March 24, 2021 [Updated October 31, 2021]. “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
Those words, which are the heart of the Equal Rights Amendment (ERA), do not seem controversial. In 2021, are there possibly people left willing to that say equal rights should be denied based on sex? Apparently, some are, as here we are, 98 years later, and the ERA has not been ratified.
The ERA is essential to the fight for gender equality. In order to demonstrate why, this blog discusses:
· Where we stand without the ERA;
· The early history of the ERA;
· The Countermovement against the ERA;
· Recent History;
· Current Legislative Proposals; and
· What needs to be done to get the ERA over the finish line in the current political environment.
There is a lot to cover here, so much more than I originally knew, but widespread knowledge and understanding of this information is critical to the success of our fight for women’s equality.
Where We Stand Without the ERA
It is surprising how limited people’s knowledge is of the ERA, its obstacles and current status, and why it is so essential in order for women to achieve equality.
Some even say the ERA is unnecessary because women are already treated equally. Check this out – a January 2020 New York Post opinion piece, provides:
American women are living the freest, most prosperous lives in human history. The Constitution protects their right to speak, worship, vote, bear arms and more. The female jobless rate is at a historic low, and women own the majority of wealth in the country, along with earning the lion’s share of higher degrees.
Women are perfectly capable of flexing political power: They make up the majority of voters in nearly every election. Sex discrimination is already forbidden under both federal and state laws, as well as by the Equal Protection Clause of the 14th Amendment. The ERA won’t add to those protections, but could be used to impose sex-sameness.
What? No, no, and no!
Women on average make 18% less than men. Black and brown women even less than that. Women also are less likely to be promoted. All of this assumes women can overcome discriminatory hiring practices and are hired. Further worsening matters, some employers have policies prohibiting employees from speaking about compensation, and/or require mandatory arbitration provisions and non-disclosure agreements, all of which are designed to keep discrimination under wraps and hidden from public scrutiny if, in fact, it is discovered by the employee. Then, assuming that discovery is not silenced, it is an uphill battle establishing the discrimination. I have witnessed this firsthand.
Currently, the United States Constitution only expressly guarantees women one right – the right to vote provided in the 19th Amendment. The Equal Protection Clause of the 14th Amendment, enacted to abolish slavery and ensure equal rights for Black Americans, was ratified in 1868, but it was not applied to sex discrimination until 1971. 103 years later!! Not surprisingly, the decision extending the 14th Amendment to sex discrimination was based on a brief written by then-law professor Ruth Bader Ginsburg, who was representing the party challenging the unequal law.
The 14th Amendment, however, is not applied equally to women to this day, nearly 50 years later! As recently as 2011, Supreme Court Justice Antonin Scalia stated the Constitution does not prohibit discrimination based on sex. Summing up the legalese, men are guaranteed their rights, and women have to fight for their rights.
In general, when someone alleges a violation of the 14th Amendment, the alleged violation is subject to “strict scrutiny,” which is the highest level of scrutiny and requires a “compelling” state interest. If the person alleging the violation of the 14th Amendment is a woman, a 1996 Supreme Court decision provides that the alleged violation is subject to “skeptical scrutiny” and the state merely has to have an “exceedingly persuasive” reason.
Yes, you read that correctly – women receive less protection under the 14th Amendment than men, and even though race is subjected to the heightened scrutiny, a white man is, nonetheless, afforded more constitutional protection than a Black woman.
Although this could be addressed in the Courts, it is unlikely that the current Supreme Court, after the shenanigans of the GOP last fall, will fix this travesty. In fact, the risk to women is that the current Supreme Court (or a future Supreme Court) could make matters worse. As a Constitutional Amendment, the ERA would better protect women.
If passed, the ERA would make clear that the standard of review for Constitutional violations applies to men and women equally. In addition, passage of the ERA would enable Congress and state legislatures to more easily enact laws protecting women from gender discrimination and violence, ensuring equal pay, and so much more. Clearly, the history of the ERA itself, demonstrates why it is needed.
Early History (1923 to early 1970s)
The ERA was drafted by Alice Paul, a leader in the women’s suffrage movement, in 1923, and introduced in Congress later that year. Year after year it was reintroduced, but, even after Paul narrowed its scope in 1943 to conform to the language of the 19th Amendment, supporters of labor protections for women, including First Lady Eleanor Roosevelt, feared the ERA would undermine those protections. Conservatives viewed the ERA as a threat to the existing power structure, one that favored men.
As the women’s rights movement picked up steam in the 1960s and early 1970s, the ERA garnered seemingly overwhelming support, including endorsements from Presidents Eisenhower, Kennedy, Johnson, and Nixon. In 1970, with an increase in female lawmakers and public support, Rep. Martha Griffiths (D-MI) successfully used a rare procedural tactic to get around the Judiciary Committee Chairman, Rep Emanuel Celler (D-NY), who had been blocking the ERA from reaching the House floor … since the 1940s. One man/the minority should not have that power!
Once Celler was out of the way, it was smooth sailing. On March 22, 1972, the House and Senate ultimately approved the ERA 354 to 24 and 84 to 8, respectively.
However, Congress mandated that the thirty-eight states required for the ERA to become part of the Constitution ratify the ERA within seven years. Given the ERA’s popularity, within one year, 30 states did just that. That is when things took a turn.
The Countermovement (1970s and early 1980s)
Phyllis Schlafly, a conservative activist who had unsuccessfully run for public office, saw an opportunity. She organized housewives and formed the STOP ERA movement, which called for opposition to the ERA because it supposedly would lead to a reversal in gender roles, same-sex marriages, unisex bathrooms, women in combat weakening the military's strength, loss of childcare and alimony, etc. Most importantly, STOP ERA supporters pronounced that equal rights would destroy families by attacking family values and disrupting the power men had over women, something they viewed as essential for well-functioning families.
During her 1972 speech “What’s Wrong With Equal Rights For Women,” Schlafly, a housewife in name only, lawyer and founder of Eagle Forum, stated:
Many women are under the mistaken impression that 'women’s lib' means more job employment opportunities for women, equal pay for equal work, appointments of women to high positions, admitting more women to medical schools, and other desirable objectives which all women favor. We all support these purposes, as well as any necessary legislation which would bring them about. But all this is only a sweet syrup which covers the deadly poison masquerading as 'women’s lib.' The women’s libbers are radicals who are waging a total assault on the family, on marriage, and on children. Don’t take my word for it—read their own literature and prove to yourself what these characters are trying to do. The most pretentious of the women’s liberation magazines is called Ms., and subtitled 'The New Magazine For Women,' with Gloria Steinem listed as president and secretary. Reading the Spring 1972 issue of Ms. gives a good understanding of women’s lib, and the people who promote it. It is anti-family, anti-children, and pro-abortion. It is a series of sharp-tongued, high-pitched whining complaints by unmarried women.
Wow, is it me, or does this sound eerily familiar? More on that below. If you can stomach it, here are the text of the entire speech, as well as links to some of Schlafly’s greatest hits on the talk show circuit.
Yes, the lawyer, who claimed to be a housewife, travelled around the country giving interviews, telling women they needed to stay home with their children and fight against the ERA to preserve the family and the power men had over women. All while her husband was home with their six kids.
Sadly, the ERA essentially came to a screeching halt as a result of this countermovement. Despite the fact that a majority of Americans still supported the ERA, as of 1978, only 35 states had ratified it. Recognizing that the ERA ratification had stalled, Congress extended the ratification deadline to June 30, 1982. When the ERA deadline expired in 1982, no additional states had ratified the Amendment.
To complicate matters, from 1973-1979, Nebraska, Kentucky, Idaho, Tennessee and South Dakota rescinded their ratifications of the ERA, but is unclear whether these recissions are valid. Although an Idaho US District Court Judge ruled that Congress’s extension of the ERA deadline was unlawful, and that states were permitted to rescind, the subsequent appeal was never decided by the Supreme Court because the 1982 deadline passed, without the approval of 38 states, before it heard the case.
Recent Developments (2017 to Present)
With the recent resurgence of the women’s movement, including as a result of the #MeToo movement and in response to the Trump Administration, the ERA is again gaining traction. In 2017, Nevada became the 36th state to ratify, with Illinois following in 2018. Finally, in 2020, Virginia became the 38th state to ratify.
Unfortunately, that is not the end of the story; two questions remain. First, is the ratification deadline lawful and, if so, can the deadline be extended to include these post-1982 ratifications? Second, can the states lawfully rescind their ratifications?
On January 6, 2020, three weeks before Virginia became the 38th state to ratify the ERA, the Trump Department of Justice (DOJ) issued a memorandum stating (1) Congress has the authority to issue a deadline for ratification, (2) a state ratification after the 1982 deadline would not be taken into to consideration, and (3) Congress could not extend a previously expired deadline without following the procedures for an amendment. This meant Congress must start from scratch, with two-thirds of both the House and Senate required to approve the ERA. While frustrating, it was not surprising given the openly political Trump DOJ.
Similarly, in March 2021, a DC US District Court Judge ruled against Virginia, Illinois and Nevada, the three states that recently ratified the ERA, holding that any ratifications after the deadline came too late and would not be taken into account in determining whether the 38-state threshold was met. As such, the ERA would not become part of the Constitution, so the Court did not need to consider the issue of whether states can lawfully rescind their ratifications. The ratifying states have appealed the decision, and the appeal is pending in the US Circuit Court of Appeals DC Circuit.
Current Legislation
Despite the recent case, last week, the House passed a resolution removing the deadline for ratification of the ERA. A companion joint resolution has been proposed in the Senate by Senator Ben Cardin (D-MD) and Senator Lisa Murkowski (R-AK), but it faces a steeper challenge as 60 votes are required to pass, meaning that ten Republicans must vote in favor of the resolution. Why sixty? The filibuster. As with Rep. Cueller, who blocked the ERA for decades, no one person or the minority should have such power.
Given all the controversy surrounding the initial ERA and ratification, even if the deadline extension is passed in the Senate, the ERA likely will be tied up with court challenges. Clearly, conservatives such as Schlafly’s Eagle Forum, which remains active and continues to push its agenda, will never miss an opportunity to attack the ERA, rights of LGBTQIA+ individuals and, of course, abortion rights.
Further, there is a risk additional states will attempt to rescind earlier ratifications. Just last week, the North Dakota Senate voted its ratification expired in 1979, and is currently being considered by the state House. State Senator Janne Myrdal (R) said “I breed horses, and if it's dead it's dead. It's hard to get it back on its feet. . . There is a radical movement to say this is still the will of the people in North Dakota.” She and her fellow opponents argue the ERA has been twisted over the years to ensure legal abortion and upend gender norms. There is that “radical” label again. Apparently, we have not come very far and, in fact, are regressing.
Starting Over
As a result of the controversy and anticipated challenges, many argue starting from the beginning is the best path to ensure the ERA becomes a part of the Constitution. To that end, in March 2019, Sen. Robert Menendez (D-NJ) reintroduced the ERA, with 23 Democratic co-sponsors. Although the Bill was transferred to the Republican-controlled Judicial Committee, no further action was taken, and the Bill has not been reintroduced in the current Congressional session.
Earlier this year, Representative Carolyn Maloney (D-NY) introduced a Bill with 93 co-sponsors, including one Republican. The language of the Bill, which is broader than the current proposed ERA sent to the states for ratification in 1972 and more aligned to the initial 1923 draft of the ERA, provides “Women shall have equal rights in the United States and every place subject to its jurisdiction. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Last month, this Bill was referred to the House Judiciary Committee for further action.
But if we start from scratch, do we really believe that we can get to the required two-thirds in both the House and Senate?
Given the current political environment, which is sharply divided along partisan lines, I think not, particularly given that, not only is history repeating itself, the opposition to women’s rights has intensified after being empowered over the last five years.
How to Fight in the Current Political Environment
As I read about Schlafly and the STOP ERA movement that successfully blocked the ERA’s ratification in the 1970s, I was hit with a wave of déjà vu. Could Trump and his version of the GOP be taking a page out of Schlafly’s playbook? Apparently, that is exactly what is happening.
The countermovement of the 1970s was all about half-truths, insults and instilling fear. Look no further than Schlafly’s speech where she preached that the ERA is anti-family, anti-children and pro-abortion, that liberal is the equivalent of a “deadly poison,” and that the women who support the ERA are “unmarried,” “radical,” “sharp-tongued, high-pitched, whining” complainers waging war against family, marriage, children and traditional values.
Fast forward to the 2020 Elections, and to Trump’s talking points about “socialism,” “radical liberals” and to his and his surrogates’ cultural attacks and use of labels and nicknames to avoid any actual questions. A classic example, and all I could hear as I read Schlafly’s speech was Kelly Loeffler drone on and on like a broken record about “radical, liberal Raphael Warnock,” labelling her opponent Georgia US Senate runoff election as a socialist who would destroy Georgia values.
While Trump’s policies failed and his rhetoric is neither accurate or relevant, 74 million Americans bought into the fearmongering and voted for Trump. But it was not enough to get him elected. Since the ERA will be facing a supped-up version of Schlafly’s countermovement, we need to understand why Trump’s version of the GOP, which clearly took a page out of Schlafly’s playbook, was defeated, so we can use those strategies to garner support for the ratification of the ERA.
We need to continue to educate and spread the word on why the ERA is essential and anything but an attack on family values, as it will enable states to enact laws that protect women from discrimination and harassment and ensure equal pay, which can only benefit families. When presented with the facts, and not fearmongering falsehoods, it is hard to deny why we need the ERA to achieve gender equality.
And we need to rally more women to get vocal, particularly the independents and suburban women, who, according to initial analysis of the 2020 Election, were a major cause of Trump’s defeat, as they turned their backs on him and his hateful rhetoric.
Despite the fact that 73% of Americans support the ERA (70% of men and 76% of women), there is strong opposition. Our voice must be loud to make sure the politicians do not forget what happens when women come out in droves to vote.
Earlier this month, after the DC US District Court held that ratifications by states after the 1982 deadline are invalid, Virginia's attorney general, Mark Herring, said:
The women of this country have waited over two centuries to be afforded equal protections under this country’s founding document, and with today’s decision they will now be forced to wait even longer. That's just wrong.
Mark, there are no truer words.
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