Riding the wave that brought us the #MeToo movement, a growing field of women seeking a presidential nomination and more women in Congress than ever before, momentum for a long-sought-after milestone is rippling across the United States.
Bills are being introduced in state capitals to ratify the Equal Rights Amendment, an addition to the Constitution that would explicitly protect women’s rights and prohibit discrimination on the basis of sex, according to proponents.
It was introduced to Congress in 1923, but the crusade didn’t gain real traction until the women’s movement took hold in the late ‘60s and early ‘70s. The amendment enjoyed bipartisan support and, in 1972, secured the necessary votes in the House and Senate. It was endorsed by President Richard Nixon before being sent to state legislatures for ratification.
For an amendment to pass, three-fourths of the states – or 38 of them – need to ratify it. The effort fell short, with only 35 signing off on the ERA before a 1982 deadline.
Arguments have been made, though, that the deadline is not binding, and two other states ratified the ERA in the past couple years: Nevada in 2017 and Illinois in 2018.
Now, lawmakers in a number of the remaining 13 states are vying to secure the coveted No. 38 title, which could be a game-changer.
Virginia lawmakers were hopeful and fought hard to earn that distinction. A poll released by the Wason Center for Public Policy in December showed that 81% of Virginians wanted the General Assembly to vote for the ERA’s ratification in the session that has since ended. And although it sailed through the Senate and appeared to have the necessary votes in the House of Delegates, the bill was never released from committee for a floor vote.
“The Republicans in the House of Delegates missed a pivotal opportunity to set Virginia and this country on the right path towards equality for 160,000,000 women,” Democratic Delegate Jennifer Carroll Foy, who introduced one of the ERA bills, said in a statement.
Other states – including Arizona, Florida, North Carolina and Georgia – have introduced their own bills in hopes of doing what Virginia couldn’t.
Whether any of these more-red-than-blue states will succeed in ratifying the ERA this year remains uncertain, perhaps unlikely. But if not now, ERA activists say, it’s just a matter of time.
Already, proponents in purple Virginia are vowing to flip the house and vote ERA naysayers out of office in November.
A case for the ERA
When Americans were asked in 2016 whether they would “support an amendment to the US Constitution that guarantees equal rights for both men and women,” 94% of respondents said they would, according to a poll commissioned by the ERA Coalition. The same poll showed that 80% of Americans believe that, already, “men and women are guaranteed equal rights in the US Constitution.”
ERA advocates say these findings represent a gap in understanding. They’re on a mission to set the record straight.
The Equal Rights Amendment is short and reads as follows:
Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.
There are people who argue that women are already protected by laws like the Equal Pay Act and the Pregnancy Discrimination Act.
But ERA proponents are quick to point out that these protections A. don’t necessarily live up to their promise and B. are not ironclad. For example, the Violence Against Women Act was left out of the most recent funding bill. And the Institute for Women’s Policy Research reported this week that the gender pay gap is widening.
Laws like these, without the backing of the Constitution, can be overlooked, watered-down or reversed.
“Right here in North Carolina, our own state government does not have a legal duty to not discriminate against women,” said state Sen. Floyd McKissick Jr., the lead sponsor of a bill to ratify the ERA. “I’ve attempted to launch a study of pay inequity in state government and was turned down for the study because they knew what we’d find out.”
Likewise, people often say the Equal Protection Clause in the 14th Amendment covers the interests of women. That amendment was adopted in 1868, in the aftermath of the Civil War, and was about race discrimination, ERA supporters argue. The fact that it took another 50-plus years for women to get the right to vote, they say, is evidence that the clause wasn’t about women.
Then there’s this hypocrisy to consider, proponents add: The United States has pushed other nations – including Afghanistan – to protect women in their constitutions while not doing the same at home.
And in their corner, they like to say, is an unlikely – and perhaps unwitting – ally: late conservative Supreme Court Justice Antonin Scalia.
“Certainly the Constitution does not require discrimination on the basis of sex,” Scalia said in the January 2011 issue of California Lawyer. “The only issue is whether it prohibits it. It doesn’t.”
The argument against the ERA
When the movement to pass the ERA was in its heyday in the ‘70s, the face of opposition belonged to the late Phyllis Schlafly, a conservative activist who founded the Eagle Forum.
She called the amendment “dumb and offensive” when I contacted her in 2015, the year before she died at 92. She dubbed any efforts to revive the fight “a colossal waste of time.”
Schlafly once warned that the amendment would lead to same-sex marriage and women being drafted into combat. She said it would threaten families and touted the virtues of the traditional nuclear family with a gender-division of duty, wherein husbands should provide while wives focus on the home and children.
“But didn’t you go to law school? Weren’t you a lawyer?” I asked at the time.
“I only went to law school to irritate the feminists,” she answered with a laugh.
Schlafly also was interviewed by Kamala Lopez, the actress, director and activist behind the documentary “Equal Means Equal.”
She told Lopez, “women like the pay gap.” And she said the idea of women earning the same amount as men is a “deterrent to marriage.”
Today, Anne Schlafly Cori holds the baton passed on from her mother. Cori is the Eagle Forum’s chairman – not chairwoman, she explained, because “I don’t see a difference.”
She said the ERA would do nothing to give women pay raises or stop them from being harassed by men. She called it “a feel-good amendment,” one that’s being pushed “based on emotion” and not with an understanding of the “pernicious implications.”
Not only would the ERA fail to help women, Cori said, it would harm them “by eliminating any distinction on the basis of sex.”
She said the ERA would make it illegal to separate sexes in areas like the military, schools and athletics. Shelters that serve battered women and guard their privacy would be banned, she warned. And she wondered what would become of women who are incarcerated.
“I don’t see any benefit to eliminating sex segregation in prisons,” she said.
She pointed to the second section of the ERA, saying it would transfer power from individual states to the federal government. She objected to the idea that a few states could “shoehorn this amendment into our Constitution,” based on votes from decades ago, while robbing the country of the debate it deserves today.
But in the end, she said, the initiative is really about one thing only: financing abortions with taxpayer dollars.
“ERA, I think, actually stands for the ‘Everything Related to Abortion Act,’ ” she said, “because the whole reason for the push today is to make abortion a constitutional right.”
Responding to the critics
Cori’s arguments don’t add up, said Linda Coberly, a Chicago-based attorney who chairs the ERA Coalition Legal Task Force – not least of all, she said, because abortion is “already a constitutional right.”
“Many states have had ERAs in their own constitutions for decades … and those state provisions have not led to the banishment of shelters for battered women, the elimination of sex segregation in prisons” or “abortion on demand,” she said.
Plus, the ERA provides that “a distinction based on sex would be upheld by the courts if it were necessary to advance a compelling state interest,” Coberly added. “I would think that a sex-segregated facility to protect women who have been abused and traumatized by men would easily meet that test.”
Jessica Neuwirth, co-founder and co-president of the ERA Coalition, is more blunt about opponents like Cori.
“They are on the wrong side of history, and they have virtually nothing left in the old playbook,” said Neuwirth, who wrote the book “Equal Means Equal: Why the Time for an Equal Rights Amendment Is Now.”
“They are trying to make this about abortion when it never has been about that,” she said. “Why? Because there is nothing else left for them to scare people with.”
The question of rescinded ratifications
With the recent ratifications by Nevada and Illinois, ERA advocates celebrated reaching 37 of the needed 38 states.
But some detractors point out that in the ‘70s, five states – Nebraska, Tennessee, Idaho, Kentucky and South Dakota – rescinded or withdrew their ratifications. They question whether 37 states can be counted.
The ERA Coaltion Legal Task Force’s Coberly says they can – and should.
She explained that the 14th Amendment helped set a precedent, as one of the needed ratifying states later voted to rescind. The three branches of the federal government agreed that the 14th Amendment still belonged in the Constitution. Rescission or not, the original ratification counted.
When a state ratifies an amendment, the archivist of the United States records it as ratified, Coberly said.
“This is probably going to be litigated at some point,” she said, “but the historical precedent and the legal precedent tells us that the rescission doesn’t count.”
And what about that deadline?
As Virginia’s ERA activists rallied in January, Republican Delegate Mark Cole offered a window into what might come.
“The ERA expired in 1982 and is not currently pending before the states, but is categorized as a failed amendment,” Cole said in a written statement. “The General Assembly does not have the power to ratify an amendment to the Constitution of the United States not currently pending before the states.”
ERA proponents question the stickiness of that deadline.
Article V of the US Constitution lays out the process for amendments and makes no mention of deadlines or time limits. But the Supreme Court held in the 1920s that Congress had the power to fold a deadline into an amendment, Coberly said.
When the ERA was sent to the states from Congress in 1972, it carried a seven-year deadline for ratification, later extended to 10 years.
But the deadline language didn’t appear in the body of what states were voting on, Coberly explained; rather it appeared in a joint resolution of Congress that introduced the proposed amendment to the states. Congress, she said, can change such resolutions – which is precisely what it did in 1979 when it extended the ERA deadline to 1982.
So if a 38th state ratifies the ERA, could that deadline block the amendment from finding its place in the Constitution?
“There’s a plausible argument that no, it couldn’t stop that, because under Article V, the amendment becomes effective as soon as the 38th state ratifies,” Coberly said. “But there’s no question that this deadline exists; it’s out there. And the best thing to do, the easiest thing to do, the clearest thing to do, is just get rid of it. Then there would be no barrier.”
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And to cover all the bases, for the 12th time since she entered Congress in 1993, Democratic Rep. Carolyn Maloney of New York sponsored a resolution to restart the ratification process altogether.
It’s a fight she and other stalwarts plan to keep on waging until they see the ERA in the US Constitution.
“Shouldn’t we eliminate any doubt that men and women are equal? Shouldn’t equality be the default, the inalienable truth?” she asked in January. “Now is the time.”