It’s Been 90 Years: Time to Pass the ERA (actually, 91 years)

[Jim Lane]

8. Do you have a link to a legal analysis of the ERA and Hobby Lobby?

It seems to me that the reasoning of the Hobby Lobby majority would not be affected by the ratification of the ERA.

It's too facile to say "Hobby Lobby allowed discrimination against women, the ERA would prohibit discrimination against women, therefore we need the ERA in the wake of Hobby Lobby." What that overlooks is that Hobby Lobby allowed discrimination by a private company, but the ERA would prohibit only discrimination by government.

This distinction comes from legal precedents concerning racial discrimination. The government can't discriminate, which is why Brown v. Board of Education held that racially segregated public schools were unconstitutional. That doesn't prevent private discrimination. It also doesn't prevent the government from applying neutral policies even when they operate to protect private discrimination. For example, civil rights demonstrators who staged sit-ins at segregated lunch counters expected to be arrested and were arrested. The government was enforcing private property rights, even if the private entity made its decisions on a discriminatory basis. That wasn't unconstitutional.

Although Hobby Lobby has sparked renewed interest in ratifying the ERA, I haven't seen a solid legal argument that there's actually any connection. I wish somebody could tell me the basis on which even one member of the Hobby Lobby majority would change his vote if the Constitution included the ERA.