BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AJR 18 (Skinner)
As Introduced
Hearing Date: June 18, 2013
Fiscal: No
Urgency: No
NR
SUBJECT
Equality of rights for men and women
DESCRIPTION
This resolution would urge the Congress of the United States to
pass Senate Joint Resolution No. 10, an amendment to the United
States Constitution to ensure that equality of rights shall not
be denied or abridged on account of sex.
BACKGROUND
The federal Equal Rights Amendment (ERA) is an amendment to the
United States Constitution which would ensure that equality of
rights under the law shall not be denied or abridged on account
of sex, and would give Congress the power to enforce, by
appropriate legislation, its provisions. The ERA was initially
introduced in 1923, and finally passed Congress in 1972.
However, it was only ratified by 35 states, three states short
of the three-fourths needed 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 No. 10 (SJR 10), by Senator Bob Menendez of New
Jersey. By its own terms, SJR 10 would take effect two years
after ratification. This resolution would urge the Congress of
the United States to pass SJR 10.
CHANGES TO EXISTING LAW
Existing law , the California Constitution, states that Equal
(more)
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Protection Clause that a person may not be deprived of life,
liberty, or property without due process of law or denied equal
protection of the laws; and a citizen or class of citizens may
not be granted privileges or immunities not granted on the same
terms to all citizens." (Cal. Const., art. I, sec. 7.)
Existing law 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., art. I, sec. 8.)
Existing law 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." (Cal. Const., art. I, sec. 31.)
Existing law 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., art. I, sec. 1.)
Existing law provides 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. (Civ. Code Sec. 51.)
Existing law provides that no business establishment may
discriminate against a person because of the person's gender
with respect to the price charged for services. (Civ. Code Sec.
51.6.)
Existing law provides 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
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compensation or in terms, conditions, or privileges of
employment. (Gov. Code Sec. 12940(a).)
This resolution would make a number of findings, including:
that the Equal Rights Amendment (ERA) ratification bill,
Senate Joint Resolution No. 10 (SJR 10), would provide a
fundamental legal remedy against sex discrimination for both
women and men by clarifying the legal status of sex
discrimination for the courts;
that the ERA would make "sex" a suspect classification, 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 to be upheld as constitutional;
that the first and only right the U.S. Constitution
specifically affirms to be equal for women and men is the
right to vote under the 19th Amendment, which was ratified by
the states in 1920;
that the 14th Amendment's equal protection clause has never
been interpreted to protect against sex discrimination in the
same way that the ERA would;
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;
that 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;
that the state constitutions of Alaska, California, Colorado,
Connecticut, Florida, Hawaii, Illinois, Iowa, Louisiana,
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; and
that without the addition of the ERA to the United States
Constitution, legislation and case law that has resulted in
extraordinary progress for women has the potential to be
ignored, weakened, or reversed.
This resolution would state that the Assembly and Senate of the
State of California resolve jointly to request the Congress of
the United States to pass SJR 10.
This resolution would require the Chief Clerk of the Assembly to
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transmit copies of this resolution to the President and Vice
President of the United States, and members of the United States
Congress.
COMMENT
1.Stated need for the bill:
According to the author:
In the cases of Craig v. Boren (1976) and United States v.
Commonwealth of Virginia (1996), the 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? .
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.
2.Existing standards of review for gender discrimination cases
Courts determine whether a statute is constitutional and thereby
offers individuals adequate substantive due process by balancing
the interests of the individual versus the interests of the
state. Typically, ordinary social or economic legislation
requires the court to show a legitimate state interest, and any
reasonable means for achieving that interest. Under this
"rational basis" test, it is very difficult to invalidate a
statute. However, if a statute implicates a fundamental right,
the court applies the "strict scrutiny" test, under which a
statute will only be upheld if it is necessary for the
furtherance of a compelling state interest. Fundamental
protections include discrimination against a suspect class, the
right to vote, property interests, and most types of privacy
violations.
However, the United States Supreme Court has declined to
consider gender a suspect class, and therefore gender
discrimination claims have not benefited from the application of
the "strict scrutiny" test. The Supreme Court instead created
an intermediate level of review which has been applied to gender
discrimination cases. Under "intermediate scrutiny" a statute
will be upheld only if the state demonstrates an important
government objective and that the law is closely related to the
achievement of that government objective. (See Craig v. Boren
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(1976) 429. U.S. 190, and United States v. Virginia (1996) 518
U.S. 515.)
22 states have enacted some form of protection for their
citizens from gender discrimination. However, the level of
protection offered by state laws varies from state to state, and
not all states offer as much protection as what is being
proposed under SJR 10. Federal preemption mandates that in the
event that a federal law conflicts, or is more protective of
citizens than a state law, the federal law is applied. Thus,
the ratification of SJR 10, as urged by this resolution, would
create a new level of baseline gender discrimination protections
for the citizens of every state.
Support : None Known
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : AJR 1 (Speier, Res. Chap. 114, Stats. 1993)
memorialized the President and Congress of the United States to
propose the adoption of the Equal Rights Amendment to the United
States Constitution
Prior Vote :
Assembly Floor (Ayes 56, Noes 10)
Assembly Judiciary Committee (Ayes 8, Noes 1)
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