Nevada took the first step toward ratifying the Equal Rights Amendment on Wednesday.
With the 13-8 approval by the state Senate, the measure goes to the Democratically controlled Assembly for consideration.
And then? Well, nothing, actually, outside of the state’s symbolic declaration that men and women are equal before the law.
First proposed in 1923, the ERA wasn’t formally adopted until 1972, with a 1979 deadline for ratification. (Under Article V of the U.S. Constitution, three-fourths of the states — 38 — must concur with proposed amendments.)
By 1979, 35 states had adopted the ERA, although five of them later rescinded their approvals. Although the deadline was extended to 1982, no more states ratified the amendment, and it is considered dead. (A U.S. Supreme Court ruling in 1982 confirmed that because not enough states had ratified the amendment, litigation over recession votes was moot.)
But Nevada state Sen. Patricia Spearman, D-North Las Vegas, argued that because the deadline was not included in the text of the amendment, the issue is still ripe. She took to the floor to defend the ERA from attacks both ridiculous and sublime.
“The objections to ratifying the ERA are false, disingenuous and misleading,” Spearman said. “As such, opposition to passage creates a default position yielding to the antiquated notion of misogynistic patriarchy.”
Take that, misogynistic patriarchy!
Still, there was opposition. In a moving speech, Sen. Becky Harris , R-Las Vegas, recalled the moment her father told her she could be a doctor or a lawyer (she eventually became the latter). But Harris likened the ERA to “empty promises and hollow platitudes.” State Sen. Michael Roberson, R-Henderson, cited a case in which the New Mexico Supreme Court struck down a state prohibition on taxpayer funding of medically necessary abortions based on the New Mexico version of the ERA. “Enacting the ERA will result in the legalization of partial-birth abortions and it would mandate taxpayer-funded abortions,” he said.
But it was James Settelmeyer, R-Minden, who hit the constitutional nail on the head, saying that approval is moot, since the petition is dead. And he’s right, legally speaking: Even if you disregard the original 1979 deadline for approval, even if you ignore the murky legality of the 1982 extension, and even if you disregard the recession votes in those five states, you’re still two states shy of ratification, even with Nevada’s support.
“Therefore, I see no reason why we’re voting on this today as it has no effect, and I don’t believe in doing things that are symbolic when it comes to the Constitution,” Settelmeyer said.
Plus, many opponents say, women are already protected by the Fourteenth Amendment to the Constitution (“no state shall … deny to any person within its jurisdiction the equal protection of the laws”) and other anti-discrimination statutes.
So, aside from the symbolic declaration that men and women are equal before the law — an eminently sensible proposition — what is the point?
State Sen. Nicole Cannizzaro, D-Las Vegas, provided the answer, in a speech that hearkened to stories of her own grandmother and mother facing down sexism in the workplace. Adopting the ERA, she said, would change the legal standard under which allegedly discriminatory laws are reviewed by the courts. It would require the government to justify any law that has a discriminatory effect by showing it was narrowly tailored to serve a compelling state interest, not simply that it furthers an important government interest.
That’s a compelling argument, even if “equal rights for all!” sounds a hell of a lot better than “strict scrutiny now!” And it would be a good argument in support of the ERA, if only the measure hadn’t died 35 years ago.
Steve Sebelius is a Review-Journal political columnist. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.