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Court exonerates ERA

- The Washington Times - Wednesday, October 3, 2007

Some 35 years ago, conservative activist Phyllis Schlafly and her allies were scoffed at and ridiculed for warning that a federal Equal Rights Amendment (ERA) would open the door to "gay marriage." After all, in the 1970s, virtually no one — save two men who tried to "marry" in Minnesota — had heard of such a thing.

Last month, the Maryland Court of Appeals exonerated the ERA, at least on the "gay marriage" argument. The primary purpose of Maryland's ERA, approved by voters in 1972, "was to eliminate discrimination as between men and women as a class," Maryland Court of Appeals Judge Glenn T. Harrell Jr. wrote in the 4-3 majority opinion in Deane v. Conaway, issued Sept. 18.

Maryland's marriage law doesn't violate the ERA because it "prohibits equally" male couples and female couples from marrying, Judge Harrell wrote, citing a half-dozen other cases as precedent.

Does this mean the nation is closer to enacting a federal ERA? Are ERA opponents like Mrs. Schlafly ready to throw in the towel?

The answer is no. The struggle will carry on.

ERA supporter Idella Moore is pleased that the Maryland high court acquitted the ERA once again.

"Frankly, I don't know how many court cases it's going to take to convince people" that the ERA is about equality between the sexes, not sexual orientation, said Ms. Moore, founder of 4ERA.com, an organization that seeks ratification of the federal ERA.

Perhaps, in light of this and other rulings, she said, ERA opponents, "who for 35 years have insisted the ERA will automatically grant same-sex marriage, will finally admit their claims are unjustified."

But Mrs. Schlafly remains unmoved.

The Maryland court decision was "a big victory for those who uphold traditional marriage," the founder of Eagle Forum told The Washington Times.

However, "no one can predict for sure whether activist judges will rule based on the plain meaning of the text, or on a real or imagined intent of the sponsors, or on the Lawrence v. Texas ruling that cases can be decided on 'an emerging awareness' about conduct, or on the judges' own theory of the way things should be," Mrs. Schlafly said.

"ERA remains a tool that judges can use at any time to rule for same-sex marriage," she added.

In fact, the ERA-obligates-homosexual-marriage argument has prevailed in key courts:

In 1993, the Hawaii Supreme Court's Baehr v. Lewin decision — credited with launching the homosexual "marriage" debate — was based on the state's ERA.

In 2003, the Massachusetts Supreme Judicial Court ruled for the first time in U.S. history that it was unconstitutional to deny homosexual couples marriage licenses. One of the justices cited the state's ERA as a basis for the court's decision.

A third key decision came in 2006: The New Jersey Supreme Court said its state equal protection clause required that homosexual couples receive the same rights and benefits as heterosexual couples. The court left it to the legislature to figure out how to deliver the benefits and lawmakers quickly enacted a civil union law.

Other high courts, however, have echoed the Maryland Court of Appeals. Washington's Defense of Marriage Act (DOMA) "does not violate the state constitution's equal rights amendment" because it affects rights of one sex over another, the Washington Supreme Court said in its Andersen v. King Country ruling in 2006. "DOMA treats both sexes the same; neither a man nor a woman may marry a person of the same sex."

Most courts have said that state ERAs were passed by voters to clarify that women couldn't be denied certain rights and benefits given to men, said William C. Duncan of the Marriage Law Foundation in Orem, Utah, which tracks same-sex "marriage" cases.

However, some courts take an "absolutist" view of ERA — they think any time someone's sex is mentioned in a law, it's assumed to be unconstitutional, he said. In light of these absolutist rulings, he said, "I think Phyllis and others who predicted this would happen ... proved to be pretty prescient."

So what's the status of these laws?

c The federal ERA has appeared to be a moribund issue since 1982, when only 35 of 38 states met the ratification deadline. Congressional Democrats have consistently introduced bills to reintroduce the ERA and this year's bills, introduced in a Democrat-led Congress, were greeted with particularly high hopes. The bills remain in committee though.

c ERA supporters such as Ms. Moore believe there is untapped bipartisan support for the ERA and if three more states ratify the ERA, even belatedly, there is a legal precedent to have the federal ERA ratified. About a dozen states have pro-ERA campaigns, but while several ERA bills have been introduced, none is near passage. The Arkansas ERA bill — supported by Gov. Mike Beebe — seemed headed to victory earlier this year. However, following a vigorous anti-ERA campaign that warned of same-sex "marriage" and federal funding for abortion, key Arkansas lawmakers abandoned the ERA bill at the last moment.

c Three major same-sex "marriage" lawsuits are under way in California, Connecticut and Iowa. All will be additional test cases for the ERA, as they cite the state's ERA as a basis for allowing homosexual couples to "marry."