This file was prepared for electronic distribution by the inforM staff. Questions and comments should be directed to inform-editor@umail.umd.edu. 2. How Will States be Affected by Ratification of the Equal Rights Amendment The United States Constitution provides that powers not delegated to the Federal Government, or specifically prohibited to the States by the Constitution, are reserved to the States or the people. -234 This exclusive source of States' rights has meant historically that States have the power to legislate in a wide variety of areas, notably domestic relations, property, and criminal law. The Equal Rights Amendment will not alter this basic constitutional structure. States will still be free to determine what their laws should say and how they should say it, with only one important exception. Just as other amendments prohibit States from discriminating on the basis of race, so under the ERA the States (and the Federal Government) will no longer be permitted to disadvantage individuals by means of any law, government policy, or government practice that discriminates on the basis of whether the individual is female or male. This is no different from the interplay between other constitutional amendments and the power of the States. For example, the 15th amendment prohibits the denial of voting rights on the basis of race. -235 Nonetheless, States still have plenary power to determine the method and manner for voting, consistent with this nondiscrimination rule and legislation securing its enforcement - 236 and with local needs and customs. So, too, the ERA does not change the substance of the State's power; it merely removes one possible basis of classification--gender--from an almost unlimited variety of available options. -237 The ERA does not concern the private activities and personal lives of citizens. The issue is whether governments--Federal, State, and local--should have the right to discriminate against an individual solely because of his or her sex. Even with respect to sex-based classifications, the prohibition is not absolute where other constitutional rights, such as privacy -238 and religious freedom, -239 are concerned; or where the classification is narrowly drawn concerning physical characteristics unique to one sex -240 or where it is necessary to remedy past discrimination to assure actual as well as theoretical equality. -241 Section 2 of the ERA, which gives Congress the power to enforce the amendment by appropriate legislation, is worded almost identically to sections found in eight other amendments to the Constitution. - 242 It gives Congress the authority to act under the ERA to change the hundreds of Federal laws and practices that discriminate against women. -243 States already have the power to act, consistent with the ERA's mandate; no special constitutional provision is required to assure this. The ERA recognizes the authority of the States to act by providing a 2-year transition period after ratification during which States can rid their laws of gender bias without judicial involvement by State or Federal courts. The experience of State legislatures indisputably proves they are capable of enacting such change. -244 Some States have already successfully conformed their codes to the requirements of the amendment, either in anticipation of the Federal ERA or in accordance with a State equal rights provision - 245 The 2-year transition period also provides the motivation and focus necessary to accomplish comprehensive reform. A Pennsylvania court commenting on the Pennsylvania State ERA noted that without it, "total modification of all gender-based provisions probably would have been a piecemeal and perhaps not completely successful accomplishment." -246 Because State legislatures are faced with so many pressing issues each session, without the ERA some States may never get around to effecting all the reforms necessary to ensure equality. After ratification, many States and the Federal Government will be engaged simultaneously in conformance activity, providing a large pool of resources and expertise to assist State legislatures. The ERA will also serve as "a general policy statement prohibiting future enactment of gender-based legislation." -247 Under the ERA, States cannot decide whether to grant "equality of rights," but will have wide latitude in deciding how they will grant equality. Where open debate and broad-based participation is necessary to formulate and legitimize change, the legislature provides a good forum. Where a discriminatory law has its roots in common law or in judicial opinions, courts may be particularly equipped to make the necessary change. -248 State legislatures are also free to choose the best revisions for statutes that conflict with the ERA. Discriminatory laws can either be invalidated entirely or extended to cover those previously not protected by the statute. A Senate report on the ERA stated: "It is expected that those laws which provide a meaningful protection would be expanded to include both men and women..." -249 Consonant with this, the trend in Congress and in State ERA jurisdictions has been to enlarge the coverage of statutes that confer benefits. -250 For example, under Pennsylvania's ERA, a statute granting death benefits to the spouse of a deceased government employee was interpreted by the State's attorney general to entitle eligible widowers as well as widows to payment. -251 So too, Massachusetts' "homestead protection" right, previously available only to men, has been extended to women as part of the ERA implementation process. - 252 Where a law places a burden on one gender and not the other, that law can be invalidated. -253 Thus, in Pennsylvania, the prohibition against girls working as newspaper carriers was ended after the State attorney general concluded that this practice violated the State ERA. -254 Under the ERA, States will continue to have authority in all areas where they have traditionally had it. The only power that States will lose is the power to discriminate against an individual on the basis of his or her sex. The legal reforms required by the ERA produce positive results for each State's citizens; unreasonable burdens in the law are eliminated while benefits are retained and extended.