Human progress is neither automatic nor inevitable. Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals.
~ Martin Luther King, Jr.
WHAT? WOMEN IN THE U.S. DO NOT HAVE EQUAL RIGHTS UNDER THE CONSTITUTION?
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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.
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WHY DO WE NEED AN ERA?
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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?
The 14th Amendment (1868) addressed the freedoms of former African slaves, i.e., race discrimination. Attempts to use its Equal Protection clause for gender discrimination have been generally unsuccessful.
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The 15th Amendment (1870) granted former African slaves the right to vote by declaring that the "right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."
Women were not granted the right to vote for another 50 years, with the 19th Amendment (1920).
WHAT IS THE EQUAL RIGHTS AMENDMENT?
“Equality of rights under the law shall not be abridged by the United States or by any state on account of sex.” Equal Rights Amendment, 1943 - 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 it. Since 1982, the ERA has been reintroduced in every session of Congress but has never passed. In March 2017, after a pause of 35 years, Nevada ratified the ERA, bringing the total to 36 states. Then, in May 2018, Illinois ratified, leaving just one state remaining to reach the necessary 38 states. Efforts to extend the deadline or challenge its legitimacy in court are anticipated.
Alice Paul
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.
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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 CONSTITUTION?
The bill will need to pass by a 2/3rd majority in the House of Representatives and the Senate. Once it passes, at least 38 states have to ratify it, then it will be made part of the Constitution.
HAS THE ERA BEEN INTRODUCED RECENTLY?
Bills were introduced during the 114th Congress (2015-2016) in both the House and the Senate. Similar bills are being proposed in the current 115th Congress. Two approaches are being considered. First, a 'Three (now One)-State Strategy': Rep. Jackie Speier and Sen. Benjamin Cardin are introducing bills in the House and Senate, respectively, to extend the time limit placed in 1972 and then proceed with getting ratification by just one final state. Second, a Start-Over approach: Rep Carolyn Maloney and Sen. Robert Menendez are proposing bills in the House and Senate, respectively, to begin the full amendment process for a new ERA.
We will be reporting on further developments on this website. Stay tuned.
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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.
“I think we have achieved [equal rights] through legislation, but legislation can be repealed, it can be altered.
So I would like my granddaughters, when they pick up the Constitution, to see that notion – that women and men are persons of equal stature – I’d like them to see that is a basic principle of our society.”
~RUTH BADER GINSBURG
*Sources: American Association of University, Womeninfoplease.com, Harvard Business Review
Photo courtesy Sherry Streeter