WHAT? WOMEN IN THE U.S. DO NOT HAVE EQUAL RIGHTS UNDER THE CONSTITUTION?
A major stumbling-block to getting an Equal Rights Amendment (ERA) to the U.S. Constitution is that most people think we already have one! The ERA was first proposed in 1923 and was finally passed by the Congress in 1972, but it remains one state short of ratification by the States. We don’t have the equal protection of women at the core of our Constitutional law.
WHY DO WE NEED AN ERA?
The ERA is intended to protect all people from gender discrimination. While we have some laws that protect against this, they are hard to enforce and can be overturned by Congress. A Constitutional Amendment places that equality at the foundation of our law, giving it the strictest respect in the courts, bringing an 18th century Constitution into the 21st century. It is long overdue.
DON'T THE CONSTITUTIONAL AMENDMENTS COVER WOMEN'S RIGHTS?
That depends on how loosely the Constituion is 'interpreted' by the courts. This Supreme Court, with 5 justices as current or former members of the Federalist Society, looks to 'originalism' or, the 'intent' of the authors of the Constitution for meaning. We know from history, that the Constitution was written by and intended for white men of property. Slaves and women were not included in its protections.
The 14th Amendment (1868) addressed the freedoms of former male African American slaves, i.e., race discrimination. Attempts to use its Equal Protection clause for gender discrimination have been generally unsuccessful.
The 19th Amendment in 1920, granting women the right to vote, was the first and only mention of women's rights in the U.S. Constitution.
WHAT IS THE EQUAL RIGHTS AMENDMENT?
“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Equal Rights Amendment, 1972
First written by suffragist leader Alice Paul in 1923, the amendment was introduced in Congress that year and then introduced to every session of Congress for nearly 50 years.
Finally passed by the House of Representatives and Senate in 1972, states had until 1979 to ratify it, but only 35 of the required 38 did so in the time required. The deadline was then extended until 1982, but no more states ratified in that time. In 2017, after a pause of 35 years, Nevada ratified the ERA, bringing the total to 36 ratified states. Illinois followed in 2018 and in January 2020, Virginia became the 38th and final state to ratify! And now the challenges begin. Opposition to the amendment has already filed objections to the 'out of time limit' ratifications. There are opposing legal opinions on the issue which has never before faced Supreme Court scrutiny. States that attempted to rescind their ratifications in the 1980's are expected to lodge further objections. (There is no precedent for ratification rescission in the Constitution or in the law.) The obstacles are substantial and yet the will of voters is becoming clearer with efforts by the ratified states, like Maine, to see this amendment finally put into effect.
DON'T THE EQUAL PAY ACT, THE VIOLENCE AGAINST WOMEN ACT, AND TITLE IX PROTECT AGAINST GENDER DISCRIMINATION?
There have been many laws and cases that have advanced the cause of gender equality. And they do offer some protections. But legislation and case law can be overturned.
Pay inequity and gender discrimination in the workplace: The 14th Amendment (1868) appears to prohibit discrimination based on gender, but the courts have ruled that it only applies to Federal and State, not private, employers and that employees must prove prior intent of discrimination. This example shows how the courts 'interpretation' has made the XIV Amendment unsuccessful in defending systemic gender discrimination. The Equal Pay Act (1963) made progress but various courts have found loopholes and legal interpretations that have made pay inequity cases very difficult to win in court, despite overwhelming evidence. The ongoing wage gap between men and women for equal work remains significant.
Violence against women: The Violence Against Women Act of 1994 includes many important provisions to prosecute rape and domestic violence and to educate law enforcement to deal with gender-based violence. Yet it is subject to the politics of congressional re-authorization (2013) and has not been found to be effective enough in court. Twenty-six states still have lesser penalties for rape within marriage.
Discrimination in Education: Title IX of the 1972 Education Amendments made great strides in giving to women the opportunity to education (including sports) that existed for men, but there are shortfalls. The Acts only apply to federally funded schools. And, as with all legislation, these laws are subject to change by Congress.
WHAT NEEDS TO HAPPEN FOR THE ERA TO BECOME AN AMENDMENT TO THE U.S. CONSTITUTION?
The time limit imposed by the 1972 Congress must (and can) be removed by this Congress. The bills currently in the House and Senate propose just that - lifting the time limit imposed by the 1972 Congress. The rationale and viability for lifting the time limit and reviving this amendment include the contemporaneous nature of the sex discrimination issue and a rising sentiment among Americans (women in particular) to establish a constitutional principle that clearly affirms legal equality between the sexes.
Another obstacle to full ratification is the attempted reversal of ratification in the 1970's by five states - Idaho, Kentucky, Nebraska, South Dakota and Tennessee. Although there is no legal precedent for rescission of amendment ratification, and no provision made for it in the Constitution, court battles are likely to follow any attempt to complete ratification. Read more. There is a parallel effort toward an entirely new Equal Rights Amendment, one that starts the entire process again. See HJRes 35 in the Update below.
WHERE ARE WE NOW? A FEDERAL AND A STATE ERA!
Bills to reactivate the federal ERA have been introduced to the U.S. Congress for decades. They had not yet been voted out of committee to reach the floor of the House or Senate - until now. This year looks as though it could be different! An important shift is taking place. Putting women’s civil rights into the Constitution and prohibiting sex discrimination in an effective way is closer to a reality. This may be our best opportunity for legal equality between the sexes in the history of the country.
Equal Rights Maine is following closely as the 116th U.S. Congress prepares to decide whether equal rights for women is worth lifting the time limit imposed on the ERA in 1972.
Closer to home, we live in a state that ratified the federal ERA in 1974 yet does not prohibit sex discrimination its own state constitution. Only about half the States prohibit sex discrimination in their state constitutions. Maine is not one of them. LD 433 is a bill to add a simple statement of legal equality between the sexes to the Maine Constitution. It passed the Maine Senate by a 2/3rds majority in 2019. The Maine House vote is pending this winter and will require at least 9 Republican Representatives to change their previous votes NOT supporting equal rights for women and vote in favor of sending the amendment to the voters in a referendum, as is required of all constitutional amendments. See What's Happening Now.
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Why has this taken so long? The Republican Party included the ERA in its party platform starting in 1940 and ending with Reagan in 1980. The Democratic Party has included the ERA in its platform from 1946 until now. Why has it been so difficult to make this amendment to the Constitution? Although there have been objections raised in the past about how an ERA might force women into combat in the military, might result in unisex bathrooms and gay marriage, and might jeopardize women’s roles in the house, times have changed. A powerful force in opposition has been from insurance providers and some corporations that would stand to lose profits if women no longer paid higher insurance rates and were paid equal wages to male employees, for the same work. The laws passed in place of the amendment have made great strides but are no substitute for what is missing in the Constitution. An Equal Rights Amendment that declares the principle of equality between men and women would go well beyond our existing, changeable laws, to reflect in our legal structure what most Americans consider to be a basic human right- equality under the law for both women and men.