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Update on ERA in Illinois   January 2003

by: Phyllis Schlafly

For ten years, 1972-1982, the Equal Rights Amendment (ERA) was the dominant issue in the Illinois General Assembly; the legislators' attention was consumed with demonstrations for and against ERA. Legislators who were in office then remember the crowds storming through the Capitol, the hunger strike, the "chain gang" of women who chained themselves to the Senate door, and the pigs' blood on the marble floor. The issue was repeatedly debated in committees and in both Chambers, and repeatedly defeated. In all that time the ERAers were never able to show that ERA would give any benefit to women.

Illinois has many pressing problems to deal with today, and it would be a grave mistake to try to resurrect an issue that has been dead for 20 years. We doubt that the legislators want to return to the raucous demonstrations of the 1970s. The United States has said No to ERA. Illinois has said No to ERA. Let ERA rest in peace.

Illinois fully considered and repeatedly rejected ERA in the years 1972-1982, and there is much recent evidence to confirm the wisdom of Illinois' 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 Illinois and the nation if ERA ever becomes a part of our United States Constitution. (Fortunately, Illinois does not have a State ERA. The language in Illinois' Constitution parallels the equal protection language of the Fourteenth Amendment.)

* 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. As a result, 32 states (just like the Hyde Amendment) prohibit the use of state tax funds to perform abortions except for rape, incest and life of the mother.

But the law is different in states that have a State ERA. In New Mexico, the state supreme court ruled on November 25, 1998 that ERA requires the state to pay for abortions in exactly the same way as any other medical procedure. The court adopted the ERAers' reasoning that, since only women become pregnant or undergo abortions, the denial of taxpayer funding for them can be construed as "sex discrimination." That argument dictates the conclusion that ERA ("equal rights") 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, 515 A. 2d 134, April 9, 1986)

The pro-abortion lobby continues to seek out activist judges to rule that it is "sex discrimination" to regulate or restrict abortion or abortion funding in any way. On December 7, 2000, a state court in Texas used the Texas version of ERA to rule likewise: "[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, 36 S.W.3rd 689, 2000) This was reversed by the Texas Supreme Court on December 31, 2002 because the so-called Texas ERA, fortunately, does not have the same strict language as the federal ERA.

At the present time, 18 states pay for Medicaid abortions, 15 of which (including Illinois) do so under court order. We are hopeful that this judicial activism can someday be reversed, but if ERA were in the U.S. Constitution, there would be no hope. And we certainly don't want to undercut the 32 states that are now not using taxpayers' money to fund abortions. Illinoisans do not want to give the courts the power to order all kinds of ERA mischief.

Rep. Henry Hyde has repeatedly expressed his opinion that ERA would lock abortion into the U.S. Constitution so that reversing Roe v. Wade would make no difference. Justice Ruth Bader Ginsburg is on record as asserting that even abortion funding should be a constitutional right under the equality (ERA) principle.

* 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 36 similar state laws (including the Illinois law passed in 1996), would be swept away if ERA goes into the U.S. Constitution and makes same-sex marriages a constitutional right. It is obvious that the institution of traditional marriage is now under massive attack in legislatures and in courts (remember Vermont!). Many legal authorities have predicted that same-sex marriages would be required by ERA based on the plain meaning of the language; the word used in ERA is "sex" not women.

Hawaii is one of the half dozen states that adopted a State ERA in the same language as the federal ERA. 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 another 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." Wisconsin and Minnesota are two states where the legislature attempted to pass a State ERA containing an abortion-neutral clause, but the ERAers themselves killed those bills.

The International Women's Year convention in November 1977 showed the country that ERA is inextricably tied into abortion and the gay rights agenda. After that media event, no state ratified ERA, five states rescinded their previous ratifications, and several state defeated ERA in statewide referenda.

* The Military: No one has ever disputed the fact that ERA would have a massive effect on the U.S. Armed Services. ERA would require women to be assigned to all combat positions, including those from which they are now excluded such as ground infantry and submarines. We are now preparing for a nasty war against Iraq, and we don't want social experimentation and judicial activism to interfere with combat readiness.

One of the most powerful Democrats in Congress, Rep. Charles B. Rangel (NY), has proposed resuming the draft and including women. We hope his bill will go nowhere. But ERA would make sex-neutral conscription mandatory.

* Sports: In 1992, the Rhode Island Supreme Court relied on the lack of a state ERA to rule in favor of an all-girls field hockey league, and against a challenge to force it to include boys. The court also noted that if the state had passed ERA, it "would most likely encompass" the issue of abortion. (Kleczek v. Rhode Island Interscholastic League, 612 A.2d 734, 1992)

* Present legal status: The original ERA resolution, which passed Congress on March 22, 1972, set a 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. It contained the most peculiar time period in any legislation: 3 years, 3 months, 8 days, 7 hours -- a time period designed to coincide with Illinois' mandatory adjournment on June 30, 1982. Illinois was forced to vote on ERA every year for 11 years.

The ERA Extension resolution was greeted with widespread public condemnation. 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 passed. Some Illinois Representatives who had committed to vote for ERA felt released from their commitment and thereafter voted No.

The U.S. Supreme Court ruled on October 4, 1982 that ERA is "moot" regardless of which deadline is valid (seven years or ten years). (NOW v. Idaho, 459 U.S. 809, 1982)

The legal 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. A new ERA was voted down in the U.S. House of Representatives on November 15, 1983, and since then ERA resolutions have been met with a deafening silence. The current Congress is more pro-life than ever. All pro-life organizations are united on the proposition that a legislator cannot claim he is pro-life if he or she votes for ERA (unless an abortion-neutral clause is inserted, which the ERAers will not permit).

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 procedures.

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