Why is the Equal Rights Amendment still not ratified?Stuff You Should Know
- 1,291 views
- 4 Mar 2021
The United States is one of only 28 countries in the world that doesn’t have equal protection for women under the law enshrined in its constitution. There was a moment in the 70s where it came very close, but then the conservative movement was born.
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Welcome to stuff you should know. A production of I Heart Radio. Hey, and welcome to the podcast, I'm Josh Clark, and there's Charles to be Chuck Brian over there and Jerry's over there, the three amigos equal in every single way, shape and form. And that makes this, of course, stuff you should know, which is basically its own sovereign nation of equality, though. Yeah. Yeah. Oh, yeah, man.
Come on, give me. I always thought Jerry had more power than we did now. Not a drop more or drop less.
Nerea drop less. Charles.
I love it. Yeah I do too. It's a nice place to be. It's a nice state to live in, you know, mentally and physically agreed.
I think here at the beginning we're going to do a rare we're going to read listener mail, but a rare front loaded listener mail alert that we got. First of all, a couple of years ago, a woman named Lorraine Bailey suggested the topic of the Equal Rights Amendment and at the time pointed out the difference between the word suffragette and suffragists.
I clearly did not read that email close enough because it took an email last week after one of us said suffragettes in a in a recent episode and a woman named Mary Malinauskas emailed and said, Hey, by the way, look it up. I mean, she wasn't mean. She was very nice. That sounded like being too nice. Yeah, she's very nice about it. She said, you know, look it up. There's a suffragette is sort of a disparaging term rather than suffragist.
And it was tagged by, you know, reporters in the early nineteen hundreds, I think, and I think in Britain to mark people fighting for the women's right to vote.
And I didn't know that until then. So I'm glad to know. So thank you, Mary. During what you hear that it makes total sense, you know.
Well, of course, I just I don't know. I never knew that. Never thought about it. I didn't either. This is how people learn stuff.
I just assumed you were making a Bowie reference in the episode.
I thought it was you that said I'm pretty sure. Was you all right. Well, either way, now let's go with you. OK, OK. We probably both did.
Or more more to the point, it probably was me. But either way, that was a I think. Hats off to you, buddy, for for coming up with that one.
Dwell on that. Say it again. You. You won't say it anymore. No, of course not. OK, I thought you said well and I'll say it again. No, I think that's the opposite of what you were just saying. No, I won't.
So we're talking today about the Equal Rights Amendment, which is it represents a really like discouragingly long swath of American history.
But if you set if you look at the whole thing just from a historian's eye or even an anthropologist, it's really, really interesting, the history of this, the equal rights amendment. If you kind of look at it much more subjectively and empathically empathetically, it's a lot harder to swallow. But it's still interesting nonetheless. And yeah. So the Equal Rights Amendment is in a constitutional amendment, a proposed constitutional amendment that would give women equal protection under the law to men that you could not discriminate.
No, you couldn't make a law that discriminated on the basis of sex. And I'll bet there's a lot of people out there, Chuck, that say, well, that's already in the Constitution, isn't it? Because there was a poll that the AP conducted in 2020 that found that about 72 percent of the people they they contacted thought there was already equal protection for four women in the Constitution. That's just not the case. But that same poll found 75 percent of those respondents were in favor of enshrining that protection in the Constitution.
So it's kind of weird that it's not in there if people think it's already in there. And then when they find out it's not, they're in favor of it overwhelmingly. Yeah.
And we you know, we just happen to live in a country where 90 percent of the American public could be in favor of certain legislation and it would, you know, could very possibly fall on deaf ears when it comes to our politicians. Yeah, yes.
Because bipartisan support has been defined in recent times as you know, what the houses of Congress agree to, not necessarily what the public agrees to, which is a different form of bipartisanship. And to me, if you ask me, the more important one, if the public generally agrees on something, go with that. It seems like since their elected representatives in Congress, they should kind of go with that. So charge 20, 22. Yes. I can't wait.
It's going to be there's going to be a lot of big changes around here. Everybody.
Yes. Should we kind of go back to the beginnings? Yes, we should.
Because, you know, I associate the era with the 70s in the women's lib movement, as we'll see. But it goes back a lot further than that. Yeah, it does.
And it's crazy to think that since the early 1920s, they've been trying to get this enshrined in the Constitution and it still isn't. And then the year twenty, twenty one. But that is the case. The first versions of the Equal Rights Amendment were written up in the early 20s by a suffragist named Alice Paul.
Some other women, notably one Krystal Eastman, also helped out a lot, and they also helped get the 19th Amendment passed, which gave women the right to vote in 1920. And they got together and said, you know, I think the next step obviously should be just to go ahead and put this in the Constitution, that women have equal rights like men in all facets of life.
It's worth pointing out here that Paul was a Quaker and a leader of the National Women's Party for like 50 years or something. And the reason I mention she was a Quaker because she actually named the amendment the Lucretia Mott Amendment after another Quaker woman from the 19th century who was also a suffragist as well as an abolitionist.
Yeah, if you peel back the layer of early 20th century or 19th century progressive, there's about 100 percent chance they were Quaker congressmen, all sorts of good stuff. It's pretty interesting. Yeah, it really is. We should do one on the Quakers for sure.
Yeah. I have a friend who's a Quaker and she talks about Quaker meetings and Quaker weddings and stuff, and it all just seems so chill and peaceful. It's very appealing, right? Sure.
But so Lucretia apparently was among what's considered the the beginning of the first wave of feminism, which was, you know, not only do women need the right to vote, and this is like the 1835 1842, I think is when she was really beginning to be active. Not only should women have the right to vote, but these people were also very frequently also abolitionists. Right. So when Congress started passing laws that protected the rights, that enshrined the rights of African-Americans into the Constitution, into the law of the land, saying you cannot discriminate against people.
Based on their because they're African-American or based on their race, women said, well, they just had sex in their ed sex like, let's let's put that into the 14th Amendment. And that didn't make it it didn't make it into any of the amendments. And that was a I don't think it caused a rift or anything like that. But I think it was extremely disappointing to the suffragists who had also worked for abolition as well, that the two things couldn't go hand in hand.
So African-Americans started to gain civil rights decades before women did. Women gained the right to vote and women just kind of had to carry on. The suffragist movement continued on even after the abolitionist movement was successful.
Yeah, and in 1943, Alice Paul said, well, here's what we'll do. We'll reword this amendment that we've written. So it sounds more constitutional, I guess. And so it sounds a little more like the Fourteenth Amendment. And the new version basically said equal rights, I'm sorry, equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. And, you know, once again, this was proposed and, you know, for about 30 years in most sessions, I think every session of Congress, every single one, and didn't get a lot of support.
And, you know, it's not to say that all men and politics were against it, but it certainly was not their legislative priority, clearly. And if you have a run from nineteen twenty two to 1970 with only 10 women serving in the Senate, never more than two at a time, then the writing's on the wall. That the era is is not just it's just not going to be a top priority.
I know, but that's sad writing, you know what I mean. Like the fact that there weren't women in Congress certainly doesn't let men off the hook. Like they can't now. They can't pass. This can't possibly take up legislation that guarantees the equal rights to women because we're men, you know, like, that's very bothersome. But there's something else in there, Chuck. So from 1920, 1923, when Alice Paul first introduced that all the way through to 1970, it was taken up in every session of Congress and it failed.
And one of the things that stuck out to me was that there was a guy who oversaw the house, I think the House Judiciary Committee, and he was a Democrat from New York and he put the kibosh on it. Emanuel Celler. Yeah. So he put the kibosh on he would not let it get to a vote. And I was like, why? This guy was a Democrat in New York? What was his problem? And it turns out that the opposition to the IRA, which is now very clearly like it's liberals are for it, progressives are for it.
Conservatives are typically against it. It used to be flip flopped where the liberals, especially New Deal liberals like Eleanor Roosevelt, were against the Equal Rights Amendment and conservatives like Eisenhower conservatives were typically in favor of it in that bizarre.
Yeah, it is. I mean, Roosevelt, she had her reasons. She wasn't just like, oh, I don't think women should have rights. I think she said, you know, she thought it would undermine workplace protections. She was a part of Kennedy's commission. She chaired the commission, the president's Commission on the Status of Women, which I think the result was released, passed just posthumously. That said, it wasn't the era wasn't necessary. And she she kind of came around a little bit.
She never gave a full throated endorsement, but she kind of stopped talking out against it.
I think at a certain point she used to debate Alice, Paul, like publicly they would, you know, have back and forth debates over, you know, whether the story was needed and how helpful it was going to be. So, I mean, you don't like I know that Eleanor Roosevelt is frequently criticized, is not an outright feminist enough in a lot of ways. But she also clearly seems to have been a feminist in her own way for sure.
Yeah. And we should point out, too, that Emanuel Celler in 1972, in a very big upset, lost to a woman, an attorney named Elizabeth Holtzman, largely due to his opposition to the era.
So, yeah, OK, so so finally, by the early 70s, you're getting more and more women who are starting to show up in Congress like Bella Basbug and Shirley Chisholm.
And they they basically said, like, this is our priority. We're going to get this this equal rights amendment finally passed through Congress. And I don't know if it just happened to be like an era of kind of bipartisan sentiment or what the deal was, but that everybody finally came together and that thing got passed. Like if a piece of legislation is ever gotten passed, it was this one in a bipartisan manner. Yeah. And you know what? We'll get to how that passed, but a really big reason is because it started becoming a big deal in the media with this second wave, like you mentioned, of the women's lib movement and in no small part by a woman named Betty Friedan, who wrote a book called The Feminine Mystique that in nineteen sixty four sold a million copies and she probably gets a at least a short stuff all on her own.
She was really interesting. The reason she wrote this book is because she did a survey for a college reunion for her former classmates learned that many of her former female classmates were not super happy about being homemakers and not being able to work and sit her down. A research rabbit hole on this kind of became her passion project because she wanted to write a magazine article like a really in-depth one. No one wanted it. So she ended up publishing it as a book called The Feminine Mystique, which kind of rocked the world of America in the early, early to mid 60s.
Yeah, because like in this book, she's basically saying, like, this whole this whole thing, we're all we're all going along with this idea that the the most the highest ideal a woman can aspire to is to be the best wife and mother she possibly can be. And that that's her identity is is someone's wife is someone's mother, that she doesn't have her own identity. That's independent of all of that. That is a crushing way to live for a lot of women, not all women, as we'll see, but a lot of women.
And she spoke up for a lot of them. And I believe that this was kind of it was already kind of out there in pieces like people were talking about this. But Betty Friedan put it all together and put it on the map and got everyone talking. From what I have ever seen, like almost single handedly started the second wave of feminism.
Yeah. And she put a pin in this little mini series. She was played by Tracey Ullman in a miniseries last year called Mrs. America, that we're going to get to a little more in depth in a second.
Yeah. So Betty Friedan published The Feminine Mystique, like you said, just totally rocked everybody's world for for better or worse, depending on your ideas about what The Feminine Mystique was about and saying. But, yeah, like you're saying, like that really laid the groundwork to this bipartisan passing in Congress of the Equal Rights Amendment in 1972, I believe. Right. Yeah.
So it passes in a big way. I think he said 93 percent, ninety three point four in the house, ninety one point three in the Senate. But I can't wrap my head around that. How did one third of a senator. But is it that Senator cross-section of New Hampshire, Oklahoma and Michigan?
Here's the deal, though. If you want something enshrined in the Constitution, that's a big deal in this country. They don't do it willy nilly, nor should they. But you need not only like once it passes that it's not automatic, then the state legislatures have to ratify it by a two thirds margin, which means at least thirty eight states have to ratify it. And the NRA had a stipulation that said, if that isn't done in seven years, then you've got to go back to the drawing board.
And that was that was not in the actual era. That was not in the Constitution amendment that was passed. And that's going to become very important later. But it was in the legislation where that era, the amendment was sent to the states for ratification. It said do this in seven years. Right. OK, that's that's just like that little slight distinction makes a big difference down the road.
Oh, yeah. I mean, the people pushing for the NRA certainly would not have wanted an expiration date.
No. And there's as far as I could tell, they have never attached an expiration date to an amendment to be ratified before. It was just and it was also an arbitrary period of time, too. So just just chew on that, but put that water up piece of gum in the back of your cheek and save it for later.
I wonder in the debate if they're like. Well, I mean, how many years? Oh, seven, seven. Sounds good. Pour the Scotch. So within one year, thirty of the thirty eight states needed ratified it, which was super fast. Yeah. And everyone was like, you know, proponents like, this is great, man. It looks like this thing is going to sail right into the Constitution. And then a woman popped up named Phyllis Schlafly.
And we're going to take a break here and we'll talk about Phyllis right after this.
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Oh, oh, stop your oh.
And I guess depending on where your views are, Chuck, we should have introduced Phyllis Schlafly with the the Darth Vader theme song and she makes her dun dun dun dun exactly right.
Did you watch any of the interviews and debates? Yes. Did you could. It's really interesting. If you have your wits about you, you could despise everything that ever came out of Phyllis Schlafly s mouth. It's very, very easy to do. She equates gay people, which I guess in the fashion of the time she calls homosexuals. She calls them perverts. Yeah. It says that they should not have any rights afforded to married men and women.
They shouldn't be able to adopt children. She says some really despicable. I didn't hear that one. Yeah. She says a lot of very despicable stuff. And her whole viewpoint is despicable to a lot of people, but. There are very few people walking around out there who have the poise and self-possession to go into the lion's den and speak for whatever she was convinced of was right that she has to be credited to at least that degree, no matter what you think about her mind.
She was she had a lot of poise, I guess you could say. And it's really kind of something to watch because I saw this one. Did you see the the Good Morning America debate from 1976 between her and for Dan? Yeah, man.
And it's like it's really clear what a skilled debater she was and how rattled she could get somebody. Yeah. I mean, she clearly I felt bad for four days and she was doing a good job, but she was she was getting pissed off and you could tell that she just like to get under people's skin. Yes.
While she just remained perfectly erect in her seat with perfect posture. And that Mrs. America series, which it was on her list. And I'm going to bump it back up to next in line now to watch. But she was played really, really well, judging from just the accent and the mannerisms by Cate Blanchett, who can do no wrong.
Yeah, I want to see that series, too. But yes, she is. So if you see those two debating, it's like a study in contrasts where Phyllis Schlafly Schlafly is basically sitting there at tea time at the Country Club before the polo match. And Betty Friedan, if you put like a beret and sunglasses on a French cigarette in her mouth, she's like sitting at the beatnik cafe, like listening to a poetry jam or something like just these two totally contrasting personalities, be a share fully debated or under the table.
And it's not like Betty Friedan was was an intellectual slouch by any measure, but not at all. It's just Phyllis Schlafly could rattle anybody, anybody. She could rattle Santa Clause. I'm just going to say it. Yeah.
I mean, she kind of made herself out to be just this homemaker. She would when she introduced herself at Engagement's. You would thank her husband for letting her come there. But when you kind of peek behind the curtain, she had a masters in political science. She had a law degree. She ran for Congress when she was twenty seven years old and lost. Right.
And she was sort of pre nineteen eighties, a big part in at the very least, I don't even think they called it the Christian right at the time, but kind of organizing what would later become the Christian right movement.
Yeah, you can make a really good case that Phyllis Schlafly laid the groundwork for the current Republican Party. Yeah. In every way from from Reagan onward to today. And yes, she basically said, like, I'm just a housewife from St. Louis, a proud housewife, wife and mother of six from St. Louis.
And in a lot of ways, she was like she made reference to law school during her debate to Betty Friedan and she sounded like she was in law school then. So interesting. It seems like she was just a woman who said, I don't agree with this and I'm going to put a stop to it and stood in front of this unstoppable tidal wave and stopped it. She stopped it.
She stopped the NRA from being ratified by the states right at the eleventh and a half hour before it was ever passed and ratified by the 38 states. You said they got 30 states in the first year. By 1977, they were up to 35 states. They just needed three more three more states. And the whole thing was going to become the law of the land. And Phyllis Schlafly got in the way of that almost single handedly at first. Yeah.
And, you know, she launched her her group was called Stop Era, which, you know, we obsess about acronyms. It's sort of annoying when the first letter of an acronym is the actual acronym. Yeah, but Stopera stood for stop taking our privileges and her argument, you know, she was like. And she used this to her advantage in those debates, like see how angry these feminists are? She she kind of coined that term, I think.
How about the angry women's lib movement? These angry feminists, they just want they want to throw down everything that makes us female and everything that makes us women. And they want to just set fire to it. And before you know what, women are going to be able to be drafted in the armed forces. Never happen. You know, they're not going to be separate bathrooms or locker rooms anymore from this point on. Not true. That started to happen more in recent years, wrapped up same sex marriage.
I mean, we'll get to that how she kind of co-opted gay rights and reproductive rights and all this just to sort of coalesce that movement and said, you know, women are going to lose the right to alimony and child support never happened and just life as we know it in the family as we know it. And this is something 50 years on, all this stuff is still so relevant, like the dissolution of what, you know, people think was the perfect family in 1950, basically.
Because, I mean, so she was a troll, like a pro troll, but like the kind where you didn't do it online, you did it in person by her. Her points were coherent and understandable to people who agreed with her. And they were like, yeah, like the man's role is to provide for and take care of the woman. And the woman provides like the domestic labor, and that's just the division of labor between the sexes. And if if we have the Setara that's going to go away and then there's going to be all this other horrible stuff that's going to break down the fabric of society and do we really want that?
And so by by taking the argument away from the idea of whether women have a fundamental human right to equal protection under the law as men, which is who disagrees with that?
Nobody disagrees with that in mixing it up with all these other what ifs and potential social outcomes and the ruin of the family, gay men teaching your children at school, that is what consolidated people into a movement behind Phyllis Schlafly.
And it was it was really underhanded, but it worked really, really well. And it still works today.
Like she came up with that, from what I can tell. Yeah.
In 73, when Roe v. Wade passed, she was again savvy enough to say, well, here's something else I can I can seize on and I can wrap this up. Like there's a there's a whole there's a really large bloc of voters who are conservative Christians who, you know, we've never really intermingled politics like that before. And so let's wrap this up in pro-choice. Let's wrap it up with gay rights, big culture, war, issues of the time to kind of rally and like I said, coalesce this group together in order to defeat the Equal Rights Amendment.
And like you said, it, you know, it worked in a big, big way. And I can't wait to watch that TV show.
I can't either. And I don't want to suck all the oxygen away from Betty Friedan and the other feminists. But I was saying that Phyllis Schlafly was a troll, a troll. And if you read some of the stuff that she said in public, sometimes she sounds like a spokesperson for the Taliban, like she said things like that, that sexual harassment on the job was not a problem for virtuous women like, you know. Exactly. Yeah.
Or and that the atom bomb was a marvelous gift that was given to our country by a wise God, just things that would drive any any liberal or progressive, especially a feminist up the wall. And in fact, Betty Friedan in this very famous debate from three years before that Good Morning America appearance that you and I saw, she said you're you're like you should be burned at the stake for for betraying your your gender.
But she didn't do herself any favors or stuff like that because that just allowed Schlafly to say, see, there they all are.
That's exactly right. But she could just get under your skin like that. So fast forward many, many years to kind of now almost in twenty seventeen. After about forty years of not much movement, Nevada became the first new state to ratify the era, thanks in no small part to State Senator Pat Spearman. And she said this bill is about equality, period. Twenty eighteen. Just a few years ago, Illinois came aboard as well and now it's back up to thirty seven.
Did we mention that five of the states did ratified or rescinded their ratification? I don't think we did.
We did not. And I think that's an important point here.
Yeah, Nebraska, Tennessee, Idaho, Kentucky and South Dakota. You can all be very proud of your legislatures after nineteen seventy seven they directed. A fighter decertified, not decertified. They rescinded it. They did. They said this is based on there's actually precedence for that. Ohio and New Jersey both rescinded their support for the 14th Amendment once their legislatures change control to white supremacists. Basically, in the 19th century, they said we take back our vote for the 14th Amendment.
It also set a precedent, though, that Congress ignored that and still counted Ohio and New Jersey as having ratified the 14th Amendment because they did officially.
Right. So it goes back up to 35 then in twenty eighteen. Illinois made it thirty seven in January of last year. It's crazy that it took this long. Virginia finally became the 30th state. And so proponents of the era said, all right, we got there. That's the thirty eight. This thing should have never had an expiration date to begin with. That's dumb. Yeah. Whoever said seven years and then poured a scotch, they should be burned at the stake and they said, let's just get this thing done.
And they said, you know what? Back in 1798, the Twenty Seventh Amendment was passed, but not ratified until two hundred years later. Two hundred and two years. So, like, there's precedent there. And that was about prohibiting the law, raising or lowering taxes for congressional salaries from taking effect until their next term. Like big, big stuff. I'm not knocking it. It's important, I guess. But they said, you know, that was done.
So this thing shouldn't have had an expiration date to begin with. Right. Opponents say, well, no, there was an expiration date, so we have to honor it. And that's, you know, that's the deal. Sorry.
And there was even a three year extension that brought it up to 1982. And by the time that extension was running out and it did not look like anything was going to move or happen or no more states were going to move to ratify it, even though the the the National Organization for Women and other feminist groups basically threw in the towel and said it's done with the IRS lost. This time it's not gone forever. But this amazing and immense again, tidal wave, this with just the momentum of a freight train running through the country, is now dead just a few years after, which is just nuts that that happened.
It's just crazy. But that's that's the fact that now 38 states have officially voted in favor of ratifying. It set off a flurry of lawsuits here in the United States when Virginia became the last one in 2020. And basically everybody in anyone suing the National Archives and Records Administration to either certify and put it into the National Archives or the national record that that this is now a part of the constitution or to not do that. And it's totally up in the air of what that's going to be.
But apparently a lot of people, not everyone, because there's plenty of people are like it's official now. Take all the B.S. away. And this is official law of the land. There are plenty of people who are proponents of the Equal Rights Amendment who say we need to start over again. And one of those people was Ruth Bader Ginsburg, who said it needs to be voted on again. We need to pick up again basically from square one. Yeah.
And I think and we'll talk about all this stuff. But I think there were been so many laws enacted since then that do protect so many of these rights. I think people like RBG where like, you know what, let's start over. Let's rewrite it for the modern times, making sure everything is in there that we still need and. Yeah. And revote on it. And, you know, I think that's reasonable. So do that.
So let's let's take a break and then we'll talk, come back and talk about those questions like do we need the IRS and what would happen if we did pass the VRA? How about that? Sounds good.
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Let's make it interesting with William Hill Sportsbook. I stop here. Oh, all right, Chuck, so you made mention of, like a lot of laws that have been created since the since the VRA was passed, I guess, by Congress and even before then, that protect women as a as a form of what's called a protective class in the United States. They're protective classes that include races, religions, sex, sexual orientation and gender identity is becoming a protected class.
And if you're a member of a protected class, it means that if there's a law that excludes you from something, whether intentionally or not that law is considered discriminatory and you can file a lawsuit against it, and then the courts have to apply different tests to it to see just how discriminatory it is or if it's discriminatory at all and whether or not it should be struck down or overruled. And the reason that sex is a protected class, even without the Equal Rights Amendment, is thanks very much, largely to Ruth Bader Ginsburg, who was an absolute legal pioneer in figuring out how to get women the protections under the law that they were looking for with the Equal Rights Amendment, without the Equal Rights Amendment being part of the Constitution.
Yeah, I mean, I think people that say that we don't need the extra and it's a very fine line between saying I'm against the era and saying I don't think we need the era. It all falls under the same banner ultimately. Yeah, but people that say we don't need to era say, you know, we got the Civil Rights Act of 1964 and race, color, religion, sex or national origin. You can't hire and fire, hire and fire people based on that.
Right. That applies to pay and benefits, too. There's also the Equal Pay Act of 1963 that say there should be equal pay for equal work. That's didn't, you know, in practice, hasn't worked out that way because there's still a wage gap. We did a good episode on that. But yeah, that was a good one. Yeah. Violence Against Women Act of 1994 saying here are federal resources for domestic and sexual violence and prevention and prosecution of that counseling.
And this one, however, and, you know, put a pin in this one, because this is one that is used also for people that say we do need the IRA because that one expired and is still hung up and has not gotten congressional reauthorization since twenty nineteen because of politics, the Violence Against Women Act. Yeah. And then Title nine is the last one in 1972. Title nine is the one you hear about mostly in college athletics and says I mean it says a lot of things.
But in terms of college athletics, I had the biggest impact saying you got to have the same amount of women's sports as men's sports in the same like accommodations and scholarships and all that stuff. And then so it's like we don't need the extra because we have all these things. So, yes.
So you have law and then you also have case law, too, that basically hinges on the Fourteenth Amendment, which says that a citizen of the United States can't be discriminated against or is due equal protection under the law by the states and by the U.S. And that was written in and passed in the Fourteenth Amendment in the wake of slavery. It was meant to basically make free recently freed African-Americans, full citizens of the United States. But it doesn't specify on the basis of race or on the basis of religion.
It just says if you're a U.S. citizen, you get equal protection under the law. And so Ruth Bader Ginsburg, one of the reasons she's such a legal pioneer in this respect is because she's the one who figured out how to argue that the 14th Amendment applies to sex as well. And the whole thing about legal stuff, and this is all new to me, but but it's really kind of interesting is that depending on how enshrined a class is, a protected group is in law, the more protected it is, the stricter the scrutiny that judges are going to apply to determining whether a law is discriminatory or not.
And the most the most scrutiny you can apply to some of these calls, strict scrutiny. And that's typically reserved for things that are protected by the Constitution. And that means that if you have a law that even remotely steps on the rights of one of those protected classes, it's probably an illegal, discriminatory law.
Yeah. How does that work with how does it work in practice? Does that mean they just spend more time or like what does that even mean?
So I think what it means is that you if you pass a law and let's say that I pass a law and it accidentally. Discriminates against your ability to get your hands on oatmeal? I can get all the oatmeal I want, but you can't, let's say in the Constitution, Chuck is specifically protected under the law. That means that this law that prevents you from getting oatmeal, that's a discriminatory law. And so it's going to be really easy for you to bring a lawsuit and for a judge to say, like there's even a little bit of discrimination here.
This law is illegal because it's discriminating against Chuck. And he's it says in the Constitution, you can't discriminate against Chuck. It just means that that the standards for that law to stand like everyone else on the planet basically has to benefit from you not getting oatmeal for some reason. And that that's just not how laws work. So it would be really easy for you to to bring a lawsuit and get that law overturned because it discriminates against you, because you're a protected class.
No, if it's just like everybody likes Chuck, but it doesn't say in the Constitution that you can't be discriminated against. They're going to use a slightly less strict test to determine whether the thing is, is a discriminatory law or not. And so maybe, yeah, it generally promotes oatmeal use among other people, among all people. But there's some other people who don't get it, too. That doesn't really matter because, you know, it's not enshrined in the Constitution.
So it's almost like degrees. And once you're in the Constitution, as you as a protected class like it is really difficult to discriminate against you. And that's one reason why people say, no, we need this, we need this in the Constitution because women and sex and gender even should be a protected class. You should not be able to discriminate against somebody based on that.
Yeah, I mean, that's the main that is the main argument for proponents of the era is saying, no, let's make this the real deal there. You know, cases can be overturned, laws can be reversed, executive actions can have devastating impacts. And and only being enshrined in the Constitution will make this like like you said, just so locked down and protected that people can't mess with it anymore. I think we've seen in recent years that, you know, precedent can be argued and laws can be overturned.
And it's like. Sure, we have all these laws that passed since the era first came was ratified, you know, in the 1970s, but. It doesn't take much, you know, especially when you look at a very imbalanced Supreme Court when for people to kind of worry that these these things can be taken away. Yeah, and I mean, like there was a famous quote from Antonin Scalia when he was alive and a justice on the Supreme Court basically saying like, no, the constitution most decidedly does not protect against discrimination on the basis of sex.
And, you know, when you hear Supreme Court justice saying that, it's like, well, you know, how many cases is it going to take before he rules? Like, no, you can totally discriminate against somebody on the basis of sex. If it's in the Constitution, it doesn't matter what Antonin Scalia or any other justice thinks it's in the Constitution so that that level of protection, like you're saying, would be it's just a totally different level of protection, then, you know, customarily we we don't discriminate.
It's no, you can't discriminate. That's the difference between those two things.
Yeah. And not just reversing laws, but passing new laws that maybe violate violate that equal treatment under the law. And, you know, some other things that that constitutionally could come into play if it if it were to go through is something like the pink tax. I don't think we've ever done a show on the pink tax. I don't think so either.
But this is you know, this is the notion that, like, you know, from everything that like similar products for men and women, they charge women more than they do for men, for these products to stuff like, you know, menstrual equality or equity, basically, you know, tampons, pads, other menstruation products should not be taxed anymore. They should be treated like any other essential item.
Yeah. And then so so there are a lot of things, a lot of protections that it would afford. One thing that frequently is cited as is protecting women against this like violence, like, say, domestic violence. From what I read, it probably wouldn't because it protects against being discriminated against by the law. It doesn't necessarily offer protection from like an individual person or something like that. Right. Necessarily a company. Although being enshrined in the Constitution, you could really sue a company's pants off for discriminating against you.
But there are there are some things that would do, some things that wouldn't do. And then there's some things up in the air. And one of the reasons why this is still such a cultural flashpoint still today in 2020 is because now more than ever, it has become equated with taxpayer funded abortion. The reasoning behind people who oppose the NRA because they think it's basically tantamount to just completely repealing any restrictions on abortion. Abortion from that point on is only women can get abortions.
And so if there's a law against abortion, there's a law that's discriminating against women. Therefore, you can't have laws regulating abortions. And so that's why, especially with the Christian right, it's still such a flashpoint today. And that's why starting from scratch again is going to be no easier than it was back in 1972.
Yeah. Now, you're probably right. It's pretty frustrating, though, to get to that thirty eight state threshold and because of some dumb arbitrary expiration date placed on it. Yeah, it's still being held up in the year. Twenty, twenty one. Yeah.
In the year 2021. And then also the United States has an obligation as like basically the leader of the free world to join the rest of the Western nations in enshrining equal protection under the law for by sex. I guess the United States is one of only 28 countries in the world that doesn't guarantee gender equality. One of 28 Chuck and 100 percent of the countries that have written their constitutions since 1950 have included some guarantee of gender equality in those constitutions. So it's kind of sad that we don't have that still to this day.
Yeah, and if you look around the country, this Dave Ru's helped us out with this article and he points out stuff like, you know, if you go to Nepal, there's Supreme Court struck down a law exempting marital rape from criminal prosecution because of its era laws in Tanzania. The Court of appeals struck down a law that allowed a 15 year old girls to be married without parental consent while boys only had to be at 18. So, you know, when you look at countries around the world that are seemingly ahead of the USA in in terms of equal protection, it's just it's baffling and disappointing.
Baffling as you hear anything else? I got nothing else. It's good stuff. I have one more thing if you give me another second. You ready? Sure. So when I was researching this, my head was just spinning again and again and again. And it was. Myname is something that I read recently, and that is it is really easy to get bounced around from one outraged to another to one thing to care about this issue and then, oh, wait, what about this issue?
And I saw some advice somewhere. I don't remember where, but it was if you want to affect change, pick one issue and dedicate yourself to it. And that doesn't mean that you don't care about all the other issues that you do care about. It's just that this one issue is your specialty. You're an expert in it, and you're probably going to get further going like that. You're probably going to be able to see more change doing that than you would just kind of bouncing from issue to issue to issue.
So, I mean, if this were like really got to you and you really want to do something about it, make the make getting the story past your specialty, you know, totally OK.
Oh, thanks for letting me stand on the soapbox for a second. And since I'm getting off of my soapbox and Chuck is putting it up in the soapbox caddy that we keep here in the studio, that means it's time for listener mail.
I'm going to call this a ninja in the Connecticut forests. Nice.
Did you read this one? No, I haven't.
This is kind of crazy. It's long, but it's worth it.
Hey, guys, when I was about seven, my mom married the man I called dad and we promptly moved from Texas to Connecticut, where we used to go camping a lot on one trip. We're all out in the woods. The night rolls around and go to bed. About an hour later, I heard my tent unzipping and my dad started shaking my foot saying, come out here, there's a effing ninja. So I throw in some slippers and my jacket begrudgingly trudge out to sea.
I kid you not a ninja sitting next to the fire pit. I remember actually shaking my head in disbelief to reaffirm this wasn't some very strange dream. And now when I say there was a ninja, I mean full black garb with a slit to see through. This dude had twin swords on his back, throwing stars, tiger claws for climbing grapple hooks, all the tools. Apparently my dad sold them rolling out of a bush and had to see what was going on.
The story behind this guy was he was a national, a National Guardsman, and also ran a jukin, though, in ninjitsu dojo in Rhode Island as his main gig. We sit for the next couple of hours. This guy is just showing us stuff like how fast can climb a tree or how to throw a star.
My guy. The night progresses. And he asked if we were familiar with Bruce Lee as an avid fan of Enter the Dragon from around eight. I said yes and he asked if I'd ever seen his one inch punch excitedly. I said, sure, I have. And then his name is Brian CNinsure. He said, Brian then asked if he could demonstrate it on me, a pudgy twelve year old. I said, No thanks, I'm good. And I explicitly did not want to fly backwards with any force.
And he said, no, no, I'll do it with an open palm so it doesn't hurt. I give in. He positions me safely away from the fire pit with my back facing the tent about seven feet away from anything. Never trust anyone, by the way, whose instruction is OK now just stand there while I hit you. He inhales deeply. Does the flat hand against my sternum just like in kill bill?
Then in an instant I saw his muscles tense up as he audibly exhaled sharply and hit my chest open handed. I go airborne and hit my tailbone next on a tent stake. Seven feet behind me and can't really walk without crutches for a couple of weeks. Wow. Kids at school never believe me when prodding about why I was on crutches. Because who would believe a kid that says I had a run in with a ninja in the middle of the woods?
Wow. That is from Drew Carroll in Cheyenne, Cheyenne, Wyoming.
Cheyenne, Wyoming. Cheyenne, Wyoming. That is true. That great, great story.
That was a magnificent listener mail. I mean, hats off for that one. Thank you.
And if you're Brian, then you're out there. I want to hear what happened to you.
Yeah, probably. He's like, I've been doing a ten year bid for beating a kid up in the woods, but the kid said I could hit him.
Well, if you want to get in touch with us like Drew and try to top Drew the listener mail. Drew, by the way, is the current listener mail champion. We want to see if you can do it. You can send us an email, wrap it up spankin on the bottom and send it off to Stuff podcast and I heart radio dotcom.
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