Family Foundation Letter – Aug 30

On August 30, 2018, The Family Foundation sent a letter to Republicans in the Virginia legislature titled: The “Equal Rights Amendment” (ERA) is About Abortion.

Generally speaking, the letter reads as an “us vs. them” letter and does not consider the perspective of equality as a shared value. Additionally, it mischaracterizes judgments and cases, construes court opinions and ignores specific language in the rulings that negate the case the author(s) attempt to make. It also recycles old material from the 1970s and ignores the context of today’s modern society.

Below are excerpts from the letter and a response from VAratifyERA with a link to a complete copy of the letter at the bottom of this page. This is not intended to be a line-by-line refutation to every single mischaracterization / misrepresentation nor is it a response to every faulty leap in logic. Instead, this is intended to address the main points and greatest falsehoods put forth as fact.

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The Virginia state constitution is one of 24 states that includes a statement of gender equality. This inclusion in our constitution has not caused any grave consequences.

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Footnote #2 on page 1 includes a statement “dismissing the ERA as moot” when, in fact, that case was dismissed, not the ERA.

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This is, at the heart of the matter, the main point that the Family Foundation is making in this particular letter. We disagree with this assessment and consider it a conflation of issues. However, we assume they will pivot off this main point after enough people are aware of their mischaracterizations of the cases as discussed below.

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This paragraph grievously mischaracterizes the findings in two legal cases.

The Family Foundation has misrepresented the issue before the court in the Connecticut case, and it is best put, in the words of the court itself, in the outset of the decision: “This case is concerned only with the narrow issue of funding of medically necessary or therapeutic abortions. The issue of whether our state constitution mandates that the state fund nontherapeutic abortions for the poor has not been raised by the parties and is not addressed in this decision.

The Family Foundation has again misrepresented the issue before the court in the New Mexico case. This decision does not, as stated in the paragraph, include any judgment about elective abortions and in fact, the first sentence of the decision states: “This case concerns the authority of the Secretary of the New Mexico Human Services Department to restrict funding for medically necessary abortions under the State’s Medicaid program.

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The Equal Rights Amendment is essentially a nondiscriminatory values statement. It appears the Family Foundation is advocating for the ability to discriminate. Generally speaking, all advocates working on VAratifyERA believe discrimination is an attack on our deeply held American value of respect and are surprised that doing the right thing (not discriminating) would upset anyone.

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Fear of unisex bathrooms was a big issue raised over fifty years ago, but it turns out to have been “much ado about nothing.” Today we have public unisex bathrooms / changing rooms and we need only look at the local Target or YMCA to see examples of how helpful they are, particularly for parents with small children. With facilities designed for only one person / family at a time, privacy is retained.

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As we have already experienced with the implementation of Title IX, all-male and all-female sports teams have not been eliminated.  Title IX requires that men and women’s programs receive the same levels of service, facilities, supplies, and the like.  Men’s and women’s programs may differ as long as the government can justify the differences.

Additionally, the Family Foundation again misrepresents the cases it cites.  In Pennsylvania, the state attorney general successfully challenged the athletic association’s prohibiting girls from playing on boys’ teams.  In Washington, two fully qualified girls successfully challenged their school’s denying permission to play on the football team. Neither of these cases required that all sports be open to both sexes.

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This is already the status quo in some places around the country. The Equal Rights Amendment does not entirely remove the government’s ability to discriminate, it just ensures that the discrimination must serve a compelling government purpose and be narrowly tailored to meet this purpose.

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In November, 2017 the Pentagon recommended for women to begin registering for the Selective Service. The government has always had the authority to draft women and had prepared a draft of women as nurses days before WWII ended. In recommending women register for the Selective Service our military is signaling that if a draft is necessary it will call up both men and women.

Although we all hope there is never another draft, it is difficult to imagine a situation in which volunteer men and women serve on the front lines and only men are drafted. In these modern days/times we would expect to see a discriminatory challenge by men if that occurred.

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Insurance rates are regulated by the states. Since Virginia has regulated insurance with a gender equality statement in our Virginia state constitution, it can be assumed no change would occur.

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The first bullet point is disingenuous as we looked up the footnote #12 and it is a book published by the United States Commission on Civil Rights and written by all men (link here). There are a couple of references to academic papers by Ruth Bader Ginsburg and others but there appears to be no specific reference to the Equal Right Amendment from Ruth Bader Ginsburg in this book. Further, in a law review article (link here) Ruth Bader Ginsburg has said, “The ERA… is not a ‘unisex’ amendment.”

Additionally, contrary to the Family Foundation’s argument, the court in DuPont v. Wyzanski did not overturn the prison’s practices.  Instead the court denied summary judgment in favor of the prison because there were unresolved factual issues.

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We believe the Family Foundation makes this point because of this wording in the Equal Rights Amendment: Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

The Equal Rights Amendment, just like the Thirteenth, Fourteenth, Fifteenth, Nineteenth, and Twenty-Sixth Amendments, specifically authorizes Congress to enforce its provisions by appropriate legislation. Just for fun, here are the sections from each of those amendments:

Thirteenth Amendment, Section 2. Congress shall have power to enforce this article by appropriate legislation.

Fourteenth Amendment, Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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

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

Twenty-Sixth Amendment, Section 2. The Congress shall have power to enforce this article by appropriate legislation.

So yes, the Equal Rights Amendment specifies that Congress may enforce “the provision of the article” but that is no different than other constitutional amendments. 

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The Family Foundation is wrong.  Men and women do not “already have full claim to equal rights through the 5th and 14th Amendments.”  If they did, why would the 19th amendment, which gives women the right to vote, have been necessary?

The court’s interpretation of the 14th Amendment ensures “strict scrutiny” for discrimination based on race, religion, and country of origin. However, gender discrimination cases do not enjoy this same level of judiciary scrutiny. Instead, under the 14th Amendment, gender discrimination receives an intermediate level of scrutiny. Under intermediate scrutiny it is easier for the government to discriminate on the basis of sex than it would be to discriminate on the basis of race, religion, or country of origin.

We need the Equal Rights Amendment in part to correct a purposeful, historical exclusion from our founding documents. But we also need it to ensure that sex discrimination cases receive the same level of scrutiny as discrimination based on race, religion, and country of origin.

With regards to the last couple of sentences in this paragraph, the Family Foundation correctly points out there are numerous statutes barring sex discrimination.  These statutes, however, have not provided and cannot guarantee the level of protection achieved by amending the Constitution.  Statutes can be repealed.  Court decisions can be reversed.  A constitutional amendment, by contrast, delivers an enduring commitment to equality.

The Equal Pay Act of 1963 prohibited employers from paying employees differently based on sex.  Fifty-five years later, women still make only 80% of what men make, and the numbers are much worse for women of color.  Clearly, the Equal Pay Act, even when coupled with Title VII, has not eradicated the gender pay gap.

Prior to the Lily Ledbetter Fair Pay Act of 2009, women had to bring pay discrimination claims within 180 days of the initial pay discrimination.  This statute of limitations barred many claims because women often did not learn of pay discrepancies so quickly.  The Lily Ledbetter Act amended Title VII to allow suits to be filed within 180 days of the most recent paycheck reflecting the discrimination.

Virginia, however, has not corrected its flawed statute of limitations applicable to pay discrimination claims.  Under Virginia’s law, suits must be brought within two years of accrual, allowing employers to escape liability simply by keeping their discriminatory practices hidden.  Keeping pay discrepancies under wraps is not all that difficult, especially in jurisdictions like Virginia that do not protect employees from retaliation for sharing employment information that would help women bring timely claims.

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We appreciate the Family Foundation’s acknowledgement / agreement with our campaign that Virginia’s ratification could, indeed, be the historical ratification to amend the U.S. Constitution.

CONCLUSION: We find this letter to be deceptive and inflammatory and it reads as a bit of a threat to our legislators. It is designed to fear monger and appeal to emotions and that is not what we, as a democracy, should rely upon for good legislation. We anticipate the Family Foundation will shift to new arguments as their mischaracterizations of cases in this letter become better known by the Virginia legislators.

NOTE: We invite Victoria Cobb, President of The Family Foundation, to engage in a public debate with a representative of VAratifyERA. Virginians and their elected representatives may disagree on whether to ratify the Equal Rights Amendment, but they should do so with proper facts, not mischaracterizations. Last year the Senate Rules Committee of the General Assembly erred by relying on a false report of the National Archivist’s position (email from the National Archives correcting the record is here).  The General Assembly should not be fooled again because members relied upon the misrepresentations of the Family Foundation.

The full letter from the Family Foundation titled “The “Equal Rights Amendment” (ERA) is About Abortion” is available here