Guarantee Of Equality Research Articles

ERA Roundtable

ERA Roundtable Mary Frances Berry (bio), Melinda Chateauvert (bio), Katherine Cross (bio), Jan Erickson (bio), Roberta W. Francis (bio), Bonnie Grabenhofer (bio), Bettina Hager (bio), Amy Richards (bio), and Laura Mattoon D’Amore This roundtable draws from the voices of activists and academics and aims to explore some of the challenges of renewing and sustaining interest in the continued advocacy of the Equal Rights Amendment. To narrow their focus, I asked the roundtable participants to consider their essays as a general response to these questions: 1. Is the ERA relevant to the twenty-first century? 2. How does/Does the ERA represent the issues of importance to various populations of women, including young women; women of color; trans women; LGBTQIA; etc? 3. In the past the ERA served as a beacon connecting generations of feminists. Do you believe the ERA maintains that generational connection today? How do you envision feminists working together to make change in the future? In their response to the roundtable questions, Mary Frances Berry and Melinda Chateauvert wrote “Reform and Symbolism Are Not Enough: Equal Rights Means Gender Justice and Sexual Equality.” The authors focus on the social and political barriers and challenges that an ERA faces now and caution that ERA activism will not succeed if it does not speak directly to relevance and inclusion. A twenty-first-century ERA must address gender justice, identify and speak to various constituencies who have a stake in the ERA, and reposition itself as fundamentally intersectional. Similarly, Katherine Cross, in “Self-Determination: The ERA as a Human Rights Frontier,” imagines the potential of a gender inclusive movement transforming the ERA into a renewed frontier for human rights. With just a simple change to the amendment’s phrasing, Cross articulates the possibility of a “sacred right to use our human potential to the fullest,” by allowing people to self-determine their own gender. [End Page 1] And Amy Richards, in “ERA: Earning Our Right to Be Activists—Young Women and Their Struggle to Find a Place and Voice in the Feminist Movement,” reminds us that without these conditions of inclusion, immediacy, and relevance, the ERA does not feel crucial to young activists. The younger generation of feminists seek activist causes that offer instant gratification and clear reward, and they have been turned off by condescension from veteran activists whose message can appear to be that only certain messengers are allowed to talk about the ERA. Bettina Hager, in “Vestiges of the Past,” defines the United States Constitution as the “most fundamental governing document for women today.” As a young feminist, Hager has focused on the development of an inclusive, informed coalition of activists who can benefit from the knowledge of experienced veteran feminist activists while fighting against the elusive task of conquering oppression. Working alongside Hager, Roberta W. Francis, in “Changed Forever by the Equal Rights Amendment,” finds that an ERA is powerful enough to be helpful in the advancement of all women’s issues, regardless of age, race, ethnicity, sexuality, or any other category of diversity. She calls for an inclusive feminism to fight patriarchy. And in “Is the Equal Rights Amendment Relevant in the Twenty-first Century?” Bonnie Grabenhofer and Jan Erickson argue that a “constitutional guarantee of equality of rights of women and men, prohibiting governments from discriminating on the basis of sex, is still crucially important.” In support of the case, they explore the ERA’s relevance for equal pay, Title IX, LGBTQIA equal rights, reproductive rights, discrimination in insurance, pregnancy discrimination, military policy, violence against women, and reproductive justice. Reform and Symbolism Are Not Enough: Equal Rights Means Gender Justice and Sexual Equality Mary Frances Berry and Melinda Chateauvert The Equal Rights Amendment, like every other issue in the women’s rights movement of the 1960s and 1970s, generated hundreds if not thousands of position papers, resolutions, and critiques from feminist and nonfeminist groups in those decades.1 In deference to the topic and those times, this comment takes the form of a position strategy paper, though of course we use current rather than historical data. Here we outline the political process required under the US Constitution to achieve the policy (the ERA) and...

О правовом регулировании внешнеторговых отношений в рамках Евразийского экономического союза

The article deals with the problems of improving the legislation governing foreign trade relations between business entities of member countries of the Eurasian Economic Union (EAEU). It is noted that close economic interaction between states in the post-Soviet space is a prerequisite for the successful development of production and scientific and technological potential of these countries. Formed in 2014 the Eurasian Economic Union is a new integration association characterized by a deep degree of international integration which implies among others the expansion of foreign trade cooperation of its member countries. The successful solution of the tasks depends largely on the legal groundwork for relations within the Union. The author suggests developing local act of unification — the international treaty governing foreign trade relations between the economic entities in the domestic market of the EAEU using the international experience of creating a uniform legal regulation of the international sale of goods as an example. It is noted that the adoption of the act will create a uniform legal regime and equal guarantees for all participants of the economic relations.

Resistance to Anti-Discrimination Law in Central and Eastern Europe–a Post-Communist Legacy?

AbstractPost-communist Central and Eastern European ('CEE') legislators and judges have been resistant to equality and antidiscrimination law. This Article argues that these negative attitudes can be explained in part by the specific trajectory that EAL has taken in CEE during and after state socialism, which has differed from Western Europe. In the UK/EU, the formal guarantees of equal treatment and prohibitions of discrimination of the 1960s and 1970s were complemented by a more substantive understanding of equality in the 1990s and 2000s. This development was reversed in CEE—substantive equality, of a certain kind, preceded rather than followed formal equality and antidiscrimination guarantees.The State Socialist concern with equality was real, and yet the project was incomplete in several significant ways. It saw only socio-economic, but not socio-cultural inequalities (relating to dignity, identity or diversity). It was transformative with regards to class, but not other discrimination grounds, especially not gender. While equality was a constitutionally enshrined principle, there was an absence of any corresponding enforceable antidiscrimination right. Finally, the emphasis on the “natural” differences between the sexes meant that sex/gender discrimination was not recognized as conflicting with women's constitutional equality guarantees.

ETIKA PROFESI ADVOKAT SEBAGAI UPAYA PENGAWASAN DALAM MENJALANKAN FUNGSI ADVOKAT SEBAGAI PENEGAK HUKUM

Indonesia as a state of law based on Pancasila and the Constitution of the Republic of Indonesia Year 1945 guarantees equality for all before the law (equality before the law). In realizing the principles of law in the society and state, the role and function of Advocate as a profession that is free, independent and responsible is important, in addition to the judiciary and law enforcement agencies such as the police and prosecution. The problems in this dissertation are: (1) What are the basic ratiologic advocate violation of professional ethics Advocate? and (2) How does the concept of behavioral guidelines advocate in practicing a profession as legal counsel in an effort to control the Advocate in law enforcement? The method used is normative research enables researchers to utilize the findings of empirical legal science and other sciences for the benefit and the analysis and explanation of law without changing the character of law as a normative science. The method used in this research is the approach of legislation or statute approach, arguing that research must necessarily normative approach legislation, because examined are various rules of law as well as its central theme a focus of research. The results of basic research advocate consideration as a respectable profession and became an important part of chess dynasty law enforcement, Advocate has responsibility in undertaking to participate in the realization of the rule of law. The responsibility is not merely a necessity but a legally mandated obligations arising from the demands of conscience. The obligations of an advocate is reflected in the ability of responsible advocate against God, professional code of ethics, rules of law and society. Ultimately lawyer also required to be able to account for his actions to the public as an implementation of a sense of responsibility to God, codes and regulations. The concept of behavioral guidelines advocate in practicing a profession as a lawyer as Advocate control efforts in law enforcement by law or code of ethics which is already adequate, but rather on how to implement them. Relating to the existence of a single container and how to manage the Honorary Council (DK) Organization. Monitoring system needs to be upgraded with the supervision of the Advocate smoothed by the Advocate Organization with the Honorary Council to enforce the Law on Advocates and the Code of Conduct.

Gender Equity Tensions in South Africas post-apartheid higher education: in defence of differentiation

This paper presents a theoretical and thematic exploration of gender equity in post –apartheid South African higher education. The paper argues that while South African women played a very important role in the struggle for political liberation, the current situation in South Africa’s political, economic and education institutions seems to suggest that the effort they put in the struggle does not commemorate the gains thereafter. A majority of South Africa’s girls and women still struggle to access quality education and excel at most levels, which is a direct contravention of the Constitutional guarantee of equality for all who live in this great nation. Although the gender equity paradigm in South African higher education can be credited as having recorded some formidable achievements in terms of increased enrolment for female students especially Black women in higher education, a deliberate effort has to be made to shift attention from aggregations to impediments in order for the promise of equality and equity to be realized for those who experienced most barriers in accessing higher education, In the current South African context, one needs to deal with disadvantages that are perpetuated through the socio-economic positioning of families, the inability to use the language of power, content complexity, embedded institutional cultures and practices, among others. Key words: Gender, equity, higher education, Post- apartheid

Emerging from the Shadows: Substantive Equality and Article 14 of the European Convention on Human Rights

At first sight, the equality guarantee in Article 14 of the European Convention on Human Rights (ECHR) appears relatively insipid. Labelled as a ‘parasitic’ right, it only prohibits discrimination in the enjoyment of other Convention rights and is regarded by the European Court of Human Rights as having no independent existence. Indeed, it was this feature that led the Council of Europe to adopt a self-standing equality guarantee in the form of Protocol 12 in 2000. A look at the jurisprudence of the Court in the last few years yields a very different picture. The Court has held that refusal to afford equal parental rights to fathers is a breach of Article 14; that violence against women is a form of gender discrimination; that segregation in education can constitute race discrimination; that unequal treatment on grounds of sexual orientation is unjustifiable in a growing number of contexts; and that social benefits, even if they do not constitute rights in themselves, should not be granted on a discriminatory basis. This raises the question of whether we can now discern a coherent conception of the right to equality, which incorporates the insights of substantive equality being developed in other courts and in the scholarship. This paper aims to address this question by assessing recent developments in Article 14 jurisprudence.

New Approaches to the Constitutional Guarantee of Equality Before the Law

In a recent series of challenges to Section 377A of the Penal Code, the courts have developed the jurisprudence on review of legislation under Art 12(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). Both the High Court and the Court of Appeal set a very high (but not insurmountable) threshold, but each did so in a different manner due to differing conceptions of equality. A critical examination of both approaches shows that the courts’ conclusions are ultimately defensible more as a means of disposing of the instant case than as a watertight doctrinal foundation for Art 12(1) adjudication. The judgments also bring up other miscellaneous areas for further development.

AN ANALYSIS OF WOMEN'S STATUS IN THE MUSLIM SYSTEM AS OPPOSED TO THE EUROPEAN

Article 14 of the ECHR Convention guarantees women the same rights as men. This is just one example. Gender equality is recognized in the Romanian legal system from the constitutional level — Article 16. The Coran guarantees equality between women and men. How is the woman subject to the protection of her husband in each of these law systems? We propose to analyze this in this article.

Carter v. Canada (Attorney General), The Constitutional Attack on Canada’s Ban on Assisted Dying: Missing an Obvious Chance to Rule on the Charter’s Disability Equality Guarantee

Carter v. Canada (Attorney General), The Constitutional Attack on Canada’s Ban on Assisted Dying: Missing an Obvious Chance to Rule on the Charter’s Disability Equality Guarantee

The Fundamental Right to Property in the Indian Constitution

The Fundamental Right to Property enjoys the unique distinction of not only being the second most contentious provision in the drafting of the Constitution, but also the most amended provision, and the only fundamental right to be ultimately abolished in 1978. Unlike other rights of life, liberty, and equality that can at least theoretically be conceived as applying equally to all, the especially contentious nature of the right to property arises because the protection of property rights inevitably results in entrenching unequal distributions of existing property entitlements. This chapter narrates the evolution of the fundamental right to property in the Indian Constitution, and outlines the chequered trajectory of its doctrinal development, following the First (1951), Fourth (1955), Seventh (1956), Seventeenth (1964), Twenty-Fourth (1971), Twenty-Fifth (1972), Twenty-Sixth (1972), Twenty-Ninth (1972), Thirty-Fourth (1974) and Thirty-Ninth (1975) constitutional amendments. The Forty Fourth Constitutional Amendment, 1978, deleted Articles 19(1)(f) and 31 from Part III, the chapter on Fundamental Rights in the Constitution. Instead, it inserted Article 300A in a new chapter IV of Part XII of the Constitution, thereby depriving the ‘right to property’ of its ‘fundamental right’ status. However, in the last five years, there have been attempts made judicially to restore the right to its fundamental right status, as it existed before the Forty Fourth amendment. Simultaneously, the requirements of ‘public purpose’ and ‘compensation’ have been strengthened legislatively through the repeal and replacement of the Land Acquisition Act 1894 by the LARR Act 2013. The LARR Act’s amendment by the thrice promulgated LARR Amendment Ordinance within a year of its enactment, and yet the inability of the government to garner parliamentary support to pass the LARR Amendment Bill, 2015, into law, testifies to the intense social and political contestation around the contours of the right to property, both as a legal and constitutional right. The paper argues that the trajectory of the right to property in the Constitution, as seen from the drafting of the original constitutional property clause, and its evolution through judicial interpretation, legislation, and constitutional amendment, demonstrates the Indian State’s continual attempts to reshape property relations in society to achieve its goals of economic development and social redistribution. Each iteration of the property clause favoured property rights of certain groups and weakened those of others and was the product of intense contestation between competing groups that used both the legislature and the judiciary to further their interests. Concomitantly, lurking behind the development of the Supreme Court’s doctrinal jurisprudence is the Court’s fear of arbitrariness of State action. Almost all of the property cases also involved a challenge on grounds of the equality guarantee in Article 14, and in a majority of these cases, the impugned law was invalidated for violating the right to equality and not the right to property.

The Right to Emergency Medical Treatment in Kenya

Kenya’s Constitution has been hailed far and wide by many as one of the most transformative Constitutions in Africa and across the globe. It brought with it sweeping changes in so far as rights and fundamental freedoms in the Bill of Rights are concerned. For the first time in post-independence Kenya, economic and social rights have been introduced into Kenya’s Bill of Rights under Chapter Four of the Constitution. Amongst these rights is the right of every person to the highest attainable standard of health which includes the right to healthcare services and the right to reproductive healthcare. This right also includes the right of every person to emergency medical treatment. It is this last limb of this right that is forming the subject matter of this paper. Further, the Constitution guarantees equality and freedom from discrimination, and the full enjoyment of all rights and fundamental freedoms. The right to equality encompasses within itself the right of a poor patient to quality healthcare regardless of their ability to pay. Most importantly also, the scope of the Bill of Rights has also been widened as the Constitution now stipulates that most of the rights provided for in the Bill of Rights bind private individuals and corporations, as well as the state. Despite these constitutional guarantees though, the Kenyan media has been replete with reports of patients dying because they have been denied emergency medical treatment on account of inability to pay hospital charges. The question then becomes the extent to which this constitutionally guaranteed right is available for beneficiaries of rights under the Constitution.

El requerimiento de inaplicabilidad por inconstitucionalidad como mecanismo de control de la arbitrariedad del legislador

The author analyzes the regulation that the Constitution makes of arbitrariness -and its interdiction-, especially in relation to the legislator. He points out that, in a first reading, his interdiction in relation to the legislator seems to be only linked to the guarantee of equality and non-discrimination in economic matters. In his opinion, this interpretation is wrong: the ban on arbitrariness is a basic principle of the Chilean Constitution, as recently affirmed by the Constitutional Court, a ban that he understands in broad terms, in such a way that it affects, in his opinion, all State bodies, including the legislator, and in relation to any right and guarantee recognized by it. Under this understanding, he maintains that its repressive control can be obtained through the requirement of inapplicability due to unconstitutionality. In effect, it states that the acts that execute an arbitrary law are of an identical nature, and since these can be controlled in different ways by the ordinary Courts, generally through the appeal for protection, the management that is followed for this purpose can be constitute the one that enables the interposition of the aforementioned requirement, and through this, finally, declare its inapplicability for producing its application in the specific case -by protecting an arbitrary act- effects contrary to the Constitution. It observes that arbitrariness in itself is a vice of unconstitutionality, which is why arbitrary law is always unconstitutional, from which it concludes that its application in a particular case always produces effects contrary to the Constitution, hence it maintains that the concrete control that inapplicability matters in relation to said legal precept, it stands, in practice, in the abstract, which is why it considers that the expression "requirement of inapplicability due to unconstitutionality", classic to refer to it, is, in this case, correct.

Equality and Singapore’s First Constitutional Challenges to the Criminalization of Male Homosexual Conduct

In 2013, in Lim Meng Suang and Kenneth Chee Mun-Leon v Attorney-General1 and Tan Eng Hong v Attorney-General,2 the High Court of Singapore delivered the first judgments in the jurisdiction considering the constitutionality of section 377A of the Penal Code, which criminalizes acts of ‘gross indecency’ between two men, whether they occur in public or private. The Court ruled that the provision was not inconsistent with the guarantees of equality before the law and equal protection of the law stated in Article 12(1) of the Constitution of the Republic of Singapore. The result was upheld in 2014 by the Court of Appeal in Lim Meng Suang and another v Attorney-General3 with slight differences in the reasoning. This article examines the courts’ analysis of equality law, and submits in particular that the courts ought to re-evaluate whether they should apply a presumption of constitutionality, refuse to assess the legitimacy of the object of the impugned provision, and rely on a standard of mere reasonableness or lack of arbitrariness when determining if a rational relation exists between the provision’s object and the differentia underlying a classification used in the provision.

First Amendment Constitutionalism

This article develops a contextual model of free speech. Despite extensive work in this area, dating back to the early twentieth century, the three dominant theories of free speech do not adequately describe the full range of expressions protected by the Constitution. The proponents of the first school of thought claim that the purpose of protecting free speech is to further democratic institutions. Those of the second conceive personal autonomy to be the predominant reason why free speech is so carefully guarded by courts and society at large. And those of the third persuasion relate the American people’s high regard for free speech to the advancement of knowledge. While each touches on the ideals of representative democracy, none fully accounts for the intricacies of the First Amendment within the context of overall constitutional structure. Each contains elements of why free speech is so important to our legal culture, but none of these three provides a comprehensive account.The First Amendment is not solely established to protect speech but also the other predicates of representative democracy. Speech empowers individuals to engage in self-realization within a community of equals committed to the general welfare. Any regulations inhibiting, limiting, or restraining it should be narrowly tailored to safeguard the Constitution’s overarching guarantee of liberal equality for the common good. This principle derives from the Preamble to the Constitution’s General Welfare Clause and the Declaration of Independence’s Unalienable Rights Clause. Scholars and courts have too often ignored these two sources of federal power. Yet they provide the groundwork for representative democracy, wherein expressive liberty enables individuals to voice their political opinions, enjoy personal dignity, and attain knowledge and expertise. Free speech is a function of a constitutional system that enables people to pursue happiness for the betterment of the whole polity. After expounding a comprehensive theory of free speech and critiquing its most important alternatives, the article applies this major shift in First Amendment thought to defamation, intentional infliction of emotional distress, and incitement doctrines.

All Aboard the Pink Battle Bus? Women Voters, Women's Issues, Candidates and Party Leaders

Since at least 1997, the main political parties have made significant attempts to target women voters.1 New Labour actively sought to undermine the Conservative Party's post-war advantage among women. Labour under Blair and Brown was explicitly liberally feminist in both dimensions of feminisation—the inclusion of women in politics and the inclusion of women's perspectives and issues.2 The Party enacted legislation designed to further gender equality while using equality guarantees (in the form of all-women shortlists) to ensure the better representation of women on the Labour benches in the House of Commons. As Conservative leader since 2005, David Cameron has adopted the language of liberal feminism, stressing the need for more Conservative women politicians, and fairer access to paid employment for women.3 To understand how the parties related to women voters during the 2015 election campaign, we situate the election within this context of the interparty competition for women's votes that has gradually brought the parties closer together on ‘women's issues' such that all, with the possible exception of UKIP, are competing to be viewed as at least equally liberally feminist.4 We trace how women voters were portrayed and targeted throughout the campaign through an analysis of media accounts and party manifestos. We also examine how women voters evaluated the parties and whether the parties' equality rhetoric regarding women's political representation was manifest in their selection of women candidates in winnable seats.

Eleventh Annual Brown Lecture in Education Research

This article examines the historical relationship between political power and the pursuit of education and social equality from the Reconstruction era to the present. The chief argument is that education equality is historically linked to and even predicated on equal political power, specifically, equal access to the franchise and instruments of government. Following the Civil War and the collapse of the slaveholding aristocracy, the nation faced an unusual opportunity to reinvent itself by incorporating a new concept of equal citizenship in the postbellum Constitution. Despite the new constitutional guarantees of due process and equal protection under the law, Congress failed to establish equal access to the instruments of government. Following a protracted and intense debate over race, equality, and voting rights, the leaders of the Reconstruction Congress decided not to establish the most important guarantee of equality, that is, equal access to the elective franchise protected by federal constitutional authority. The failure to transfer the regulation of the elective franchise from the respective states to Congress sowed the seeds for the ultimate disenfranchisement of African Americans and left their pursuit of education equality in the hands of state governments committed to segregation and inequality. This critical decision casts a long shadow over the pursuit of education equality from Reconstruction to the present, including current efforts by several states to disenfranchise voters.

Factum of the Intervener: Charter Committee on Poverty Issues, Pivot Legal Society and Justice for Girls in Tanudjaja v. Canada (Ontario Court of Appeal)

The Charter Committee on Poverty Issues, Pivot Legal Society, and Justice for Girls intervened jointly in the appeal of a motion to dismiss the Application in this case. The Appellants argue that the Respondents’ laws, policies, and programs have created and sustained increasing levels of homelessness and inadequate housing in Ontario and Canada in a manner that violates life, security of the person and equality guarantees under sections 7 and 15 of the Charter. The Interveners submit that hearing and deciding the Appellants’ legal claim based on a full evidentiary record, falls squarely within the assigned role of the judiciary in Canada’s constitutional democracy. The Interveners urge the Court of Appeal to reverse the Superior Court’s decision and to allow those suffering rights violations because of homelessness and inadequate housing to obtain a full and fair hearing of their Charter claims in this case.

The 1951 Refugee Convention’s Contingent Rights Framework and Article 26 of the ICCPR: A Fundamental Incompatibility?


 
 
 This article addresses the relationship between two primary structural features of the 1951 Convention relating to the Status of Refugees—that many benefits under it accrue on the basis of a refugee’s degree of attachment to his or her host state and that many rights under the convention are guaranteed to a refugee only to the extent that they are enjoyed by a particular reference group—and the 1966 International Covenant on Civil and Political Rights’ article 26 equality guarantee. Specifically, it examines whether attachment contingencies and reference groups, when incorporated in the refugee laws of states party to the ICCPR, might run afoul of article 26. 
 
 

Reconciling Echaria v Echaria with Article 45 of the Constitution

Examination of inter-spousal or matrimonial property rights, in Courtrooms or in academia, is usually considered as falling under two systems: one for the inherent equal entitlement to the property by the spouses, or, proportionate entitlement as governed by the rules of property law. In emerging legal discourse, it is growing practice to draw a timeline comparing jurisprudence as applicable before the 2010 Constitutional switch, with the jurisprudence emerging out of the new Constitution. Prior to the 2010 Constitution, scanty legislation on matrimonial property rights meant that case law was held with an overriding appeal to filling this immanent gap in the law. The most recent precedent was set in the case of Peter Mburu Echaria v Priscilla Njeri Echaria [2007] eKLR, which set the authority on the separate property system of matrimonial property to govern inter-spousal property matters in Kenya. The 2010 Constitution, over and above its extensive guarantee of gender equality, specifically provides for the equality of the parties to a marriage, and for their entitlement to equal rights during the existence of marriage and even at its dissolution. As alluded to above, this paper is such a comparative analysis: seeking to trace the evolution of matrimonial property laws, as comprehensively captured in the prior authority in Echaria v Echaria. And ends with consideration of the emerging jurisprudence as set with the new Constitution.

Gay Marriage and the Fourteenth Amendment

This essay examines the original meaning of the equality guarantee in American constitutional law. It looks are the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudalism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it concludes that State laws banning same sex marriage violate the Fourteenth Amendment.