Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to determine which is more important, a constitutional right or principle, or the government's interest against observance of the principle. The lesser standard is intermediate “skeptical” scrutiny. These standards are used to test statutes and government action at all levels of government within the United States.
Without the ERA, women regularly (and men occasionally) have to fight long, expensive, and difficult legal battles in an effort to prove that their rights are equal to those of the other sex.
As demonstrated in 1996 by the last major Supreme Court decision on sex discrimination, which dealt with admission of women to Virginia Military Institute (VMI), we have not moved beyond the traditional assumption that males hold rights and females, if treated unequally, must prove that they hold them. The Equal Rights Amendment would remove that differential assumption.
The effect of the ERA would be seen most clearly in court deliberations on cases of sex discrimination. For the first time, gender would be a suspect classification requiring the same high level of "strict scrutiny" and having to meet the same high level of justification that the classification of race or national origin currently requires.
The VMI decision now tells courts to exercise intermediate “skeptical” scrutiny requiring "exceedingly persuasive" justification of differential treatment on the basis of sex. Prohibition of sex discrimination is still not as strongly enforceable as prohibition of race discrimination.
Ironically, under current court decisions about sex and race discrimination, a white male claiming race discrimination is protected by strict scrutiny, but a black female claiming sex discrimination by the same program or action is protected by only intermediate “skeptical” scrutiny, not strict scrutiny.
We need the ERA to clarify the law for the lower courts, whose decisions still reflect confusion and inconsistency about how to deal with sex discrimination claims. If the ERA were in the Constitution, it would influence the tone of legal reasoning and decisions regarding women's equal rights, producing over time a cumulative positive effect.