Much of the discussions surrounding Neil Gorsuch’s nomination to the Supreme Court have been focused on the tensions between Democrats & Republicans, liberals & conservatives, and Trump & Obama. When this nomination and its potential impact on women is discussed, the focus is limited to the tension between pro-choice & anti-choice positions. Protecting a woman’s reproductive choice is vitally important, but this framework for discussing women’s rights under a Gorsuch appointment to the Supreme Court is far too narrow.
Gorsuch, like Antonin Scalia, is a proponent of “originalism,” which means he believes a judge should attempt to interpret the words of the Constitution as they were understood at the time they were written. When the Constitution was written, women couldn’t own property. In 1787, women didn’t have the right to vote. In fact it would be 133 years before women won that right, a fight they fought for 72 years. Considering that women had no rights when the Constitution was written, and there was no mention of women in the Constitution, “originalism” is sexist.
Scalia, a man Gorsuch admires and Trump claims to have likened this nomination after, said as much in 2010. When asked about the 14th amendment to the U.S. Constitution, Scalia said, “Certainly the constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” If an “originalist” perspective views discrimination on the basis of sex, aka sexism, as permissible, then why aren’t we discussing that? How is it that “originalism,” which is nothing more than justified sexism, is still treated as a defensible position for a Supreme Court nominee.
Under an “originalist” perspective, the only way to protect women from sexism in the workplace, home, public, healthcare, etc. is to amend the Constitution itself. Funny thing…women tried that. The Equal Rights Amendment (ERA) was first introduced in Congress in 1923, but in 1982, the year I was born, the ERA failed to receive ratification from the necessary 38 states, just three states shy. The ERA said,
“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
As long as men, like Gorsuch, use the Constitution to justify their discrimination of women, we must either fight their nomination to the Supreme Court or change the Constitution. Thirty five years after it failed, Nevada ratified the ERA in March, leaving two states left. This effort isn’t merely symbolic, there is precedent to suggest the original timeline for ratification is irrelevant, and more importantly, the ERA is critical to securing women equal protection under the law.
This week, the U.S. Senate may nominate Neil Gorsuch to the Supreme Court. While it’s important to call your lawmakers and urge them to vote against Gorsuch and a rule change, it’s hard to win when the other team keeps changing the rules… There is more we can do, however. We can join the efforts of the ERA Coalition, who are working to make the Equal Rights Amendment to the U.S. Constitution a reality.
Our history has taught us that the fight for women’s equality is long and hard, but worth fighting for. Thirty-five years from now, if women remain constitutionally, second class citizens, I want to know that I worked my ass off trying to change that. And maybe, just maybe, if we do work at it, thirty-five years from now we can look back, fully equal under the law, and tell the story of how we won.
For more information on the ERA Movement, visit http://www.eracoalition.org
Call your Senators and urge them to vote against Gorsuch and a rule change!