By Desiree Hoffman
Director of Policy and Advocacy, YWCA USA
When the Supreme Court of the United States (SCOTUS) decides cases, they set precedents in interpreting the Constitution and federal laws, precedents that all other courts, both state and federal, must follow. In the realm of legal equality, there are several legal provisions that feminist lawyer, Catherine MacKinnon argues, currently guarantee against discrimination including the 14th amendment and Title VII of the Civil Rights Act of 1964, which she contends they have “gone as far as they will or can to produce equality of sexes in life.”
While these laws are still critical in advancing the legal rights and equality of women, we need a new and different instrument to ensure that women receive fair, just, swift treatment under the law. The Equal Rights Amendment (ERA), a constitutional amendment, would lay a sturdy framework to guarantee women’s equality. In particular, the ERA would go a long way in ensuring that survivors of domestic violence, stalking, and rape are adequately protected under the law.
Violence against women was not a focal point in the prior ERA discussion. With recent events swirling in the media on violence against women and statistics illuminating that on average, 1 in 4 women will experience domestic violence, and 1 in 5 experience sexual assault, there is a new direction shaping the ERA discussion.
One historic case that denied legal recourse for domestic violence was Castle Rock v. Gonzales, 545 U.S. 748 (2005), heard before the Supreme Court, which ruled that a town and its police department could not be sued under 42 U.S.C. §1983 for failing to enforce a restraining order, which had led to the murder of a woman’s three children by her estranged husband.
In 1999, three little girls, aged 10, 8, and 7, were shot to death by their father who had kidnapped the girls from their mother, Jessica Gonzalez. Jessica called the Castle Rock Police station informing law enforcement that her daughters were missing, she suspected her ex-husband took them, and that the restraining order had been violated. She said that the order of protection stipulated that their father could only see his daughters on alternate weekends and it instructed police to use every reasonable effort to protect the children to prevent violence. After numerous calls later from Jessica Gonzalez searching for her girls, the ex-husband showed up at the police station and opened fire. After he was killed by return fire, the police found the bodies of the girls in the trunk of his car.
The case reached the Supreme Court in which they ruled 7-2 that it did not present a cause of action of the 14th amendment, indicating that the Constitution is not available to compel law enforcement to protect women against domestic violence. The court held that Jessica Gonzalez had no actionable right to the enforcement of the restraining order and therefore no remedy under federal law. In other words, the Supreme Court ruled that due process principles under the 14th amendment did not create a constitutional right to police protection, despite the existence of a court-issued restraining order. Writing for the majority, Justice Scalia concluded that even if underlying state law created an individually enforceable right to police assistance in the enforcement of the restraining order (and it did not, according to the Court majority), a restraining order is not the type of “property” interest that triggers due process protections under the federal Constitution.
When women’s cases are heard by the highest court in the land they often fail because the 14th amendment, Title VII or other laws such as the Violence Against Women Act do not go far enough in protecting and upholding women’s equality. An ERA could require that states meet Constitutional gender equality standards in the enforcement of their laws against gender-based violence and expand the federal power to legislate against these crimes.
Unfortunately, we don’t have an ERA. We came close, but we still don’t have it. In 1972, the Equal Rights Amendment passed both chambers in Congress and went to the state legislatures for ratification. Constitutional amendments require ratification from three-fourths — or 38 — of the states. The amendment set a ratification deadline of March 22, 1979. Through 1977, the amendment received 35 of the necessary 38 state ratifications.
There are currently several bills pending in Congress that would make the ERA a reality. Senator Menendez (D-NJ) and Representative Maloney (D-NY) (HJ Res 56/SJ Res 10) have introduced legislation that would propose an amendment to the constitution guaranteeing equal rights for women. HJ Res 56 has bi-partisan support.
Another ERA bill takes a “three-state” approach, sponsored by Senator Ben Cardin (D-MD) and Rep. Jackie Speier, (D-CA) and would repeal the ratification deadline and make the ERA part of the Constitution when three more states ratify it.
It is critical that we urge Congress to pass the ERA. We also need to take immediate steps to enforce existing laws to ensure that guns are removed and seized from domestic abusers once a protection order is issued. Current federal law prohibits individuals who have been convicted of domestic abuse or are under a permanent restraining order from possessing a firearm. But in the case of Jessica Gonzalez this did not happen. There were a series of overlapping and terrifying events that could have prevented the untimely and tragic deaths of her children. A stronger legal framework in which women are protected, especially in domestic violence cases, is needed.
This post is part of the YWCA Week Without Violence™ 2014 Blog Carnival. We invite you to join the dialogue! Post your comment below, share your story and follow the conversation on Twitter with the hashtag #workagainstviolence.