The Equal Rights Amendment:
A Constitutional Basis for Equal Rights for Women
(Brown, Emerson, Falk, Freedman, 936-954)
Domestic Relations Law
 traditional and economic view: woman’s place is home
 laws affecting domestic relations defined women’s rights and duties
 at the present time domestic relations law is based on a network of legal disabilities for
women, supposedly compensated by a corresponding network of legal protections
 in many respects such as name and domicile, law continues to overtly subordinate a
woman’s identity to her husband’s
National discussion about women’s status focused on marriage and divorce laws
 domestic role = primary one
 progressive models: eliminate all differentiation on the basis of sex
 effect of Equal Rights Amendment: to move the law directly and forcefully in the direction
where it is going
 social customs, economic realities, and preferences have far greater influence on behavior
than law
1. Laws Affecting the Act of Marriage
 statutory requirements are generally very simple
 age requirements and parental consent involve widespread discrimination on basis of sex
 2 concurrent rationales for higher marriage age for men:
o women mature earlier
o men should not be distracted from education during adolescence
 Under Equal Rights Amendment
o state could not constitutionally set different marrying ages for both sexes
2. Merger of Women’s Legal Identity into Her Husband’s
a) Name change in Equal Rights Amendment:
 no legal requirement or presumption that a woman takes her husband’s name at time
of marriage;
 as to children’s name what the amendment would prohibit is the requirement that a
child’s name should be the same as his or her father’s or mother’s
b) Domicile in Equal Rights Amendment:
 rules governing domicile be the same for married women as for married men;
 same independent right to choice of domicile;
 sex-neutral basis for determination of child’s domicile
3. Rights of Husbands and Wives Inter Se
a) Rights of consortium in Equal Rights Amendment
 would not permit men to have greater right than women to recover for loss of their
spouse’s services and companionship;
 settle the current uncertainty and disagreement among the states by requiring them
all to grant women the same right to sue that men now have;
 prohibit enforcement of sex-based definitions of conjugal functions
b) Allocation of the duty of family support between husband and wife in Equal Rights
Amendment
 child-support sections of criminal non-support laws would continue to be valid
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sections of laws dealing with interspousal duty of support could not be sustained where
only the male is liable for support
law with no distinctions on the basis of sex
barring of imposing greater liability for support on a husband than on a wife merely
because of his sex
no requirement of mathematically equal contributions to family support from husband
and wife
c) Ownership of Property in Equal Rights Amendment
 Under Community Property
o laws which vest management of community to husband alone would not be
valid; must be made jointly UNLESS they agree otherwise
 Under Common Law Ownership
o devices giving surviving husband equal rights to surviving wife would be valid
o discriminatory laws would be invalidated or extended
d) Grounds for Divorce
 Require men and women to bear equal responsibility for the support or nurture of their
children
e) Alimony
 Alimonies need not be abolished but only that it be available equally to husbands and
wives
f) Custody of Children
 prohibit both statutory and common law presumptions about which parent was the
proper guardian based on the sex of the parent
3. Criminal Laws
 Equal Rights Amendment would not permit laws which base their sex discriminatory
classification on social stereotypes.
 But few types of criminal statutes, most notably rape laws, may be justified as deriving their
sex bias from physical realities.