Pay No Mind To Door #3....

Gail Heriot is now a regular Volokh Conspiracy contributor, but I kind of wonder how long she'll last. All of her posts thus far are rather generic right-wing hobby horses of the "actually, civil rights activists are bad for minorities"/"actually, feminists are bad for women"/"actually, we should be putting more Black people in jail" sort. And while there are any number of publications that would be delighted to put those thoughts into print, it doesn't really work well in the blogging format because they're too generic. For blogging to be sustainable, it generally is responsive to contemporaneous events (if only someone else's post). In my experience, people who blog their general abstract political views tend to get bored pretty quickly.

I guess we'll see. Anyway, today's entry is "actually, feminists should oppose the Equal Rights Amendment." The argument is that feminists like certain identity-conscious programs (and hence have opposed, e.g., Proposition 209 which banned affirmative action in California), but the ERA's sex equality language would place programs of that sort in jeopardy where they operate to the benefit of women. Given this, Heriot suggests, there are two possibilities:

(1) Feminists secretly want the ERA to fail; or

(2) Feminists are willing to see sex-conscious policies struck down as unconstitutional.

Maybe. But might I suggest there might be something behind door #3?

(3) Proponents of the ERA don't understand the term "equality" in the ERA to ban the sorts of programs Heriot has in mind.

Put another way, perhaps the most straight-forward way of parsing "feminists support the ERA and support sex-conscious policies where they facilitate gender equality" is that "the prevailing public meaning of 'equality' in the ERA's text -- at least as understood by ERA backers -- does not preclude the passage and enforcement of sex-conscious policies that facilitate gender equality."

Now, to be sure, Heriot might not be wrong that the ERA, if ratified, "would very likely be interpreted to invalidate the many state-sponsored 'affirmative action' programs that currently give preferential treatment to women and women-owned businesses." The "colorblind turn" in Fourteenth Amendment jurisprudence has been notorious in not resting on even a purported attempt to discern the original understanding of the relevant constitutional text; a point of considerable embarrassment for the Court's originalists. So it strikes me as perfectly likely that the Court would give the ERA the same treatment -- ignoring powerful evidence of how what its backers and ratifiers understood themselves to be doing in favor of a particular, contested viewpoint of "equality" as sex-blindness. Still, it seems rather telling that even the prospect that an alternative view of "equality" is being appealed to here -- one that harmonizes the positions Heriot sees as inconsistent -- isn't even recognized as a possibility.

Originalism and the ERA

Ilya Somin and Eugene Volokh have been making the argument that passing the Equal Rights Amendment (ERA) would mean the end of a great many policies that liberals (including feminist liberals) are very much enamored with (or at least don't want to see categorically abolished). This would include female-only sports teams, affirmative action programs for women, bars on women in combat, or single-sex bathrooms.

Responding to the criticism that judges would simply not interpret the ERA in this manner (similarly to how they haven't--yet--interpreted the 14th Amendment or the Civil Rights Act as barring affirmative action), Somin argues that the times have changed on the Supreme Court and progressives can no longer count on liberal majorities to establish precedents and interpretations in their favor on these issues.

This argument is not wholly implausible, but it ignores the massive differences between the judiciary today and that of the 1960s and 70s which created the dominant interpretations of the Civil Rights Act. At that time, the judiciary was overwhelmingly liberal and nontextualist. As a result, they were willing to deviate from the text to reach liberal results, especially at a time when Congress and the president largely approved of their objectives (as did even Republican President Richard Nixon, who supported affirmative action). Today, the judiciary is largely made up of judges appointed by conservative Republican presidents Reagan, Bush I, and Bush II, all of whom tried hard to pick judges with strong conservative credentials and (to a lesser extent) textualist approaches to constitutional and statutory interpretation. For example, almost 60% of today's federal court of appeals judges were appointed by conservative Republican presidents. With the replacement of Justice O'Connor (who waffled on the issue) by Justice Alito, the Supreme Court also has a majority hostile to affirmative action. And today's presidency is often held by conservative Republicans. Congress, even under the Democrats, is unlikely to have the kind of strong liberal majority that existed in the 60s and 70s.

What Somin doesn't mention, however, is that these conservative judges often at least nominally claim to adhere to originalism, not just textualism. And it is beyond clear that liberals do not intend the ERA to be interpreted in a manner that would preclude favored liberal policies. Indeed, the tone of Somin and Volokh's posts seems premised on this point--that liberals giddily pushing for passage of the ERA don't know what they're getting into (and certainly don't intend to live in a world where the aforementioned policies are deemed unconstitutional). While Volokh and Somin focus on the plain text itself (and agree that their interpretations are certainly plausible ones), the scholarship on the ERA (especially in recent years when it has seemed all but dead) has come primarily from the feminist left, which has created a paper trail that points rather strongly in the direction of an ERA not meant to embody an anti-differentiation principle (which is how Somin and Volokh read it).

So we are faced with an interesting conundrum for conservative judges nominally tied to originalism. The original intent, meaning, and understanding of this amendment almost has to be read in accordance with the scholarship that has been its primary exposition over the past 20 years or so. This scholarship embodies not just liberal, but relatively radical leftist positions on the relationship of law to subordination--positions that I'm a fan of, but conservatives tend to rail against with wild abandon.

Personally, I'm in agreement with Somin that conservative judges political opposition to many of these liberal policies will guide their interpretations, and originalist rhetoric will be co-opted or subsumed to that end. If so, that should drive a pretty large stake through the heart of the claim that originalism is a more "objective" philosophy of judicial interpretation--as opposed to just another guise by which judges install their preferences into law.

Schlafly Honors Marriage

The ERA has emerged from the grave to make another run at passage, and you know what that means: Phyllis Schlafly is back in the news! At an event at Bates College, the anti-ERA warrior claimed that marital rape is impossible. "By getting married, the woman has consented to sex, and I don't think you can call it rape."

But clearly, it's the "pro-family" folks like Schlafly that are defending the institution of marriage, by informing the populace about the perils of eliminating the marital rape exemption.

Feministing seems to have a solution that everyone can appreciate: "Hows about we make a rule that the amendment would guarantee equality for all women except Phyllis Schlafly? Then everyone wins."

Also at Feministing is a post talking about some queer activists opposed to fighting for marriage equality, because (among other reasons) marriage is so bound up in patriarchal history and practice that it is rather perverse to even want to be included in it. Generally arguments like that don't sway me, but comments like Schlafly's certain add to their potency, no?