Tuesday, November 20, 2018

The Modern Legal History of the Equal Rights Amendment

With Virginia seeking to be the third state to ratify the ERA in recent times, the discussion has reignited over passing the ERA.  An excerpt from my recent book chapter places this development in legal historical context: 

See Tracy Thomas & TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018) (tracing the complete legal and political history of the ERA from 1921).

The National Organization for Women (NOW), newly formed in 1966 by Betty Friedan and Murray, pressed for full enforcement of the new Title VII and actualizing its mandate of equality in employment (Fry 1986). By 1970, federal courts, the Department of Labor, and the EEOC all interpreted Title VII as invalidating women-specific rules, including protective labor legislation and, more importantly, requiring extension of any protections like minimum wages to men rather than eliminating them for women (Mansbridge 1986). Union and social feminist opposition to the ERA finally began to wane, with the long-standing concern over worker protection laws now addressed (Mayeri 2004).

NOW quickly prioritized the ERA. The 1960s had seen few litigation successes with the judicial approach, and legal activists believed they needed the political leverage, if not the substantive right, of an equality amendment campaign (Mayeri 2004). NOW adopted the ERA as a top priority at its conference in 1967. It rejected Pauli Murray’s alternative proposal for a human rights amendment that would have more broadly granted a “right to equal treatment without differentiation based on sex,” potentially encompassing sexual orientation and explicitly addressing private action and reproductive rights (Mayeri 2004: 787). Long-standing ERA proponents, now much older, adamantly opposed any change in the wording of the ERA that might broaden it to more radical agendas, fearing it would jeopardize existing support . This had the effect of reducing feminist demands to “their lowest common denominator” rather than pursuing a wider social justice agenda (Mayeri 2004: 785). Pursuing a constitutional amendment, however, did not mean abandoning the Fourteenth Amendment litigation. By 1970 “most legal feminists had reached a consensus that the constitutional change they sought could and should be pursued simultaneously through the dual strategy” of amendment and litigation (Mayeri 2004: 800).

In early 1970 the Pittsburgh chapter of NOW used direct action to support its demand for the ERA, disrupting a hearing of the US Senate Subcommittee on Constitutional Amendment on another proposed amendment, with protesters demanding hearings on the long-proposed ERA (Mansbridge 1986; Mathews and De Hart 1990). A Citizens’ Advisory Council on the Status of Women petitioned President Richard Nixon to endorse the amendment, and for the first time the US Department of Labor supported the ERA. In May, the Senate Amendment Subcommittee held hearings and referred the equality amendment positively to the Senate Judiciary Committee. There Senator Samuel Ervin Jr. (D-NC), a states’ rights opponent of the civil rights’ laws, and later of Watergate hearings fame, “became the amendment’s chief antagonist” (Mathews and De Hart 1990: 36). He opposed the ERA because of its threat to social norms, concerned about losing the traditional physiological and functional differences of gender to what he characterized as a passing fad. He attacked “militant women who back this amendment,” saying “they want to take rights away from their sisters” and pass laws “to make men and women exactly alike” (Mathews and De Hart 1990: 37–39). Ervin moved the debate beyond the abstract principles of equality to concerns with specific effects of gender equality, including the draft, divorce, family, privacy, and homosexuality. Harvard Law professor Paul Freund also testified about the “parade of horribles the ERA might produce, including the legalization of same-sex marriage, the abolition of husbands’ duty of familial support, unisex bathrooms, and women in military combat” (Mayeri 2004: 808). The opposition succeeded, and the bill failed in the Senate (Mansbridge 1986).

Meanwhile, the ERA passed in the House. Martha Griffiths used a rare procedural move of the discharge petition to “pry the ERA out of the House Judiciary Committee,” where it had languished for years while the liberal chair, Emanuel Celler (D-NY), “kept it in his bottom drawer” because of the persistent opposition by labor (Mansbridge 1986: 13). After only an hour’s debate, the House passed the ERA by a vote of 350-15 on August 10, 1970. When the Senate failed to pass the bill, it was reintroduced the next year, when the House passed the ERA for a second time on October 12, 1971, by a vote of 354-23. This time the Senate passed the ERA on March 22, 1972, by a vote of 84-8 with a seven-year timeline for the required three-fourths of the states to ratify the amendment (Mansbridge 1986). States initially rushed to ratify the ERA. Hawaii was the first state to ratify the amendment, twenty-five minutes after the Senate vote. The next day, three states ratified, and two more the following day. By early 1973, less than one year after Congress’s passage, twenty-four states had ratified, most unanimously or with quick hearings and debate.

This trajectory halted in 1973 with the Supreme Court’s decision in Roe v. Wade finding a woman’s constitutional right to choose abortion. Roe stopped the advancing ratifications, shifted the public discourse, and overturned previous support by Republicans (Ziegler 2015). “The battle against the ERA was one of the first in which the New Right used ‘women’s issues’ to forge a coalition of the traditional Radical Right” , of those concerned with “national defense and the Communist menace” (Mansbridge 1986: 5), and religious evangelicals to activate a previously apolitical segment of the working and middle classes that “was deeply disturbed by cultural changes” (Mansbridge 1986: 16). Through these groups, he ERA became linked with abortion as both were sponsored by radical “women’s libbers” who were a threat to traditional women and family values. The debate became framed as women versus women.

The face of women’s opposition to the ERA was conservative activist Phyllis Schlafly and her STOP ERA (Stop Taking Our Privileges) organization (Berry 1988; Neuwirth 2015). Schlafly, a mother to six children, offered herself to the anti-ERA movement as a voice for stay-at-home mothers in need of special privileges and protections under the law. The irony that she, much like all the most prominent reformers historically lining up on either side of the ERA amendment (such as Alice Paul, Florence Kelley, and Pauli Murray), held a law degree and enjoyed a flourishing decades-long career in the public eye, was utterly elided in her rhetoric. Doggedly focused on women’s roles as mothers and homemakers, Schlafly trumpeted the cause of women’s difference from men—championing the special rights of women as citizens who, ideally, did not work outside the home. She asserted that equality was a step back for women: “Why should we lower ourselves to ‘Equal Rights’ when we already have the status of ‘special privilege’?” (Wohl 1974: 56). She and other ERA opponents reframed the issue as forcing women into dangerous combat, coeducational dormitories, and unisex bathrooms. Feminist advocates responded by clarifying that privacy rights protected concerns about personal living spaces in residences and bathrooms, but their counsel was unheard in the din of threat to traditional family and gender roles. Opponents equated the ERA with homosexuality and gay marriage, as the amendment’s words “on account of sex,” “were joined with ‘sexual preference’ or homosexuality to evoke loathing, fear, and anger at the grotesque perversion of masculine responsibility represented by the women’s movement” (DeHart-Mathews and Mathews 1986: 49). Schlafly hurled insults at the ERA supporters, urging her readers to view photographs of an ERA rally and “see for yourself the unkempt, the lesbians, the radicals, the socialists,” and other activists she labeled militant, arrogant, aggressive, hysterical, and bitter (Carroll 1986: 65). When ERA supporters “gathered at the federally financed 1977 International Women’s Year Conference in Houston and endorsed homosexual rights and other controversial resolutions on national television, they helped to make the case for ERA opponents” (Berry 1988: 86).

The shift in debate slowed and then stopped ratification of the ERA. In 1974, three states ratified the amendment, one state ratified in 1975 and one in 1977, and then ended the campaign with only thirty-five of the thirty-eight required (Mansbridge 1986). At the same time, states began to rescind their prior ratifications, with five states voting to withdraw their prior approval (Neuwirth 2015). The legality of the rescissions was unclear, but these efforts had political reverberations in the unratified states (Mansbridge 1986).[1] When the deadline arrived without the required three-fourths approval, Congress voted in 1978 to extend the ratification deadline three years to June 30, 1982. Not a single additional state voted to ratify during this extension (Berry 1988). In 1980, the same year President Jimmy Carter proposed registering women for the draft, the Republican Party dropped ERA from its platform and newly elected president Ronald Reagan came out in opposition to the ERA. Businesses, manufacturers, and insurance companies all increasingly opposed the amendment (Burroughs 2015). ERA supporters escalated with more militant demonstrations of hunger strikes and marches. They chained themselves to the gates of the White House fence and Republican National Committee headquarters and trespassed on the White House and governors’ lawns. But such protests had little effect, proving counterproductive as they alienated Republican sponsors and reinforced portrayals of the radicalness of the proposed amendment (Carroll 1986). Despite an extension, the ERA was defeated on June 30, 1982, three states short of the required super-majority of states. Congress immediately reintroduced the amendment, holding hearings in late 1983. The floor vote of 278-147 in the House came six votes short of the two-thirds needed for passage. Despite how close this generation of campaigners had come to achieving their goal, for most, the ERA was now dead (Farrell 1983; Mayeri 2009).

The broader goals of the ERA, however, were not dead or abandoned. All through the previous decade, legal feminists led by the ACLU and Ruth Bader Ginsburg had been pursuing the second front of litigation and doing so with some success. In 1971, the Supreme Court struck down a law for the first time as arbitrary sex discrimination under the Fourteenth Amendment. In Reed v. Reed (1971), the high court overturned a state law that presumptively made a father, and not a mother, the administrator for a deceased child’s estate. Two years later in Frontiero v. Richardson (1973), a plurality of the Court applied heightened scrutiny to strike down a law automatically granting military benefits to wives, but requiring military husbands to show dependency. The pros and cons of the dual constitutional strategy played out in Frontiero. The Court’s plurality endorsed strict scrutiny for sex-based classifications because of congressional passage of the ERA, thus harmonizing the two. But the concurrence held that the pendency of legislation weighed against judicial decision, and required waiting for the final outcome of the constitutional process. In 1976 a majority of the Court definitively applied equal protection to sex discrimination in Craig v. Boren (1976), adopting, however, only an intermediate judicial scrutiny, one more permissive than that for race.[2] As Mayeri (2004: 826) notes, “This Goldilocks solution” in Craig captured the “Court’s ambivalence about both the procedural and the substantive aspects of a revolution in gender roles.” The ambivalence is apparent in that while striking down the law in Craig denying young men equal access to 3.2% beer, the Court upheld other discriminatory laws, like veterans’ preferences for men, statutory rape for minor women, and military pensions for men (Schlesinger v. Ballard 1975; Kahn v. Shevin 1974; Geduldig v. Aiello 1974). Equal protection proved an imperfect solution, and easily manipulable in the hands of the Court. For many activists, this indicated that perhaps an equal rights amendment was needed after all.

In the 1980s, at the time of ERA’s defeat, polling found that a majority of the electorate remained in support of the amendment (Businessweek 1983; Gallup Report 1981; Mansbridge 1986). According to Pleck (1986: 107–108), “In the midst of a national conservative tide, popular support for the ERA was very strong.” Most national leaders, political conservatives, and “major national organizations from the American Bar Association to the Girl Scouts had gone on record in favor of it” (Pleck 1986: 108). Then why did the ERA fail? Scholars and activists have searched for possible explanations. Some suggest that a rushed political process failed to build the necessary state consensus on women’s rights to match the federal consensus, along with inadequate state organizational structure to secure ratification, outdated campaign tactics and failure to use mass media, and lack of legislative prioritization (Berry 1988; Carroll 1986; Mansbridge 1986; Mayo and Frye 1986; Pleck 1986; Steinem 1984). Other scholars point to deep substantive disagreements about women in military combat and revolutionary changes in traditional motherhood, which threaten women personally as they perceive a danger to themselves and their daughters (DeHart-Mathews and Mathews 1986). Berry (1988: 85) notes that “equality may have seemed simple to proratificationists, but to others it meant sexual permissiveness, the pill, abortion, living in communes, draft dodger, unisex men who refused to be men, and women who refused to be women. . . . And a fear that men would feel freer to abandon family responsibilities and nothing would be fined in exchange.” Legal scholar Catharine MacKinnon (1987: 770) thought ERA failed because it did not go far enough, and more radically “mobilize women’s pain and suppressed discontent” derived from systemic, social realities of male supremacy. And still others  questioned the need for an equal rights amendment, given intervening Supreme Court decisions extending equal protection to women and federal legislation like Title VII and Title IX of the Education Amendments (Mansbridge 1986; Mayeri 2004).

Congress continued to reintroduce the Equal Rights Amendment every year after its defeat, but it went nowhere. Glimmers of action appeared in 2007 when a bipartisan group of lawmakers rechristened the amendment the “Women’s Equality Amendment” (Mayeri 2009: 1224) and in 2013 when Representative Carolyn Maloney (D-NY) proposed new language for an equality amendment to make the equality abstraction more concrete: “Women shall have equal rights in the United States and every place subject to its jurisdiction.” But the time and urgency for an equal rights amendment  seemed to have passed. If ERA was not politically dead, it was at least comatose (MacKinnon 1987).

Conclusion: Equal Rights One Hundred Years after Suffrage

In 2014 a new ERA Coalition of major women’s rights organizations formed, fueled by a new generation of young people outraged at continuing inequality and energized to action (Neuwirth 2015). The year brought renewed grassroots interest in the ERA, sparking popular reconsideration of an equality amendment endorsed by celebrities like Meryl Streep and feminist icon Gloria Steinem (Babbington 2015). Justice Ruth Bader Ginsburg publicly called for the ERA to ensure future generations that women’s equality is “a basic principle of our society,” just as she had thirty-five years earlier (Schwab 2014).[3] Even legal feminist scholar Catharine MacKinnon (2014: 569), previously opposed to the ERA as a weak, formalistic attempt at equality, now believed that an ERA is “urgently needed, now as much as or more than ever.” Surveys have shown over the last decade that most voters, as high as 96%, support equality for women, and 91% believe equality should be guaranteed by the Constitution (Neuwirth 2015), indicating perhaps a gendered cultural opportunity for change (McCammon et al. 2001). However, these surveys also show that 72% of people believe, incorrectly, that such rights are already included in the Constitution.

The ERA Coalition believes the time is ripe again for an equal rights amendment, given the next generation’s interest and recent political activity (Neuwirth 2015). In 2014 Oregon passed a state ERA referendum with 64% of the vote. Illinois and Virginia also passed state ERA laws, two states that had not previously ratified the federal ERA. Federal ERA  proponents advocate a “three-states-more” strategy, which assumes the continued validity of the prior ratifications and seeks ratification of ther required three additional states. One state, Nevada, ratified the ERA in March 2017. This extended ratification strategy is supported by the delayed the ratification of the Twenty-Seventh Amendment (salary change for Congress must take effect the following term),  as it was sent to the states for ratification in 1789, but not ratified until 1992, when the last states joined (Burroughs 2015).

A key question is whether women legally need the ERA, or whether its goals of general equality and specific rights have effectively been accomplished through other means. The virtually unanimous consensus of legal scholars is that the ERA’s goals have been effectively achieved through the Supreme Court’s equal protection jurisprudence (Mayeri 2009; Siegel 2006). Courts now review gendered state action under intermediate scrutiny, requiring that any laws treating women differently be justified by important governmental interests and that the laws be closely tailored to those interests (United States v. Virginia 1996; Mississippi University for Women v. Hogan 1982). Other scholars, however, have emphasized the limitations of equal protection analysis for sex equality (Brown et al. 1971; MacKinnon 2014; Mansbridge 1986). For gender discrimination cases under equal protection, the Court utilizes a lower standard of intermediate scrutiny, rather than the strict scrutiny used in race and religious discrimination. This lower standard tolerates many of the continuing instances of less overt sex discrimination and laws that have discriminatory effect rather than textual prohibitions on gender (Siegel 2002). The equal protection approach is also limited because it requires proof of intent—defendants thinking bad thoughts about women—which, MacKinnon (2014: 572) notes, “doesn’t address how discrimination mostly operates in the real world,” where “the vast majority of sex inequality is produced by structural and systemic and unconscious practices” inherited from centuries of gender hierarchy. Equal protection law’s formal classification structure, she explains, which rigidly treats only exactly similar things the same, is incapable of assessing the ways in which people “can be different from one another yet still be equals, entitled to be treated equally” or where affirmative diversity is needed to treat alike those whom are different (MacKinnon 2014: 571).

Some scholars ( Schwab 2014; Hoff-Wilson 1986) also conclude that equality for women has essentially been achieved for women without the ERA because the specific substantive goals of the amendment were accomplished through a variety of federal legislation on specific issues as well as the parallel state constitutional amendments. Twenty-three states adopted mini-ERAs, and such amendments have helped strengthen women’s ability to challenge discriminatory laws in those states. Courts often interpret the state ERAs to require strict scrutiny, and two states mandate an even higher absolute standard that presumes any discriminatory law to be unconstitutional (Burroughs 2015; Wharton 2005). In addition, federal legislation has mandated equal employment and education in the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Pregnancy Discrimination Act of 1978, and the Violence Against Women Act of 1994. Such piecemeal legislation, however, is subject to the political ebb and flow and can be rolled back, as the Violence Against Women Act was when the Supreme Court held in United States v. Morrison (2000) that Congress had no power to address civil remedies for domestic violence (MacKinnon 2014).

The renewed campaign for an equal rights amendment emphasizes the continued systemic harms to women of economic inequality, violence against women, and pregnancy discrimination and the limits of existing laws to address these concerns (MacKinnon 2014; Neuwirth 2015). Proponents of an equal rights amendment emphasize the need for a permanent constitutional guarantee to control an overarching legal and social principle of women’s equality. The United States, unlike the majority of other countries, has refused to incorporate such an express guarantee in its written constitution or adopt the international women’s bill of rights by ratifying the United Nations’ treaty (MacKinnon 2014; Neuwirth 2015).[4] The absence of an express guarantee permits traditional literalists like Justice Antonin Scalia to opine, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t” (California Lawyer 2011). The ERA offers a corrective to this thinking and the equivocal state of women’s rights under the law. It offers a textual guarantee of sex equality, an inspiration for public policy, and a powerful symbolic support of women’s equality in all social and legal venues (Ginsburg 2014; MacKinnon 2014).

The equality amendment fulfills the hope first envisioned by proponents of a suffrage amendment to fully integrate women into every aspect of the citizenry with full recognition of their humanity (Siegel 2002). Now, almost one hundred years later, perhaps the time is right. Or perhaps the time is right to embrace the larger social justice legacy of the women’s equality movement and expand the amendment to all human rights to include aspects of sexual orientation discrimination and reproductive rights. These broaden the concept of sex discrimination to encompass the ways in which gender is practiced and experienced in our society. Perhaps dovetailing with recent advances and political consensus in civil rights of same-sex marriage will give women’s equality the final push it needs to be enacted.


[1] One federal court upheld the rescissions, but expiration of the ERA ratification deadline mooted the question before the Supreme Court could review the case. Idaho v. Freeman, 529 F. Supp. 1107 (1981), stayed, Jan. 25, 1982. The evidence against the legality of rescission is that states attempting to rescind their ratification of the Fourteenth Amendment were still included as enacting states (Berry 1988).

[2] The strict scrutiny test requires that state laws based on race be justified with compelling interests that are narrowly tailored to necessary regulation, thus invalidating most laws based on race. Loving v. Virginia, 388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S. 184 (1964).

[3] For Ginsburg’s early pro-ERA writings, see Ruth Bader Ginsburg, “The Fear of the ERA,” Washington Post, April 8, 1975: A21; Ruth B. Ginsburg and Kathleen W. Peratis, “Equal Rights for Women,” New York Times, December 31, 1975: 21; Ruth Bader Ginsburg, “Let’s Have E.R.A. as a Signal,” ABA Journal, January 1977: 70; Ruth Bader Ginsburg, “Sexual Equality under the Fourteenth and Equal Rights Amendment,” Washington University Law Review  (1979): 161-178.

[4] The United States is one of only seven countries that has not ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), including Iran, Somalia, Sudan, South Sudan, Palau, and Tonga. The treaty was signed by President Carter in 1980, but failed to get the two-thirds congressional vote necessary for ratification (Neuwirth 2015).


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