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Rep. Kathy Javner of Chester is the lead Republican on the Maine Legislature’s Health and Human Services Committee. Rep. Jennifer Poirier of Skowhegan serves on the Joint Standing Committee on Judiciary.
Why would anyone be against the Equal Rights Amendment? The amendment’s supporters repeat this question again and again as if nobody is willing to answer it. They tell us that supporting this amendment is a “no-brainer.” They tell us that they are confused by lingering opposition to it. At the same time, they dismiss the disastrous consequences that such amendments have produced in other states.
We know there will be unintended consequences. Its supporters tell us that this amendment will fix the gender pay gap, protect reproductive rights and end hiring discrimination. None of these things are in the amendment’s text. We need to look beyond that text to determine if this amendment will be good for Mainers.
Look at other states that passed this amendment. After New Mexico passed its amendment, the Nevada Supreme Court required the Legislature to fund medically necessary abortions. Refusing to fund abortion constitutes a “discrimination against pregnancy,” according to the court. The amendment, in prohibiting all discrimination, thus enshrined medically necessary abortion in the Nevada Constitution under the guise of “equal rights for women.” Similar things happened in Pennsylvania and Connecticut. Why should we expect things to be any different in Maine?
But there’s more. Because this amendment “prohibits sex discrimination,” we need only to start listing examples of sex discrimination to find what the amendment, at least on its face, prohibits. The amendment’s supporters have already listed a few. We can give you more. Sex-segregated locker rooms and sports teams, for example, are examples of sex discrimination. The fact that some churches only hire male pastors is likewise discrimination. When a company only gives maternity leave to women, they are discriminating on the basis of sex. We think these are not only reasonable, but must be preserved for the sake of women’s dignity, religious freedom and the health of children.
Even if a distinction between public and private discrimination is artificially imposed on this amendment, we still have a problem. Then only girls privileged to compete on female sports teams could be those whose parents could afford to send them to private school. Women in prisons could be forced into cells with men. State-funded women’s shelters could no longer be exclusive to women.
If supporters of the Equal Rights Amendment do not intend these to be prohibited, it should be clearly stated in the text of the amendment, so that it cannot be construed to enshrine abortion or remove unreasonable distinctions between genders. Their failure to do so creates an unsettling dichotomy. On one side are those who implicitly want to prohibit all sex discrimination. On the other side are those who can think of at least one distinction between the sexes that ought to be preserved.
It is misguided to think that we can use the court system to preserve these distinctions against the text of this amendment. This might be true if the U.S. Constitution did not already provide equal rights for women. But it does. The 5th and 14th amendments to the Constitution already require Maine to treat women equally under the law. There are also dozens of laws at the federal and state levels that already require equal treatment in most areas. Because of these protections, state supreme courts interpret equal rights amendments to extend far beyond the current equal protection clause. That means there is no middle ground.
This is why it is so grating to hear people support the amendment by using piecemeal examples of discrimination. Yes, hiring discrimination is a terrible thing. That is why we create and enforce laws — with clearly stated religious exemptions — to stop hiring discrimination. But it does not follow from one example of bad discrimination that all distinctions between the sexes be prohibited. It also does not follow that because women have been discriminated against in salary, abortion ought to be enshrined in the state Constitution.
Many supporters of the amendment want to chalk this up to a fight between those who think women are equal with men and those who don’t. This is wrong. Everyone should believe that women are created equal before God. Not everyone thinks that is an excuse to ignore basic biological facts while writing our laws.
We support solving concrete problems that arise from discrimination. However, this amendment threatens to be so extreme, far-reaching and subject to the interpretations of judges that the only reasonable option is to oppose it.