Laws, huh, what are they good for?

[jackofallgeeks]

So a friend of mine just sent out an email to 500 of her closest friends (yours truly included) announcing that Congress is currently set to vote on a bill to ammend the Constitution with 52 words -- called "The Women's Equality Amendment," the fifty two words allegedly read thus: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. The email goes on to encourage us to not "let what happened in 1982 happen again (only 35 states ratified the amendment cause it to fail)!"

Now, if I just came out and said, "I think this is a bad idea," I'm quite certain I'd be stoned, or at the very least glared at and snubbed as a misogynist. But I don't think this is a bad move to make because I hate women; I think it's a bad move to make because I hate government.

Or, at the very least, I don't trust government. Generally speaking, I think that we are best served by a government which meddles with our lives as little as possible and still maintain order. That is, unless there's something broken, I don't think we need to make laws governing it -- or, rather, I think we should not make laws governing it. Particularly national laws, and most especially ammendments to the consitiution! If the state of California makes a law, it applies only to Californians and, if all goes well, reflects what it is Californians value. If I find that California and I don't value the same things, it's not that difficult to move elsewhere, generally speaking. But when the national government makes a law, that law ought to rightly reflect the values that all Americans share in common as it applies to us all and, short of becoming Canadian, there's no way to avoid it. Additionally, it's so much more difficult to establish what Americans value as a whole compared to what Californians value as a whole, since it's a lergher population you're trying to track.

But, you might say, who *doesn't* value women's equality? And actually, that's part of my point. Women already have laws protecting their right to vote, the most fundamental of rights in our system of government, not to mention different laws regulating hiring practices and discrimination in education, so on ad nausium. My complaint is not that this law is wrong, but that it is unnecessary. And as I belueve every law is one more finger the government has in our lives, ever unnecessary law is an offense to me. Nevermind that vague or obscure laws can be tripwires for the unwary -- and I don't trust the government to not try and trip us up, and I certainly don't trust those who move in government not to do so. These fifty two words seem very innocuous, but if they're unneeded, they are unwarrented, and ought not be entered into law.

Now, I'll admit that I am a man and do not see a problem regarding this issue; particularly, I'll admit that I don't pay attention to this issue because (1) I'm a man and (2) I do not see a problem regarding this issue. So it's very possible that I've missed some key injustice suffered on women that requires an Ammendment to fix. In the absense of such an injustice, though, I feel this Ammendment ought not pass.

Comments

[uhlrik.livejournal.com]

Any unnecessary law is by definition a bad law.

So sez me.

[metis2be.livejournal.com]

I had the same concerns about the email, I wondered what rights we don't have that men do and I couldn't think of anything. On the other hand, I also wondered what rights women had that men didn't that the amendment would amend in a subtle way, and all I could think of were rape laws and custody laws.

[dikaiosunh.livejournal.com]

I think you're missing at least two very important things.

First, there are current problems that the ERA would give protection against. The most glaring is that there is a different standard of scrutiny for sex discrimination than racial discrimination, established by United States v. Virginia (see esp. §IV of the court's opinion). Racially discriminatory laws and rules require "strict scrutiny" and (IIRC) "compelling state interest." This makes it almost impossible for them to pass constitutional muster. Sex discrimination requires only "skeptical scrutiny" and "extremely persuasive justification." I'd note further that Scalia dissented in the case, in part on the grounds that sex discrimination is NOT expressly forbidden by the constitution, and so the court acted irresponsibly in giving it even the protection that it did (see §I of his dissent). So, if you like "strict constructionist" readings of the constitution, sex discrimination is not securely forbidden by the current text.

This brings me to the second point. I'd agree that we shouldn't enshrine all sorts of random rules in the constitution. But what it IS for is to be a basic charter of the national social contract. There aren't currently any states permitting slavery or establishing state religions, but I wouldn't say that that means we could do without the 1st and 14th amendments. I'd say that even if we'd never had slavery, say. Sure, the whole point of a federalized system is to allow states significant room to tweak the rules in a way that their populations see fit. But the constitution is there to set some basic parameters, because no one should have to leave a state because their fundamental rights are being violated. If you don't like the way California sets the income tax rate, then it's appropriate to say, "well, if it's that important to you, you can leave." But it's not appropriate to say, "well, if you don't like being denied full protection of the laws, then you should move."

Now, you may agree with other bits of Scalia's dissent, which essentially boil down to, "anyway, sex discrimination isn't that bad." But that's a whole different argument.

Also:
- Sexual harassment laws are not gender-specific, nor are rape laws. Sure, they are used to protect women in a large number of cases, but the more plausible explanation is that, well, women get harassed and raped more often. Harassment generally requires a showing of "quid pro quo" (I don't think that's the legal term used in the law, but it's early) (e.g., someone said, "sleep with me or you're fired") or a "hostile work environment." The latter is somewhat subjective, and has to do with cases where, e.g., there's lots of sexist sexual banter in the workplace, etc. It is more subjective, but it's also fairly difficult to win a case on, in part because the employer is only liable for taking "reasonable precautions" against it, like telling employees that they can't leave their Playboys lying around, etc. (and, as written, a guy who worked somewhere where the women had copies of Playgirl lying around everywhere, would have every bit as good a shot at proving it).
- Custody rules are also not (at least any that I've seen) explicitly gender-specific. They're set by state, but the rule is generally "best interests of the child." Family court judges actually have a tremendous amount of leeway, and I'm sure that many do in fact think that mothers are by "default" the better caregivers. Anyway, the ERA isn't gender-specific either, so if custody rules are genuinely discriminatory against men - well, now you'd have a constitutional cause of action.

Huh?

[xenu.livejournal.com]

Did I miss something? We're exhuming the ERA?

[higheststar.livejournal.com]

While I mostly agree with dikaiosunh, I have a few comments to add. First off some rape laws can be gender specific. It's a greater offense for a man to rape a minor female than a male. And this is justified by Rehnquist on the fact it's a great hardship for woman because they can get pregnant from the rape.

But the only thing covering women right now (unlike in race cases) is the equal protection clause. However, I must differ from your friend in the fact that under Crag v. Boren (1976), the Court adopted intermediate scrutiny for sex classifications. So it's rational basis scrutiny for most classifications, intermediate scrutiny for sex classifications, and strict scrutiny for race classifications. In United States v. Virginia, this test gets a bit redefined but not overruled so that is the standard.

However, I gotta say, I support the amendment and I worry what it will mean on the Constitution. A higher level of scrutiny for laws that discriminate against sex (and yes, they are still out there, we are not that progressive yet) would be great. And I don't disagree with you entirely. I coincidently argued on Monday that I didn't think it was necessary to make gender discriminate laws for maximum hours in factories cause I hope that the conditions that existed 100 years ago in factories for both men and women did not still exist. But at the same time I do see a value in the amendment the more I study the Constitution, though I have not thoroughly researched it myself. I suggest before opposing it, you read a little more current event surrounding it and what cases it might affect.

And your journal makes me talk about the stupid law way more than I do in daily life...

[nif.livejournal.com]

...
Does anyone else think this may be a very subtle attempt to introduce into the constitution an amendment to give equal rights to gays?
I mean, look at the wording.. that equal rights under the law cannot be denied on the basis of sex. So marriage, a right, couldn't be denied to two men because they are men. Even if it isn't purely intended for that purpose, I'm sure it could be used as a pretty convincing argument.

Leaving aside the issue of whether or not this amendment should pass (which I won't get into because all systems of government are a complete sham and I won't be satisfied until I see the Constitution burn while I dance around it naked), if this bill really is a springboard for gay rights, then damn well approve it.

Just a thought.