Letter: Bob Marshall, Manassas

Editor: Democrat candidates for the General Assembly at a recent Loudoun debate who support reviving the dead 1972 Equal Rights Amendment in the 2020 General Assembly are either ignorant of its serious consequences, or were not transparent.

The ERA reads: “Equality of rights under law shall not be denied or abridged … on account of sex.” It failed ratification by the first deadline of March 22, 1979 and the extended June 30, 1982 deadline.

Congresswoman and ERA advocate Bella Abzug (D-NY) told a Congressional Committee, that the ERA would eliminate “existing legal distinctions based on sex” and would reject “the assumption that sex is ever a reasonable legal classification.”[i]No distinctions, means no distinctions.

Ruth Bader Ginsberg, now a Supreme Court Justice, wrote, “Equal rights and responsibilities for men and women implies that women must be subject to draft registration if men are … .”[ii] AndGinsburg also noted that the ERA’s ‘no distinctions” should be applied to jails or prisons,“gender should not be a relevant factor in determining institutional assignments.” [iii]

The official Virginia ERA Report (1974) chaired by the UVA’s constitutional attorney, A. E. Dick Howard, states: “The interpretative article most cited by both proponents and opponents of the E.R.A. is theYale Law Journalsupporting the E.R.A.”[iv]The Yale article noted: “The basic principle of the Equal Rights Amendment is that sex is not a permissible factor in determining the legal rights of women, or of men. … the principle of the Amendment must be applied comprehensively and without exceptions. … it follows that the constitutional mandate must be absolute.”[v]

Dick Howard, speaking of prisons, wrote, that sexually “segregated institutions would violate the E. R. A. Segregation of institutions on the basis of sex harkens back to segregation based on race. As with race, separate-but equal sexually segregated institutions would not be allowed. … .”[vi]

So, co-eds arrested for DUI would be required to share jail cells overnight or longer with males held even for attempted rape.Remember, no sexual distinctions means no sexual distinctions.

Professor Paul Freund of the Harvard Law School told ERA opponent Sen. Ervin (D-NC) that; “The strict model of racial equality, moreover, would require that there be no segregation of the sexes in prisons, reform schools, public restrooms, and other public facilities.”[vii]

Sen. Ervin noted: “Police practices by which a search involving the removal of clothingwill be able to be performed by members of either sex without regard to the sex of the one to be searched. (Sic) Segregation by sex in sleeping quarters or prisons or similar public institutions would be outlawed. … .”[viii]

General Counsel for the Department of Defense wrote (2-24-72) to ERA supporter Sen. Bayh (D-IN):“The question here is whether Congress would be required either to draft both men and women or to draft no one. … whether Congress must permit women to volunteer on an equal basis for all sorts of military service, including combat duty. We believe that the likely result of passage of the equal rights amendment is to require both of those results. … we believe that the resulting sharing of facilities and living quarters would be contrary to prevailing American standards.[ix]

Both Senator Ervin and Congressman Wiggins (R-CA) offered amendment to exempt women from compulsory military service and preserve traditional privacy rights.Their amendments all failed.[x]

President Jimmy Carter’s Justice Department, told congressional committees if time ran out on the Amendment it would be dead, and ERA proponents would have to start all over again.“Certainly, if a time limit has expired before an intervening Congress has taken action to extend that limit, a strong argument could be made that the only constitutional means of reviving a proposed amendment would be to propose the amendment anew by two-thirds vote of each House ….”[xi]

Lastly, the ERA would not permit any abortion restrictions. Congressman Henry Hyde (R-IL) said,“… ERA advocates have emphasized that the amendment’s principle legal effect would be to make sex a suspect classification under the Constitution … If sex discrimination were treated like race discrimination, government refusal to fund abortion abortions would be treated like a refusal to fund medical procedures that affect members of minority races.” [xii]

Bob Marshall, Manassas

[Editor’s Note: The writer was a member of the General Assembly for 26 years. His district included portions of Loudoun County from 2002 to 2012 .]

[i]Congresswoman Bella Abzug (D-NY) 3/24/71, House Judiciary testimony, H. J. Res. 35, 208, etc. Equal Rights for Men and Women, p. 113.

[ii]Ruth Bader Ginsburg, Sex Bias in the U. S. Code, A Report of the U.S. Commission on Civil Rights, April 1977, p. 202.

[iii]Ginsberg, Sex Bias in the US Code, footnote # 44, p. 225.

[iv]Report of the Joint Privileges and Elections Committees to the Governor and General Assembly, Ratification of the Equal Rights Amendment to the Constitution, Doc. 30, 1974, p. 37-38

[v]Thomas Emerson, et. al., Yale Law Journal, 1/1/71, pp 889-892.

[vi] Virginia ERA Report, Sen. Doc. 30, p. 43, 44

[vii]Sen. Ervin, Congressional Record, 3/21/72, p. 9317.

[viii]Sen. Ervin, Congressional Record, 3/22/72, p. 9564.

[ix]Sen. Hiram Fong, R-Hawaii, Congressional Record, 3/21/72, p. 9344.

[x]Leslie W. Gladstone, Analyst in American National Library of Congress, THE PROPOSED EQUAL RIGHTS AMENDMENT, Report No. 82-51 GOV.

[xi]Memo, John M. Harmon, [Assistant Attorney General, Office of Legal Counsel, Justice Department to Hon. Robert Lipschutz, Counsel to the President, 10/31/77

[xii]Cong. Henry Hyde (R-IL), Senate testimony on ERA, 5/26/83.

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