City bar association co-sponsors resolution supporting equal rights amendment

August 10, 2024 Robert Abruzzese, Courthouse Editor

City Bar President Muhammad Faridi, who played a key role in co-sponsoring the resolution supporting the Equal Rights Amendment. Eagle photo by Robert Abruzzese

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The American Bar Association’s House of Delegates adopted Resolution 601 on August 6, urging the implementation of the Equal Rights Amendment (ERA) across all levels of government.

The resolution, which calls for support from federal, state, local, territorial and tribal governments, was co-sponsored by the New York City Bar Association, the bar association announced on Friday, which makes it the only non-ABA organization to do so.

The Equal Rights Amendment, first proposed nearly a century ago, seeks to enshrine gender equality as a fundamental right in the U.S. 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.”

This simple language would provide a constitutional guarantee against gender-based discrimination, elevating the level of judicial scrutiny for such claims to the same stringent standard currently applied to cases involving race, ethnicity and national origin.

City Bar President Muhammad U. Faridi praised the resolution.

“The United States legal community must use its voice in support and defense of women’s rights, and this resolution by the American Bar Association is a strong step towards women’s rights being enshrined in the highest law of the land,” Faridi said. He also explained that the ERA’s implementation would close existing legal gaps, ensuring that gender equality is not subject to the shifting winds of legislative change or judicial interpretation.

Judge Delissa Ridgway, a principal co-author of the resolution, highlighted the significance of the ABA’s action:

“This is an important step in constitutionalizing the protection of women’s rights,” said Judge Delissa Ridgway, a co-author of the resolution. “With this resolution, the ABA is no longer muzzled on the ERA.”

Ridgway explained that the ERA would provide a permanent safeguard for women’s rights, preventing the rollback of protections under existing federal and state laws, which can be vulnerable to political and legal shifts.

The resolution also addresses a critical legal issue surrounding the ERA: whether the amendment, which has been ratified by the necessary 38 states, can be fully recognized despite the expiration of a previously imposed ratification deadline. By supporting the ERA’s implementation, the ABA is advocating for the amendment to be acknowledged as the 28th Amendment to the U.S. Constitution, arguing that time limits for ratification are inconsistent with the Constitution’s Article V.

Strict scrutiny is the highest standard of judicial review used by courts when evaluating laws or government actions that affect fundamental rights or involve suspect classifications, such as race or national origin. Under strict scrutiny, the government must prove that the law or action is narrowly tailored to achieve a compelling state interest and is the least restrictive means of achieving that interest.

If the ERA were implemented, it would elevate claims of gender discrimination to this stringent level of scrutiny, meaning that any law or policy discriminating based on sex would only be upheld if it met this exacting standard.

Currently, gender discrimination cases are evaluated under “intermediate scrutiny,” a less rigorous standard, where the government only needs to show that the law is substantially related to an important government interest. The ERA would thus provide stronger constitutional protections against gender-based discrimination, requiring courts to apply strict scrutiny in such cases.