Updated: Jul 17
July 9, 2023. The country is still reeling from the recently issued US Supreme Court (SCOTUS) decisions. Wondering which rights are next on the chopping block. And justifiably so.
On this day in 1868, 155 years ago, the 14th Amendment, granting only men equal protection under the laws, was ratified and published in the Constitution – despite purported rescissions by states and challenges to the validity of the amendment.
As Justice Scalia stated in 2011, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant.”
These recent SCOTUS decisions, along with last year’s Dobbs decision, make clear that this court agrees with Justice Scalia. Women, girls and LGBTQIA+ people – the vast majority of our country – are not entitled to the same protections.
These SCOTUS decisions and, absent intervention, similar future decisions, could have a devastating impact on the country, particularly our most marginalized, for decades to come.
However, a solution remains at our fingertips. The Equal Rights Amendment (ERA), which prohibits discrimination based on sex, is the most powerful tool available to reign in SCOTUS and stop the further erosion of rights. Guaranteeing equal protection for all Americans and protecting reproductive rights. It also sends a loud and clear message that discrimination will not be tolerated.
All we need is for President Biden to direct the Archivist to publish the ERA.
June 24th marked the one-year anniversary of the Dobbs decision. Over the course of the last year, we have seen laws enacted around the country that ban or severely restrict reproductive rights.
During that same period, equal rights amendments in state constitutions continue to be used to defeat abortion bans, most recently in Iowa, where half of the conservative Iowa Supreme Court noted:
It would be ironic and troubling for our court to become the first state supreme court in the nation to hold that trash set out in a garbage can for collection is entitled to more constitutional protection than a woman’s interest in autonomy and dominion over her own body.
Yes, you read that right. Trash. As we know, the Dobbs decision has always been about denying women equal protection of the laws. A critical point reinforced by the recent SCOTUS decisions.
Recent Supreme Court Decisions
In two lawsuits brought by Students For Fair Admissions, Inc. against Harvard College and the University of North Carolina, SCOTUS obliterated affirmative action, with more, related cases in the pipeline that will, in all likelihood, make matters worse. This horrific decision, coupled with the Dobbs decision, will have a devastating impact on women of color.
It is easy to see the true motivation behind Dobbs – denying women equal protection and ensuring their subjugation – when it is reinforced in the Students For Fair Admission decision by Justice Thomas, who stated:
While I am painfully aware of the social and economic ravages that have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.
Quite telling. You see, Justice Thomas was not quoting our founding documents above, he was paraphrasing and could easily have said all people. But he meant what he said, stating this Court's view and what the Dobbs decision accomplished. Men are equal. Women are not. Women of color, even less so.
In Biden v. Nebraska, SCOTUS set back women, and particularly women of color, even further when it struck down the Biden Administration’s loan forgiveness program. Of the $1.7 trillion in student loan debt owed by Americans, nearly two-thirds (roughly $929 billion) is owed by women. Why? The significant gender pay gap means women are unable to repay as much or as quickly and/or need to obtain additional education and incur more debt to secure the same positions as their white male counterparts. Tragically, the gender pay gap is even greater for women of color.
In a final blow, SCOTUS ruled in 303 Creative LLC v. Elenis, that a Colorado law prohibiting businesses from discriminating against customers violated the First Amendment right to free speech as it forced a woman to create wedding websites for LGBTQIA+ couples against her religious beliefs. This discrimination would not be possible with the ERA. While a clearly devastating and direct attack on the LGBTQIA+ community, this decision opens up the floodgates for discrimination of all kinds.
The decisions over the past week alone make it painfully clear that we cannot afford to wait any longer for the ERA. Particularly our most marginalized communities. It will make it far more difficult for SCOTUS to roll back rights. Time for President Biden to publish the ERA.