BILL ANALYSIS Ó
AJR 18
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AJR 18 (Skinner)
As Amended June 26, 2013
Majority vote
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|ASSEMBLY: |56-10|(May 28, 2013) |SENATE: |31-6 |(August 19, |
| | | | | |2013) |
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Original Committee Reference: JUD.
SUMMARY : Requests that Congress pass Senate Joint Resolution No.
10, the Equal Rights Amendment (ERA) to the United States (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 U.S. or by any state
on account of sex. Specifically, this resolution 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, other than when it was sent to the
states for ratification, in order to guarantee that the rights
affirmed by the U.S. Constitution are held equally by all citizens
without regard to sex.
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. California was
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among the first states to ratify it. The ERA has been
reintroduced in Congress each year since 1982 and has seen
legislative activity in eight 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 that ratified by the states in
1920.
8)The equal protection clause of the 14th Amendment 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, 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. Congress can amend or repeal legislation advancing
equality with a simple majority, 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.
The Senate amendments are clarifying and technical.
EXISTING LAW :
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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."
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."
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."
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."
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.
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
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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.
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.
FISCAL EFFECT : None
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.
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. 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
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enforce, by appropriate legislation, the provisions of
this article.
By its own terms, the resolution will take effect two years after
ratification.
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. 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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN:
0001363