The Equal Rights Amendment: Governmental Action and Individual Liberty




Kilgarlin, William Wayne

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Texas Law Review


The authors propose that by conditioning the application of the ERA to cases involving governmental conduct, courts unjustifiably and improperly limit the scope of the rights that the ERA affords the citizens of Texas. As Professor Jennifer Friesen noted five years ago, "The possibility of imposing constitutional norms on private actors is potentially one of the most far-reaching changes in constitutional law to be worked by the state civil rights movement." Because the Texas ERA does not explicitly require state action before conduct is declared illegal, this Paper argues that its protection extends to all individuals, whether the government is a participant or not. In Part II of this Paper, the authors examine the historical background of the passage and adoption of the Texas ERA. In Part III they review Texas ERA case law. In Part IV, they argue that the ERA bars unequal treatment by private and governmental actors alike. The authors conclude, in Part V, by proposing a standard for review of claims brought under the Texas ERA - a standard that does not turn upon the presence or absence of governmental conduct, but instead recognizes the competing rights of the parties as determinative.



ERA, Equal Rights Amendment


68 Tex. L. Rev. 1545