The ERA: This Time's the Charm?

By: Marie A. Failinger

Marie A. Failinger is a Professor of Law at Mitchell Hamline. She holds the Judge Edward J. Devitt Professorship and served as interim dean of Hamline University School of Law prior to its combination with William Mitchell College of Law. She was awarded the degree of Doctor of Laws honoris causa by Valparaiso University in 2014 and is the recipient of the Elizabeth Hurlock Beckman Award, Minnesota Lawyer Attorney of the Year Award, the Minnesota Women Lawyers Myra Bradwell Award, and the Service to MWL awards among others.

Perhaps this time will be the charm for the Equal Rights Amendment. In 2017-18, Representatives Carolyn Maloney (N.Y.) and Jackie Speier (Calif.), and Senators Robert Menendez (N.J.) and Benjamin Cardin (Md.) once again introduced ERA bills into Congress. One bill started over with a new Equal Rights Amendment; the other proposed to indefinitely extend the time for ratification of the 1972 ERA, which expired in 1982.

Similarly, in Minnesota, ERA advocates have continued to champion the cause of the previously defeated 2010 state constitution ERA bill. They marched on the state capitol in March 2017 and continued to push for the amendment to go on the November 2018 ballot. (Over 20 states have constitutional provisions prohibiting gender discrimination, most passed between 1970 and 1979.)

While there is a vigorous debate about constitutional problems with extending the ratification of the 1972 amendment, the more difficult question is whether it is good for women’s rights to push for ratification at this time. Proponents of both state and federal ERAs argue that the bills are necessary to end lingering gender inequalities in American life, from unequal pay, to domestic violence and sexual harassment, to women’ health disparities. Opponents, however, argue that reviving the debate over the ERA would be politically divisive, and that it is not necessary given the gains women have made under the Fourteenth Amendment and other federal and state sex discrimination statutes.

The story of the Equal Rights Amendment is the story of continuous struggle and conflict. Many know about the 1848 Seneca Falls Convention that adopted a “Declaration of Sentiments and Grievances,” a feminist mirror of the Declaration of Independence. For the next decade after Seneca Falls, feminists held nine women’s rights conventions and meetings in east coast towns large and small, but the conventions were met with responses such as this one (made to a 6000-signature petition from a New York General Assembly committee): “If there is any inequity or oppression in the case, the gentlemen are the sufferers.” [1]

The next equal rights attempt—to prevent “male” from being inserted into the text of the Fourteenth Amendment—was turned back by post-Civil War Republican congressmen who said this was “the Negro’s hour.” [2] This decision split the feminist movement, with some advocates like Susan B. Anthony refusing to support the Fourteenth Amendment because of their exclusion. When feminist organizations turned toward gaining the right to vote, it took them 53 years of persistent lobbying to gain passage of the Nineteenth Amendment in 1919.

The modern effort to pass an Equal Rights Amendment has also been a laborious affair. Its first modern version—the “Lucretia Mott” Amendment—was proposed to Congress by Alice Paul and the National Women’s Party in 1923, which was the seventy-fifth anniversary of the Seneca Falls Convention. It read simply, "Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction." [3]

Every year from 1923 to 1971, a version of this amendment was introduced into the House of Representatives, without success. Advocates marched, boycotted, picketed, were jailed for civil disobedience, and went on hunger strikes in support of the ERA. By the 1940s, the ERA polled well and had bipartisan political support: both the Republican Party and Democratic Party platforms included it from the early 1940s, the Republican Party removing it in 1980. Presidents Eisenhower, Nixon, Ford and Carter all supported the ERA.

Section 1 of the 1972 revised ERA read, “Equality under the law shall not be abridged by the United States or any state on account of sex.” [4] The ERA was finally passed by Congress in March, 1972, after intense lobbying efforts and equally strong opposition: Watergate hero Senator Sam Ervin proposed nine separate amendments, claiming to protect women’s traditional rights; and Rep. Leonor Sullivan, the only woman to vote against the ERA, claimed it would harm the family. Thirty states ratified the ERA within a year, but it took six years for the next five states to ratify, during which time five states—Nebraska, Tennessee, Idaho, Kentucky and South Dakota—rescinded their ratifications. Ultimately, the ERA fell short of the constitutionally required three-fourths of the states by the end of its 10-year ratification deadline. Fifteen states, mostly in the South and West, never ratified.

Like the post-Seneca Falls, post-Civil War, and Nineteenth Amendment fights for equal rights for women, the drive to ratify the 1972 ERA lost for many reasons; it was opposed as well as supported by women. Perhaps the most visible group of women opponents was the Eagle Forum, founded in 1972 and rebranded in 1975, with Phyllis Schlafly as its head. Opponents successfully argued that women would lose rights through the ERA—their exemptions from military conscription and combat duty; federal and state social insurance benefits provided only to wives, widows, and mothers; and duties of support that husbands owed wives upon divorce. They claimed that Insurers would be required to charge women more to cover men for “unisex” insurance, and the ERA would open the door to abortion rights and same-sex marriage rights. One claim that opponents even today tap into was that the ERA would require sex-segregated public restrooms to be eliminated, an issue that has ironically resurfaced in recent legislative efforts to block trans people from using restrooms appropriate to their gender identification.

Despite the seemingly obvious value of a constitutional declaration that “women’s rights are human rights,” the Supreme Court’s interpretation of the analogous Fourteenth Amendment is a cautionary tale for ERA advocates. To be sure, some of the equality that the ERA promised was delivered through Supreme Court interpretations of the Fourteenth Amendment during the 1970s and early 1980s. Yet, recent decades have seen more halting progress for women and racial minorities under the Constitution. The Supreme Court has required litigants to prove intentional discrimination based on race (or sometimes gender), something that may be difficult for women to prove if the ERA is interpreted similarly. The Supreme Court has also read the vision of the Fourteenth Amendment quite narrowly, for example, invalidating affirmative action programs and federal voting protections for racial minorities.

Given that many of the constitutional gender cases have been won by men, while women’s equal protection challenges to pregnancy discrimination have been largely rebuffed, ERA advocates will need to decide whether fighting for passage is “worth the candle.” On the one hand, political and judicial representation by women and legislation targeted to specific problems have already gained more practical rights for women. On the other hand, however, the symbolic value of an Equal Rights Amendment could be very powerful for the overall progress of girls and women.

References

Martha F. Davis, The Equal Rights Amendment: Then and Now, 17 Colum. J. Gender & L 419 (2008)

Eleanor Flexner, Ellen Francis Fitzpatrick, Century of Struggle: The Woman's Rights Movement in the United States (1996 edition)

Roberta W. Francis, The Equal Rights Amendment: Unfinished Business Under the Constitution, available at https://www.equalrightsamendment.org/congress.html

Thomas H. Neale, The Proposed Equal Rights Amendment: Contemporary Ratification Issues, Congr. Res. Service Rep. 7-5700 (July 18, 2018), available at https://fas.org/sgp/crs/misc/R42979.pdf

The Phyllis Schlafly Report, A Short History of E.R.A. (September, 1986), available at http://eagleforum.org/psr/1986/sept86/psrsep86.html