Frequently Asked Questions

• Women are already eligible to be drafted and were nearly drafted in the last couple of days of WWII, as nurses. Source: http://www.historynet.com/drafting-women.htm
• Requiring both men and women to register for the draft is not dependent on passage of the Equal Rights Amendment. Already, in October 2017, the Pentagon recommended that women should register with the selective service.
  Source: http://thehill.com/policy/defense/357055-pentagon-recommends-requiring-women-to-register-for-the-draft
• Regardless of ratification of the Equal Rights Amendment, a reinstated draft likely will include everyone, not just men. Conscripting only men into our military force, currently comprised of both male and female volunteers, would be unreasonable and antithetical to defense needs and morale. Women have proven their worth in our modern military and in a time of war, if a draft were necessary, our military would want the very best our country has to offer, which would include women.

• If Congress has the power to impose a ratification deadline, it should have the power to extend or eliminate the deadline.  In Coleman v. Miller, the Supreme Court left it to Congress to decide ratification periods.  Beginning with the prohibition amendment, Congress included ratification deadlines in amendments it submitted to the states.  With the Equal Rights Amendment, Congress imposed a ratification deadline but, significantly, it did so in the preamble of the resolution proposing the amendment, not in the amendment itself.  By not submitting the deadline with the amendment to the states for approval, Congress reserved for itself the ability to extend or eliminate the deadline.  In fact, in 1978 it did extend the ratification deadline to 1982.
• Both Nevada (March 22, 2017) and Illinois (May 30, 2018) have ratified the Equal Rights Amendment, exercising their state’s right to ratify under Article V of the Constitution.
• After Nevada ratified a white paper was produced for Congress exploring whether or not the deadline precluded the Equal Rights Amendment from being added to the Constitution (spoiler alert: it can be added).
• Some legal scholars argue that Congress lacks the authority to impose a deadline on the ratification process.

• Legislation advancing equal rights may be repealed or amended.  Court decisions may be retreated from or abandoned.  By contrast, a constitutional amendment is far more enduring.
• Legislation and court decisions without a constitutional backstop do not protect equality.  Government agencies and courts must apply and interpret these statutes.  Currently they do so without the guiderails of the Equal Rights Amendment. 
• The Fourteenth and Fifth Amendments require equal protection of the laws, but courts do not hold state and federal governments discriminating on the basis of sex to the same high standard courts apply to government discrimination on the basis of race, national origin, or religion.  Sex discrimination currently receives “intermediate scrutiny” in the courts, whereas other forms of discrimination receive “strict scrutiny.” Under intermediate scrutiny it is much easier for the government to discriminate.
• The late Justice Scalia once remarked that gender discrimination is not prohibited in the Constitution.
• Justice Bader Ginsburg has said that the Equal Rights Amendment is the one Amendment she would like to see added to our Constitution.
• The American Bar Association formally reaffirmed support for the Equal Rights Amendment in 2016. In a June, 2018 letter submitted for inclusion in the Congressional Record the ABA identified three immediate effects of the addition of the Equal Rights Amendment to the Constitution:
  • gender equality would be established under the law as a fundamental and irrevocable tenet of society;
  • judges would be required to apply the highest standard of scrutiny when deciding cases involving sex discrimination; and
  • existing gender equity laws would be protected, and enforcement of these laws would be reinvigorated.

• When the Founding Fathers approved the Bill of Rights, they did not know the potential consequences of constitutionally guaranteeing individual rights.  Our nation was a grand Enlightenment experiment, and no one could see how it would turn out.  Moreover, Federalists opposed ratifying the Bill of Rights because they feared procedural uncertainties.  Nonetheless, Virginia ratified the Bill of Rights and it became part of our Constitution.  
• As we see from hundreds of years of judicial decisions, Constitutional rights–even ones as sacred as freedom of speech–are not absolute.  No one has the right to yell “FIRE” in a crowded theater.  Likewise, rights protected by the Equal Rights Amendment will not be absolute.  
• Even with the Equal Rights Amendment, the government may make distinctions on the basis of sex if it has a compelling interest for doing so and the discriminatory action is narrowly tailored to serve that interest.  
• The Equal Rights Amendment does not confer special rights. It simply prohibits the United States or any state from denying or abridging equality of rights under the law on account of sex.
• Failure to ratify continues the country’s current path of unintended consequences for not ratifying the Equal Rights Amendment.  Without this amendment, women continue to be treated as second-class citizens in a nation that purports to value equality, opportunity for all, and advancement based on merit.

• Women already have a right to choose to have an abortion.  The right, as the Supreme Court explained in Roe v. Wade, is grounded in privacy rights, not equality, and certainly not on the basis of a non-existent federal Equal Rights Amendment. 
• Twenty-four states, including Virginia, have adopted Equal Rights Amendments in state constitutions without voiding, limiting, or expanding statutes that govern the right to have abortion procedures.
• Some state courts have ruled that a state’s refusal to fund medically necessary abortions if it funds all other medically necessary procedures violates the Equal Rights Amendment of that state’s constitution.  These court decisions, however, specifically state that they do not address the legality or morality of abortion rights.

Constitutional amendments have limits, and rights do not exist in a vacuum. Public decency laws have been upheld by the Supreme Court even when challenged as violating the Constitution’s First Amendment guarantee of freedom of speech. As an example, it’s not legal to yell “FIRE” in a crowded theater (if there is no fire) despite free speech rights.

Additionally, when the Equal Rights Amendment is added to the Constitution, the government can still pass sex specific legislation if it has a compelling government purpose and the government action is narrowly tailored to achieve that purpose.

Public nudity prohibitions do not even have to meet this exacting standard.  The Supreme Court has recognized nude dancing as expression protected under the First Amendment, YET nonetheless, upheld enforcement of public decency statutes as necessary to serve a substantial government interest.

In other words, the Court allows state governments to infringe fundamental First Amendment rights in certain circumstances. These cases provide a basis for applying a more lenient standard to test and uphold public nudity statutes challenged on equal rights grounds.