Assessing the impact of state ERAs
Boston — As the June 30, 1982, deadline for ratification of the federal Equal Rights Amendment approaches, states with their own versions of an ERA are under scrutiny. What has been the effect of legal provisions that prohibit discrimination on the basis of sex?
There have been sweeping changes in some of the 16 states with equal-rights amendments. Divorce laws have been reformed as ERAs spur recognition of the financial worth of homemaking. Access to certain jobs have been extended to women, and benefits that only women received are being accorded to men. ERAs have also been used to open up scholarships and sports activities to women.
In others states, equal-rights provisions have been used very little to settle questions of discrimination. The Utah provision, which was included in its original state constitution, has had little effect on such legal challenges as those over discrepancy of pay between male and female police officers.
States with equal rights provisions are Alaska, Colorado, Connecticut, Hawaii , Illinois, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, Pennsylvania, Texas, Utah, Virginia, Washington, and Wyoming.
Some state wordings closely follow the wording of the proposed Federal Equal Rights Amendment. The Hawaiian provision reads: "Equality of rights under the law shall not be denied or abridged by the state on account of sex."
Other states have more modified versions. In Utah, the provision reads: "The rights of citizens of the state of Utah to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges." State ERAs get mixed reviews
Assessments of state ERAs are mixed, because the issue is very partisan. The ERA Impact Project, a report by the National Organization for Women's Legal Defense and Education Fund and the Philadelphia-based Women's Law Project, contends that state ERA implementation in the areas of family law, education, and employment has benefited men and women. They offer reams of information on litigation in the 16 states with ERAs, illustrating by case examples how state ERAs have expanded rights and removed limitations for both sexes.
Opponents of the federal and state ERAs speak broadly of setbacks for women in some of these states. They say support for the traditional family has been undermined, and women have lost protection that previous state laws gave them.
"Anything good that has been accomplished by a state ERA could have been done by the 14th Amendment to the Constitution," says Phyllis Schlafly, one of the country's most outspoken opponents of ERA.
Supporters of state ERAs maintain that the provisions help families by recognizing marriage as an economic as well as social and emotional partnership.
"The most important effect of the ERA [in the area of family law] has been the specific recognition of the economic value of a homemaker," says Susan Cary Nicholas, managing attorney for the Women's Law Project. Most common laws traditionally gave little protection to the homemaker who found herself without a mate, she says.
In Pennsylvania, for example, the courts presumed that all untitled property in a marriage, including furnishings and appliances, belonged to the husband.
"To obtain her share, a woman had to submit proof that she paid for something or that it was given to her," Ms. Nicholas says. When the case was brought to court, the judge agreed that the law did violate the state ERA. He further said that the solution under an ERA was not to make both spouses submit proof of ownership, but to split the goods 50-50 to recognize the nonmonetary economic contribution of the homemaker.
This type of ruling has made a practical difference to women, Ms. Nicholas says.
"What happened, as an outgrowth, was a sweeping reform of divorce laws in this state," she says. She acknowledges that many states have similar reforms, but points out that it was the ERA that sparked change in Pennsylvania, and the ERA will ensure that the reforms are not taken away.
Opponents disagree that state ERAs have always helped women. Mrs. Schlafly points to the 1977 Pennsylvania case of Albert Einstein Medical Center v. Nathans, in which the court ruled that a law giving creditors the right to sue a husband for payment of his wife's "necessaries," which include medical care, food, clothing, and shelter, must either be repealed or changed to allow creditors the right to sue either spouse.
"You couldn't ask for a bigger takeaway," Mrs. Schlafly says. Ms. Nicholas says the ruling hasn't had a large effect.
In education, the ERA Impact Project claims, state ERAs set a clear and consistent standard for courts. Because of challenges based on ERAs, women have won the right to apply for scholarships formerly awarded only to men and to have on-campus housing equivalent to that provided for men. At the same time, the report continues, privacy has been upheld. A New Mexico court rejected a claim that state ERAs require elimination of restrictions on coed dorm visits. Work, athletic opportunities widened
The report also maintains that athletic opportunities for girls have been widened through state ERAs by allowing girls to play at the level their ability permits, even if this means playing on a boys' team. Opponents of ERAs decry this type of ruling, which they say disregards any rational arguments that might be presented to exempt women from such sports as boxing, wrestling, and football.
Employment opportunities for men and women have improved as a result of state ERAs, according to the Impact Project. Legislative reform has opened occupations previously closed to women. And rights that previously applied only to women have been extended to men.
For example, men now benefit from Colorado's minimum-wage law, along with women and children. Limits to the number of hours women can work have been repealed in Connecticut and Illinois.
Rosemary Thomson, a coordinator for the Eagle Forum in Illinois, insists that ERAs are not needed to rectify discrimination in employment. She points out that most states have equal-opportunity laws.
Mrs. Thomson even disagrees as to whether all of the states mentioned in the ERA Impact Project actually have equal-rights amendments. She sees a difference between a state ERA, which closely follows the wording of the federal ERA, and an equal-protection clause, which, like the 14th Amendment of the Constitution, supports equal rights but allows for distinctions in the law between men and women when there are "compelling" reasons.
Mrs. Thomson says Illinois has an equal-protection clause instead of an ERA.
"That is the reason there have been no wild changes in the [Illinois] laws," she says.
Kim E. Greene, staff attorney at the NOW Legal Defense and Education Fund, says it is "silly" to differentiate between the provisions, adding that all states, whether they have an equal-protection clause as in Illinois or an ERA as in Pennsylvania, rely on one another and the legislative history of the federal ERA for analyses when examining and defining laws.
Mrs. Thomson says women in states without equal-rights amendments are not necessarily discriminated against more than people in states with ERAs.
"I don't think women are so stupid that if they find a harmful law, they won't get out and change it," she says. Changing laws case by case
Karen DeCrow, former president of the National Organization for Women and a lawyer in Syracuse, N.Y., has found that changing state laws and provisions is not easy. Ms. DeCrow is fighting a case for Lorca Shepperd, a 13-year-old who wants to attend a New York state-sponsored environmental education camp that accepts only boys. Ms. DeCrow filed a suit against the state after fruitless negotiations.
She thought the case was won this past winter. A judge ruled that the state should integrate the camps by the summer of 1981 if fiscally possible, or by 1982. The state has since appealed that decision.
"Taxpayers' money is being used to maintain a segregated facility and to defend it," says Ms. DeCrow, who is handling the case free of charge. She estimates she has donated over $1,000 in legal time.
"We'd like to provide girls with an environmental education," she says, adding that next summer will be Lorca Shepperd's last chance to go to camp. "If there was a New York or federal ERA, this camp could not be segregated."
If the federal Equal Rights Amendment is not passed, will ERA activists push for state versions? At a glance, the ERA Impact Project looks as if it could be quickly converted into a tool for promoting and establishing state provisions.
"It's not a decision that has been made or will be made for a year or so," says Ms. Greene, who points out that a state-by-state battle for ERAs would be the longest way possible to equal rights. The study is intended to provide legal precedents for cases brought under state ERAs and, in the event of its passage, the federal ERA.
"If we wait for every state to change discriminatory laws, which is what Presiddent Reagan suggests, we will wait for 400 years," says Cynthia Medeiros, president of Boston NOW. She adds that there are federal laws that discriminate against women and that state ERAs can do nothing about them.
"Discrimination is there, and there is currently no legal mechanism to obliterate it," Ms. Medeiros says.