This file was prepared for electronic distribution by the inforM staff. Questions and comments should be directed to inform-editor@umail.umd.edu. 3. How Will Courts Be Affected by Ratification of the Equal Rights Amendment? The ERA will have a positive effect on the judicial system in two important ways. By stimulating legislative reform, it will help reduce the number of claims to be resolved in the courts. -255 Where compliance is not achieved through legislative reform, the amendment will give courts clearer guideposts than currently exist for deciding sex discrimination claims. In the many States where gender bias in the law has not been eliminated through legislative reform, victims of this bias have been turning increasingly to the courts, relying on existing Federal and State constitutional provisions for redress. Unfortunately, most State constitutions do not expressly prohibit sex discrimination, and without the ERA, the Federal Constitution similarly fails to provide adequate or sure relief. The 14th amendment to the U.S. Constitution, most frequently the basis for sex discrimination suits, offers uneven and uncertain protection against sex bias. The 14th amendment together with the 13th and 15th amendments were added to the Constitution more than a century ago to abolish slavery and extend civil rights to blacks -256 at a time when women were denied such basic prerogatives of citizenship as the right to vote, hold property, serve on juries, and practice certain occupations. The authors of the 14th amendment did not intend to change these rules. -257 The legislative history of the amendment's equal protection clause provides no guide for applying it to sex discrimination claims. -258 The standard developed by the Supreme Court to judge such claims under the 14th amendment is unclear, both to the Court itself and to other Federal and State courts. Justice Brennan recently noted, "The standard of review. . .has been a subject of considerable debate." -259 In Craig v. Boren, Justice Rehnquist participated in this debate when he dissented from the majority's adoption of a "middle tier" standard of review for sex-based classification -260, stating that the standard: apparently comes out of thin air. The Equal Protection Clause contains no such language and none of our previous cases adopt that standard. . . .[T]he phrases used [in the standard] are so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation. -261 The equal protection analysis developed by the Court for gender discrimination claims is without precedent. The Court's creation of an exception to the standard for laws it divines are "compensatory" to women has only served to compound the confusion. -262 Other courts have had considerable difficulty understanding and applying the Supreme Court's analysis of gender-bias claims under the 14th amendment. -263 Lower courts attempting to follow Supreme Court precedent have analyzed these issues incorrectly, necessitating additional litigation and reversal on appeal. For example, in Wengler v. Druggists Mutual Insurance Company, one State supreme court judge concluded there is "no identifiable 'supreme Law of the Land'. . .by which [lower courts] may adjudicate a claim of alleged gender based discrimination." -264 The Missouri Supreme Court in Wengler upheld a statute that provided automatic survivor's benefits to wives but not to husbands of workers who died in job-related accidents. -265 Citing Supreme Court decisions, the Missouri court reasoned that the challenged statute fit the "compensatory" exception--because it gave survivor's benefits to women, it was constitutionally permissible. The Missouri court, however, failed to address the discrimination women suffered as workers under the statute. In this case, Mrs. Wengler's labor was denigrated by the State because her survivors did not automatically receive the full array of benefits given to the survivors of similarly situated men. The State presumed her financial contribution to be less important to her family than that of a man. Recognizing this discrimination, and the discrimination against Mr. Wengler resulting from the denial of benefits to him, the Supreme Court of the United States reversed the State court's decision. -266 In contrast to the uncertain and unsteady development of 14th amendment sex discrimination jurisprudence, courts called upon to interpret the ERA will have two major sources of guidance: the amendment's extensive legislative history and the experience of those States that have added equal rights provisions to their State constitutions. After 49 years in Congress, the ERA was adopted with an ample legislative history specifically designed to guide the courts in their application of the amendment. Both the Senate and House of Representatives held hearings, -267 issued comprehensive committee reports, -268 and engaged in extensive floor debates -269 on the meaning and effect of the amendment. Judges and legislators will also be able to look to precedents established by the courts in those States that already have enacted State ERAs similar to the proposed Federal amendment. -270 Some of these courts have had as much as 10 years' experience with the amendment. In formulating their opinions, State courts have closely adhered to the legislative history of the Federal amendment -271 and the opinions of other State ERA jurisdictions. -272 As this Commission has already reported, these opinions have greatly benefitted both women and men. -273 This growing body of ERA jurisprudence will help guide courts in interpreting the Federal ERA. Finally, the ERA will be construed in context with other rights guaranteed under the Constitution. Because rules of constitutional interpretation dictate that later amendments do not abrogate earlier provisions, -274 equal rights for women will have to be balanced with other constitutional concerns, including freedom of religion and the right to privacy. -275 This means, for example, that the ERA will not require the ordination of women priests or the sex integration of religious services. The ERA will be applied in accordance with settled principles of constitutional adjudication. For example, courts always avoid reaching the constitutional issue unless it is absolutely necessary to the resolution of the case. -276 Similarly, when a court finds that one part of a law violates the Constitution, it will invalidate only that part of the law; the court will not formulate a rule of constitutional law broader than that required by the precise facts. -277 Thus, courts will adjudicate claims under the ERA within carefully defined parameters and, as described above, on the basis of many years of careful analysis of equal rights principles. Those who fear that courts will reach unpredictable decisions based on a judge's own inclinations and desires truly have the most compelling reason to seek ratification of the ERA as the best way to assure guidance for the judiciary when it is called upon to decide sex discrimination claims.