Monday, February 1, 2021
Recovering the Aspiration of the Equal Rights Amendment to Overcome Gendered Disempowerment in the Work of Pauli Murray
Julie C. Suk, A Dangerous Imbalance: Pauli Murray's Equal Rights Amendment and the Path to Equal Power, 107 Virginia L. Rev. Online 3 (Jan. 30, 2021)
This Essay recovers the aspiration of the 1970s ERA to overcome gendered disempowerment, which was most acutely experienced by Black women. That aspiration did not become part of the “de facto” ERA through Fourteenth Amendment litigation. Whether the ERA would sufficiently respond to “intersectional” discrimination, as it later came to be known, became a point of contention in Illinois’s 2018 ratification debates. This Essay begins by highlighting the leading roles that African American women legislators have played in sponsoring and framing the 1972 ERA in the three states that have ratified it after the statutory deadline. It posits that this should matter to the ongoing debates about the legitimacy of these post- deadline ratifications. These states ratified the ERA long after the deadline imposed by an overwhelmingly white male Congress, but they did so as soon as women—including women of color and LGBTQ women—accumulated the modicum of power necessary to insist on their constitutional inclusion. These legislators’ twenty-first century vision of the ERA resonates with Pauli Murray’s testimony in favor of the ERA in congressional hearings in the 1970s, which built on her work as a member of the President’s Commission on the Status of Women, as a founder of the National Organization for Women in the 1960s, and as a board member of the ACLU.12 Murray built a strategy for women’s empowerment using the race equality victories under the Fourteenth Amendment as a template. Her writings laid the intellectual architecture for the gender equality victories won by Ruth Bader Ginsburg throughout the 1970s. Murray argued that African American women had the most to gain from an ERA,15 which could end their disempowerment, beyond merely winning litigated cases. The quest for empowerment, more so than doctrinal legal change, is driving the ERA’s twenty-first-century resurgence. Women seek empowerment not only to help themselves but also to help save democracy from dangerous abuses of power that threaten its legitimacy.
Part I begins in the present, highlighting the leadership and opposition by Black women in the state legislative debates leading to ERA ratification since 2017. Part II analyzes Pauli Murray’s 1970 written testimony to the Senate Judiciary Committee, in which she articulated African American women’s stake in the ERA for a congressional audience. Part III situates Murray’s vision of the ERA in the context of her 1960s writings for the President’s Commission on the Status of Women and as a co- founder of the National Organization for Women. Coining the term “Jane Crow” to focus on discrimination faced by Black women, Murray’s initial ambivalence about the ERA centered her work on a litigation strategy based on the Fourteenth Amendment. But by the end of the decade, she persuaded ERA skeptics, including colleagues at the ACLU, where she served on the Board, to pivot and support the ERA. Part IV develops the implications of Murray’s analysis of equal rights as equal power for contemporary efforts to overcome women’s underrepresentation in positions of power.