Michelle Quist: LDS Church and its newspaper dredge up tired old arguments against the ERA

(Francisco Kjolseth | The Salt Lake Tribune) Abby Guymon, left, and her twin sister Kate, 10, join other local supporters of the Equal Rights Amendment for a rally at the Utah Capitol on Tuesday, Dec. 3, 2019, to encourage Utah to ratify the ERA.

It’s been cold, but did you know that hell has finally frozen over?

It did. For, you see, the Deseret News Editorial Board pointed to “avowed feminists” and “self-described feminists” as authority figures for the first, and likely last, time ever.

On Tuesday the Deseret News resurrected old, stale and nefariously misleading arguments in opposition to efforts by Utahns to ratify the Equal Rights Amendment. According to the DNews, equality enshrined in the Constitution isn’t necessary when we can just say with empty words that “If a law or public policy harms women, it should be changed.”

Is that really the standard — to wait around for laws that harm women and try to go back and fix them? Sorry, but that isn’t enough anymore.

Let’s examine the recent editorial:

The ERA “has raised concerns among avowed feminists.” This claim links to an op-ed by Valerie Hudson that essentially equates the ERA with the proposed-but-going-nowhere Equality Act.

The Equality Act is legislation pending before Congress that would replace the word “sex” in federal legislation with “sex (including sexual orientation and gender identity).”

First, the Equality Act is independent from the ERA, and if it passes, it will do so with or without the ERA. Second, the current battle over the definition of the word sex and whether it includes sexual orientation and gender identity is already happening at the Supreme Court level. The Court will decide the issue; the ERA has nothing to do with it.

And finally, I don’t think the Deseret News gets to point to “avowed feminists” for anything unless it’s also going to point to them as authority figures when it editorializes on women and the priesthood or women at church or even women in Utah.

The DNews claims there are “far-reaching unintended consequences that could ultimately harm women.” It then goes on to include among these unintended consequences a possible “change [to] family law – including child custody rights in divorce.”

I wonder if any members of the Deseret News Editorial Board are actually divorced. If they were, they’d know that changes to family law to treat mothers and fathers equally were implemented decades ago. Alimony is a luxury of the past. If it’s awarded at all, it’s given on a very temporary basis so the mother (usually) can ramp up and get a job. Child custody? The norm now is joint custody. Because dads love their kids, too.

Is the DNews really advocating that women should have preference over men in divorce situations? How do you dads feel about that?

The editorial also claims the ERA will impact abortion law and women will be drafted into the military. Welcome back to the 1970s, ladies and gentlemen.

In fact, these are the exact same arguments used in the 1970s against ratifying the ERA then. And gay marriage. The biggest bogeyman, of course, was that the ERA would cause the legalization of gay marriage.

That ship has sailed.

In a publication titled “The Church and the Proposed Equal Rights Amendment A Moral Issue” circulated in 1980, opponents argued that the ERA would lead to “the horrors” of gay marriage and the right of gay couples to have children. Well, not only was the article wrong, since those things came about not because of the ERA but despite its failure, but that ship has sailed.

Do you know what does hurt American families? Single moms who are the responsible breadwinners of their families having no constitutional protections. Discrimination against women hurts families. Discrimination against pregnant women hurts families.

Forty years’ worth of discrimination has really hurt families.

The fact is, women work. According to the Utah Department of Workforce Services, 59% of women with children 6 and younger work. 50% of women with children under 6 and children 6-17 work. And 73% of women with children 6-17 work. Do we want to support these women, or keep pretending that women don’t work?

Instead of unintended consequences, do you know what the intended consequences are of opposing the ERA and of supporting the status quo? More of the same discrimination in the workplace. More of the same discrimination in the public sphere. More of the same pay disparity and single moms in poverty and pregnant women losing their jobs.

About abortion and military conscription. First, despite the DNews’s claim that “most informed observers point to judicial rulings suggesting the ERA would in fact be a substantive victory for pro-abortion advocates,” most “informed observers” do nothing of the sort because there is no such precedential caselaw. The two states that have limited decisions from decades ago are not precedential to Utahns or to the nation. That’s the beauty of federalism.

The ERA would not “constitutionaliz[e] abortion once and for all” because abortion is already constitutional! And in our judicial system, nothing is “once and for all.” The board remarks that the ERA doesn’t even mention women (thanks RBG movie!). Well, it doesn’t mention abortion either.

The claim that government “couldn’t treat abortion differently than any other medical procedure performed on a man” has no legal foundation. If it were true, Utah courts would have already struck down state abortion regulations, since the Utah Constitution has included a provision declaring men and women equal since its inception.

The board’s reference to the fact that the Utah Constitution’s provision is “understood within a community context” and therefore has not been “weaponized to eliminate reasonable abortion laws” is pure jiggery-pokery. Constitutional text is constitutional text. And need we be reminded that the legalization of gay marriage started with a court examining the Utah Constitution. That’s some community context alright.

Republicans in Illinois recognized that the ERA won’t affect abortion law, which is why they passed ratification of the ERA last year.

And military conscription? Women have performed successfully in the military for decades.

If women in the Holy Land can fight (Israel has military conscription of men and women), so can we. Besides, there would obviously be exemptions for conscription of both parents in homes with children. Fear tactics are getting extreme here.

The fact is, the ERA would not add new laws to the Constitution, it would guarantee rights that already exist. We aren’t asking for the government to create a new right. We’re asking for the government to recognize a right that already exists.

Abortion laws, military conscription and the definition of sex exist separately from the ERA. Like gay marriage, these things will be decided in the courts regardless of whether the ERA passes or not.

The board also points to “a procedural problem.” This is also a red herring. Despite the Board’s reliance on comments by Justice Ginsburg (again, the first and last time the Deseret News will likely point to Justice Ginsburg as an authority on anything), it is unclear what procedures will be necessary to ratify the ERA. But the deadline has already been extended by Congress once, which means Congress has the authority to extend it again.

The last amendment to be ratified was done so after a ratification period of 203 years. Also, Article V of the Constitution gives states the power to ratify an amendment, but not the power to rescind that ratification.

Heck, we could even call for a Constitutional Convention, which the Utah Legislature has already supported in a resolution passed during the last session. In other words, procedure is not the problem here.

A day after the board’s scaremongering editorial, The Church of Jesus Christ of Latter-day Saints announced that its position on the ERA hasn’t changed in 40 years.

The only other thing that hasn’t changed in 40 years is the pure doctrine of Christ. Everything else is principle and practice. And after 40 years set on a sandy foundation, the church’s position on the ERA has been proven wrong as well as short-sighted. I expected more today.

Correction, do you know what else hasn’t changed in 40 years? Women haven’t been paid equally. That’s 40 years of lost wages for families with children, many in poverty. Women haven’t been treated equally in the workplace. That’s 40 years of lost advancement and experience and general life betterment. Pregnant women have been discriminated against for the past 40 years. That’s 40 years of stale movement and glass ceilings.

Support for the ERA is not a partisan issue. Support for the ERA is not a gender issue. Support for the ERA is not a religious issue. Support for the ERA is about equal legal scrutiny.

The fearmongering and disinformation must stop. We fell for it once, we shouldn’t again.

The ERA is good for families, good for businesses, and good for Utah. As a member of The Church of Jesus Christ of Latter-day Saints, I support the ERA.

Michelle Quist

Michelle Quist is a Salt Lake City attorney and a columnist for The Salt Lake Tribune.