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  • Dan Connors

Rebirth of the Equal Rights Amendment - a 96 year odyssey

Women have been considered second class citizens in America since its founding. Denied the right to vote and discouraged from most professions, they labored in the background for centuries until things finally started to change. The United States was hardly an outlier in this regard, as women had few rights around the world. In some countries today such as Saudi Arabia, they still lack basic rights to live as they choose.

The equal rights amendment came into being three years after women gained the right to vote, in 1923. It didn't finally pass congress and begin the ratification process until 1972. The text is deceptively simple, but it still caused an uproar in the 70's as women's rights movements gained steam. It says, " Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex."

The US Constitution is a notably difficult thing to change, and the bar is high. Two thirds of congress has to agree on it, and then 38 individual states have to ratify it. The thought of two thirds of congress agreeing on anything today is hard to fathom. The amendment originally passed 354-24, an overwhelming victory.

Ratification proceeded rapidly after congress submitted it to the states, with the last state, Indiana, ratifying the amendment in 1977. They were still three states short. Seven states came very close to ratification, passing the amendment in one chamber but not the other. The amendment was given a deadline of 1982 to reach the 38 vote threshold, and it failed.

A large and powerful groundswell of opponents, led by Phyllis Schlafly, organized in the remaining states, most of them in the South, and prevented ratification by any more legislatures. Their argument was that they liked the sexes to be different, and wanted gender roles to remain the same. Opposition forces stressed three threats- the possibility of women being drafted into the army and put in combat (the Vietnam war had just ended), the chance that the amendment would somehow undermine marriage and encourage homosexuality, (homosexual marriages became legally recognized anyway), and the fear that empowered women would choose abortion, (which still remains legal as it was in 1972).

Other countries such as Canada and the Europeans passed their own versions of the ERA, but the US kept it out of their constitution even though it was popular with most of the public. But in 1982 the equal rights amendment was declared dead because no other state would ratify it. Then the constitutional amendment fight went dormant while the fight for women's rights continued in the 90s and 00s. Representation of women in congress went from 2-4% in 1990 to nearly 25% in 2019- a tenfold increase. Women arguably improved their lot even without the amendment's passage.

Then something truly remarkable happened- the ratification of the 27th amendment to the constitution in 1992, some 203 years after it was originally introduced. This little known amendment makes it impossible for congress to give itself a pay raise. Any pay raises, according to the amendment, must take effect after the next election. This amendment, one of the first ever introduced, was ratified by only a handful of states and forgotten for over a century. In 1982 a scholar at the University of Texas proposed that the amendment was still "live" and could be voted on by states, pushing the issue until the Supreme Court ruled that it was indeed still valid. From 1983 to 1992 states began taking up and passing the amendment until Michigan put it over the top.

This bizarre development gave hope to the proponents of the ERA, and it was revived in the mid 90's so that three states could ratify it into law. There were all sorts of roadblocks, not the least of which was the 1982 deadline set by congress. But the passage of the 27th amendment after 203 years calls into question the validity of any deadlines at all. That revival only started to bear fruit some 20 years later.

In 2017, Nevada became the 36th state to pass the ERA, and in 2018 Illinois (Phyllis Schlafly's home state) became number 37. Now in 2019 all the attention falls on Virginia, due to its recent elections that threw control of its legislature to the Democrats for the first time in decades. No other southern state seems willing to pick up the fight, (including my home state of Missouri, which is decidely not in the South.)

Assuming Virginia passes the amendment in 2020, the question would then go to the Supreme Court again. Or congress could act retroactively and extend the deadline with a congressional act. The 27th amendment sets a precedent, but who knows how the court could rule on this hot button issue? Another factor is that four of the original 35 states went back and changed their mind on the ERA, rescinding their previous ratification. There could be many thorny details yet to emerge assuming Virginia acts.

So does any of this even matter? Many have said throughout the debate that the 14th amendment already covers all of this. That amendment explicitly states, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

You would think that this covers all the big equal protection problem areas like gender, race, religion, sexual preference, etc. If that were true, none of those would be problem areas today, but they still are. Courts look to the constitution for guidance, and the more explicit the statute, the clearer their rulings should be. Having an iron-clad guarantee in writing in the constitution would send a signal to future presidents, congresses, and courts that this is the law of the land. Discrimination will still happen, but there will be better remedies for it.

The other argument that you will begin hearing is since women are doing better without the amendment, why bother changing the constitution for them? The #me too movement shows the strength of women's power today, but the mere fact that they have to speak up repeatedly to point out sexual harassment in the workplace shows that society still has a long way to go.

Supreme court justice Ruth Bader Ginsburg said in 2014, “If I could choose an amendment to add to the Constitution, it would be the Equal Rights Amendment. I think we have achieved that through legislation, but legislation can be repealed, it can be altered. So I would like my granddaughters, when they pick up the Constitution, to see that notion – that women and men are persons of equal stature – I’d like them to see that is a basic principle of our society.” 

No one knows for sure the path the Equal Rights Amendment will take if and when the 38th state ratifies it. Women continue to make strides towards being taken more seriously as equals, and the nation is in a far different place than it was in 1923, or 1982. There are six million more women in America than there are men, and perhaps their 96 year journey to equality, (on paper at least), is almost done.

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