The Equal Rights Amendment and the Courts

to sex will have a fixed, certain and virtually immutable definition, to be applied to the variegated forms of our future.Oppositely, interpretation of the principle of equality of rights promises to be a process at least as complex and difficult as any other process by which other fundamental constitutional changes in the interaction between law and society have been wrought.How long any stage of this particular process may take cannot be readily gauged.The processes of change accompanying other significant constitutional amendments (e.g., First Amendment freedoms of speech, press and religion, Fourteenth Amendment due process and equal protection) remain unfinished today.Also, the idea of "competing" a guarantee of basic rights, for all time, cannot be reconciled with the essence of human life-invention, creativity and struggle (or, put simply, motion).Close to the erroneous proposition that the Equal Rights Amendment will soon acquire a clear, concrete meaning in our legal system is the deeply nalve assumption that "equality" is a status which can be successfully and justly bestowed upon persons, or upon rights of persons.Yet this notion of "magic wand equality" poses great dangers; those who wish for rapid, easy eradication of sexbased discrimination share, with those who do not care about the problem, a susceptibility to the facile view that the Equal Rights Amendment will operate automatically.Along with the attributions of certainty and automatic effectiveness to the principle of equality of rights of men and women goes the attribution of uniform judicial treatment of the Amendment.When it is considered that our judicial system has never been and is not today in agreement about the meaning of "equality," and when we recognize that the system affords a continuous tug-ofwar among courts, within courts, and overtime it becomes obvious that the Equal Rights Amendment will yield tentative, experimental and sometimes self-contradictory results long before it can yield hard-and-fast solutions.This is not to say that some cases will not be rather promptly decided concerning the Amendment's meaning; neither is this to say that a large measure of seeming certainty will not be contributed to the meaning of the Amendment by initial Supreme Court decisions.Rather, it is only necessary to remain aware, in any analysis of the Amendment in relation to the courts, that conflicts within the judicial system about "equality" must necessarily lead to setbacks and stalemates in the processes of giving life to the Equal Rights Amendment.At the center of the relationship between our courts and the Equal Rights Amendment lies a paradox: American judges and 16.Id. at 73. 17.See supra note 7.