Kathryn Querner ‘22
Executive Editor
On Thursday, March 5, UVA Law Professors Kim Forde-Mazrui (“KFM”) and Saikrishna Prakash shared their thoughts about the Equal Rights Amendment. This presentation took place in Withers-Brown at noon, hosted by the Federalist Society, with pizza from Mellow Mushroom provided.
This presentation has special relevance, as on Wednesday, January 15, the Virginia General Assembly became the thirty-eighth state to ratify the Equal Rights Amendment (ERA), and the passage of an amendment to the U.S. Constitution currently requires the support of at least thirty-eight U.S. states. The amendment, however, still faces various challenges it must overcome before it can be added to the Constitution.
The Equal Rights Amendment (ERA) is a proposed amendment to the Constitution meant to guarantee that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The measure was first introduced to Congress nearly 100 years ago, in 1923.
Professor Prakash kicked off the presentation. He began by sharing that he would focus on the process of passing the ERA, rather than its substance. Before the ERA can be added to the Constitution, the 1979 deadline set by Congress must be overcome. There is a legal question of whether Congress has the authority to extend this deadline to include recent state ratifications, including Virginia’s.
Professor Prakash drew comparisons between the procedures of passing the ERA and the 27th Amendment, which took 200 years to be ratified. After a total of thirty-eight states ratified the 1789 pay amendment, the legislative and executive branches determined that the amendment was valid. Although Professor Prakash himself criticizes this conclusion, the extended ratification process for the 27th Amendment raises the possibility that the ERA, too, may be considered valid and viable.
Due to concerns of expired consent of some states’ ratifications among other concerns, though, Professor Prakash has concluded that Congress cannot change this deadline; however, it remains to be seen what actions Congress and the courts will take regarding this amendment.
Professor Forde-Mazrui spoke next; interestingly, he does not support the passage of the ERA—not because he does not support gender equality, but rather because his work in race studies have provided insight into how the ERA would actually harm the women’s rights movement in various ways. The ERA does not apply to discrimination against women in the private sector, and further, sex discrimination by the government is already prohibited.
When asked what got him interested in studying the ERA, Professor Forde-Mazrui said, “My research on race has revealed that the trend of Supreme Court doctrine is to prevent any affirmative efforts to remedy racial equality, including through race-neutral means and including by eliminating policies that disparately impact racial minorities. I have taught my Constitutional Law class for decades that affirmatively addressing sex inequality is easier under the Equal Protection Clause than addressing race inequality. Several students have found this counterintuitive as discrimination against African Americans was the principal evil that the Equal Protection Clause was intended to address. I wish that the Supreme Court treated race discrimination the same way it treats sex discrimination, namely, banning discrimination against women and racial minorities while allowing reasonably tailored proactive efforts to benefit women and racial minorities.”
Frances Asbury ’22 attended the presentation and commented, “I thought KFM made compelling and poignant arguments against passing the ERA. Having listened to him speak, I am convinced we can and should do better not only for those the ERA purports to benefit, but for racial minorities, the LGBTQ+ community, and other underrepresented or disenfranchised communities.”
After sharing his findings that the ERA would actually harm women and other protected groups in various ways, Professor Forde-Mazrui suggested that alternative solutions to protecting women as a class should include prohibiting discrimination in the private sector and permit distinctions based on sex that are designed to benefit women.
After both speakers concluded, students and community members in attendance had a chance to ask questions.
As a final piece of advice, Professor Forde-Mazrui recommends to the UVA Law community, “Students should realize that many lawmakers and members of the public do not understand judicial doctrine very well. I continually find, whether about race, sex, or sexual orientation equality, that well-educated people, including lawmakers, have many unfounded and false assumptions about what the courts are holding on various issues. That gives law students and ultimately lawyers an important role to play in bridging the understanding gap between the law on the books and the beliefs about law held by lawmakers and much of the public.”
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