A group of suffragists in June 1920. Alice Paul, who first called for the constitutional amendment in 1923, is third from left on the bottom row. (National Photo Company Collection/Library of Congress)
The first congressional hearing in more than three decades on the Equal Rights Amendment was held Tuesday, with advocates and politicians attempting to revive the process to fully ratify it.
The constitutional amendment was first proposed in 1923 by suffragist Alice Paul, and was approved by the House of Representatives in 1971 and the Senate the following year. It needed three-quarters of state legislatures, or 38 states, to back it. But by the 1982 deadline, only 35 had.
“For decades, that extraordinary progress toward equality stalled," said Steve Cohen, a Tennessee Democrat who is chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.
"A well-organized countermovement scared the American people into thinking that a guarantee of equality would somehow harm women who stay at home to raise their children and would erode American families. What had started as a matter of broad consensus became another divisive issue in the culture wars. Today we know better,” Cohen said. “We know that a simple but fundamental guarantee of equality should be welcomed, rather than feared.”
Bay Area congresswoman Jackie Speier has helped to lead efforts to reboot ratification of the amendment, which today is one state shy of 38. She introduced a resolution to eliminate the 1982 deadline, so that only one more state would be needed for ratification, rather than start the process anew.
“This has been a lifetime campaign for many of us,” said Speier. “We have been an afterthought in this country since the beginning of this country. ... We want you to finally remember the women.”
The amendment has been nearly a century in the making. How did we get here?
What is the Equal Rights Amendment?
It’s a constitutional amendment that would prohibit discrimination on the basis of one's sex.
When was it first introduced?
In 1923, Alice Paul called for a federal amendment at a gathering of suffragists in Seneca Falls, New York, saying, “We shall not be safe until the principle of equal rights is written into the framework of our government," according to the Alice Paul Institute.
The Equal Rights Amendment was introduced in every session of Congress from 1923 until 1972, when it finally passed.
How did it get support for passage?
A groundswell formed behind the amendment in the civil rights era.
“It was this time where groups of people, mostly inspired by the black civil rights movement, decided this is it — this is the time that we're going to make things better and we're going to get rid of these problems, this racism and this sexism and this homophobia,” said Melissa Michelson, a professor of politics at Menlo College in Atherton.
“It was part of this very idealistic, very active period in America where various groups in the United States were fighting for equality. And that included women,” she added.
Wait, doesn’t the U.S. Constitution already address this?
Not according to Kelli Garcia, director of Reproductive Justice Initiatives and senior counsel at the National Women’s Law Center. While Title VII and IX of the 1964 Civil Rights Act prohibit sex discrimination in education and employment, and the 14th Amendment has been interpreted to bar many forms of sex discrimination, nothing in the Constitution specifically addresses the issue, she said.
“People often don't realize this but right now, with the exception of the 19th Amendment prohibition on denying the right to vote on the basis of sex, there's no actual explicit protection against sex discrimination within the Constitution,” Garcia said. “The ERA would help enshrine this prohibition against sex discrimination within our very foundational document and really make it clear that sex equality is a core principle that the United States supports.”
What is the impact of not having such an amendment?
Supporters say they’re concerned about the rollback of any laws or judicial decisions that could curb women’s rights and that a constitutional amendment is the ultimate guarantee.
“Without constitutional protection, pay disparities will continue to be allowed in this country because of the high obstacle of showing that there is intent to discriminate in order for a woman to prevail in court. This is real,” Speier said at the hearing. “50% of the major breadwinners in families today are women with children.”
The amendment would make sex “a category of discrimination equivalent to race as a category of discrimination," said Lisa Baldez, professor of government and Latin American, Latino and Caribbean Studies at Dartmouth College.
"Currently, the 14th Amendment is what brings race to that level of scrutiny within the Supreme Court," Baldez said. "And the idea is that gender has not risen to that same level of scrutiny and won't until we have an Equal Rights Amendment written into the Constitution.”
What do opponents of the amendment say?
After the amendment was sent to the states to ratify in the 1970s, conservative women began to organize. They were led by Phyllis Schlafly, who began an organization called Stop ERA.
“She was just a very effective organizer. She was a longtime Republican Party member ... and she started to mobilize, saying that the Equal Rights Amendment would take away the privileges that women already had and would not make it possible for women to be mothers and housewives,” said Baldez. “It raised enough questions about the Equal Rights Amendment that Republicans, who had for the most part been supportive of the amendment, began to shift their positions on it.”
Opponents also argue the amendment is a false pretext for abortion and that women are already protected against sex discrimination by other laws and the 14th Amendment. They point to gains made by women, such as being able to serve in the military and in combat, and say the need for such an amendment today is moot.
“Pro-abortion groups are clearly saying now that adopting the ERA would mean the end of laws that protect the sanctity of every human life,” congressman Mike Johnson, a Louisiana Republican, told the House Judiciary Committee. He said groups opposed to and supportive of abortion were in agreement “that the language of the 1972 ERA is likely to result in powerful reinforcement and expansion of abortion rights.”
Why has this amendment stalled in the states?
Opposition to the amendment has delayed forward momentum, experts say, but there is also a lack of clarity around whether the ratification effort is valid today — a point that opponents and supporters disagree upon. To address that issue, lawmakers who back the ERA have taken two approaches: one is the “three-state” strategy pushed by Speier, in which only three more states would have to ratify it (and two already have, Nevada in 2017 and Illinois in 2018), and the other is to start the ratification process anew.
Another outstanding question is whether five states that later rescinded their approval of the amendment can legally do so — another point on which the two sides disagree.
Some people also hesitate to change the Constitution.
“We look at it as this mythical perfect document handed down by the founders and we're very reluctant to change it. If you look at the number of times that we've actually amended the Constitution, it's remarkably low,” said Menlo College professor Michelson. “There's a lot of hesitancy in terms of well, ‘Do we really want to mess with this? Isn't this something that could be handled with laws or some other form of governance?’”
Finally, Michelson said, some people have “this idea that somehow endorsing the Equal Rights Amendment won't just ensure that people are treated equally regardless of gender but will somehow give women ‘special rights.'”
What are the chances of ratification happening now?
Concern about women’s rights since the election of President Trump and the rise of the #MeToo movement has re-energized efforts to ratify the amendment. With record numbers of women elected to state legislatures — which are the ones that must ratify constitutional amendments — there is a chance at passage, Baldez said.
The state legislature in Louisiana is considering ratifying the ERA, while in Virginia a bid earlier this year failed.
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