State bills pushing ERA could stall

February 24, 2019
By: Kevin Featherly | Minnesota Lawyer   February 7, 2019 ​Two bills pushing women’s Equal Rights Amendments in both the state and U.S. constitutions are on the march in the Minnesota House.Both face skepticism from GOP lawmakers and a few constitutional experts, but for now they are on an upward trajectory.House File 13 comes from Rep. Mary Kunesh-Podein, DFL-New Brighton. It has 26 DFL co-sponsors and cleared a committee hurdle on Jan. 24, wh [...]
By: Kevin Featherly | Minnesota Lawyer   February 7, 2019 

Two bills pushing women’s Equal Rights Amendments in both the state and U.S. constitutions are on the march in the Minnesota House.

Both face skepticism from GOP lawmakers and a few constitutional experts, but for now they are on an upward trajectory.

House File 13 comes from Rep. Mary Kunesh-Podein, DFL-New Brighton. It has 26 DFL co-sponsors and cleared a committee hurdle on Jan. 24, when it passed out of House Government Operations with a unanimous voice vote. It is scheduled for a hearing at State Government Finance Feb. 7.

In an interview, Kunesh-Podein said her ERA bill is a mirror image of the 1970s-vintage federal ERA amendment, which fell three states short of ratification at the time of its final 1982 deadline.

The other Minnesota House bill, House File 71 from Rep. Rena Moran, DFL-St. Paul, is a resolution asking Congress to eliminate that deadline and kick-start passage of the federal ERA. Moran’s bill went directly from Government Operations to the general register, to await a still-unscheduled House floor vote.

Kunesh-Podein’s bill would place on Minnesota’s 2020 election ballot a constitutional amendment stating that women and men have equal rights under the law. If passed, it would go into effect in January 2021.

“Under this legislative majority and with the awareness of gender inequity, now is the time to do this and get it done,” Kunesh-Podein said in an interview.

The Jan. 24 vote moved her bill to Ways and Means, and from there to the Feb. 7 State Government Finance hearing. But its unanimity might be slightly misleading. The Jan. 24 vote came after the rejection of a GOP amendment, which aimed to prevent a state ERA from being used to fuel legal challenges to anti-abortion state statutes.

“In the broad scope of your bill and your push, I fully support it,” said Rep. Nick Zerwas, R-Elk River, who first offered then withdrew the amendment. “My concern is as a Catholic pro-lifer who doesn’t want to support something that, down the road, is used to justify expansion of abortion access in Minnesota.”

At a Jan. 24 House State Government Operations hearing, MCCL Legislative Director Andrea Rau expresses opposition to a state Equal Rights Amendment bill. The legislation’s author, Rep. Mary Kunesh-Podein, DFL-New Brighton, sits to her left. (Staff photo: Kevin Featherly)
Andrea Rau, legislative director for the anti-abortion group MCCL, asserted that her group’s members are strong on women’s rights. “However, equal rights amendments have a history of discriminating against less developed humans—those yet to be born,” she said.

Rau cited a recent Pennsylvania lawsuit in which abortion-rights advocates used the state’s ERA to justify a constitutional challenge against a ban on state-financed abortions. “Attempts to invalidate pro-life laws continue based on ERAs,” Rau said.

David Schultz, the Hamline University political science professor, said Republicans might have a point. He noted that in 1979, future U.S. Supreme Court Justice Ruth Bader Ginsburg argued that reproductive rights should be guaranteed by the Equal Protection Clause of the U.S. Constitution, rather than a judicially constructed right to privacy.

An ERA would raise gender to a protected status equivalent to race, which conceivably could make it a powerful constitutional tool for abortion-rights proponents, Schultz said.
“I think that Republicans rightly perceive that’s part of what the agenda is,” he said.
Kunesh-Podein, however, told lawmakers that her bill has nothing to do with abortion rights. She declined to accept the Zerwas amendment, she said, to keep it “a clean bill.”
In the interview, Kunesh-Podein said the Zerwas amendment, had it passed, would have been fatal to her bill. “We would have had to kill the bill right here because we can’t let that go forward with that amendment on there,” she said.

Though it likely won’t stop anything, the Zerwas amendment likely is not dead. “I think there will be robust discussion on the floor about the amendment,” he told committee members on Jan. 24.

Senate factor
Taken in isolation, of course, little of that matters. House Democrats have a 75-59 majority and can pass pretty much any bill that suits their mood. But House Republican opposition appears to be reflected in the Senate, where it matters a great deal.

Sen. Warren Limmer, R-Maple Grove, is chair of the Senate Judiciary committee, through which both of the DFL House bills’ companions would have to pass.

In a brief interview on Wednesday afternoon, he said neither bill is scheduled to be heard in his committee. He said he plans to leave it up to Senate Majority Leader Paul Gazelka, R-Nisswa, to decide whether they should move forward in his committee.

But even lacking a Senate hearing and testimony, there already are signals that Senate Republicans share their House counterparts’ concerns.

Senate File 200, from Sen. Dick Cohen, DFL-St Paul, is the companion to the Kunesh-Podein bill. It once had three Republican sponsors — Sen. Julie Rosen, R-Vernon Center; Sen. Carla Nelson, R-Rochester; and Sen. Scott Jensen, R-Chaska. All have since had their names stricken from that bill.

The same is true for the Moran bill’s Senate companion, Senate File 208 from Sen. Sandy Pappas, DFL-St. Paul. It also boasted three GOP co-sponsors. As of Jan. 22, all had their names removed.

“That might have been some strong influence from MCCL,” Kunesh-Podein said when asked about the Senate defections.

Both bills also have many supporters. At the Jan. 24 Government Operations hearing, for instance, so many supportive testifiers were present that not all could be heard.

Lisa Stratton, former University of Minnesota law school instructor and co-founder of the nonprofit Gender Justice, was among them. “This standard would simply place gender equality on the same footing as racial and religious equality,” she testified.

She quoted the late Supreme Court Justice Antonin Scalia, who in 2011 said that while the U.S. constitution does not require discrimination against women, neither does it prohibit discrimination.

“Enshrining the basic principle of gender equality in the Minnesota Constitution,” she said, “would make it clear that the citizens of this state expect its courts to apply a very high level of scrutiny to laws that create or reinforce gender disparities.”

Stratton added: “It would make it clear that such laws have to be justified by a compelling state interest.”

More skepticism
Abortion is not the only cause for skepticism about the bills.  Rep. Pat Garofalo, R-Farmington, in a Jan. 25 interview, said the ERA is constitutionally superfluous. “The 14th Amendment covers this, period,” he said. “It’s already in law. It’s already in the Constitution.”
Mary Jane Morrison, a Minnesota Constitution expert and retired academic, wonders whether a constitutional amendment is the right answer to the problems supporters want solved.

Various testifiers suggested that a state ERA would enshrine women’s equality in state law, helping to curb gender wage disparities, lessen the double whammy of racial and gender discrimination faced by women of color and help prevent domestic abuse, among other issues.

Morrison said that while all those problems are real and serious, their root causes are not totally clear. Without having a firm grasp on causation, she said, a constitutional amendment may be the wrong remedy — because it is not certain what it would solve.
Morrison makes no firm stance against enshrining the ERA into the state constitution. She is just not sure it is the right answer — at least not yet.

“If we have already exhausted the non-constitutional efforts to solve the problems, then I am ready for a constitutional clause that has teeth in it — with a department behind it that is charged with enforcement,” Morrison said.

However, she added, “My general view is that the constitution needs to be the place of last resort, after we found out that we have no legislative and cultural means of solving the problem.”

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