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Feminist Debate on Constitutional Equality

The defeat of the ERA gave feminist legal scholars some room to resume their debate over the constitutional standard that would be most effective in promoting women’s rights. These debates on constitutional equality and legal doctrine are important because they provide a basis for debate in all substantive areas of policy: reproduction, sexuality, family, work, and education. By the early 1980s, several points about women’s status under the Constitution were manifest. The campaign for the ERA and, with it, the hopes of a clear, simple standard prohibiting sex classifications in federal and state law had foundered. The ERA failed to get the necessary thirtyeight states by the ratification deadline. An immediate effort at resuscitation in the House of Representatives failed when the amendment received 278 votes, 6 short of the necessary two-thirds of those present. The litigation of sex discrimination cases slowed down at the same time, leaving lawyers to make some sense of the standards of review coming from all the cases since 1971 and Reed v. Reed.17