Return of the E.R.A.?

Pandagon has become my new favorite moonbat site, not merely because of the nostalgia I feel whenever Amanda uses the word patriarchy like it's 1972 again, but because the commenters are more violent (at least their comments are) than watching Rambo or Texas Chain Saw Massacre.

But then there are the times I actually agree (at least I think I do) with something Amanda says. This time, I actually agree with her about reviving the ol' Equal Rights Amendment. After reading this post (and leaving out all the crap about anti-women women & stuff), I started thinking about the E.R.A. and--what else?--the law.

*******WARNING!!!!!! BORING LEGAL ANALYSIS TO FOLLOW*******

When you study Constitutional law, you are taught that there are three levels of review under which a law will be examined to determine if it meets the criteria of the Equal Protection Clause of the 14th Amendment. They are:

1. Strict scrutiny: Race, national origin, religion, alienage and "fundamental rights," such as the right to marry, raise and educate one's children, plus issues like the right to vote, interstate migration, and access to the courts. This list isn't exhaustive, just instructive.
2. Intermediate scrutiny: Sex, illegitimacy.
3. Rational basis review: Everything else.

Here may be a better description of these levels of review.

I was surprised to find that sex wasn't reviewed under the same standard that race was, given that there has been historical discrimination based on sex as long as any (at least in this country) based on race.

When I asked the professor why sex wasn't held to the same level of review as race, her answer was, "Surely you aren't trying to argue that women have faced the same type of discrimination as African Americans, are you?"

That answer struck me as odd not just because it didn't bother answering my question, but because this woman had gone through the rigors of law school before me, so she had to know the hurdles one had to jump to succeed as a woman.

Eventually, I came to my own conclusions about why the court had left sex in this wishy-washy, nebulous purgatory of Constitutional review. It was because of the E.R.A. From the time of the Craig v. Boren case in 1976, the court has used the intermediate scrutiny test for sex-based classifications, and the answer to my question--why sex was treated differently from race--could be found in this quote from Chief Justice Warren Burger in his dissent in Craig v. Boren:

Though today's decision does not go so far as to make gender-based classifications "suspect," it makes gender a disfavored classification. Without an independent constitutional basis supporting the right asserted or disfavoring the classification adopted, I can justify no substantive constitutional protection other than the normal McGowan v. Maryland, supra at 425-426, protection afforded by the Equal Protection Clause.

It's clear from Burger's dissent that what he (and perhaps even Justice William Rehnquist, who also dissented in the case) were waiting for was a constitutional amendment banning discrimination on the basis of sex. In short, the "intermediate scrutiny" introduced in Craig v. Boren was only supposed to be a stop-gap measure until the Equal Rights Amendment was passed as its backers assumed it would be.

But the E.R.A. never got passed. So, women have been saddled with a lesser scrutiny level for the past 30 years.

I don't necessarily agree with much of the rhetoric the Pandagonistas use in describing the opponents of a new E.R.A. I think it is simplistic to constantly call one's opponents brain-damaged three-legged dogs instead of just addressing their arguments. But that's just me. What I do agree with is that it is simply disengenuous for sex discrimination to be treated on a different level of scrutiny than race which is also an innate characteristic.

We already have the much-feared unisex bathrooms, although, granted, you can still find restrooms for women and men. So, what objection can there be now? I'd like to hear the arguments.