 8, 2000 a Texas state court ruled that Texas's sodomy law -- which is very similar
to Missouri's -- violates the State ERA that was added to the Texas constitution in
1972. The court's opinion stated: "The simple fact is, the same behavior is criminal for
some but not for others, based solely on the sex of the individuals who engage in the
behavior. In other words, the sex of the individual is the sole determinant of the
criminality of the conduct." (Lawrence and Garner v. Texas, Texas 14th Court of
Appeals, No. 14-99-00109-CR, 2000)
Dissenting Justice J. Harvey Hudson wrote: "Appellants have produced no
evidence to show the Texas Equal Rights Amendment was ever intended to
decriminalize homosexual conduct. Rather, appellants contend we should blindly adhere
to the bare words of the amendment, giving them absolute effect. The irony, of course,
is that this is the very argument employed by those who sought to defeat the amendment almost 30 years ago. . . . Most supporters of the amendment not only
rejected this construction, they ridiculed it. Now, however, after time has begun to
obscure the original intent of the amendment, what was considered a highly unlikely, if
not farcical interpretation, has been embraced by the majority."
- Same-Sex Marriages: Without an ERA, Congress in 1996 was able to pass
the Defense of Marriage Act (P.L. 104-199, codified at 1 U.S.C. 7), which states that,
for purposes of federal law, "the word `marriage' means only a legal union between
one man and one woman as husband and wife, and the word `spouse' refers only to a
person of the opposite sex who is a husband or a wife." That federal law, and some
33 similar state laws, would be swept away if ERA would make same-sex marriages a
constitutional right. SB 180, now pending in the Missouri State Senate, would become
The supreme court of Hawaii ruled in 1993 that the denial of marriage licenses
to same-sex couples is sex discrimination and unconstitutional under Hawaii's State
ERA. (Baehr v. Lewin, 852 P.2d 44, 1993) In order to undo the damage done by
adding a State ERA to the Hawaii state constitution, Hawaii voters passed a new state
constitutional amendment on Nov. 3, 1998, stating that "the legislature shall have the
power to reserve marriage to opposite-sex couples." With ERA in the U.S.
Constitution, it would take a new U.S. constitutional amendment to restore the current
law on marriage.
The American Bar Association Journal reported (August 1999, p. 56): "NOW
[National Organization for Women], which didn't push to include abortion and gay
rights the first time around, would do so if a new ERA passed."
The consensus that the old ERA is dead and that further consideration would
have to start the process from scratch is shown by the fact that a new ERA resolution
has been introduced into Congress in every session since 1983. The new ERA was
voted down on November 15, 1983 and since then the ERA resolutions have been met
with a deafening silence. Some ERA advocates lamely argue that ERA can be
resuscitated because the 27th Amendment (limiting congressional pay raises) was
ratified after more than two centuries -- but there was no time limit on that amendment.
The clear time limit on ERA has already been recognized by the U.S. Supreme Court.
Concepts such as "equality" and "fairness" cannot be advanced through dishonest
ERA has been in the grave for more than 18 years. Missourians do not want our
courts to order tax-funded abortions or same-sex marriages. Please don't try to breathe
new life into a rotting corpse. Let ERA rest in peace.