By MARK MATHEWSON

Illinois' ERA: Who's benefiting?

While the Illinois General Assembly failed to ratify the proposed federal Equal Rights Amendment, the state is not oblivious to the issue of equal rights. In fact, Illinois included provisions in its 1970 Constitution banning sex discrimination. The two provisions — sections 17 and 18 of Article I — have hardly been overworked in the state's courtrooms during the intervening 15 years, giving rise to speculation about their effective application. What case law there is now and what the future implications of these two provisions may be is explored in the following article.

ILLINOIS is famous — or infamous, depending on your point of view — as the state that voted "no" on the federal equal rights amendment back when it mattered most, leaving that cause celebre of the '70s to wither and, finally, to die. It's not so well known — and no small irony — that Illinois has its own counterparts to the federal ERA, making it one of only 16 states whose constitutions contain anti-sex-discrimination provisions. Indeed, Illinois has had equal rights provisions in its constitution since 1970, before the federal ERA was even proposed by the Congress.

The Illinois equal rights provisions, like those of other states, were crowded out of the limelight by their glamorous federal cousin and have never gotten the popular attention they deserve. Not that sections 17 and 18 of Article I of the Illinois Constitution have worked a revolution of sexual parity — far from it. Nonetheless they've left their mark on Illinois statutory and common law.

Even so, have they had the effect, both in kind and amount, that they should have? How well have they satisfied "women's rights" activists on the one hand and "family rights" activists on the other? Are they likely to make a difference in the future? Proponents of a federal ERA may try again; meanwhile Illinois' equal rights provisions deserve review since they're the closest thing to the ERA Illinoisans will likely have for years to come.

The General Assembly's failure to support the federal ERA was consistent with Illinois' traditional reticence about civil rights legislation; Illinois was the last large northern industrial state to pass a fair employment practices law, and one of the last to pass open housing legislation. But the Illinois Constitutional Convention of 1969-70, which met during the height of '60s political activism, was a departure from the noninterventionist norm. The convention included a number of liberal, civil libertarian delegates who successfully introduced two equal rights provisions into the 1970 Illinois Bill of Rights in an effort to put Illinois at the front in the fight against sex discrimination.

Of the two provisions, Article I, section 18, most nearly resembles a classic ERA: "The equal protection of the law shall not be denied or abridged on account of sex by the state or its units of local government and school districts." The other provision, Article I, section 17, appears narrower in scope, at least when it comes to sex discrimination, because it applies only to certain discriminatory acts: "All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property. ..." But although section 17 applies only to certain kinds of discrimination — notably housing and employment — it forbids discrimination by private sellers and private employers. Section 18's reach is limited to government discrimination, and only state and local government in Illinois; in other words, section 17 applies only to certain discriminatory acts, while section 18 applies only to certain discriminatory actors. Thus it's hard to say which provision, on its face, has the greater potential application.

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But you can never take a constitutional provision at face value. No constitution means much until it's fleshed out by judicial interpretation, and the Illinois Supreme Court has put muscle into section 18, while section 17 remains a comparatively lifeless skeleton. Here, in thumbnail sketch, is the history of each:

Section 18

The Illinois Supreme Court chose early on to take section 18 fairly seriously. In a 1973 case, People v. Ellis, the court held that section 18 "was intended to supplement and expand" rights gauranteed by the federal constitution, and that sex discrimination by state and local government must withstand "strict judicial scrutiny" or be stricken by courts.

"Strict judicial scrutiny" is not the most stringent standard of judicial review possible. For example, supreme courts in three of the 16 ERA states impose "absolute scrutiny"; that is, they simply forbid sex-based classifications unless they're based on physical characteristics peculiar to one sex or they interfere with the right to personal privacy (thus eliminating the bugaboo of state-imposed unisex bathrooms). Absolute scrutiny is suggested by the language of the federal amendment and is the most unobjectionable standard of review in the eyes of ERA opponents such as Phyllis Schlafly, since it is more likely than lesser standards to invalidate statutory and common law benefits to women; it means that all discrimnation is impermissible, even favorable discrimination. The strict scrutiny standard, on the other hand, does not gaurantee that courts will invalidate every discriminatory state or local law, or every discriminatory act by state and local public officials. It does mean that government-sponsored sex discrimination is presumed to be unconstitutional and won't be upheld unless public officials prove that discrimination serves a compelling government interest.

That raises the question, "What is a 'compelling government interest'?" Like "strict scrutiny," it is a legal term of art, one that gives judges considerable leeway in deciding whether legislators have a constitutional right to discriminate. The best way to determine the practical meaning of section 18 is to look at some of the cases decided under it.

• Family Law: In Phelps v. Bing, the Illinois Supreme Court invalidated a statute that permitted females to marry without parental consent at age 18, with parental consent at age 16, and by court order at age 15, while the corresponding ages for males were 21, 18 and 16. The court found no compelling state interest to justify the distinction.

Although the Illinois Supreme Court has not considered the "tender years" doctrine — the judicial presumption that mothers, not fathers, should receive custody of young children — four of the five appellate courts have held that maternal preference would violate section 18. Only the Fifth District Appellate Court upheld the tender years doctrine, and it did so without discussing section 18.

• Criminal Law: In People v. Ellis, the Illinois Supreme Court invalidated a provision of the Juvenile Court Act that permitted 17-year-old males, as opposed to 18-year-old females, to be tried as adults for certain crimes, reasoning that the classification served no compelling government interest. Actually, the court did not strike the provision but refashioned it to allow 17-year-olds of both sexes to stand trial in criminal court. That way the court also upheld the conviction of the male who challenged the law.

But in People v. Boyer, the Illinois high court upheld a harsher penalty for father-daughter incest than for mother-son, reasoning that the risk to the female victim, which includes pregnancy, is greater than the risk to the male victim, and thus the government had a compelling interest to justify imposing a harsher penalty on men.

• Education: The Fourth District Appellate Court held that a rule restricting high school volleyball teams to all-girl membership did not violate the Illinois Constitution, reasoning that the state had a compelling interest in preserving meaningful athletic opportunity for girls, and that the ban on coed volleyball was an acceptable way to achieve that interest.

It could be argued that these opinions don't add up to much. Section 18 has hardly started an avalanche of litigation, and more than one observer has pointed out that courts have invalidated only laws that discriminate in favor of women and against men. According to these critics, the ulitmate irony is not that Illinois has a state ERA, but that men have been its primary beneficiaries.

In the view of Phyllis Schlafly, the redeeming characteristic of section 18 is that it does relatively little in contrast to "absolute scrutiny" provisions like those contained in the Maryland, Washington and Pennsylvania state constitutions. She points out that litigants have used the ERAs in these states to remove legal advantages long enjoyed by women, particularly in the realm of family law where state ERAs have been used to give unwed fathers the right to veto their children's adoption and to remove statutes placing the primary duty to support a minor child on the father, among other things. "Any benefits to [women] could have been gained just as easily under the

Illinois has had equal rights
provisions in its constitution since 1970, before the
federal ERA was even proposed by Congress

Equal Protection Clause [of the 14th Amendment to the U.S. Constitution]," Schlafly has written. "Where [state ERAs have] made a unique constitutional difference, it has always resulted in a loss to the woman, especially to the wife and mother," leaving women "needlessly deprived of longstanding rights."

March 1986/Illinois Issues/17

Other critics less conservative than Schlafly have agreed that state equal rights provisions add nothing to the protection already available under the 14th Amendment of the U.S. Constitution, which forbids government gender discrimination unless it is "substantially related" to "important government objectives," at least according to recent U. S. Supreme Court rulings. But former National Organization for Women attorney Judith Avner argues that the federal sex discrimination standard, which is weaker than the "strict scrutiny" used by federal judges in race discrimination cases, has "produced unpredictable and often contradictory results" and that state ERAs at least leave litigants an avenue through which to "pursue rights not recognized or treated sympathetically at the federal level." Moreover, according to Ann Lousin, professor at Chicago's John Marshall Law School, section 18 provides an extra measure of protection in the cases to which it applies. "Under the Illinois Constitution, the govenment has the burden to prove that discrimination serves a compelling interest. Under the federal standard, the burden of proof is on the person who is challenging the government." Burden of proof makes a difference in about 20 percent of the cases, Lousin says. But isn't it true that state ERAs have worked largely to the advantage of men, at the expense of women? Not if you take the long view, according to some women's rights advocates. They argue that most of the protective statutes that have fallen under section 18 were based upon a stereotype of females as fragile, dependent, subservient — the very image that many women are trying to replace. The point, they say, is to make women as nearly equal under the law as possible, and that may require removing some legal privileges along with the impediments.

As for the charge that section 18 hasn't inspired many lawsuits, ERA proponents say the lack of litigation is misleading. First, they say, most education- and employment-related sex discrimination falls within the scope of federal civil rights statutes, and lawyers and judges prefer to use them, if for no other reason than their familiarity with those statutes. That means that state equal rights provisions come into play in less glamorous but still important areas, such as family law and criminal law, traditionally regulated by the states.

Most importantly, the sparse case law represents only a fraction of section 18's influence, according to ERA proponents. "The equal rights provisions introduced into the 1970 Constitution provided an important impetus for legislative reform," said Professor Lousin. "Probably 80 percent of the changes inspired by section 18 were legislative, and many lawsuits were avoided that way." These changes include revising the wording of many statutes to make them gender neutral, broadening accidental death benefits to provide for surviving spouses of both sexes, and repealing laws that limited the number of hours women could work.

Thus, while it's probably true that section 18 has made only a subtle difference it has made a difference just the same, according to its defenders. And that's probably more than you can say for its companion provision in the Illinois Bill of Rights, section 17.

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Section 17

Elmer Gertz, who is a civil rights lawyer, John Marshall law professor and the chairman of the Bill of Rights Committee of the 1970 constitutional convention, has called section 17 the most important antidiscrimination provision in the Illinois Constitution; it forbids discrimination in "hiring and promotion practices" and "the sale or rental of property" not just on the basis of sex, but also race, color, creed and national ancestry.

The Illinois Supreme Court has yet to decide a case under section 17. But state appellate and federal district courts have issued a small, steady stream of opinions, most of which have interpreted the provision narrowly and disapointed the civil rights activists who helped guide it to adoption.

At least one phrase in section 17 has been given a broader reading than its sponsors might have expected. An early federal district court opinion held that the word "property" in the phrase "all people have the right to be free from discrimination ... in the sale or rental of property" is not limited to real estate, but applies to personal property as well. Thus, section 17 would seem to apply to an enormous range of transactions, including the sale of food in restaurants and the rental of motel rooms (though the court in that case permitted an exemption for private clubs, allowing a Chicago club to continue its policy of discrimination against women).

In almost every other respect, however, section 17 has been severely limited by the lower courts. To begin with, several courts have interpreted the phrase "hiring and promotion" to apply exclusively to hiring and promotion, and not to include other employment practices — notably firing — under which many claims would otherwise arise. "Maybe the choice of words might have been better in the first place," said Gertz, "but the convention record makes the broader intent clear. We intended the phrase 'hiring and promotion' to include all employment practices."

Even more disappointing is lower courts' refusal to allow plaintiffs to sue directly under section 17; instead, complainants in discrimination cases must first go through the Human Rights Commission. The problem is that many discrimination victims get less from the Human Rights Commission than they could get in court, says Mary Lee Leahy, a Springfield attorney and delegate to the 1970 constitutional convention. "For example, people who are victims of race and sex discrimination can't recover through the Human Rights Commission for the emotional trauma caused by their ordeal, as they would be able to in court. And it's next to impossible to recover punitive damages through the commission.

One big legal issue that might
bring state constitutional equal rights
provisions into play
is comparable worth

"Also, the delay in these Human Rights violations can be up to five years, which discourages many potential complainants," Leahy said. "And the cases are decided by administrative law judges, some of whom are very capable, but others of whom are not; they tend to be straight out of law school, with no litigation experience. It just isn't the same as having a trial judge hear your case."

Is section 17 an empty provision? The answer is yes, according to Gertz, "at least as it has been interpreted thus far." While it is possible that the very existence of section 17 inspired the legislature to add sex discrimination to the list of evils under the Fair Employment Practices Act (later to become the Human Rights Act), "one could only speculate that there might be a cause-and-effect relationship between the two," Gertz said.

It may be that litigation under sections 17 and 18 has just about run its course. One big legal issue that might bring state constitutional equal rights provisions into play is comparable worth. Can the Illinois equal rights provisions be used in the effort to win better pay for women in traditionally low paying women's jobs such as nursing and secretarial and clerical work?

"In theory, a decision under federal law should not control what the Illinois state courts do in interpreting the Illinois Constitution," said Peggy Hillman, an attorney representing the Illinois and American Nurses associations in a class action suit against the state of Illinois. "As a practical matter, I do think that state courts may well be influenced by what the federal courts do in the comparable worth suits pending in various jurisdictions. So we'll probably have to wait and see."

In the end the Illinois equal rights provisions may prove more important as a symbol than a legal charter. For critics like Schlafly the relative weakness of the Illinois provisions is their strength. In the states where the ERA has proved more powerful Schlafly asks, "What are the gains for women under state ERAs? The right of high school girls to play on the boys' football team. . . . For that, wives have lost such longstanding rights as the rights to be supported; to have their hospital bills paid for; to be provided with food, clothing, shelter and other necessaries; to have their minor children supported; and to have the presumption of custody of their children."

But ERA proponent Hillman argues that symbolic significance is important per se and should not go underappreciated. "A broad statement of policy like this, included in the constitution, can have enormous social influence; just look at the First Amendment," she said. "Constitutional provisions like this have a way of becoming statements of our societal values. They have importance far beyond the cases decided under them."

Mark Mathewson is associate editor of Illinois Times.

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