The Equal Rights Amendment
The Equal Rights Amendment
The Equal Rights Amendment (ERA) expressly declares men and women as equal under the law, and if passed, it would serve as a necessary and fundamental step in both the women’s movement, as well as a larger humanist struggle for the equality of all people. In order for the ERA to succeed as soon as possible, the “Three-State” campaign strategy must be maintained and expanded vigorously across the nation. This strategy focuses on collecting the three final state ratifications necessary to achieve the three-fourths state majority (thirty-eight states) mandated by the amendment process. Despite opposition declaring the thirty-five previously ratified states as null due to expired congressional deadlines, the Madison Amendment and other Supreme Court rulings, the language and body of the ERA itself, as well as powers granted in Article V of the Constitution, support the ERA as viable before the states. Although the Three-State approach is controversial, the women’s movement has never been, nor will ever be, free of controversy. All factors considered, the Three-State strategy is the most efficient plan for passage, given the political climate. The Equal Rights Amendment does not have the cultural or political capital necessary to infiltrate mainstream discourse and create a national narrative powerful enough to motivate Congress in favor of re-introducing and passing another version of the ERA. What is more, proponents of the ERA are not powerful or vocal enough in the national debate to frame legal equality of the sexes as a pressing issue of our time.
If enacted as the 28th Amendment of the United States, the Equal Rights Amendment would mandate equal application of the constitution to both men and women. It includes three sections:
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.
For a constitutional amendment to pass, it must gain a two-thirds majority vote in both chambers of Congress, and then must be ratified by three-fourths of the states, or thirty-eight out of fifty states. Although the ERA passed in both the Senate and House and was sent to the states for ratification in 1972, only thirty-five out of the thirty-eight necessary states supported the amendment. The 15 states that have yet to ratify are Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia. As the seven-year deadline drew closer, ERA supporters petitioned Congress and were granted an extension until June 30th, 1982. While the ERA has been before every session of Congress since 1982, the debate remains as to whether or not the ratification process is still open, whether the previously garnered thirty-five states should remain, and whether or not states can rescind ratification.
In the 1940’s, freedom from legal sex discrimination was a politically viable cause; both the Republican Party and the Democratic Party added the ERA to their platforms. While professional women such as Amelia Earhart, organized labor, and other mainstream groups supported the passage of the ERA, it still met opposition from social conservatives who sought to maintain traditional and gendered relations of power, as well as labor reformers who wanted to “protect” women in the workplace. Right-wing leader of the Eagle Forum/Stop ERA movement, Phyllis Schlafly, warned that the Equal Rights Amendment would eliminate the traditional familial model of women as homemakers, integrate women in the draft and military careers, create government-supported childcare, give fathers paternity leave and restrict the scope of maternity leave, eliminate the assumption that a woman must take on her husband’s name, create sex-integrated schools and organizations, and substitute language such as “manmade” with artificial.
In 1980, the Republican Party removed ERA support from its platform. The change in political tide has not only made further state ratifications more difficult, but has also kindled the issue of rescission. What is more, the conservative right has emboldened opposition through equating ERA passage with tax-funded abortions and the legalization of same-sex marriage, thus “wiping out” the Defense of Marriage Act (DOMA) . Given these difficulties, it is simply not feasible to dismiss the state ratifications already collected and begin the state ratification process all over again. Considering that only twenty-one states have established men and women as equal in State Constitutions, it is hard to imagine that thirty-five ratifications can be easily won again; if this were the case, many more states would already have such protections. Clearly, political support for the ERA has drastically changed since its introduction, and in order to gain success as soon as possible, the process must resume from its previous status rather than start over.
In order to pick up where it left off, the ERA must withstand arguments that it has expired, as well as oppose a state’s ability to rescind ratification. The feasibility of the Three-State strategy relies on legal precedent that allows Congress--not the Supreme Court or an arbitrary deadline—to determine whether an amendment is still open for ratification. In 1921, the Supreme Court ruled in Dillon v Gloss that proposal and ratification are “succeeding steps in a single endeavor,” that nothing in Article V of the Constitution declares that the ratification process is open for all time, and that Congress may indeed impose deadlines for state ratification. However, this was later modified in the 1939 case of Coleman v Miller, where the Supreme Court ruled that Congress has the power to determine whether or not too much time has elapsed between the proposal of the amendment and the final state ratification based on “an appraisal of a great variety of relevant conditions, political, social and economic.” Furthermore, Dillon’s assertion that proposal and ratification must take place contemporaneously was discounted as dictum. Thus, a congressional deadline alone does not determine the viability of an amendment; rather Congress itself has the final say.
This power was first exercised in the passage of the twenty-seventh Amendment, where Congress promulgated the Madison Amendment despite a 203-year ratification process, which Congress found to be a reasonable period of time. This rationale has lead proponents of the Equal Rights Amendment to believe that Congress will likewise recognize the timeliness of the ERA, and deem state ratifications made prior to the extended deadline valid. Additionally, although the ERA passed in both chambers of Congress with a time limit for ratification, the time limit is in the proposing clause and not the text of the amendment. In sum, the states did not ratify language including any deadline, but rather the pure text of the ERA . What is more, Article V of the Constitution grants Congress the power to propose Amendments whenever both Houses find necessary. The Article fails to mention time limits in the process of state ratification, and therefore there is no constitutional foundation upon which to dispute the validity of the thirty-five states that have already ratified the Equal Rights Amendment. Therefore, state ratification is not bound to a deadline.
In addition to the issue of timeliness, the question of rescission must also be addressed. Four out of the thirty-five ratified states (Idaho, Kentucky, Nebraska, and Tennessee) have rescinded their ratifications, with a fifth declaring its ratification void if the amendment did not meet full ratification by its extended deadline (South Dakota). However, just as Article V is silent on the matter of deadlines, it is also silent on the matter of rescission. Article V only grants states the power to ratify—not to rescind. Consequently, the five states seeking to rescind their ratifications have no constitutional basis to do so. As with the issue of timeliness, rescission also has legal precedent. The fourteenth Amendment was ratified by the Ohio and New Jersey legislatures, both of which attempted to rescind their ratifications—but these rescissions were not effectual. Congress included Ohio and New Jersey as having ratified the Amendment, which consequently became part of the Constitution.
Aside from the Three-State strategy, other alternatives are being pursued; members of Congress continue to sponsor and cosponsor the ERA eighty-five years after its birth. In 2001, Senator Edward Kennedy of Massachusetts reintroduced the amendment, stating “Enactment and ratification of the ERA is essential to ensure that the law reflects our country's commitment to equality by guaranteeing equal rights for women.” In 2007, Senator Boxer, Senator Kennedy, Representative Maloney and Representative Nadler reintroduced the Women’s Equality Amendment (H.J. Res. 40), and planned hearings in the House Judiciary Committee’s Subcommittee on the Constitution, Civil rights and Civil Liberties, chaired by Representative Nadler. Although H.J. Res. 40 has 202 co-sponsors (with four Representatives withdrawing co-sponsorship) , and the related Senate bill, S.J. Res. 10, the support does not come close to the two-thirds majority necessary to send the ERA to the states. While these efforts are praiseworthy and keep the issue of sex-based inequalities alive, re-introducing and re-passing the ERA through Congress and beginning the state-ratification process all over is not a politically realistic or expedient strategy.
While there is ardent support for the Equal Rights Amendment, there is simply not enough for re-introduction and passage. The Three-State strategy is the most promising because it does not demand a national narrative that is impossible to achieve in this socio-political moment—it needs only support from three state legislatures. If the battle is to be won, it must be won in the Supreme Court once the three final states have been ratified. It is much more feasible to argue over the constitutionality of state ratifications on legal terms than to frame a debate capable of gaining national support and congressional approval. Mainstream American culture has lost the momentum gained through the first two feminist waves, female suffrage with the nineteenth amendment, and equality in the workplace achieved with Title VII on the Civil Rights Act of 1964. Public discourse simply cannot support the level of sophisticated dialogue necessary to explore sex-based equality and its implications. Most notably, Eagle Forum/Stop ERA crusader Phyllis Schlafly warned that the ERA does not seek to create equality for women in the Constitution—because the word “men” is not even in the Constitution. Rather, Schlafly claims, “It was obvious that the ERA’s goal was not to benefit women, but to force us into a gender-neutral society.” Her fears of gender-neutrality reflect an inability to challenge cultural norms and cultivate deeper understandings of the artificial social constructions of “man” and “woman.” While the socially conservative may be phobic of such discussions, de-bunking gender constructions is simply off the radar of mainstream America. An issue that holds little weight cannot create the attention or public space to delve into the distinctions between sex and gender, challenge compulsory heterosexuality, and question the normative family model—all possible implications of gender-neutrality.
That only 21 states include equality of the sexes in their respective State Constitutions showcases the fact that the ERA is not considered a national issue, and any change in frame will necessitate another change in political tide—and who knows how long that will take. Therefore, this is a battle that must be won in the Courts after straining for the final three ratifications.
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