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Washington Law Review Online

First Page

27

Abstract

Washington’s Equal Rights Amendment (ERA) is a powerful legal tool. Its sweeping, protective language triggers the application of an absolute standard of review—a level of review even higher than strict scrutiny. Yet the ERA is underutilized by litigants seeking protection against gender-based discrimination. This may be due to the inconsistencies in the Washington State Supreme Court’s state action jurisprudence. Though the ERA includes the phrasing “under the law,” its plain language does not necessarily support a finding of a state action requirement. The state action doctrine is grounded in federalism and separation of power concerns that are not present at the state level. Therefore, the Washington State Supreme Court is free to construe the amendment as lacking a state action requirement. Despite the ambiguity of the amendment’s text, and the absence of federalism concerns at the state level, the Washington State Supreme Court has interpreted a state action requirement to be implicit within the ERA. The Court’s state action jurisprudence with respect to other constitutional provisions—Washington’s Privacy, Due Process, and Free Speech provisions—is similarly inconsistent and overly reliant on analogous provisions in the U.S. Constitution. These inconsistencies in the state action doctrine restrict the efficacy of provisions such as the ERA. The Washington State Supreme Court must adjust its understanding of the state action requirement, thus enabling the ERA to fill in statutory gaps in protection against sex-based discrimination and become a stronger guardian of gender equality.

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