What Happened With the ERA?

 

 

Since March is Women’s History Month, I thought it was time to look at where we’ve been, where we are going, and discuss what might lie ahead. Women have come a long way down the road, as they say, but the road remains steep, full of pot-holes, detours, and switchbacks, as I see it. If you are a woman who looks at the world through rose-colored glasses and applauds the fact that women now head universities, have been propelled into space, and have long been Cabinet Secretaries and Governors, I can say okay but..? What else could they have done were not other obstacles put in their path? We have not yet seen our first female president. Women still face workplace discrimination and suffer a wage deficit when compared to men, and women of color find even more disparities.

When the Founding Fathers created the rules for the first United States of America’s national elections, only white males who owned property could vote. By 1850, the government dropped the property requirement and permitted states to set their specific rules; most continued with the male-only rule. As women’s suffrage became more of an issue at the beginning of the twentieth century, women took to the streets to demand their individual rights and the right to vote. Finally, on August 18, 1920, the 19^th Amendment was ratified. It guaranteed the right to vote for women. Native American women were granted the same right a few years later, in 1924.

Despite having the right in law, women of color, especially black women, rarely could exercise their right to vote because of the passage of laws that made voter registration more challenging. Constitution tests, poll taxes, and intimidation all were used to hold down the free exercise of these rights. Similar tactics continue in many states under Republican control today.

As soon as suffrage passed, Alice Paul, a leader in the movement, proposed that in 1923 an Equal Rights Amendment be added to the Constitution. Her proposal was short and succinct. Such a proposal was introduced annually but was never passed by Congress, so in 1943, the Congress received a revised version that said:

Section 1: Equality of rights under the law shall not be denied or abridged by the United States or byany state on account of sex.
Section 2: The Congress shall have the power to enforce, byappropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.

The wording was eventually changed, as noted below:

Beginning in the 113th Congress (2014-2015), the text of the ERA ratification bill introduced in the House of Representatives has differed slightly from both the traditional wording and its Senate companion bill. It reads:

“Section 1: 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.
Section 2: Congress and the several States 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.”

The addition of the first sentence specifically names women in the Constitution for the first time and clarifies the intent of the amendment to make discrimination based on a person's sex unconstitutional. The addition of "and the several States" in Section 2 restores wording that was drafted by Alice Paul but removed before the amendment's 1972 passage. It affirms that enforcement of the constitutional prohibition of sex discrimination is a function of both federal and state levels of government.

It is interesting to also note that in 2011, Supreme Court Justice Antonin Scalia remarked, that the Constitution does not protect against sex discrimination.

The Washington Post notes Scalia gave this analysis of the 14th Amendment back in September. Furthermore, his position on protection from discrimination on the basis of gender was exhibited in 1996, when he was the only justice to dissent from the Supreme Court decision to end the Virginia Military Institute's 157-year-old, state-supported tradition of only accepting male students.

Marcia Greenberger, founder and co-president of the National Women's Law Center, told the Huffington Post that Scalia's most recent remarks were "shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."

(This remark was made before the court decisions in Windsor in 2013 and Obergefell in 2015 striking down the Defense of Marriage Act and upholding same-sex marriages. Scalia wrote minority dissents in both cases.)

The Equal Rights Amendment, proposed in 1943, finally passed both the Senate and the House by the required majorities in 1972 and then sent to the states for ratification with a seven-year deadline to accomplish the task. When that date was not met, the deadline was extended to 1982. At that time, only 35 of the required 38 states (a three-fourths majority), had ratified the amendment.

As reported in ERA FAQ:  The Equal Rights Amendment has been reintroduced in every session of Congress since 1982. In the 115thCongress (2017-2018), ERA ratification bills were introduced as S.J.Res. 6 (lead sponsor, Senator Robert Menendez, D-NJ) and H.J.Res. 33 (lead sponsor, Representative Carolyn Maloney, D-NY). A bill to remove the ERA’s ratification deadline ex post facto and make it part of the Constitution when 38 states ratify was introduced as S.J. Res. 5 by Senator Benjamin Cardin (D-MD) and as H.J.Res. 53 by Representative Jackie Speier (D-CA).

By 2020, eventually the 38^{t th} state, Virginia, ratified as Nevada, and Illinois did in the years prior. But then we have to look at politics even more closely as the end get in sight.  For years, Republicans fought the Amendment, a departure from their early support.  A movement attributed to Phyllis Schlafly, a Republican activist in the 1980s who claimed the ERA would deprive women of their rights, created an organization called STOP to derail ratification. She and others claimed that women would be subject to the draft and lose other privileges they long enjoyed, such as the right to stay at home. In the current Congress, only Senators Lisa Murkowski of Alaska and Susan Collins of Maine supported these efforts; their Leader Senator Mitch McConnell strongly opposed them.

But, wait, there is more! None other than DJT (the former president) and his Department of Justice, starting in 2017, set out to stop any attempts to certify this amendment. They argued the extensions were illegal and that if some wanted the ERA to pass; the process needed to start again from the beginning. (Hey, guys, it has been 100 years in the trying!!) Their efforts succeeded, so the three-state rule that added Nevada, Illinois, and Virginia, and had taken so much effort to achieve was negated when the national archivist refused to certify the votes. At the same time, Attorney Generals in some red states tried to pull back the previous state approvals. Five states have now attempted unsuccessfully to rescind a previous approval: ID, KY, NE, SD, and TN. The states that have never ratified the ERA are AL, AR, AZ, FL, GA, LA, MO, MS, NC, OK, SC, and UT. We might note also that many of these same states restrict voting access and reproductive freedom.

Why is the passage so important?  Just think of the rights that have already been lost and those that are threatened, such as abortion, IVF, and contraception.  Consider equal pay for equal work and the right to speak out. As Celinda Lake, a Democratic pollster. reported recently in MS Magazine voters have concerns about the following:

“Seventy-four percent of voters support a person’s right to make their own reproductive decisions, including abortion, contraception and continuing a pregnancy. 

Threats to democracy and abortion/women’s rights were the second and third top-of-mind issues for all voters after inflation. 

Fifty-nine percent of voters consider themselves feminists.

Voters are overwhelmingly in support of the ERA: It is a universal value for Democrats and very strong with Independents, especially Independent women voters. 

“Without a fundamental right to equality, we won’t have an equal society,” said Zakiya Thomas, president and CEO of the ERA Coalition and the Fund for Women’s Equality. Thomas recounted the significant value of the diversity and equal economic opportunities the ERA could bring about. 

“If equality and the Equal Rights Amendment, in particular, weren’t so important, they wouldn’t be fighting so hard to keep it from us,” said Thomas––referencing that the forces fighting against reproductive and LGBTQ+ rights.”

So, this is an election year, and as voters, we all have choices to make. Are you registered? If not, get registered. Do you know your polling place; will you vote by mail? Whichever – just VOTE. Have you ever asked yourself, why should there be such a battle to keep this straightforward measure from being ratified? Why indeed? Those who say abortion can be passed into law by legislation should look at the ERA and think sobering thoughts. None of this is easy. Opposing oppression in any form is difficult.

Till next week, Peace!