Some are more equal than others
Updated: Feb 11, 2022
America loves to talk about “equality,” a subject that is ironically difficult to talk about in America.
Last month, Reps. Carolyn Maloney (D-N.Y.) and Jackie Speier (D-Calif.) introduced a resolution that would enshrine the Equal Rights Amendment in the U.S. Constitution—finally, nearly a century after it was first proposed and 50 years after being approved by Congress.
The resolution noted that the ERA has met all legal requirements to be considered the 28th constitutional amendment. A proposed amendment becomes part of the Constitution after being ratified by 38 states. On Jan. 27, 2020, Virginia became the 38th state to ratify the ERA, which was to go into effect exactly two years from then. Hence the end of the waiting period on Jan. 27, 2022.
If enshrined into the Constitution, the ERA would guarantee that “constitutional rights may not be denied or abridged on account of sex.”
President Biden has called on Congress "to act immediately to pass a resolution recognizing ratification of the ERA."
"We must recognize the clear will of the American people and definitively enshrine the principle of gender equality in the Constitution. It is long past time that we put all doubt to rest," Biden said. "No one should be discriminated against based on their sex — and we, as a nation, must stand up for full women’s equality.”
It’s odd that sealing the deal for the ERA is tackled laboriously as if it is a novelty, despite the already growing number of women-centric national and local statutes.
There were even curious attempts to impede it by virtue of bureaucratic claptrap. In January 2020, the Justice Department under the Trump administration issued a memo blocking the ERA from becoming law, arguing that “the latest states to ratify the ERA cannot actually do so because the deadline to ratify the ERA expired. Therefore, the National Archives would not be able to certify the amendment.”
The DOJ's memo suggested that the only way the ERA could be ratified was to rewind the process way back to the beginning—have it reintroduced to restart the ratification exercise.
Last month, the DOJ— now under the Biden administration— questioned the prudence of the 2020 memo. However, DOJ did not recall it, suggesting that it would be up to the courts and Congress to determine the ERA's inclusion into the constitution.
"We’ve ratified the ERA; now it’s time to enshrine it into our Constitution," Speier said in a statement.
Meanwhile, somewhere in the Pacific and the Caribbean live 4 million Americans who are left out of constitutional “equal rights.”
For Guam, Northern Marianas, Puerto Rico, American Samoa and U.S. Virgin Islands, “equal rights” is the holy grail. Territorial citizens can’t vote for president and do not have voting representatives in the U.S. Congress.
America’s long struggle to institute the ERA parallels the U.S. territories’ long quest for “equal protection rights,” which according to the century-old Insular Cases, they are not entitled to.
Besides voting rights, other sticky questions involve federal benefits and programs— such as Supplemental Security Income benefits for the needy, aging and disabled—that are not extended to geographically-isolated Americans.
“As to the issue of equal protection, the U.S. government contends that the constitutional requirement of equal application of the law only applies to protected classes of individuals and does not apply to geographical locations,” the U.S. government argued in the case of U.S. v. Vaello-Madero during oral arguments in the Supreme Court last year.
We eagerly wait for the U.S. Supreme Court’s landmark decision, wondering if our fate will finally change and thrust us into a new era after more than a hundred years.