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Author Topic: New Push for Equal Rights Amendment
Dagonee
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From the Post:

quote:
ederal and state lawmakers have launched a new drive to pass the Equal Rights Amendment, reviving a feminist goal that faltered a quarter-century ago when the measure did not gain the approval of three-quarters of the state legislatures.

...

The amendment consists of 52 words and has one key line: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." That sentence would subject legal claims of gender discrimination to the same strict scrutiny given by courts to allegations of racial discrimination.

As it stands now, based on the way courts have already interpreted certain constitutional provisions, I am unwilling to support this without a statement such as "Nothing in this amendment shall be construed (i) to limit the power of the United States or any State to regulate the intentional termination of pregnancy by any person or (ii) to require the United States or any State to make any expenditure of funds or take any action to assist in the termination of a pregnancy."

Note that I'm not asking for an anti-abortion amendment as a condition of support (although it should be no secret I want one), but merely a positive statement that this amendment is not intended to affect the constitutional status of abortion. I'm not married to the wording, either, as long as changes preserve my intended meaning.

I quite simply do not trust the courts with regard to the construction of such general language.

Essentially I'm asking both sides of the abortion issue to punt with respect to this amendment's effect on abortion law.

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Amanecer
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I would think it would have a more immediate impact on the legality of same sex marraiges than on abortion.
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mr_porteiro_head
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"on account of sex": Could the ERA be interpreted in such a way to do away with whole swathes of sexual offenses, interpreting the word "sex" as referring to sexual acts, instead of the sex/gender of the person?
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Krankykat
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Mr_P:

LOL: That is what I was thinking when I read the "on account of sex" quote. It seems the term "gender" would help to clear that up.

K

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KarlEd
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I'm hardly a rabid pro-choice proponent, but I'd be accepting of wording that could not be construed as weighing in on abortion either way.
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Paul Goldner
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I have a problem on two counts.

1) Tying a constitutional amendment to a particular political quesiton to me is a very dangerous thing to do.

2) Part of the abortion debate is about equal treatment for men and women under the law. The wording dagonee proposes effectively removes that part of the debate from the federal judicial arena, and I'm not willing to grant that.

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Lyrhawn
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I wonder, how might this effect custody battles? Right now, mothers are favored when custody of the children is considered. I wonder what this would do for fathers in custody battles.

Also, what rights might this give to men over their unborn children when women want to abort the pregnancies and they want their kids born?

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Bokonon
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Same here, Karl. And I doubt "sex" could be construed as "sex acts", in any reasonable way.

-Bok

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Dagonee
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quote:
"on account of sex": Could the ERA be interpreted in such a way to do away with whole swathes of sexual offenses, interpreting the word "sex" as referring to sexual acts, instead of the sex/gender of the person?
No. Someone could make the argument, but it wouldn't go anywhere.

quote:
Tying a constitutional amendment to a particular political quesiton to me is a very dangerous thing to do.
This is specifically about NOT tying the amendment to a particular political question - in fact, it's about untying the amendment from that particular political question.

BTW, our Supreme Court has effectively made abortion much less of a political question - it's now mostly a judicial question.

quote:
The wording dagonee proposes effectively removes that part of the debate from the federal judicial arena, and I'm not willing to grant that.
Could you illustrate how it does that? It removes this amendment from any such judicial consideration, but does not alter the existing judicial landscape regarding this issue one bit.

I really can't see how you interpret it that way, especially given the extreme care I took to make this clear ("a positive statement that this amendment is not intended to affect the constitutional status of abortion").

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Dagonee
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quote:
I wonder, how might this effect custody battles? Right now, mothers are favored when custody of the children is considered. I wonder what this would do for fathers in custody battles.
There's very little - in most states, none - explicit legal favoring of mothers. A few states still have the "tender years" presumption, which grants mothers an advantage obtaining custody of young children.

If there is favoring of mothers, it's in the fact-finding by judges, and this is not easily addressed by constitutional challenges. You have to prove intent to discriminate, not merely that a discriminate result occurs.

So, in practice, I think it would have little effect.

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Paul Goldner
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"This is specifically about NOT tying the amendment to a particular political question - in fact, it's about untying the amendment from that particular political question."

Its about exactly the reverse. The amendment should stand or fall on its own grounds, not how it affects a particular political question. By putting language into the amendment, and language that is positive for only one side of the debate, you're making the amendment about abortion.

"Could you illustrate how it does that? It removes this amendment from any such judicial consideration, but does not alter the existing judicial landscape regarding this issue one bit."

If a judge were to accept an argument that making abortion illegal is unequal treatment under the law for men and women, this amendment, as you word it, would still allow the federal government to ban abortions, for example.

Also, access to family planning is restricted under your proposed amendment... but only for women. Again, you're trying to make it possible for states to do things that a judge could rule would violate this amendment. But the judge could no longer rule that violating the amendment in specific areas is invalid.

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Dagonee
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quote:
ts about exactly the reverse. The amendment should stand or fall on its own grounds, not how it affects a particular political question. By putting language into the amendment, and language that is positive for only one side of the debate, you're making the amendment about abortion.
Yes, it should. I want those grounds to be explicit. If the supporters intend this amendment to alter current constitutional abortion jurisprudence, then they should be honest and explicit about it. Then I can work against it night and day instead of supporting it.

If they don't intend to alter current constitutional abortion jurisprudence, then my language does not change the intended effect of the amendment - except that prevents judges from directly subverting the intent of the people who drafted it.

quote:
If a judge were to accept an argument that making abortion illegal is unequal treatment under the law for men and women, this amendment, as you word it, would still allow the federal government to ban abortions, for example.
I asked you to demonstrate how this amendment "effectively removes that part of the debate from the federal judicial arena." This is very very different from what you just stated in your last post.

Currently the abortion debate is in the federal judicial arena. The amendment with my addendum does not affect how the 14th amendment applies to the abortion debate in the federal judicial arena, nor does it remove the 14th amendment from that arena.

quote:
Also, access to family planning is restricted under your proposed amendment... but only for women.
How does my amendment restrict access to family planning?

Would you PLEASE go back and read it. Every time you make a new post or add to an existing one it becomes clearer that you don't understand what I wrote.

As I said in my very first post, the addendum is intended to be "a positive statement that this amendment is not intended to affect the constitutional status of abortion."

Again, if it is intended that the ERA affect the constitutional status of abortion, then simple honesty and decency demands that the intended change to the constitutional status of abortion be explicit in the amendment. If it is not so intended, then all your arguments are moot.

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Paul Goldner
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"I asked you to demonstrate how this amendment "effectively removes that part of the debate from the federal judicial arena." This is very very different from what you just stated in your last post.

Currently the abortion debate is in the federal judicial arena. The amendment with my addendum does not affect how the 14th amendment applies to the abortion debate in the federal judicial arena, nor does it remove the 14th amendment from that arena."

I did not, originally, say that the abortion debate would be removed from the federal judicial arena. I said that the nature of the abortion debate in the federal judicial arena would exclude equality of treatment of men and women under the law.

The ERA as you propose says that equal rights shall not be denied or abriged because of sex... BUT, this amendment shall not be construed to limit the ability of the federal government to regulate abortion.

Now, maybe I'm wrong about this because of how the judiciary works, and if I am please correct me, but I read that as meaning that, in a hypothetical case, a federal judge or the SC hears a case on abortion centering around equal protection, and rules that a ban/restrictions on abortion are not equal treatment under the law based on sex. Without your adendum, that ERA then states that bans on abortion have to pass strict scrutiny. With your addendum, that ruling has no affect.

"How does my amendment restrict access to family planning?"

""Nothing in this amendment shall be construed (i) to limit the power of the United States or any State to regulate the intentional termination of pregnancy by any person or (ii) to require the United States or any State to make any expenditure of funds or take any action to assist in the termination of a pregnancy.""

As it stands right now, most family planning measures are covered under most medical insurance plans, including state plans. What your addendum does is ensure that states do not have to cover abortion, even if not covering it discriminates on the grounds of sex.

Finally, do you think women should have equal rights as men under the law?

The answer is either yes, or no. If you think yes, then the amendment doesn't need adendums. If no, then you can say "Yes, but I have caveats." Or just say no. Or, what I see you as trying to do is say "Yes. But this issue that many people think is an equal rights issue, is not. And they don't get to debate it in the courts that way."

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Paul Goldner
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"Again, if it is intended that the ERA affect the constitutional status of abortion, then simple honesty and decency demands that the intended change to the constitutional status of abortion be explicit in the amendment. If it is not so intended, then all your arguments are moot."

No. It shouldn't be in the amendment. It SHOULD be explicit in the debate. But a political question should not be in the amendment. That sets a ridiculously dangerous precedent. This was my first objection.

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Dagonee
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quote:
Now, maybe I'm wrong about this because of how the judiciary works, and if I am please correct me, but I read that as meaning that, in a hypothetical case, a federal judge or the SC hears a case on abortion centering around equal protection, and rules that a ban/restrictions on abortion are not equal treatment under the law based on sex. Without your adendum, that ERA then states that bans on abortion have to pass strict scrutiny. With your addendum, that ruling has no affect.
With my addendum, the ruling would not be made, because my addendum says "Whenever the courts consider abortion in any way, shape, or form, they should pretend the ERA was never passed."

quote:
As it stands right now, most family planning measures are covered under most medical insurance plans, including state plans. What your addendum does is ensure that states do not have to cover abortion, even if not covering it discriminates on the grounds of sex.
No. It says "Whenever the courts consider abortion in any way, shape, or form, they should pretend the ERA was never passed."

If states have to cover it now, then they don't have to cover it after the amendment passes. If they do have to cover it now, then they do have to cover it after the amendment passes.

quote:
Finally, do you think women should have equal rights as men under the law?

The answer is either yes, or no. If you think yes, then the amendment doesn't need adendums. If no, then you can say "Yes, but I have caveats." Or just say no.

Yes, men and women should have equal rights under the law. People wildly disagree about whether "equal rights" includes the right to abortion.

The purpose of an amendment is for the entire country to decide what should be so basic that government must obey it. The courts serve the people in interpreting amendments. If the people decide, "This contentious issue is not one on which the entire country is able to speak in a unified voice," then it is perfectly feasible to say, "Hey! Courts! The people did not speak on this topic when we came together and agreed on this amendment!"

quote:
Or, what I see you as trying to do is say "Yes. But this issue that many people think is an equal rights issue, is not. And they don't get to debate it in the courts that way."
Tt's the people - not judges - who decide what we mean by equal treatment under the law. In the context of a constitutional amendment, the people are absolutely supreme. If the people, as represented by elected officials in 3/4 the states, agree that the courts should not apply this amendment to the issue of abortion, then they shouldn't. It's really that simple.

Beyond that is the honesty issue. Is this amendment intended to affect the current constitutional interpretation of abortion? Yes or no.

If your answer is "yes," I bet a TON of money that the ERA will not pass.

If your answer is "no," then I consider it dishonest to try to keep language out of the amendment that makes this intent explicit. Put in language stating that there is a right to abortion and then try to garner support for it.

Without this language, people will be debating whether or not the amendment will affect abortion. An no one will have a valid opinion on the subject - it's simply too unpredictable.

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Dagonee
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quote:
Originally posted by Paul Goldner:
"Again, if it is intended that the ERA affect the constitutional status of abortion, then simple honesty and decency demands that the intended change to the constitutional status of abortion be explicit in the amendment. If it is not so intended, then all your arguments are moot."

No. It shouldn't be in the amendment. It SHOULD be explicit in the debate. But a political question should not be in the amendment. That sets a ridiculously dangerous precedent. This was my first objection.

It's not a political question. It's a question about the constitutional extent of a particular right. The only political aspect is the passing of the amendment - something that should be done with full knowledge of the effect of the amendment on the rights of both women and the unborn.

There's no dangerous precedent here. In fact, careful attention to unintended side effects would be a good thing to get Congress to start considering both with laws and constitutional amendments.

If people disagree about what the amendment means, no meaningful vote for or against it can be passed.

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Paul Goldner
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"With my addendum, the ruling would not be made, because my addendum says "Whenever the courts consider abortion in any way, shape, or form, they should pretend the ERA was never passed.""

Right. Similar enough to what I am thinking could happen that I don't see a meaningful distinction.

So, the point I am making then, stands exactly as it stood at the beginning of this. With your language, an angle of attack against anti-abortion laws, that angle of attack being that such laws are discriminatory, is removed from the debate entirely.

Thats not a question that should be tied to whether or not women are equal to men.

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Paul Goldner
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"The only political aspect is the passing of the amendment - something that should be done with full knowledge of the effect of the amendment on the rights of both women and the unborn."

And you are putting a specific effect of the amendment on the rights of women and the unborn into the amendment.

How in the heck is this not a political answer to a specific question?

Now, I might be able to get on board with something that is politically neutral. But I don't see your addedum as neutral at all. You think abortion has nothing to do with equality under the law. I do. Your amendment passes, and your idea on abortion is now enshrined in the constitution. The unaltered version passes, and neither of our ideas are in the constitution.

I still think its a bad idea to put a specific political question in the constitution, on general principle, (see: prohibition), but with something politically neutral, its at least feasible.

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The Pixiest
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This would allow for women to be drafted and serve in front line combat. This would lead to unisex bathrooms in government buildings.

There is no guarantee we would get SSM out of this.

I don't see it as effecting the abortion debate as any pregnant man :eyeroll: would have the same rights as any pregnant woman.

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Rakeesh
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quote:
With your language, an angle of attack against anti-abortion laws, that angle of attack being that such laws are discriminatory, is removed from the debate entirely.
It doesn't seem that way to me...Dagonee has repeated several times now that the language he includes would very spefically have no impact on abortion in terms of it being a judicial question. Unless you want that sort of opening in the amendmant...
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Paul Goldner
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"Dagonee has repeated several times now that the language he includes would very spefically have no impact on abortion in terms of it being a judicial question."

And I am disagreeing with him.

No impact compared to NOW? Perhaps. No impact compared to the unaltered version of the amendment? No. Not at all. And thats part of my point. Dagonee wants this amendment, but he doesn't want one possible consequence to the amendment, so he wants to put in an addendum that says that abortion is not about equal protection for men and women under the law. But, pro-choice people would argue that it IS in fact about equal rights. Passing this amendment in dagonee's form says that pro-choice people are wrong about that...and that would be constitutional law... thus removing an angle of attack from the debate.

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Rakeesh
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quote:
Passing this amendment in dagonee's form says that pro-choice people are wrong about that...and that would be constitutional law... thus removing an angle of attack from the debate.
How? I don't understand...I may seem to be snarky, but I really don't. If the law is specifically passed stating, "This law shall have no impact whatsoever on questions before the judiciary related to abortion," how could it possibly remove anything that actually exists?

Now, if your point is that it removes something that could exist...well then, Dagonee is right. You do want an ERA to be applied to abortion in the future. Why should lawmakers who disagree sign on for something like that, exactly?

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Dagonee
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quote:
So, the point I am making then, stands exactly as it stood at the beginning of this. With your language, an angle of attack against anti-abortion laws, that angle of attack being that such laws are discriminatory, is removed from the debate entirely.
Nothing is removed. Its' just not added.

quote:
No impact compared to NOW? Perhaps.
Not perhaps. Absolutely.

quote:
No impact compared to the unaltered version of the amendment? No. Not at all.
Of course. After all, I stated in my very first post that this is what I want.

quote:
Dagonee wants this amendment, but he doesn't want one possible consequence to the amendment, so he wants to put in an addendum that says that abortion is not about equal protection for men and women under the law.
Wrong. I want an amendment that provides for equal treatment under the law and that does not affect the abortion debate in any way, shape or form.

quote:
But, pro-choice people would argue that it IS in fact about equal rights. Passing this amendment in dagonee's form says that pro-choice people are wrong about that...and that would be constitutional law...
No, it wouldn't. It would say that whether or not abortion is about equal rights has not been addressed by this amendment, but that every other thing in the Constitution that has been applied to abortion has not changed.

quote:
thus removing an angle of attack from the debate.
No, it wouldn't be removing anything. It would be making it clear that such an angle would not be added.

You want know why there's so little compromise in this country? Reasoning like yours in this thread.

I have proposed admitting - on both sides of the issue - that we as a country haven't reached enough of a consensus to alter the way our founding document addresses abortion. You won't agree to it because it wouldn't give you something new that you don't have now.

And, just to clarify:

No angle of attack that exists now would be removed by the addition of my language to the amendment. The constitutional state of abortion would be EXACTLY EXACTLY EXACTLY the same as it is now.

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Dagonee
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quote:
Your amendment passes, and your idea on abortion is now enshrined in the constitution.
No, it's not. As of right now, banning abortion would still be unconstitutional.
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Paul Goldner
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"No, it's not"


Yes it is. Your idea that abortion is not related to equal protection for men and women under the law would be enshrined in the constitution.

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Paul Goldner
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"No, it wouldn't. It would say that whether or not abortion is about equal rights has not been addressed by this amendment, but that every other thing in the Constitution that has been applied to abortion has not changed."

Dagonee, I'm fairly certain your proposed wording doesn't say this at ALL. In fact, I'm fairly certain it says exactly the opposite. Which is why I'm objecting so strenuously.

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Dagonee
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quote:
Yes it is. Your idea that abortion is not related to equal protection for men and women under the law would be enshrined in the constitution.
No it wouldn't. My idea that the people haven't decided that it is would be enshrined into the constitution. That's not how this works. A deliberate choice by the people not to affect the status quo would be in the constitution.

How is it neutral to have an amendment that can only be interpreted in favor of one group or neutral toward the other?

It's an untenable position.

Without this type of language, the amendment will fail. And it will be the fault of people like you who won't accept anything less than something advantageous to their side.

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Paul Goldner
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Edited out

I wrote this, obviously in anger... and totally didn't mean to post it. I hit the post button, and then hit stop on my browser before it showed it had started loading, and then reloaded the page and did not see the post and so assumed it never made it. otherwise I would have deleted. Since people obviously saw it, I don't want to delete it.

I truly apologize that this got out there.

[ March 28, 2007, 07:02 PM: Message edited by: Paul Goldner ]

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Dagonee
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quote:
Originally posted by Paul Goldner:
"No, it wouldn't. It would say that whether or not abortion is about equal rights has not been addressed by this amendment, but that every other thing in the Constitution that has been applied to abortion has not changed."

Dagonee, I'm fairly certain your proposed wording doesn't say this at ALL. In fact, I'm fairly certain it says exactly the opposite. Which is why I'm objecting so strenuously.

I've asked you to explain, and you haven't - not in any way that addresses the language.

My language specifically says this amendment won't be construed to prohibit regulation of abortion.

This is an absolutely common legal construct. It says one particular construction that some people might make is not the one intended. That's all it says.

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Dagonee
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Deleted.

[ March 28, 2007, 06:58 PM: Message edited by: Dagonee ]

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Rakeesh
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quote:
Quotation deleted
Wow.

[ March 28, 2007, 07:01 PM: Message edited by: Rakeesh ]

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Paul Goldner
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"And it will be the fault of people like you who won't accept anything less than something advantageous to their side."

Fighting agains tsomething that is advantageous to your side is not accepting anything less then something advantageous to my side?

Here, let me make this explicit, quoting myself earlier in the thread

"Now, I might be able to get on board with something that is politically neutral. "

I do not agree that your addendum is politically neutral. I disagree with your statement about what your addendum means, i.e. "My idea that the people haven't decided that it is would be enshrined into the constitution"

"How is it neutral to have an amendment that can only be interpreted in favor of one group or neutral toward the other?"

I don't know, so why don't you tell me, using your wording as an example of an amendment that can only be interpreted in favor of one group and that is also poltiically neutral, since you are claiming it is politically neutral, but is advantageous towards your political side?

You want to put that into the constitution? let me suggest something that would actually be neutral.

"This amendment shall not be construed to affirm or deny that abortion is a question of equal rights."

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Rakeesh
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quote:
"This amendment shall not be construed to affirm or deny that abortion is a question of equal rights."
Why not just say that this law shall have no impact, in any way, on the question of abortion? That's neutral. No impact means no impact. Zero.
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Dagonee
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quote:
I don't know, so why don't you tell me, using your wording as an example of an amendment that can only be interpreted in favor of one group and that is also poltiically neutral, since you are claiming it is politically neutral, but is advantageous towards your political side?
The amendment without my wording can only be interpreted in favor of abortion rights. With it, it cannot limit abortion rights at all from what they are now.

quote:
You want to put that into the constitution? let me suggest something that would actually be neutral.

"This amendment shall not be construed to affirm or deny that abortion is a question of equal rights."

With a little cleanup to strengthen "affirm or deny" I could accept that. Which is why, in the opening post I said "I'm not married to the wording, either, as long as changes preserve my intended meaning."

And, in that same very first post, I made my intended meaning crystal clear: "merely a positive statement that this amendment is not intended to affect the constitutional status of abortion."

And I restated it again, same post: "Essentially I'm asking both sides of the abortion issue to punt with respect to this amendment's effect on abortion law."

Everything you needed to know about my intent was there. My willingness to change the wording to reflect that intent was there. From the very beginning.

If I didn't care about the actual issue and wasn't afraid someone might buy into your interpretation, I wouldn't have addressed you at all. You are exactly 1/3 the reason I left Ornery.

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Paul Goldner
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I edited my offensive post with an explanation and apology. I'm leaving it there because I don't like to edit out things that have affected the thread.

Again, and here, I apologize for that remark dagonee.

Truly, I do.

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Dagonee
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Deleted. Rak, please delete your quote of P.G.'s, if you're willing. P.G., feel free to delete yours as well. No need for a permanent record of it, and thank you for apologizing.
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Paul Goldner
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you'll note, dagonee, in my opening post, I also said "dagonee's wording."

Later when it became apparent you thought I couldn't get on board with any language, I said I could get on board with politically neutral language.

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Paul Goldner
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offensive remark above deleted
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The Rabbit
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I recognize that Dagonee's original question relates specifically only to the question of abortion, but I think that there is a broader underlying question which needs to be addressed.

There are real physiological/biological differences between men and women. How should "equality" under the law be treated on issues where "equality" does not exist biologically?

Examples: Prostrate Cancer, Pregnancy

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stihl1
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I would not support it at all.
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JennaDean
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quote:
This would lead to unisex bathrooms in government buildings.
When I was very young I remember my parents disagreeing with the ERA ... I asked them what it meant, and this was the argument they used to explain it. I'm sure they had more concerns in mind than that, but having to share a public bathroom with a BOY was horrible enough for me to contemplate.

I still don't like it. There are some things that should be for women, and some things that should be for men. That sounds archaic ... but what about actors? Could they sue because they were turned down for a role for which they were simply the wrong gender? Could a religion be sued for not extending the same ministering opportunities to men and women? Could the NFL be sued? Or Hooters?

There are lots of ways in our society where men and women are not exactly the same. They should have equal rights, in the sense that most of us mean when we talk about equal rights ... but "equal" does not mean "exactly alike".

As much as I hate to use this term, there are rare occasions when "separate but equal" really does apply to the different sexes.

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Jutsa Notha Name
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quote:
Originally posted by Dagonee:
Without this language, people will be debating whether or not the amendment will affect abortion. An no one will have a valid opinion on the subject - it's simply too unpredictable.

Are you absolutely sure of this, or are you going solely on the article's one-sentence quotation? I mean, have you seen the other 24 words to be sure of the whole thing? If so, could you link that?

People still debate whether amendments apply to certain things, especially the first and second. However, from reading the article, it looks more to me like Greenberg is trying to turn it into an abortion debate specifically to prevent any such amendment. He goes as far as to state that "equal-rights amendments in state constitutions justify state funding for abortion." Do you feel this way as well, that equal-rights amendments justify funding for abortion? Is that really what you think the intention or one of the intentions are behind this? Would it not simply take one instance of being taken before the judiciary to clear that argument up?

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Jim-Me
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quote:
Originally posted by JennaDean:
Could the NFL be sued? Or Hooters?

I'm pretty sure "Hooters" has been, though I don;t know if it was successful. I do know that Southwest Airlines used to have all female stewardesses until a man sued them successfully.
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Dagonee
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quote:
I recognize that Dagonee's original question relates specifically only to the question of abortion, but I think that there is a broader underlying question which needs to be addressed.

There are real physiological/biological differences between men and women. How should "equality" under the law be treated on issues where "equality" does not exist biologically?

Pregnancy is the basis for the SCOTUS decision in Michael M. v. Superior Court. In this case, the court reviewed a California law that criminalized "act[s] of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." The state interest at issue was the prevention of teen pregnancy, and the plurality accepted the rationale that the possibility of pregnancy already serves to deter females somewhat. Coupled with the difficulty of prosecuting if both participants are guilty of a crime, the means were held to be an acceptable way to serve that interest.

My best prediction of the effect of the amendment would be to raise the level of scrutiny of gender distinctions from intermediate to strict. This would mean that a distinction based on sex would have to serve a compelling state interest and be narrowly tailored. It's likely that pregnancy would be enough of a distinction to justify some legal distinctions. For example, mandating coverage of pregnancy while allowing insurance plans not to cover some men-only disease might be allowed if the state interest in children is compelling enough.

It would take a long time to settle out. I know this doesn't really answer your question, but I hope it introduces the kind of thinking that will be involved.

quote:
Could they sue because they were turned down for a role for which they were simply the wrong gender? Could a religion be sued for not extending the same ministering opportunities to men and women? Could the NFL be sued? Or Hooters?
Constitutional amendments generally don't restrict private action (the 13th is an exception). So the ERA wouldn't make these things an issue. Suits against such places happen now under federal and state statutes.

quote:
There are lots of ways in our society where men and women are not exactly the same. They should have equal rights, in the sense that most of us mean when we talk about equal rights ... but "equal" does not mean "exactly alike".
There's little chance it would be interpreted that way. For example, separate bathrooms would most likely still be ok. In fact, the building codes that require more female stalls then male stalls+urinals would likely be found to be OK based on several studies about the disparity between the number of people served per minute in a men's and women's bathrooms.

quote:
Are you absolutely sure of this, or are you going solely on the article's one-sentence quotation? I mean, have you seen the other 24 words to be sure of the whole thing? If so, could you link that?
I'm absolutely sure of this: Link.
quote:
bullet Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
bullet Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
bullet Section 3. This amendment shall take effect two years after the date of ratification.

Section 3 is meaningless to the discussion, and 2 is likely to be considered well-settled law (that is, the only open area involved in interpreting section 2 would be the extent of section 1). See this case for a brief overview interpreting the analog section in the 14th.

quote:
Would it not simply take one instance of being taken before the judiciary to clear that argument up?
Yes, but I won't vote for it with that uncertainty. I agree some people would be bringing up the abortion issue to defeat it - my proposal is designed to defang that argument. Because, even if that's the motivation for bringing it up, it's true that the amendment could be interpreted so as to expand abortion rights by courts.

quote:
Do you feel this way as well, that equal-rights amendments justify funding for abortion?
I don't think equal rights amendments justify such state requirements, mainly because I see preservation of life for the unborn as a compelling state interest. But, as of now, the courts don't agree that a state interest significant enough to allow prohibition of abortion exists until viability. So I think at least some courts would find that.
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Jutsa Notha Name
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quote:
My best prediction of the effect of the amendment would be to raise the level of scrutiny of gender distinctions from intermediate to strict. This would mean that a distinction based on sex would have to serve a compelling state interest and be narrowly tailored. It's likely that pregnancy would be enough of a distinction to justify some legal distinctions. For example, mandating coverage of pregnancy while allowing insurance plans not to cover some men-only disease might be allowed if the state interest in children is compelling enough.

It would take a long time to settle out. I know this doesn't really answer your question, but I hope it introduces the kind of thinking that will be involved.

That's more along the lines of how I saw this being applicable, with the comments of unisex bathrooms and the like being diversionary arguments that tend to appeal to visceral reaction.

Thanks for the link. I can see how the wording seems uncertain to you. The thing is, it looks to me like it is intentionally vague. I don't see how it is significantly less vague in its wording than roughly half of the Bill of Rights. I think that implications like abortion and same-sex marriage with regard to the wording are baggage carried over from political issue debates. Maybe it's just me, but when I read it ignoring the abortion and gay marriage debate it looks sufficiently and possibly specifically avoiding holding any pertinence to any issues in particular. I would hesitate in adding wording to a Constitutional amendment that will carry with it stipulations regarding any modern political issue on either side of the argument. That is one of the arguments (I have many) I have against proposals of a gay marriage ban amendment, for example. Prohibition, as another example, is one way in how using current political issues to frame a Constitutional amendment can end in disaster. Does that mean this would wind up that way? No, probably not, but just because the mistake wouldn't be as bad, should we risk making such a mistake?

quote:
Section 3 is meaningless to the discussion, and 2 is likely to be considered well-settled law (that is, the only open area involved in interpreting section 2 would be the extent of section 1). See this case for a brief overview interpreting the analog section in the 14th.
I pretty much agree as far as that is concerned. Indeed, section 1) is really the only wording that has anything to do with something not already explcitly or implicitly covered in the Constitution.
quote:
quote:
Would it not simply take one instance of being taken before the judiciary to clear that argument up?

Yes, but I won't vote for it with that uncertainty. I agree some people would be bringing up the abortion issue to defeat it - my proposal is designed to defang that argument. Because, even if that's the motivation for bringing it up, it's true that the amendment could be interpreted so as to expand abortion rights by courts.

But it's equally true that, theoretically, a given amendment could be interpreted in a manner that is opposed to another issue you feel strongly on, too. To me, it's more of a trust issue to count on the judiciary to carefully weigh current and past precedent before making any changes that could be considered radical in an interpretation of an Amendment. Regardless of ideological majority in the SCOTUS, they don't have a track record of being prone to such judgments. I could even posit that, in its current state, SCOTUS would be more likely to limit rather than extend, but I just couldn't see Roberts or Alito being overly eager to create such a precedent within the institution, even if the others were so inclined (and outside of Thomas I don't see it being likely, but that's a different conversation).

quote:
I don't think equal rights amendments justify such state requirements, mainly because I see preservation of life for the unborn as a compelling state interest. But, as of now, the courts don't agree that a state interest significant enough to allow prohibition of abortion exists until viability. So I think at least some courts would find that.
I think at least an equal number of state courts would find the opposite. States that had strong support for their abortion bans (whether successful or not), for example.
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Kwea
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I think I see a problem...


Dag, I understood where you are coming from on this, but I think this is the problem


If, in the future, a challenge is brought against anti-abortion legislation on the basis that it is discriminatory, your language would make such discrimination a moot point, because right or wrong such discrimination would not be allowed as basis for a ruling.


That IS conceding a point that has not been argued yet. At least not in a court of law.

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Juxtapose
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quote:
posted by Dagonee:
quote:
There are lots of ways in our society where men and women are not exactly the same. They should have equal rights, in the sense that most of us mean when we talk about equal rights ... but "equal" does not mean "exactly alike".
There's little chance it would be interpreted that way. For example, separate bathrooms would most likely still be ok. In fact, the building codes that require more female stalls then male stalls+urinals would likely be found to be OK based on several studies about the disparity between the number of people served per minute in a men's and women's bathrooms.
This may be obvious to everyone else since no one has mentioned it, but how could Brown v. Board of Education of Topeka not apply here? As I recall, SCOTUS ruled that seperate facilities inherently led to inequality.

I share Paul Goldner's concern that Dag's additional wording might preempt a valid and conceivably convincing pro-choice argument. I just don't think such a thing happening is very likely, so I don't have a big problem with it.

I'd still support the amendment as-is first, but with Dag's wording as necessary.

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Xaposert
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I don't think this is a good amendment. It appears that it could have many many unintended consequences, and it also doesn't seem to solve any specific pressing problem. Modern gender discrimination is mostly not driven by unfair laws. Rather it is generally driven by the prejudices of individual people and the attitudes of society in general.
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Jutsa Notha Name
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quote:
Originally posted by Xaposert:
I don't think this is a good amendment. It appears that it could have many many unintended consequences, and it also doesn't seem to solve any specific pressing problem.

No, it doesn't seem to address any specific hot-button issue. That is a good thing. We don't want Constitutional Amendments created that specifically address the hot-button of the day. We want the Amendment to extend the definition of liberties outlined by the rest of the Constitution. The last time an Amendment was added to address the current issue we had Prohibition. The 13th, 15th, and 19th Amendments all extended rights defined in the Articles and other Amendments (voting, citizenship, and representation). This proposed amendment seems to be of that same type of wording.
quote:
Amendment 15
1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

2. The Congress shall have power to enforce this article by appropriate legislation.

quote:
Amendment 19
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

The Bill of Rights contains Amendments that are terse, that can (and do) get interpreted differently by different people:
quote:
Amendment 1
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

45 words
quote:
Amendment 2
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

27 words, and "militia" and "arms" are regularly debated with regard to legislature.
quote:
Amendment
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

32 words. On top of that, the Amendment explicitly states that laws can be made to change the applicability of this Amendment in times of war.
quote:
Amendment 4
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

54 words, and probably the most regularly invoked Amendment within the justice system (to meet warrant requirements).

I could go on.

I do not think Dagonee's proposed addendum should be added to the proposed amendment, but not because of his intentions or the alleged implications behind his wording. In fact, his intentions are admirable. However, I just think that there is already too much hot-button baggage attached to it in the debates and public statements regarding the proposal. Adding wording meant to defuse that baggage lends those arguments undue credence, in my opinion. The proposed wording is sufficiently succinct in that it defines equality of rights regardless of gender. All the rest of the stuff is placed firmly back into the hands of the living representative lawmakers to work out, because the wording seems to be built on the assumption that those other issues are incidental, subject to change over the course of history, and ultimately something by which the People should judge the ability of their representatives to fully represent them.

In other words, I think Dagonee's wording for the addition, while not being something I feel needs to be added to the amendment, is attempting to diffuse exactly what is being borne out in a lot of the reactions regarding the amendment. That's why I think it is admirable. I just also happen to think that such an amendment should intentionally be devoid of any reference to such subject matter, with the full intention of having the American People and their elected representatives hold the responsibility to handle those unincluded issues under the standards of rights and freedoms defined within the Constitution.

Basically, I could have probably paraphrased all of that with "the Constitutional Amendments do not exist to define every specific law of the nation, they are the foundation upon which all our legislation and representation are to be based."

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Lyrhawn
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I don't really think that unisex bathrooms and many of the other things mentioned here would become a reality becuase of this bill.

We don't have separate bathrooms right now because we're trying to oppress anyone. Hell, women's bathroom's are often nicer than men's. They get those nice comfy couches in there, and it's all decorated nicely. I don't think they'd want to be in the same bathroom as a man.

And if the military changed it's policy, women could be drafted and serve in front line combat now. This wouldn't FORCE the military to draft women. It wouldn't force them to be put on the front lines. There are good reasons women aren't frontline combat troops, and those reasons don't go away if this were to be enacted.

If the law said "everything between men and women must be made uniform and equal" then I'd be afraid of the consequences, but this isn't going to restructure the foundations of gender inequalities in America, at least not the ones that exist for biological reasons.

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