Why not the 14th Amendment
The Equal Rights Amendment is needed to affirm constitutionally that the bedrock principles of our democracy — “all men are created equal,” “liberty and justice for all,” “equal justice under law,” “government of the people, by the people, and for the people” — apply equally to women.
It was not until as recently as 1971 that the 14th Amendment’s equal protection clause was first applied to sex discrimination. Even today, a major distinction between the sexes is present from the moment of birth — the different legal standing of males and females with respect to how their constitutional rights are obtained. As demonstrated in 1996 by the last major Supreme Court decision on sex discrimination, which dealt with admission of women to Virginia Military Institute (VMI), we have not moved beyond the traditional assumption that males hold rights and females, if treated unequally, must prove that they hold them. The Equal Rights Amendment would remove that differential assumption.
The practical effect of this amendment would be seen most clearly in court deliberations on cases of sex discrimination. For the first time, “sex” would be a suspect classification requiring the same high level of “strict scrutiny” and having to meet the same high level of justification — a “necessary” relation to a “compelling” state interest — that the classification of race currently requires.
The VMI decision now tells courts to exercise “skeptical scrutiny” requiring “exceedingly persuasive” justification of differential treatment on the basis of sex, but prohibition of sex discrimination is still not as strongly enforceable as prohibition of race discrimination. Ironically, under current court decisions about sex and race discrimination, a white male claiming race discrimination by a program or action is protected by strict scrutiny, but a black female claiming sex discrimination by the same program or action is protected by only skeptical, not strict, scrutiny.
We need the ERA to clarify the law for the lower courts, whose decisions still reflect confusion and inconsistency about how to deal with sex discrimination claims. If the ERA were in the Constitution, it would in many cases influence the tone of legal reasoning and decisions regarding women’s equal rights, producing over time a cumulative positive effect.