No, Justice Ginsburg, we don’t need a constitutional amendment to protect equal rights for women

Over 80 percent of Americans agree that men and women are fundamentally equal, but that broad acceptance of our equality doesn’t mean that we should be treated interchangeably in every circumstance. Sometimes, ignoring the very real biological differences between the sexes can put women and girls at risk, whether by eliminating female-only spaces such as domestic violence shelters, or by not allowing government programs to recognize the unique burdens of motherhood. 

But Justice Ruth Bader Ginsburg is determined to lend her support to an amendment that could make it impossible for U.S. law to draw any distinction between the two sexes.

In her remarks at Georgetown Law School last week, Justice Ginsburg reiterated her support for the Equal Rights Amendment, while making it clear — contra many of the amendment’s other supporters — that in order to be added to the Constitution, proponents would have to restart the ratification process.

“I was a proponent of the equal rights amendment. I hope someday it will be put back in the political hopper and we’ll be starting over again collecting the necessary states to ratify it.”

While the Justice has been a longtime ERA advocate, she has also recognized in the past that the amendment could jeopardize even facially-neutral laws, like allowing Social Security benefits to go to spouses who chose not to work outside the home. Some proponents have argued, for example, that programs recognizing the unique contributions and burdens of motherhood amount to subsidization of stay-at-home moms and an encouragement for women to stay out of the workforce.

Like Simone de Beauvoir before her, Justice Ginsburg’s feminism runs into an unlikely opponent: the preferences of actual women. 

In surveys, the majority of women with small children report they would prefer either to stay home full-time or work part-time, with only a minority preferring to work full-time. Similarly, on other matters the ERA could affect, like abortion, women remain politically split between pro-choice and pro-life.

Women in the United States are already the most prosperous, free and powerful women in the world. We have the lowest unemployment rate since the 1960s, earn the majority of higher degrees and are a fast-growing share of business owners. And women consistently make up the majority of the electorate, ensuring that we can wield the necessary political power in a republic to protect our rights and advance any true women’s causes through the normal political process. 

The fact is that public policy questions like whether women should be included in the draft or whether locker rooms in public schools should be sex-segregated aren’t as simple as just asserting the basic equality between the sexes and that’s why women often find themselves on both sides of such topics. 

While the ERA sounds nice in theory, removing these issues and others from American voters — both women and men — and handing them to judges isn’t a victory for women’s equality. Contra wild claims from some supporters, it will not help close the “wage gap,” which is primarily the result of women’s choices, nor will it make it easier to prosecute sexual assault. 

Instead, the ERA will make it more difficult for the law to protect women and girls in situations where our differences really do matter. And ironically for a “women’s amendment,” it would supersede the voices and votes of millions of women to decide these kinds of political questions for ourselves.

Inez Stepman is a senior policy analyst at Independent Women’s Forum.