įinal ratification of the ERA would mean that the Constitution would explicitly prohibit states from discriminating on the basis of sex, sexual orientation, or gender identity in granting marriage licenses, thus creating a new explicit constitutional equality right that would anchor the right recognized in Obergefell, and immunize marriage equality rights from reversal by the Supreme Court. 786 (2012).) The Respect for Marriage Act, while repealing DOMA, falls short of “codifying Obergefell” insofar as it does not prohibit states from denying marriage rights to same-sex couples, as does the Supreme Court’s Obergefell decision. (The Supreme Court found DOMA unconstitutional in 2013 in U.S. 1738C, and prohibit any state from not fully recognizing, on the basis of the sex, race, ethnicity, or national origin of the married individuals, any marriage legally entered into in another state, and requires the federal government to recognize any marriage legally entered into in any state. On July 19th, 2022, the House passed the Respect for Marriage Act, a measure that would repeal the Defense of Marriage Act (DOMA), 28 U.S.C. Thirty-five states retain laws on their books limiting marriage to a man and a woman, and these laws would spring back into validity immediately upon the Court’s reversal of Obergefell. One of the alarms that was set off by the Dobbs decision related to the vulnerability of marriage equality rights, secured by the Supreme Court in Obergefell v. The ERA and Marriage Equality Rights – Constitutionalizing Obergefell v. Because any substantive due process decision is ‘demonstrably erroneous’”.
Justice Clarence Thomas, in his concurrence in the Dobbs case, explicitly urged the Court to revisit these cases, specifically: “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. 558 (2003)), and that states may not deny the right to marry same-sex couples ( Obergefell v. The weakening, if not elimination, of abortion rights under the Constitution thus has the potential to undermine previous Supreme Court decisions finding that states may not criminalize same-sex sexual conduct ( Lawrence v. To the extent that the Supreme Court has recognized constitutional protections for LGBTQ communities, they too rested on the Court’s reading of substantive due process. Constitution generally-and the substantive due process and equal protection doctrines specifically-provides no constitutional anchor for a right to abortion. The constitutional ground under which LGBTQ rights have rested has recently been drawn into question by the Supreme Court’s decision in Dobbs v. Thus, the ERA should be read to prohibit sexual orientation and gender identity discrimination. Clayton County (2020) that federal law prohibiting sex discrimination in employment necessarily includes sexual orientation and gender identity discrimination.
Amending the Constitution to include specific sex equality protections would both clarify and strengthen existing constitutional prohibitions against sex discrimination, but would also include protections against sexual orientation and gender identity discrimination. The words “sex” and “sex equality” do not appear in the text of the current Constitution.
Constitution, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” A majority of the current Supreme Court has adopted an interpretive methodology that places particular importance on specific textual sources for rights in the Constitution. The ERA, if finally ratified as the 28 th amendment, would add specific sex equality protections to U.S. Lifting that deadline would remove the last legal impediment to adding the ERA to the Constitution, which would then constitutionalize, and thus secure, rights currently enjoyed by LGBTQ people that are vulnerable to reversal by the Supreme Court in a future case. Senate is a resolution that would lift any congressionally imposed deadline for final ratification of the ERA.
#Equal rights protection clause pdf
(Scroll to the bottom of the page to download a pdf of this brief.)īelow, we provide an analysis of the potential for the Equal Rights Amendment (ERA) to strengthen protections for LGBTQ rights, including marriage equality.
Policy Brief: Equal Rights Amendment and LGBTQ Rights, including Marriage Equality
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