Was Phyllis Schlafly right?
VOLOKH at law.ucla.edu
Mon Mar 14 15:06:37 PST 2005
As Pam points out, part (but only part) of the reason for the
court's decision is that the opposite-sex-only rule is sex
discrimination, and thus presumptively unconstitutional under the
California equal protection clause.
In the 1970s, one argument against the ERA was that it would (or
at least might) legalize same-sex marriages; Phyllis Schlafly, as I
understand it, made that argument. Pro-ERA scholars, if I'm not
mistaken, often ridiculed this position -- a 1978 Newsweek article, for
instance, said that "most legal scholars dismiss outright the extreme
arguments raised against the ERA -- that it would sanction homosexual
marriages, lead to coed toilets or mandate abortion because pregnant
women could claim they are not equal to men. On homosexual marriages,
[Thomas Emerson] notes that the ERA says 'you can't discriminate because
of gender. It doesn't say you can't discriminate because of sexual
preference.' State and local governments, he says, could still restrict
homosexual activities without running afoul of the ERA." My sense is
that others took the same view.
Was Schlafly right in her predictions (even if one disagrees
with her bottom line moral judgment)? If so, how (if at all) should it
affect our evaluation of new constitutional and statutory proposals that
might literally point in one direction, but whose prominent defenders
argue that such literal readings are highly unlikely?
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