Tuesday, July 14, 2020
Guest Blogger, Julie Suk is Professor of Sociology & Political Science, The Graduate Center - CUNY, and Visiting Professor at Yale Law School. She is the author of the new book We the Women: The Unstoppable Mothers of the Equal Rights Amendment (forthcoming August 2020). You can follow her @JulieCSuk
Julie Suk, The Feminist ERA Worth Fighting For:: A Political Question
Virginia became the 38th state to ratify the Equal Rights Amendment earlier this year, one hundred years after the Nineteenth Amendment and nearly fifty years after the ERA was adopted by Congress. My forthcoming book, We the Women, chronicles women’s long battle for the ERA to argue that the 1972 Equal Rights Amendment should be added to the Constitution, despite the passage of roughly forty years after the ratification deadline.
But the procedural path by which the ERA gets saved will shape the ERA’s long-term legitimacy and feminist potential. That is why I filed an amicus brief in the litigation brought by Virginia in pursuit of a judicial declaration of the ERA’s validity, arguing that Congress, not the courts, should decide in the first instance what to do about the ERA ratification deadline. Joined by distinguished constitutional law professors Erwin Chemerinsky, Reva Siegel, and Noah Feldman, our brief applies the logic of Coleman v. Miller, which affirmed Congress’s power over time frames for ratification, and treated the reasonableness of ratification time frames as a nonjusticiable political question. In the lawsuit, the three states that ratified the ERA after the deadline are suing the National Archivist, who refuses to publish the ERA in the Constitution, in deference to the Trump Administration’s opinion that the deadline for states to ratify the ERA expired in 1979. Virginia claims that Article V does not authorize Congress to impose ratification deadlines on sovereign states. The court has allowed an intervention by states that have not ratified the ERA, or voted to rescind their prior ratifications. In their motion for summary judgment, filed earlier this week, the intervenors urge the court to conclude that “the ERA that Congress proposed in 1972 failed of adoption in 1979 and can no longer be ratified,”and that they possess sovereign power as states to rescind their ratifications. If the court reaches the merits of the intervenor states’ arguments, more members of the sitting federal judiciary, on the DC Circuit and the Roberts Court, will eventually decide the fate of the ERA.
Our amicus brief supports no party, even though Virginia’s goal of a court declaring the ERA to be part of the Constitution now, after a century of struggle, is admittedly enticing for the ERA proponent. But here’s what ERA proponents can gain if Congress votes to removes the deadline first: feminist legislative history that guides its future meaning. This path could take longer, because congressional action to save the ERA might not be accomplished until after November’s election.
Pro-ERA groups like the ERA Coalition have already made incrementally successful efforts to persuade Congress to remove the deadline. In Congress, the House passed a resolution lifting the deadline on ratification in February 2020, and a similar resolution has been introduced in the Senate with 48 sponsors so far. (Thirty-five Senate seats are on the ballot this November). The ERA’s long-term legitimacy depends on Congress taking action to remove the deadline before Trump-appointed federal judges take the opportunity to declare the ERA forever expired.
More importantly, congressional action is more likely to produce the robust ERA that its proponents are fighting for. As 8 amicus briefs filed by many women’s groups make clear, ERA proponents want the ERA to go farther than judicially-created sex equality under the Equal Protection Clause, to reach pregnancy discrimination, the problems brought to light by the #MeToo movement, and the gender inequities in caregiving and essential work laid bare by the Covid-19 crisis. They want the U.S. Constitution to learn from gender equality provisions promoting real equality in other constitutional democracies around the world that were adopted after the ERA was proposed. That robust ERA, moving beyond what was intended or imagined in the 1970s, is already being made by lawmakers through legislative hearings and debates about removing the deadline. This overtly political debate will not be part of a judicial decision in a litigation about Article V.
The 116th Congress had record numbers of women and women of color elected. When the House voted in February 2020 to recognize the ERA as valid “whenever ratified” by three-fourths of the states – which occurred when Virginia became the 38th state to ratify the ERA in January, that vote came after two hearings and a floor debate. In April 2019, due largely to the persistent advocacy of the ERA Coalition, the House Judiciary Committee held a hearing on removing the deadline on the ERA. In that hearing, constitutional law giant Kathleen Sullivan pointed to the gender equality provisions in constitutions around the world, and called the absence of such a provision in the United States a “national embarrassment.” In November 2019, the House Judiciary Committee voted to report the ERA deadline removal favorably for a full vote by the House. Unlike the all-male House Judiciary Committee that reported the ERA out in 1971, nearly one-third of the current committee consists of women. Several women of color on the committee, like Congresswoman Sheila Jackson Lee of Texas, explained why the ERA was still needed in the markup hearing. Congresswoman Pramila Jayapal said that the ERA could reach discrimination based on pregnancy, childbirth, and caregiving responsibilities. “A vote for the ERA is a vote for families,” she said, countering the 1970s STOP-ERA campaigns depicting the ERA as anti-family.
The House Judiciary Committee’s written report, issued in January 2020, suggested that the ERA
could provide a basis for Congress to engage in affirmative efforts to support gender equality both at home and in the workplace. Additionally, under some theories, the ERA could provide a basis for plaintiffs to challenge laws or policies that have a disparate impact on women, or support efforts to create gender balance in certain contexts. Additionally, the ERA's prohibition against discrimination “on account of sex” could be interpreted to prohibit discrimination on the basis of sexual orientation or gender identity.
In the floor debate leading to the House’s vote to lift the deadline, several Congresswomen from various states, ranging in age, race, and ethnic background, spoke to give the ERA meaning, including some who opposed it. Speaker Nancy Pelosi said the ERA would help protect pregnant women and new mothers who were in the workforce. Congresswoman Rashida Tlaib, the first Muslim woman ever elected to Congress, said that the ERA was “about women of color, women with disabilities, transgender women, immigrant women.” In both the Judiciary Committee report and the floor debate, ERA opponents expressed the fear that the ERA would expand abortion access, to which Judiciary Committee Chairman Nadler responded, “If people on the other side want to admit that equality of rights under the law means there must be a constitutional right to abortion, well, that is wonderful.“ Congress – the lawmaking body of democratically elected representatives from throughout the nation – is the only institution that can make the ERA address twenty-first century concerns, as new constitutional meanings emerge from dynamic dialogue with the political opposition.
In the Senate, Republican Lisa Murkowski has cosponsored S.J. 6, lifting the ERA deadline, along with Democrat Ben Cardin. The Senate resolution now has 48 cosponsors. On June 4, 2020, Senator Murkowski recognized the 101st anniversary of the Senate’s adoption of the women’s suffrage amendment. She pointed to Virginia’s ratification of the ERA and urged her Senate colleagues to remove the deadline. “I have asserted time and again . . . that you cannot put a time limit on women’s equality. . . Women’s equality is fundamental to the American way of life, and it is far past time to be expressly recognized in the Constitution.” In that same speech, she acknowledged the persistence of racial injustice and its connection to the struggle for women’s equality: “Today, June 4, is not only a recognition of women’s suffrage, but it is the funeral of George Floyd.”
Congressional efforts to remove the ratification deadline create opportunities for lawmakers to articulate why the ERA remains necessary and what its twenty-first century goals are. Congressional completion of ERA ratification will make the contributions of women lawmakers part of the twenty-first century ERA’s legislative history. A judicial decision about the ratification deadline simply can’t do the feminist heavy lifting that the women in Congress are doing. In 1978, women in Congress led the first extension of the ERA deadline, and clarified the ERA’s goals in those debates. In the past year, as it debated the deadline removal, Congress has been at the center of updating the ERA to respond to the twenty-first century needs of all the nation’s people. These meanings will become part of the ERA if Congress acts to remove the deadline.