BILL ANALYSIS Ó
AJR 18
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Date of Hearing: May 21, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AJR 18 (Skinner) - As Introduced: April 16, 2013
SUBJECT : EQUAL RIGHTS AMENDMENT
KEY ISSUE : SHOULD THE LEGISLATURE ADOPT A RESOLUTION URGING
CONGRESS TO PASS THE EQUAL RIGHTS AMENDMENTS TO ENSURE THAT MEN
AND WOMEN ARE EQUAL UNDER THE LAW?
FISCAL EFFECT : As currently in print this measure is keyed
non-fiscal.
SYNOPSIS
The U.S. Constitution today does not state that men and woman
are equal under the law. Congress passed an Equal Rights
Amendment (ERA) in 1972 to do just that, but only 35 states
ratified it in time, falling three states short of ratification.
Since then, many other ERAs have been introduced in Congress.
This year's version is Senate Joint Resolution 10 by Senator Bob
Menendez. This resolution urges Congress to pass Senator
Menendez's resolution, subject to ratification by the states, to
ensure that man and women are treated equally under the law
throughout the United States.
SUMMARY : Requests that Congress pass Senate Joint Resolution
No. 10, the Equal Rights Amendment (ERA) to the U.S.
Constitution, subject to ratification by the legislatures of
three-fourths of the states, to ensure 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. Specifically, this
measure makes the following findings:
1)The ERA ratification bill has been introduced as Senate Joint
Resolution No. 10.
2)The ERA was first written by Alice Paul, the head of the
National Woman's Party, and has been introduced in every
Congress of the United States since 1923 in order to guarantee
that the rights affirmed by the U.S. Constitution are held
equally by all citizens without regard to sex.
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3)The ERA would provide a fundamental legal remedy against sex
discrimination for both women and men.
4)The ERA would clarify the legal status of sex discrimination
for the courts, where decisions still deal inconsistently with
such claims.
5)The ERA would make "sex" a suspect classification, as race
currently is, so that governmental actions that treat males
and females differently as a class would have to bear a
necessary relation to a compelling state interest in order to
be upheld as constitutional.
6)The ERA was first passed by Congress in 1972, but was three
votes shy of the 38-state requirement for ratification. The
ERA has been reintroduced in Congress each year since 1982 and
has seen legislative activity in 8 of the 15 unratified
states.
7)The first, and still the only, right that the U.S.
Constitution specifically affirms to be equal for women and
men is the right to vote under the 19th Amendment, and it was
ratified by the states in 1920.
8)The 14th Amendment's equal protection clause has never been
interpreted to protect against sex discrimination in the same
way that the ERA would. Supreme Court Justice Antonin Scalia
has said he does not believe that the U.S. Constitution,
specifically the 14th Amendment, protects against sex
discrimination.
9)In the cases of Craig v. Boren (1976) and United States v.
Virginia (1996), the United States Supreme Court declined to
elevate sex discrimination claims to the strict scrutiny
standard of review that the 14th Amendment requires for
certain suspect classifications such as race, religion, and
national origin.
10) The ERA has not been ratified in 15 states -- Alabama,
Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana,
Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South
Carolina, Utah, and Virginia.
11) The state constitutions of Alaska, California, Colorado,
Connecticut, Florida, Hawaii, Illinois, Iowa, Louisiana,
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Maryland, Massachusetts, Montana, New Hampshire, New Jersey,
New Mexico, Pennsylvania, Rhode Island, Texas, Utah, Virginia,
Washington, and Wyoming all provide guarantees of equal rights
on the basis of sex.
12) Without the addition of the ERA to the U.S. Constitution,
legislation and case law that has resulted in extraordinary
progress for women has the potential to be ignored, weakened,
or reversed. By a simple majority in the Congress,
legislation can be amended or repealed, the presidential
administration can weakly enforce these laws, and the U.S.
Supreme Court can continue to use intermediate scrutiny when
reviewing cases concerning gender.
EXISTING LAW :
1)Provides, in the California Constitution's Equal Protection
Clause, that:
a) "A person may not be deprived of life, liberty, or
property without due process of law or denied equal
protection of the laws"; and
b) "A citizen or class of citizens may not be granted
privileges or immunities not granted on the same terms to
all citizens." (Cal. Const., Article I, Section 7.)
2)Provides that a "person may not be disqualified from entering
or pursuing a business, profession, vocation, or employment
because of sex, race, creed, color, or national or ethnic
origin." (Cal. Const., Article I, Section 8.)
3)Provides that the "state shall not discriminate against, or
grant preferential treatment to, any individual or group on
the basis of race, sex, color, ethnicity, or national origin
in the operation of public employment, public education, or
public contracting." However, nothing in this provision
"shall be interpreted as prohibiting bona fide qualifications
based on sex which are reasonably necessary to the normal
operation of public employment, public education, or public
contracting." (Cal. Const., Article I, Section 31.)
4)Provides that "All people . . . have inalienable rights.
Among these are enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy." (Cal. Const.,
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Article I, Section 1.)
5)Provides, in the Unruh Civil Rights Act, that all persons are
free and equal, and no matter what their sex, race, color,
religion, ancestry, national origin, disability, medical
condition, genetic information, marital status, or sexual
orientation are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all
business establishments of every kind whatsoever. (Civil Code
Section 51.)
6)Provides, pursuant to the Fair Employment and Housing Act,
that it is an unlawful employment practice for an employer,
because of the race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical
condition, genetic information, marital status, sex, gender,
gender identity, gender expression, age, or sexual orientation
of any person, to refuse to hire or employ that person or to
refuse to select that person for a training program leading to
employment, or to bar or discharge that person from employment
or from a training program leading to employment, or to
discriminate against that person in compensation or in terms,
conditions, or privileges of employment. (Government Code
Section 12940(a).)
7)Provides that no business establishment may discriminate
against a person because of the person's gender with respect
to the price charged for services. (Civil Code Section 51.6.)
COMMENTS : While 22 state constitutions specifically protect
against discrimination on the basis of gender, the U.S.
Constitution does not. This resolution urges the adoption of
just such a measure at the federal level. In support, the
author writes:
The intention of AJR 18 is to encourage the 113th United
States Congress to pass the Equal Rights Amendment.
Currently, there is no legal remedy against sex
discrimination for both men and women. The ERA would make
"sex" a suspect classification to ensure 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.
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The federal Equal Rights Amendment was initially introduced in
1923. It finally passed Congress in 1972 and was ratified by 35
states (including California), three short of the three-fourths
needed for it to become part of the U.S. Constitution. It has
been introduced in every session of Congress since 1983. This
session, the ERA has been introduced as Senate Joint Resolution
10.
Senate Joint Resolution 10 : The ERA resolution was introduced
in the U.S. Senate on March 5, 2013, by Senator Bob Menendez
(N.J.). It has 12 cosponsors and proposes to amend the U.S.
Constitution as follows:
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 Congress shall have the power to enforce, by
appropriate legislation, the provisions of this article.
By its own terms, the resolution will take effect two years
after ratification.
Twenty-Two States Have Enacted Some Version of an Equal Rights
Amendment : Equality provisions protecting citizens from
gender-based discrimination can be found in 22 states, though
not all are as broad or as non-discriminatory as the proposed
federal ERA. Those states are: Alaska (1972), California
(1996), Colorado (1973), Connecticut (1974), Florida (1998),
Hawaii (1978), Illinois (1971), Iowa (1998), Louisiana (1974),
Maryland (1972), Massachusetts (1976), Montana (1972), New
Hampshire (1974), New Jersey (1947), New Mexico (1973),
Pennsylvania (1971), Rhode Island (1986), Texas (1972), Utah
(1896), Virginia (1971), Washington (1972) and Wyoming (1890).
Of the states that have enacted some version of an ERA, most
ratified the 1972 federal ERA, but a few, including Florida and
Louisiana, did not.
It is worth noting that California's "version" of the ERA was
actually Proposition 209, which was designed to eliminate state
and local government affirmative action programs in the areas of
public employment, public education, and public contracting.
However, California's constitution also provides protections in
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Article I's Equal Protection Clause and in Article 1, Section 8,
which provides that a "person may not be disqualified from
entering or pursuing a business, profession, vocation, or
employment because of sex, race, creed, color, or national or
ethnic origin."
U.S. Constitutional Standard of Review in Gender Discrimination
Cases : In order to determine if a statute is constitutional on
equal protection grounds, there are two general standards for
review under the U.S. Constitution. In ordinary cases, the
constitutional test is the rational basis test. Under this
test, a state need only show it had a rational basis or
reasonable purpose for enacting a law. It is fairly difficult
to invalidate a statute under this test. If the statute
involves a fundamental right, such as the right to vote, or a
suspect class, such as one based on race, the test is the much
tougher strict scrutiny test. Under that test, a statute may be
upheld only if it is necessary for the furtherance of a
compelling state interest.
In the absence of the ERA, the U.S. Supreme Court has declined
to consider gender a suspect class and thus sex discrimination
claims have not been reviewed under the strict scrutiny test.
Instead, the Supreme Court created an intermediate review level,
called the heightened scrutiny test. Under this test, a statute
will be upheld if serves an important government objective and
is closely related to the achievement of that objective. (See
Craig v. Boren (1976) 429 U.S. 190, in which the Supreme Court
invalidated a Oklahoma statute that allowed women to buy beer at
a younger age than men under the heightened scrutiny test.)
However, that test was strengthened to require an "exceedingly
persuasive" justification for gender classifications. (See
United States v. Virginia (1996) 518 U.S. 515, in which the
Supreme Court invalidated a male only admissions policy at
Virginia Military Institute.)
Prior Legislation : AJR 1 (Speier), Res. Chap. 114, Stats. 1993.
REGISTERED SUPPORT / OPPOSITION :
Support
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None on file
Opposition
None on file
Analysis Prepared by : Leora Gershenzon and Alex Nowinski / JUD.
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