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The Story of the Equal Rights Amendment

English Common Law - from Medieval times into Colonial years

 

It was customary that women and children were considered under the protection of male relatives, with few legal rights.

U.S. Constitution 1787

Written by and for a minority of white men of property, excluding women, slaves, native Americans and the poor.

1848 - Seneca Falls Women’s Rights Convention

For the first time, American women assembled publicly to demand their full rights of citizenship.

Frederick Douglass                 Susan B. Anthony,

Abolitionist                                Women's rights activist

 

 

Reconstruction Amendments 1865 - 1870, 

the 13th, 14th and 15th Amendments.

Slaves were freed. ‘Equal protection’ is introduced  but not stated for women. Voting rights are given to formerly enslaved men.  Frederick Douglass and Susan B. Anthony were friends and they had fought together for the rights of American slaves and women. The post-Civil War states reluctantly granted rights to slaves, but not to women.

Fight for Womens’ Suffrage continues

With the exclusion of women from the 14th Amendment, the suffrage movement fought for decades, in every state of the union. Women's suffrage was repeatedly defeated in the individual state legislatures and in the U.S. Congress.  The protests became more assertive, more visible and in some cases, more dangerous.

And continues...

1915 -19 Suffragists picket the White House

1920 – the 19th Amendment is ratified

 

The Amendment is the firts mention of women in the Constitution and granting suffrage but no other rights.

 

Alice Paul, author of the ERA

1923 – the Equal Rights Amendment 

is written by Alice Paul, a young suffragist and equal rights activists.

1923 – 1972 Fight for legal equality.

 

The ERA is proposed in every session of Congress, gaining support first from Republicans and then from Democrats as American women demanded equal treatment under the law.

1972 – ERA passes Congress

 

The U.S. Congress passes the ERA by a 2/3 majority and sends it to the States for ratification.  A time limit was placed on the Amendment’s ratification, for the first time in history.

1972 - 1982 Thirty-five states ratify, three states short of the required 38.  As U.S. politics shift to the right, five of those state legislatures attempt to rescind their ratifications.

1982 – 2017 ERA waits

Despite the expired time limit, legislation was proposed in every session of Congress to renew it. Five state legislatures with flipped majority leadership (NE, TN, ID, KY, SD) attempted to ‘rescind’ their previous ratification – a move with no legal precedent.

2017 Women's March on D.C.

Following the 2016 elections, a surge of activism brought women's demands for equality into clear focus. Three state legislatures, with record numbers of women members, take action.

2017  Nevada ratifies

In a stunning move, Nevada's state legislature ratified the ERA, giving hope to the movement to finally complete ratification and enactment of the amendment.

2018 Illinois ratifies

In bi-partisan negotiation, the amendment is ratified in the Illinois legislature.

2020 Virginia ratifies becaming the 38th and last required state for full ratification.

and now,

March 17, 2021 

 

The U.S. House passed the bill lifting the 1972 time limit.  The Senate is likely to vote on the measure in this 117th Congress, as it is no longer blocked by the opposing party. Support in the general population for equal legal rights for women continues to prevail. With more women in elected positions than ever before, the ERA has a fighting chance.

What We Should Know

 

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Preamble to the Declaration of Independence (1776)

 

These were the founding principles, but not the legal basis, upon which our country was founded.

Our U.S. Constitution (1787) and the Bill of Rights (1795) became the legal basis for our government and laws. At that time, women had few rights under the law. Women could not vote, could not own land, could not represent themselves in court, could not inherit. Those founding documents did not include women (or enslaved people or Native Americans) in the rights and citizenship of the new country. Nor did the framers intend to include them.

The 14th Amendment (1868) and its Equal Protection clause, 

 

“nor shall any State deprive any person of life, liberty, or property, without due process of law: nor deny to any person within its jurisdiction the equal protection of the laws” 

 

This important clause was intended to protect the rights of newly freed African American slaves. It was the first mention of ‘rights’ in the Constitution. It would take 100 more years for the United States to force the southern States to allow the descendants of enslaved people to vote (Civil Rights Act 1963). 

 

The 14th Amendment has not been a reliable  means of protecting women from discrimination. That was not its intent, in the context of 1868.

It would take another 52 years for women to vote (1920). 

Maine gained its statehood from Massachusetts in 1820, with a state constitution of its own. That constitution has been amended many times, to keep up with the changing times and requirements. However, in one respect it has not changed, although the pronoun 'he' was changed to 'person' or 'they' in the late 20th c. The prohibition against treating a person unfairly because of her sex was not made clear. A state ERA would change that.

Half the states now have state ERA language in their constitutions. More are underway, along with Maine, where a bill to propose a state ERA will be before the legislators again in this 2021 session.

Alice Paul was one of the young suffragists who went to England to see how those suffragists operated - and returned to the U.S. with new ideas of activism. Picketing the White House, hunger strikes and pointed attacks on President Wilson were strategies that helped result in the 19th Amendment. 

 

Alice Paul attended Law School (though until 1922 she couldn't have legally practiced law) and wrote the 24 word amendment that puts women's equal legal rights into the Constitution. 

“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 1923 - 2021

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.   

The states that did not ratify the ERA between 1972 and 1982 were Alabama, Arizona, Arkansas, Florida, Georgia, Illinois*, Louisiana, Mississippi, Missouri, Nevada*, North Carolina, Oklahoma, South Carolina, Utah, and Virginia*.  *now ratified

While the ERA is being debated, laws are passed that try to patch together what is missing in the Constitution:

  • Civil Rights Act,  Title VII, Title IX, X

  • Equal Pay Act

  • Lily Ledbetter Act

  • Violence Against Women Act

  • Affordable Care Act (with its protections against gender discrimination).

The Equal Rights Amendment (passed in 1972)

"Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

 

After the ERA was passed by the U.S. Congress it was sent to the states for ratification. By 1982, it had been ratified by only 35 of the necessary 38 state legislatures. Popular opinion swung to the right with Reagan's election and the ERA stalled - unratified within the time limit.. 

It is the Maine Human Rights Commission that carries out the work of handling human rights cases in Maine, according to the Civil Rights Act of 1963. The MHRC has a mandate from the legislature to include some areas of sex discrimination - but not all. Violence against Women claims, including sexual assault and domestic violence are not included, nor the increasing issues of female incarceration, women's pension and insurance issues. A state ERA would broaden the mandate for the MHRC to more fully do its job.

Although Maine's legislature ratified the federal ERA in 1974, it has not yet amended its own state constitution with a state ERA as more than half the states have now done.  

...and in Augusta, Maine

Opposition to the amendment has already filed objections to the 'out of time limit' ratifications. There are opposing legal opinions on the issue which have 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.

2020 Virginia ratification poster