DOES THE U.S. CONSTITUTION NEED AN ERA?
Published in 2006. In the Journal of Legal Studies, 35 (January): 243-283.
(Revised version of a paper delivered at the 2004 annual meeting of the Law & Society Association, Chicago, IL.)
Andrew D. Martin
For over three 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 to reach many more decisions in favor of litigants alleging discrimination. An ERA could accomplish this end in one of two ways: directly, by prompting judges to take a more skeptical view of sex-based discrimination or, as is more typically argued, indirectly, by leading judges (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 fifty statesover 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 does, in fact, significantly increase 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. This finding, however, is not without its share of nuances. While ERAs do, in fact, affect the adjudication of constitutional sex discrimination cases, they are just one of several factors that explain judges' choices over standards of law and the outcomes that application of those standards produce.