Why are women so outraged over a single issue? Because the 5 ungulates on the S.C.

[Jim Lane]

80. You're probably right, but it raises a question: What WOULD be affected by the ERA?

I think that every federal court that's ruled on same-sex marriage since Windsor has borne out Scalia's prediction that the Equal Protection Clause would be held to require marriage equality.

Conscription might be tougher. With same-sex marriage, the obvious argument is that if you oppose same-sex marriage, don't enter into one, and you won't be affected. If, however, Congress passed a males-only conscription law, then eliminating the sex restriction would hurt women by exposing them to the draft, but men could plausibly argue that leaving the restriction in place hurt them by increasing their chances of being drafted. My guess is that, if Congress were to enact conscription, it would make it apply to both sexes. If it again enacted males-only conscription, though, I think you're probably right that it would be held to violate equal protection.

Thus the important question is: In light of the broader scope being given to the
Equal Protection Clause now, is there any statute, regulation, or other governmental action that could still survive scrutiny under the Equal Protection Clause but that would nevertheless violate the ERA? I can't think of any.

What happened in Hobby Lobby would not have been affected by the ERA. A federal statute, the Religious Freedom Restoration Act, gave private actors certain privileges. Hobby Lobby chose to exercise those privileges in a discriminatory manner. The discrimination was by Hobby Lobby, not the government. It's like the tax-deductibility of charitable donations -- one taxpayer may donate exclusively to charities that help women, another exclusively to charities that help men, another exclusively to charities that help blacks, etc., and the IRS's allowing of these deductions doesn't constitute denial of equal protection by the government.

My biggest problem with Hobby Lobby is that the RFRA was a bad idea in the first place (mistake by Congress and by Bill Clinton). Even if you're OK with the RFRA, though, it's ridiculous to suggest that anyone's free exercise of religion is substantially burdened (the RFRA test) by what someone else does. The ERA wouldn't cure either of these problems.