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EQUAL RIGHTS AMENDMENT: IF NOT NOW, THEN WHEN?

Equal Rights Amendment demonstration May 1978

The year is 1923. Three years after women won the right to vote in the United States, the Equal Rights Amendment (ERA) is introduced in Congress with a seemingly simple premise: “Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex.” Almost a century later, the fight surrounding the ERA continues, getting more and more complex as the years go by, with its most recent chapter unfolding in the House of Representatives and Senate. On March 17, 2021, the House passed a joint resolution that could clear the way to add equal rights protection regardless of sex to the Constitution. To understand the significance of this vote, it is worthwhile to look back at the timeline of the ERA.

The amendment was first introduced in Congress in 1923. In 1972, Congress passed a version of the measure with broad bipartisan support. Advocates and opponents of the ERA compromised by adding a seven-year deadline for states to ratify the ERA. This meant three-fourths of states – or 38 states – would need to ratify the amendment by 1979. The deadline was then extended to 1982, but when the due date was reached, only 35 states had ratified the measure.  A campaign initially born out of bipartisan support turned into a toxic, dividing issue because of opposition campaign, Stop ERA, led by anti-feminist Phyllis Schlafly in the 1970s.

Activist Phyllis Schlafly wearing a “Stop ERA” badge, demonstrating with other women against the Equal Rights Amendment in front of the White House, Washington, D.C. in 1977. Courtesy of Flickr

The amendment was left to linger all these years. In 2019, the House had voted to remove the deadline, but the bill did not move in the Senate. In 2020, the final three states to ratify the ERA, Nevada (2017), Illinois (2018), and Virginia (Jan. 15, 2020) filed suit against U.S. Archivist David Ferriero on Jan. 30, 2020 demanding he certify the ratification of the amendment. This time, ERA advocates are looking at the Senate for support. But the measure will face many other challenges ahead, starting in the Senate where the bill only has backing from a handful of Republican senators. 

“People who are born in privilege always debate whether or not those of us who were not deserve equality. And so what we’re talking about here is the fact that equality is not debatable. We are born with it,” Nevada Senator Pat Spearman said during a 2019 hearing of the Committee on the Judiciary House of Representatives. “The only thing we’re asking of the ERA is to acknowledge the fact that women are born equal to men.”

Opposition to the ERA is nothing new. Opponents of the amendment claim the ERA would expand access to abortion and be interpreted to invalidate federal and state restrictions. Schlafly herself advocated that the ERA would destroy traditional family structures and strip women of privileges like sex-segregated bathrooms. But today, the ramification of the ERA also faces many complicated legal challenges. Some argue that Congress doesn’t have the power to retroactively change its deadline and view the joint resolutions as unconstitutional.

“The Constitution does not empower Congress to employ time travel to resuscitate a 42-year-dead amendment,” Douglas Johnson, the National Right to Life’s senior policy adviser, told CNN

Most legal questions remain up in the air and it is unclear whether Congress has the power to change its deadline retroactively. Another argument on the side of the opposition is that women do have equal rights protection in the Constitution under the 14th Amendment. The said amendment, adopted in 1868, guarantees all citizens “equal protection of the laws.” But all legal experts don’t agree that the amendment includes gender discrimination. There are, indeed, laws outlawing gender discrimination. However, laws can be rolled back and policy guidelines can change depending on who is in power. We saw that happen during the Trump administration as former President Donald Trump rescinded several Obama-era policy guidelines on anti-discrimination laws. A constitutional amendment like the ERA would be more stable and protect women under the Constitution indefinitely. 

 

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The ERA would allow Congress to guarantee equal pay or push for measures to counter domestic violence and sexual harassment. Most Americans already believe women and men are given equal rights in the Constitution, and 78 percent of Americans support adding the ERA to the U.S. Constitution according to a 2020 Pew Research Center poll.  

“If you look at any Constitution that has been written since 1950 you won’t find in it the statement that men and women are equal before the law. So, I have three granddaughters I would like to be able to take out my pocket Constitution and say that the equal citizenship stature of men and women is a fundamental tenant of our society like free speech, the women’s equal right to do whatever her talents and hard work enable her to do. I would like that to be in the Constitution,” late Justice Ruth Bader Ginsburg said in 2017. 

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