The Democrat-driven Equal Rights Amendment (ERA) revival may be a back door means of legalizing same-sex marriage, some legal experts say. The amendment passed both houses of Congress in 1973, but failed to be ratified by the necessary 38 states; it has been reintroduced each year since.
“It’s a real simple argument,” said long-time ERA opponent Phyllis Schlafly. “ERA would make all federal and state laws sex neutral. If two men show up and say we want a marriage license and [the person] says ‘you’re both men, I’m not giving it to you,’ that would be discriminatory.”
Schlafly said ERA would only apply to laws that are currently not sex-neutral such as marriage and the draft. But it would have no bearing on those such as employment laws, because they are already sex neutral.
Shari Rendall, the Director of Legislation and Public Policy at Concerned Women for America (CWA), agrees with Schafly, adding that she thinks ERA is just a front for a feminist agenda.
“[ERA] is not so much about rights as committing a feminist agenda, an attempt to create a gender neutral community,” Rendall said. One of those feminist agenda items, Rendall said, was the legalization of same-sex marriage.
Opponents argue that, under ERA, equality would not be denied on “account of sex” and therefore it would be illegal to ban two citizens of the same sex from getting married. Although it wouldn’t explicitly allow gay marriage, ERA would prevent it from being excluded because there would no longer be a separate legal definition for “man” and for “woman.”
Though no part of the amendment alludes to anything regarding sexual orientation, if the amendment passes, state or local bans on same-sex marriage could be held as unconstitutional in court, opponents say. (Abercrombie & Fitch faces another diversity lawsuit)
“If they can’t get their agenda through the legislative system, they’ll go to the courts,” Rendall said. “You see that even in court decisions it has been said that banning same sex marriage would be unconstitutional in light of ERA.”
Rendall said many feminist organizations and supporters of the ERA tend to downplay this aspect or even outwardly deny a relation. She added that feminist groups aren’t always forthcoming with potential side effects of their initiatives like this because they don’t always have full support for the entire scope of their projects.
“People generally aren’t there,” Rendall said. “If you look at where the votes are in the states that have same-sex marriage on the ballot — they haven’t won. Even in California where they had same-sex marriage on the ballot [as a ballot initiative], it didn’t pass.”