In March of 2017, on the heels of the Women’s March, Nevada became the first state in 35 years to ratify the Equal Rights Amendment (ERA). If Nevada’s ratification is legally valid, then ratification by merely two additional states would be sufficient to add a sex equality guarantee to the U.S. Constitution. But the question remains: would the ERA change what the law does to gender relations and gender equality—or would a constitutional guarantee of sex equality be merely symbolic today? Even though the Equal Protection Clause is now read to prohibit sex discrimination in most instances, and statutes prohibit sex discrimination in employment and education, American women continue to experience political and economic disadvantages that stem from their social role in raising the next generation of Americans. This article argues that constitutional gender equality must be understood not only as women’s rights, or the rights of men and women to be liberated from gender roles, but rather, as the new twenty-first century infrastructure of social reproduction. This vision of gender equality, which was facilitated by the early twentieth century protection of motherhood in post-war European constitutions, is one that is taking hold in many other constitutional orders outside the United States.
Julie C. Suk, The Constitution of Mothers: Gender Equality and Social Reproduction In The United States and The World, 9 ConLawNOW 23 (2017)