Does the U.S. Constitution Need an Equal Rights Amendment?

Abstract

For over 3 decades, those engaged in the battle over the Equal Rights Amendment (ERA), along with many scholarly commentators, have argued that ratification of the amendment will lead U.S. courts (1) to elevate the standard of law they now use to adjudicate claims of sex discrimination, which, in turn, could lead them (2) to find in favor of parties claiming a denial of their rights. We investigate both possibilities via an examination of constitutional sex discrimination litigation in the 50 states—over a third of which have adopted ERAs. Employing methods especially developed for this investigation, we find no direct effect of the ERA on case outcomes. But we do identify an indirect effect: the presence of an ERA significantly increases the likelihood of a court applying a higher standard of law, which in turn significantly increases the likelihood of a decision favoring the equality claim.