Skip to main content

tv   ERA Debate at National Constitution Center  CSPAN  January 2, 2021 12:53pm-1:54pm EST

12:53 pm
are defending their seats and the gop control of the chamber. the challengers are jon ossoff and rafael warnock. hear from the candidates in these final races of campaign 2020. live coverage on c-span,, and the free radio at. -- free radio app. >> virginia became the 38th state to ratify the rights amendment to the constitution which would outlaw this commission based on sex. the deadline for the amendment passed in the early 1980's and several states have repealed their approval of the amendment. up next, a debate between supporters and opponents of the e.r.a. on whether it should become part of the u.s. constitution. it is now a great pleasure to welcome you to our program tonight about whether or not
12:54 pm
america should ratify the e.r.a. i want to begin by thanking the generous support of the mcnulty foundation in partnership with the women's leadership of villanova university. this is part of the national constitution center's year-long initiative, celebrating the 100 th year of the 19th amendment. we are so grateful to make it possible. we have an amazing crowd tonight. i know how engaged you are so please put your questions in the q&a box. i will be looking at them as we talk and we will introduce them to our panelists at the right time. now, it is an honor to introduce our dream team of panelists. f.e mansbridge is charles adams emeritus professor of democratic values at harvard university.
12:55 pm
she is the author of the award-winning "why we lost the e.r.a." which is the definitive book on its subject. i'm sharing with professor mansbridge the fact i have a copy of that book in law school remember itred -- i to this day so i am grateful to meet her in person. she was president of the american political science association and author of "beyond adversary democracy." carol jenkins is president and e e.r.a.he ur coalition. she posts "black america." founding president of the women's media center and a pioneering television reporter having worked in new york for many years. the senior policy analyst at the independent women's forum. she was previously director of education and workforce
12:56 pm
development at the american legislative exchange council. she's also senior contributor to the federalist and a thursday editor of bright, a woman's daily newsletter. she has been a guest on our podcast. thank you so much for joining us, professor mansbridge, carol jenksins. >> thank you for having us. jeffrey: i will jump in with professor mansbridge with the obvious question. as distilled as fashion as possible, i will ask you why the e.r.a. was blocked the first time around. i remember in law school, your discussion about how the supreme court decision to intervene in the case and to grant heightened scrutiny to gender discrimination took the sales out of the political momentum for the ratification of the e.r.a. one of crucial points you make in the book. tell our audience why we lost
12:57 pm
the e.r.a. prof. mansbridge: i think there were three big reasons. with ae supreme court good deal of prodding from lawyers around the country decided to use the 14th amendment of equal protection to accomplish many of the things that were done. there were several other decisions like that one. when we were asked what with the e.r.a. do, and i am sure you have been asked that question on fewerprogram, we have precise things. we could say it would get rid of this problem. injusticesse deep have been already granted using the 14th amendment. that was one reason the winds started going out of the sails. was a case which i took
12:58 pm
up. oft she called the dynamic deafness. when you get involved in a social movement, you give up a lot if you are really working on the social movement. people don't get paid for working on social movements, so you begin to listen primarily to the people you are working with. you stop listening to the opposition. becomein not to hear, to a bit deaf. the first wave of the amendment t,ally came out of the coas washington, d.c. the states were very important but a lot of the legal work was done by lawyers in washington. so, for example, when there were only about 22% of the people in the country who wanted women to be -- on the same basis of meant.
12:59 pm
now it is more than the majority, but at that point, it was a small number. our lawyers were saying that the end women inton combat in the same basis of men. a lot of legal scholars pointed out that the supreme court had the doctrine of military necessity. soldiers don't have the same rights of free speech that civilians do. the supreme court allowed the military quite a bit of discretion when it comes to what the military considers military necessity. it was just unpredictable that all that the supreme court would have used e.r.a. to draft women when the military didn't want to do that. we didn't say that because we didn't want that. we didn't want women to be drafted. even though only 22% of the
1:00 pm
american public -- it was a certain amount of not listening. i wrote the book in a way of a self-help manual for future social movements, because it is the most listening of almost any social movement. yet, we didn't listen very much in this case. that was in a sense the goal of the book. -- it jumpedon was in and raised doubts. many of them unsubstantiated. some of them with some substance. i don't think now have substance. we will see if later in the program we will get into some discussion of that. at any rate, she raised doubts. when you have a system like the u.s. system with so many vetoes, and you have a constitutional amendment which is designed not to get through two thirds of
1:01 pm
both houses, and three quarters of the states. it is designed to be easily blocked. that is how it was set up. then, it is relatively easy to block it. that was built into the very structure. you raise some doubt, that's it. i would say those are the three the supreme court made a lot of decisions. the dynamic of deafness. -- our jeffrey: thank you for that wonderful and clear summary of your book and all three of those reasons will inform the rest of our discussion as we think about the future of e.r.a. the dynamic of deafness, for me, ginsberg'sstice
1:02 pm
famous marital advice. sometimes it helps to be a little deaf. tune it out. good advice. justice ginsburg famously argued that it would be best to start from the beginning, that there was enough doubt about whether when virginia became the 38th state to ratify, that they should start again. on the other hand, others argue, and carol jenkins will make this case, that the ratification by virginia is sufficient to make the e.r.a. part of the constitution. carol jenkins, let's begin with that procedural question. we are in a complicated place where the department of justice under william barr positioned an opinion arguing that virginia's ratification is not sufficient to compel recognition of the amendment because there was a deadline which the justice department said cannot be
1:03 pm
extended beyond the three-year extension congress granted up to 1982 in some states rescinded the ratification, therefore they have been instructed not to certify the e.r.a. several states have filed suit to compel to certified, arguing the e.r.a. with virginias ratification is a valid part of the constitution. help us understand why you believe the e.r.a. should be certified. carol: you see how complicated it is. people say to us tell me the short story of the e.r.a. explain what it is, what it will do and how it got here. as i'm so thrilled to be with you, whose work i respect. jane's book is the bible for wrong in the long in th
1:04 pm
1970's and 1980's. article v of the constitution sets out two requirements for amending the constitution, which our constitution has been amended 27 times. a really great start in the 1700s, the beginning, but clearly work needed to be done to include people and fix things that were not even thought of then. for instance, the fact that i am sitting here, a black woman, a descendent of slaves. it was not thought of when that constitution was written. we do need some stipulation that says women exist. they deserve equal footing in the country. and the only way we can get that, in the midst of systemic racism, sexism, charges, whatever, you cannot get anymore systemic than the constitution. that is the playbook. that is what sets the way we
1:05 pm
live, the rights we have, the responsibilities we have. so, without question, we believe the e.r.a. coalition, that we need to fix the constitution to give women the rights that men have, but more than that now because the recent supreme court decision so that there will be no discrimination based on sex. arethe two requirements passage by congress and that happened in 1972, and then ratification by 38 states. we do admit that happened a little bit late. that happened this year. know,story is that, you after the 1970's and 1980's, we only got up to 35 states which i think was a miracle considering, considering if we had to do that statesoday, we got to 35 for years and years
1:06 pm
until 2017, there were no states ratified. we used to talk about the three state strategy. we needed three states in order to complete that e.r.a. that was in the works. we know that in 2017, nevada, thanks to a black state legislator named pat spearman, got nevada to ratify that e.r.a. we were sitting in our office in new york city, in d.c., and we were like, what just happened in nevada? does that really count? our lawyers, the wet the time -- no one really knew what was going on because it came out of the blue -- they said yes. the next year, illinois ratified. and then, of course, we only needed that one more state and virginia took a couple of years to do it, but when it went blue last year, it was able to in
1:07 pm
january of 2020, ratify that e.r.a. i know that justice ginsburg would love us to start over again, but that e.r.a., almost 100 years in the works, we believe it was ratified on january 27 and that is the date we are working with. the thing that we stumble over is the timeline, what used to be the deadline, but would like to think of it as more of a suggestion. and thenmit of seven t usedrs was in what to be called the preamble and now the joint resolution. it is not something 38 states voted on. that is where we believe we are in the clear to say that we have met the requirements of the constitution, article v. those two things that are required. that time limit and this
1:08 pm
department of justice and this legal memorandum have stopped us and have put us into the courts. the attorneys general of the last three states that ratified have, of course, started to compel the archivists to publish the equal rights amendment. we always say we have a great deal of sympathy for the archivists, the head librarian who probably thought he had another life, a career. who's's the one responsible for giving equal rights to millions of women and others in this country. he has said he will not publish it until he's either forced to buy a court or there's another memorandum. as we all know, there has been a very long election that has taken place, still going on, i do believe.
1:09 pm
we believe we have a new president-elect who has expressed his support of the e.r.a. vice president harris elect has also expressed her support of the equal rights amendment. we do believe there will be a new department of justice in 2021. and we believe that we will have an equal rights amendment in 2021. veryure she will keep us busy once that happens. but, we are expecting to be successful. coalition,e e.r.a. there are 115 members of our organization now. we work in the senate and the house. the houseusly, of representatives dissolved that time limit. we are still working with senators cardin and murkowski, bipartisan, to do the same thing in the senate.
1:10 pm
the e.r.a. is in the basement of the senate house as hundreds of other bills that have been housed by the house and have not moved in the senate. we are preparing there to dissolve the time limit. we will have to start all over again in the house in 2021 and do the same thing in the senate to remove that obstacle that keeps getting in our way. the e.r.a. is more alive than it never has been. we are dramatically close and so thato be victorious all the people who are left out in the beginning, not even tooght of, will say that we belong in the constitution, are in the constitution, and therefore, our rights, whatever they may be -- the one thing the love about that, there is no discrimination. the e.r.a. also gives the right to write laws that will make the
1:11 pm
lives of the people in america better and we can just go through everything. i want to feed hungry children. i want maternal health. i want to see the fabulous work that we can do to create the laws that will stop hunger, poverty. most of the poor of this country are women. i think it will give us a much better future. jeffrey: thank you so much for that. a very clear heard explanation of an argument that the e.r.a. coalition also makes in an amicus brief filed in the commonwealth of virginia versus david ferrero, about why the deadline congress initially placed should not be considered in the argument as we heard. that the deadline appears in the preface but not the text of the
1:12 pm
e.r.a. itself . the brief says congress did not incorporate the time limit into the language itself, but on the resolving clause. at a minimum, this means congress can change the time limit at its discretion and a supplement resolution. the argument is at the very least if congress today with president-elect biden and vice president-elect harris were to extend the deadline, then that would extend the deadline and the archivists should ratified. the justice department strongly disagrees. there was a strong memo. tell us why you agree with the justice department, think the deadline is binding and believe the e.r.a. should not be considered part of the constitution. ines: that is right. by the way, the justice department memo also takes issue with a previous memo or parts of the previous memo from 1977, so they dispute the legitimacy of
1:13 pm
the extension of the deadline the first time to 1982 as well. i think that fundamentally, if we take a look at what proponents like carol and others , theyrgued, the procedure have set up a situation in which at least the spirit of article five seems to be violated. barriers thatose jane laid out and all of those detailed points are there because it should be difficult to play something into the highest law of the land and we want to make sure there's the broadest popular base of support for doing so which is why the requirements of two thirds of congress, three quarters of the state. this is the post to ensure a certain amount of popularity of this idea of changing the highest law of the land. now, if we go with all of the various legal arguments that the proponents of e.r.a. had advanced, one, we have a
1:14 pm
basically endless timeline in terms of the time period over which an amendment can be ratified. we do have the 27th amendment and that was ratified over 200 years, but that is very much the outlier in terms of amendments. furthermore, it begs the question, you have completely different electorate. the meaning of words and changes over time. reasons change over time. initialed a lot of the debate over what the e.r.a. might or might not have done. a lot of the things have been done already. all of these things change the conversation and i think there is something fundamentally wrong with counting those past ratifications alongside the more modern ones in nevada, illinois and virginia, especially when 62% of the electorate are either not born or old enough to vote right now when the e.r.a. was
1:15 pm
debated and discussed in the public eye back in the 1970's. that is one. two, it seems to be a little unfair for proponents to want to count all of the ratifications in their favor, as ruth bader ginsburg says, but not to count the states that decided to rescind their support for the e.r.a. or the one state that put a sunset clause in its ratification. it seems to me even if we grant the proposition, amendments could be ratified over an indeterminate amount of time, that states should then have the pecially ifes the spirit through which we are viewing this is the idea that we need to prove, not through polling but actual voting, representatives, this massive popular support that is needed to amend the constitution. finally, i alluded a little in my first point, but the meaning of words is extremely important
1:16 pm
and it changes over tiem. for example -- time. for example, this commission on the basis of sex, we have a very different definition of sex today than we did in the 1970's. those states that ratified this amendment in the 1970's context might have thought they were ratifying something very different than what proponents argue this amendment, the word sex in this amendment actually means in 2020. for those three reasons, i think it is important that the a veryre -- there's big question. not the fact the courts endorsed these long ratification periods. they said they should be reasonably contemporaneous. but whether that is a question for the courts to the site or a political question for congress to decide. i think that's where a lot of the crux of the debate will be. with regard to the deadline in the congressional -- there is a great podcast you hosted
1:17 pm
with my old professor. there's an additional question of whether these deadlines, the supreme court has upheld do them, right tto but not to modify them later. there are procedural legal issues surrounding the e.r.a. and that is before we get to the substance and merits of the amendments. jeffrey: thank you very much for all of that. thank you for calling out the we the people podcast. thanks to all for putting the procedural arguments on the table so well. i'm going to ask our great head of content to post in the chat box the brief that the e.r.a. coalition and advocates filed in the commonwealth of virginia case. and on the other, the doj opinion by the office of legal counsel which makes the
1:18 pm
arguments on the other side. you will get a good sense of what both of them are. now we will turn to the substantive question. we have talked about the procedure, is e.r.a. now currently part of the constitution? now should the e.r.a. be ratified? i'm going to again put a q&a box by athe star student. he always puts his finger on the central issue. i will offer it to professor mansbridge. with the supreme court having recognized sex as a heightened scrutiny characteristic and its rulings under the 14th amendment, is the e.r.a. still necessary? what is your response? prof. mansbridge: i will make a quick response to that and that i would like to respond a little bit on the issue of the current situation. i don't think there are any particular laws that the e.r.a.
1:19 pm
would immediately change. i think the parallel is to the moment of the framers when they put the rights in the constitution. they didn't put free speech in because they thought it would change 1, 2, 3, 4, 5 laws. they thought this was the right type of principal to put in the constitution. i don't think the supreme court used that clause to change any anywhere near when it was put into the constitution. it was there and we as americans are very proud to have the first amendment in our constitution. we are very proud of free speech and we should be proud of an amendment that gives everyone equal rights. think ithat's why i should be in the constitution. nd the pledge i e of allegiance with liberty to justice and all, i want that justice to include equal rights. that's my answer to that
1:20 pm
question. i would like to go back -- i don't think it's quite as complicated as it sounded when going through this issue of bringing up the e.r.a. again. that shearol mentioned and a bunch of people were sitting around in washington and new york, and in some ways, that came out of the blue. why? if i get take a minute to tell this story -- at the university of texas, you had to write a paper for the american document course. a paper on the e.r.a. he went to the public library, pulled the back out about amendments in the past. what we call the medicine amendment, which is if you -- the congress' salary will not go into effect
1:21 pm
until the next election. he said later that he felt a bolt of lightning hit him. he went after it and almost single-handedly got one state after another to ratified this amendment which had been in the original package of the bill of rights and kind of not gotten ratified. one state out of another to ratified it, ratify it, ratify it, and then it is in the constitution, 27th amendment. no feminist activist had anything to do with that. it was not until a couple years later that women at the university of richmond in virginia, supported by the women's law association, looked at it and said, you know what? if the madison amendment can be put in the constitution 203 years later, so could the e.r.a. this was not just a vague proposition, this was a
1:22 pm
historical fact. that's what happened and that is why the e.r.a. is alive again. i just wanted to put that little piece of history to get that out to your audience. it is not that complicated. jeffrey: thank you very much for that reminder and for calling out the madison amendment and telling that wonderful story, reminder, not even but especially a student like colin tebow, a college student, can change the constitution by doing research and leading to ratification. carol jenkins, i would like you to put on the table as yos vigorously as possible, the arguments for why it is necessary to ratify the e.r.a. supporters say the e.r.a., among other things, sweep away discrimination in the workplace,
1:23 pm
help women achieve petty quality, allow men to be paid paternity leave, require states to intervene in sexual harassment, and discrimination of pregnancy and motherhood. do you agree with some of those effects? do you think those are necessary and are there any others you think are necessary? -- doesn'tn't think it have to all of those things in order to be valid? we've never argued that the world is going to be dramatically changed the day that we get the equal rights amendment. i think it is a sense of, the first thing that will happen is that, that children who happen to be of a different color or a different gender expression or a different -- different will believe that they belong in this country and they are represented by the constitution which stipulates how we run our lives
1:24 pm
at thi. at this point, it doesn't exist. for those who say it is only symbolic, i say, ok, we'll take it. it will mean so much even if it is only symbolic. we believe the ability to write the laws we want to see to make lives better -- the e.r.a. is not just saying do not discriminate. it is saying and here is this tool. look at your country, decide what needs to be fixed, and go and do it. we don't want to be held to that high bar to do all of those things in order to be worthy. why does this country treat its women so badly? why did it take so long to get the vote? it was a disgrace. why is it taking 100 years to
1:25 pm
get equal rights amendment? it's a scandal. these are things that should not happen. adamant that women cannot have equal rights in this country or that you can't put in an amendment in the constitution that only says you can't discriminate. we always quote justice scalia who says if you are asking me, a good friend of ruth bader ginsburg by the way -- thank you for your great book -- if you are asking me if the constitution has anything in it that says you cannot just ruminate based on sex, the answer is no, so go and do it. i think that is what we are trying to do. i don't think we should be held to this, you know -- will it help in equal pay? it will ultimately. not the day after we get it. but every year -- we know of the
1:26 pm
coalition, it drives me crazy that if you are talking about equal pay for women, what the figures are for a black woman, a latina woman has to work almost a year to make what a white man makes. and the numbers are not changing. here's the thing that we say about fixing the constitution. in all of this time, we have spent so much money, so much time and energy trying to fix it, and it's not fixed and it will be fixed until you fix the reason why all of this exists and that is the constitution. the fundamental understanding of who we are, who has worth. it's got to change. america has run on the cheap labor of women in its entirety. the cheap labor of slaves and black people. the disenfranchisement of indigenous people in its entirety. and until we say that we want to
1:27 pm
remedy this discrepancy, this sexism, racism that is running wild through our country, you know, in the aftermath of this election that we've been through ve to turn back to the document that everyone reveres so much, and say who is left out? do you think we can get to the point in 2021 we would put them back in? even if it doesn't fix every single problem that we have. you can tell -- sorry, i get a little overly dramatic as the yar a coalition staff would say -- e.r.a. coalition staff would say. jeffrey: not at all. the vigor of the argument is very much appreciated. a wonderful discussion. inez, the new york times discussion of what the e.r.a. might be considered to do added, proponents have argued
1:28 pm
the amendment would undermine the family structure, intrude on religious practices, single college dormitories and other accommodations. give us some sense of how you think the e.r.a. might be construed and what changes would happen? inez: the effects of the e.r.a. -- i will use a premise. that this is perhaps two underlying the argument. america is a 20/20 systematically sexist nation. prior to the pandemic, we have the lowest unemployment rate for women since the 1950's. women own the majority of wealth in this country, meaning the average net worth of women is higher than men, particularly towards the end of their lives because they live longer. women make up the majority of new small businesses open.
1:29 pm
this is all pre-pandemic. i don't know what's happened the last eight months. i don't think the virus can be blamed for sexist. and furthermore, women get the majority of college degrees, the majority of graduate degrees. same systemicat sexism that carol sees in this country. e.r.a. the need for an to fix it. a particular, the pay gap as result of systemic sexism rather than cumulative result of different choices that on aggregate women make than men. for example, women choose different college majors. they choose different hours. they often choose more flex ability over higher pay. we cannot this argument back one step and talk about why they make those choices, but even the obama labor department in 2009 when it undertook a massive review of all of the literature
1:30 pm
on this subject concluded that active discrimination is that most -- they can explain the wage gap, i.e., the rest of the wage gap is explained by the different choices men and women make. all of those underlying premises, the e.r.a. would be affixed to those things. further, even a more conservative estimate of what youe.r.a. might do, one will hear talked about in legal circles rather than activist circles is ok, we are going to raise sex to heightened scrutiny. the same way we deal with race in the constitution, we are going to deal with sex the exact same standard. courts are going to be extremely anficient and require absolutely ironclad reason for a state to treat men and women differently under the law, the same way it requires extremely high standards in all cases
1:31 pm
except for affirmative action which is controversial, t. the law cannot treat black citizens differently from white citizens from asian citizens. there is a high level of scrutiny on that. sex, i would argue is fundamentally different than race and the fact that our real biological differences between men and women. first of all, the physical. we are smaller, on average, weaker. these things have consequences. they don't have consequences that they cannot be an astronaut perhaps or who can be the next curie, for they have limited consequences that have to be recognized by law. one example where heightened scrutiny resulted in an outcome that i think would be really disastrous for women. scrutinyme court
1:32 pm
applied to any discrimination on the basis of race in the prison system. even though there is very good evidence, for example, that segregating prisons by race and racial gangs does decrease violence because you have less interaction between rival gangs. this very good evidence that it lowers violence. nevertheless, the supreme court said that is not a good enough reason. no, you have to apply heightened scrutiny. even in this case, it is such an important principle under our constitution that the states cannot discriminate on the basis of race that we are even going to say you cannot use that tool to even mitigate violence in prison. what happens when sexism is considered the same level of scrutiny? physicalto me that the of women in comparison to men make women uniquely vulnerable if they were to be put into
1:33 pm
prisons with male inmates. the way we treat race with this question, that would not be considered a good enough reason to keep separate men and women resins which is a discrimination on the basis of sex. that is the tip of the iceberg of new laws that recognize this very real differences between men and women, that again, might not matter in an academic context. they don't matter in 99% of situations in life, but the matter enormously in certain types of situations. again, for example, public universities have male and female sports teams. we are having this huge debate over what to do with a small number of people who are born one sex and identify as another. but the e.r.a., in my view, would make that debate sort of irrelevant because it wouldn't matter whether somebody identifies with a sex, it
1:34 pm
would be i am a boy, i want to run on the women's track team because my sport does not qualify for the men's track team, but it does beat out all the women's discourse. i'm being kept out from the team exclusively because of my sex as a man. that is discrimination based on sex and the e.r.a. would make that a viable constitutional challenge. that is not pie in the sky speculation because we have seen it happen in massachusetts. there is a case in 1979 in massachusetts that bases the ability of a boy to join the women's team, particularly if that sport is not available to boys. it says the athletic association for public schools cannot forbid boys from joining the girls team on the basis of the e.r.a. in that state, state level e.r.a. the consequences of this seems to be could be very radical. sure, we are going to have to see how sports interpret it.
1:35 pm
they may interpret it narrowly. even that narrow interpretation which would be raising it to heightened scrutiny and not fermenting a new branch of law a, putting the e.r. it on par with race in the constitution which is the baseline and lot of legal scholars and proponents say the e.r.a. will do, even that will have a very substantial and often times very negative consequences for women and girls when those actual sex differences are no longer able to be recognized by the law. jeffrey: thank you very much for that. thanks to all for joining. professor mansbridge, there is a vigorous disagreement among your co-panelists about how broadly the e.r.a. might be construed and whether the broad construction would be a good thing or not. what can we learn from history in a review of the mrs. america
1:36 pm
miniseries. you wrote a piece that one of the weapons of e.r.a. is to try today to avoid the dynamic of deafness and remember that the e.r.a. movement in the 1970's was a political movement from the ground up and social change requires that kind of mobilization. how would you advise young women goalse trying to achieve of they believe the e.r.a. would achieve today? should they focus on the ratification of the amendment, making arguments in court, or political activism? or all of those things? one woman oncee: said when she was working to a greatthey had
1:37 pm
effect on bringing women to vote. the asked what strategy organization should take, she said we have a do everything program. that meant if you were in wyoming, do what is right for wyoming. if you are in new york, do what is right for new york. i would say, just like frances willard, we should have a do everything program. we should work for women's rights in every way they possibly can. sometimes they are in a position to try to get their state to ratify the e.r.a. the other thing i said in that article was about the dynamic. let's be a realistic about what the court will do. will the court actually send women into combat on the same basis of men? no. will the court actually say women have to share prison cells with men? no. will the workforce -- no.
1:38 pm
amy barrett just joined the court. she is 48 years old. let's be a little realistic about what's actually going to happen and let's take a look at the e.r.a. as something we put in the constitution so that -- just the way people say now, i have my right to free speech, you can tell me what to do. actually come that is not true. a work does not have a right to free speech and the factory. that phrase is about state action. but people in the u.s. say i have free speech. until a girl can say i have my equal rights and she will say i have my equal rights and that's how we will get our equal rights because she will stand up for them because of principles in the constitution. so -- jeffrey: thank you very much for
1:39 pm
that, and for that historical argument for an all prongs thoughtsand for your about how the e.r.a. is likely interpreted if it were to be ratified by the court today. the q&a box is just full of the most wonderful and relevant questions. there are so many. i will just offer a couple to each of you. carol and inez, and then we will have closing arguments. we have a question asking how would the intent of the e.r.a. be determined today? would it be the intent of the people introduced in 1972 or the 2021? her's iiers in we have a question asking whether if the e.r.a. is passed,
1:40 pm
does that mean a woman can be drafted? another question, how would the e.r.a. affect the interpretation of the equal protection clause under the 14th amendment? and just put that legal bit of doctrine on the table. the supreme court in the virginia military opinion that justice ginsburg wrote said that gender-based discrimination needs a persuasive argument. the e.r.a. would require they have a compelling governmental interest. carol, recognizing you think the effect would not be radical, what cases would actually make a difference? think --ll, i professor mansbridge -- we will need to see. i do believe, i think that it would have to be where we are in 2021 as opposed to back in the 1970's.
1:41 pm
we were living in a completely different world with a set of expectations. i think that is to be determined . and we are completely happy to -- that we whatever are moving to the courts and that issues will be decided rights.ce we have equal completely willing to carry that all the way it goes to the supreme court and some say that it well. we think they probably would not take it up because it would be actionh of a political and they would go back to congress. they would have to decide it. but, i think we don't know that much. i know inez, i listened to her wonderful podcast about that.
1:42 pm
if you want to take your position up on that point. jeffrey: thank you for all of that. inez, i will ask a few questions to you from the q&a box, too. bostock case, our great student column, this ring court recognized that title vii, lgbtq people with the e.r.a.'s prohibition of equal rights extend the members of that community. how would that change existing protections under bostock? and then we have questions about .r.a. isif the er is passed, does that mean a woman would be drafted? give us some examples. inez: with regard to bostock,
1:43 pm
yes, i think the analysis of title vii would be instructive. i don't know how judges would interpret it and how much of that analysis would be imported into the e.r.a. it is important to remember there was not actually a dividing. there wasn't a finding that gender identity or expression was protected by title vii. in fact, the opinion reads title of and its prohibition discrimination on the basis of sex, as including such things as -- for example, a biological man wants to wear the uniform in a place of business that is normally intended for female employees, he cannot be fired for that because it is discrimination on the basis of sex. if he were a biological female wearing a skirt, he would not have been fired but because
1:44 pm
he's a biological male, it is this commission on the basis of sex. they find gender identity is protected under title vii. they found that kind of discrimination on the basis of sex that the e.r.a. prohibits. i think a lot of the analysis would potentially be imported into the e.r.a. in terms of other policy consequences, once you think beyond the immediate state law which i talked about before with regard to public school bathrooms, public school locker rooms, public school sports teams, dorms, all of those things, and then prison -- once you think beyond that circle, there's the question whether institution that accepts federal into court be pulled cases under the e.r.a. for example, battered women's shelters often except federal or state money and a lot of them
1:45 pm
are women only for obvious reasons. these are women who have been traumatized by domestic violence and they don't want to stay in a room with men while they are fleeing to the shelters. we are seeing a lot of these issues come up with regard to the transgender context but in that context, we are essentially talking about what accommodations we want to make for people who represented small number of exceptions. under the e.r.a., we are talking about it in a much broader sense. any kind of sex segregated environment that is directly linked to government, state action, but even perhaps private institutions that then get some threshold amount of money to perhaps not operate without federal, state or local money. that opens an entire can of worms as well. i think there are consequences there. also, there are laws -- ruth bader ginsburg said there are
1:46 pm
potentially hundreds or thousands of laws in the books that in some way recognized the distinction between men and women. and sometimes they do so without explicitly naming men and women. justice ginsburg thought that in itself, that renaming -- for example, the social security act which was originally exclusively for women, social security benefits on their husband's work, decades of work paying into the system. that was originally a program intended for women but is now relabeled as gender-neutral. justice ginsburg was looking at those laws and saying they are infected cover for a subsidy to a particular sect and a violation of what she called the quality principle. we have programs like wic, women and infant children. even if those laws are rewritten to be the electric -- theoretically gender-neutral, they still would be drawn into these court cases depending on
1:47 pm
how the supreme court interprets it. i do want to respond to something that jane said. all of these policy issues are contentious and being resolved by the electorate, electorate which is majority female in all modern elections. not just that that there are more female registered voters, but there are more actual female voters in almost every modern election for the last several decades. i am sure jane could give me the precise numbers the last time it was that men outvoted women in an election. it is not convincing to me to say we need to remove all of these issues even potentially from this electorate, from americans voting and working out in the normal process of public policy at legislation at the local and state level and federal level. we need to potentially take these issues out of their hands and put it into the judiciary, which you are right, this
1:48 pm
current supreme court is unlikely to interpret this law broadly. perhaps they will interpret it in line with equal protection doctrine. but the current equal protection doctrine does allow a certain amount of flex ability for some of the issues i pinpointed. there is no guarantee the e.r.a. on the face of it prohibits these kinds of things i have been saying about segregated prisons, sex segregated prisons and so on. on the face of the language, the e.r.a. prohibits those things. maybe courts have a narrow reading that allows some of those things but that won't always be the case. i am not willing to just accept it as a solution. we take all of these issues out of the electorate, out of a bigger public debate, we put it in the court where it is extremely difficult to change. that argument is not convincing to me. the fact that might be temporarily read narrowly because of a particular composition of this report in
1:49 pm
this moment of time -- for similar reasons proponents would like to put it into the constitution, i argue against putting it into the constitution because once you do that, there's very little going back and it is very difficult for the american public if they don't like the consequences to then remove it. the only way out of that is prohibition. that is why that argument is not particularly convincing to me. jeffrey: thank you so much for those thoughtful concluding thoughts. we have to end on time so we are going to do that. i will conclude first by urging all of you to continue to educate yourself about the 19th amendment. you can do that on the national constitution center's interactive constitution. the most exciting interactives we posted which includes an interactive map that helps you see how women suffrage at the
1:50 pm
state level paved the way for the 19th amendment. audioally exciting alread clips, as well as the drafting table. this is so cool. the early draft of the 19th amendment and you can explore how they evolved over time and the e.r.a. you can make up your own mind, as is your privilege and responsibility as a learner about the constitution. with that, i will think very sincerely our superb panelists. jane mansbridge, carol jenkins, and inez. i'm so grateful to all of you for having major arguments with such distinction. you have educated our audience about the cost vision. jane mansbridge, carol jenkins, inez, thank you so much for
1:51 pm
joining us. >> thank you. jeffrey: thanks to you all. have a great night, everyone. happy holidays. we look forward to see >> join us tomorrow for the opening day of the 117th congress. the house proceedings will take longer than usual to accommodate members moving in and out of chambers. the vote from the speaker is expected at 1:30. at 5:30, the newly elected house speaker addresses members, followed by introducing the members. c-span2, online on, and on the c-span app.
1:52 pm
>> on tuesday, the balance of power of the senate will be decided by the winners of the two georgia runoffs. senators david perdue and kelly loeffler are defending their seats and control of the chamber. -- ross -- soft raphael warnock and joel ossoff are the opponents. live coverage on c-span,, and the c-span app. >> here's what's coming up tonight on the three c-span networks. on c-span,. eastern the lgbtq victory institute honors house speaker nancy pelosi for her work on the repeal of don't ask, don't tell, on the 10th anniversary of the legislation's repeal. on c-span, watch book tv, where authors this gust what they have written about the potential effects of the coronavirus pandemic on society.
1:53 pm
this discussion begins at 8:15 p.m. eastern. american history tv is on c-span three. at 8:00 p.m. eastern, professor kathleen devol looks at the american revolution and the 1783 treaty of paris. next, look at the political and economic situation in the balkans, and the influence of russia and china in the region. we will hear from former secretary of state madeleine albright on u.s. policy in the balkans during a house committee hearing.


info Stream Only

Uploaded by TV Archive on