Utah's secret ERA

Alice Paul proposed the ERA in 1923.

One of my own personal heroes, Alice Paul (pictured above), first proposed an amendment to the United States Constitution guaranteeing equal rights to all people without regard to their sex in 1923. It took another five decades before the Equal Rights Amendment (ERA) was introduced to Congress in 1972. The text was quite simple. It read:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

It passed through the House and the Senate and then went on for ratifications from the states. That's where it died. In Utah, the John Birch Society successfully spearheaded efforts against the ERA. Utah’s Legislature refused to ratify the ERA, and Utah became a hotbed of anti-ERA efforts.

The grand irony is that Utah already had an ERA-like provision in its state constitution. Utah’s ERA was an important part of Utah's original constitution that was adopted in 1896, when Utah first became a state. It differs from the failed federal ERA in that it goes far beyond legal equality and guarantees forms of social and civil equality. It reads:

"The rights of citizens of the State of Utah to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges."

Wow. The framers of the Utah Constitution were not messing around.

In 1970, however, it was pretty embarrassing for Utah to have such a radical constitutional amendment while being a center for opposition to a more moderate federal measure. According to Utah History To Go:

"[T]he Utah Supreme Court never invalidated a statute based on [Utah’s] ERA. The court's understanding of the state ERA was that it served a narrow political purpose in 1896. Court rulings in family law cases in the 1970s emphasized traditional husband-wife relations and biological factors and reduced the state ERA to a nullity."

But the story isn’t over yet. The 70s were heady times. That same decade saw the rise of originalism and textualism as methods of constitutional interpretation. Many see this is as a direct response to Roe v. Wade, decided in 1973. Textualism in particular has much to recommend it. The idea is that if you want to know what a constitutional provision means, you simply read it and apply the plain meaning of the text. One of the benefits of textualism is that it makes it much harder to simply ignore or nullify a problematic constitutional provision.

In 2006, the Utah Supreme Court set out what is currently the correct approach to interpreting the Utah Constitution. It wrote:

"The interpretation of the protections afforded by the Utah Constitution appropriately commences with a review of the constitutional text.  Grand County v. Emery County, 2002 UT 57, ¶ 29, 52 P.3d 1148 (explaining that 'our starting point in interpreting a constitutional provision is the textual language itself'). While we first look to the text's plain meaning, State v. Willis, 2004 UT 93, ¶ 4, 100 P.3d 1218, we recognize that constitutional 'language is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Dennis v. United States, 341 U.S. 494, 523, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) (Frankfurter, J., concurring). We thus inform our textual interpretation with historical evidence of the framers' intent.  State v. Betensen, 14 Utah 2d 121, 378 P.2d 669, 669-70 (1963) (“[I]t is proper to look not only to the [constitution] itself, but to the background out of which it arose and its practical application in order to determine the [framers'] intent.”); see also Univ. of Utah v. Bd. of Exam'rs, 4 Utah 2d 408, 295 P.2d 348, 361-62 (1956) (“[I]f the words are ambiguous or their meaning not clear, then it is proper to look outside the instrument itself to ascertain what the framers meant by the language used.”). (American Bush v. City of South Salt Lake, ¶ 10). 

So, while the Utah Supreme Court in the 70s was able to ignore Utah’s ERA, it is no longer able to do so. The rise of textualism and originalism as adopted in American Bush means that Utah appellate courts will first need to look to the text. And it seems to me that the text is pretty unambiguous.

There are unanswered questions, however. For instance, what does it mean to have equal religious rights? And what does this mean for Utah’s transgender citizens? Hopefully in the near the future, the Utah Supreme Court will answer some of these questions and render Utah’s secret ERA more than a nullity.