How will courts interpret and apply the Equal Rights Amendment's affirmation of sexual equality before the law? This question has been the focus of much controversy surrounding the desirability of ratifying the proposed ERA to the Constitution.
Proponents of the ERA assert that courts will be guided by congressional intentions when they interpret and apply the ERA to specific situations. Opponents believe that judges will push the logic of equality to such extremes that widely held social values will be violated.
The ERA Impact Project, a joint undertaking of the National Organization for Women's Legal Defense and Education Fund and the Women's Law Project, has been seeking an answer to this question by monitoring legal developments in the 16 states that now have constitutional amendments affirming sex equality. In nine of these states, the state constitution contains language nearly identical to that of the proposed ERA. What has happened in these states?
An analysis of the more than 250 court cases tried under state equal rights amendments leads to the following conclusions:
* The legal rights and status of women, especially homemakers, have been improved under state ERAs.
* Rights which were formerly limited to one sex have been extended to both men and women.
* The most dramatically positive effect of state ERAs is found in the area of family law.
A brief review of some major developments in the legal areas of marital property, alimony, consortium, and child support and custody illustrates these findings.
Marital property. Married women have acquired new property rights under state ERAs. Traditionally, property acquired during marriage was assumed by the courts to be owned by the husband. So, when a couple divorced, homemakers had to prove to the court that they contributed cash toward the purchase of property in order to establish a legal claim to it. Courts could not award to a homemaker any household goods or property unless the homemaker had paid for it.
In contrast, under state ERAs, courts have held that the nonmonetary contributions of homemakers to the family establish an equal right to ownership of marital property. It is the ERA which has established the economic value of homemaking -- a value which courts traditionally ignored. For example, a Pennsylvania judge ruled, ". . . we cannot accept an approach that would have ownership of household items (rest) on proof of funding alone since to do so would. . . fail to acknowledge the equallym important and often substantial nonmonetary contributions made by either spouse."
Alimony. The state ERAs have also strengthened the right of dependent spouses to receive alimony. For example, four states do not permit the granting of permanent alimony after divorce, but some of these states do allow temporary alimony until the divorce is final. In these states, the right of dependent spouses (usually, but not always, the wife) to obtain temporary alimony has been strenghtened by state ERAs.
Where alimony is permitted by state law, state ERAs have not robbed women of the right to get alimony. Rather, courts have extended this right to both sexes and based alimony on economic need and dependence.
Loss of consortium. Another clear example of how state ERAs have led to the extension to both sexes of a right formerly reserved to one sex involves loss of consortium (the companionship and services of a spouse). Under common law, only a husband could sue for damages if his wife was killed or injured. Wives do not have a similar right because they are the chattel (property) of their husbands and thus don't need to be compensated for loss.
In contrast with this view, courts in Washington, Texas, Pennsylvania, and Alaska have used state ERAs to grant wives the right to sue for damages.
Child custody. Courts in ERA states still consider the best interests of the child when awarding custody. However, neither parent is presumed to be more deserving of the child simply because of the parent's sex. In application, mothers have not been widely denied child custody in ERA states. Nor is it true that mothers have had to prove their fitness for custody.
Child support. There is a persistent myth that most divorced women caring for young children receive child support. In fact, less than half of all divorced mothers are awarded child support, and, of these, most fail to receive regular payments. In other words, only one in five divorced mothers caring for young children can count on help from the father. Fathers who do contribute such support pay, on average, less than half of the total cost of raising the child.
Rather than erode a nonexistent right of women to receive child support, the ERA has established the rule of shared parental responsibility for children. Courts in ERA states have not interpreted this rule to mean that both parents must contribute financially to the care of their children. There has not been a single case in which a mother of young children has been forced to go to work in order to support her child.
In fact, courts in states with ERAs have ruled that divorced mothers caring for their children are entitled to maintain the standard of living to which they were accustomed before the divorce and that the parent is entitled to remain at home and care for the children until they are grown up. Divorced women in states without an ERA do not have this right. Courts have dismissed claims by disgruntled ex-husbands that the state ERA requires the former wife to go to work and help support the children. In Pennsylvania, the court ruled, ". . . permitting the nurturing parent to remain at home until a child matures does not run afoul of the ERA. . . ."
Fears that the ERA will harm family life or the rights of homemakers are utterly unfounded. In the 16 states with ERAs, courts have generally handed down decisions that are fair and reasonable. Women, men, and children have gained most in those states where the language of the state constitution is similar to that of the proposed federal ERA.In the sensitive area of family law, state ERAs have resulted in judicial recognition of the economic value of the work of homemakers and established the principle that marriage is , for legal purposes, a partnership of equals.