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The idea that discrimination based on sex should be outlawed seems obvious, and yet when the Equal Rights Amendment (ERA), intended to achieve this very purpose, was introduced, it unleashed a century-long debate over the roles of women in society as well as the rights and protections they deserved. But the ideas behind the Equal Rights Amendment had existed long before then, dating “back to the beginning of the republic when women were intentionally left out of the Constitution” (Neuwirth). According to Jessica Neuwirth, president of the ERA coalition, Abigail Adams once wrote to her husband, “Do not put such unlimited power into the hands of the husbands. Remember, all men would be tyrants if they could … [we] will not hold ourselves bound by any laws in which we have no voice or representation.” Even when the republic was still in its infancy, women fought to be given their proper rights. However, only years later was real progress made when, in a similar spirit, Alice Paul led the National Woman’s Party away from traditional approaches to women’s rights “in order to launch massive lobbying efforts in favor of equal rights for women at the national and state levels”. Alice Paul and her fellow activists argued that no difference between men and women justified unequal pay or restrictions on women’s labor and political rights. While women could fight for legal changes on an issue-by-issue basis, a blanket constitutional amendment was preferable, and thus the movement for the Equal Rights Amendment was born (Faue). However, efforts in Congress stalled until 1960, when the introduction of a contraception drug known as “The Pill” ushered in the second wave of feminism. Lack of action from the federal government in the wake of the passage of Title VII of the Civil Rights Act, at first a surprise victory for the women’s rights movement, convinced even more activists of the need for greater change. Many women, like Rep. (D) Shirley Chisholm of New York’s Twelfth District, voiced concerns that “federal agencies and institutions responsible for the enforcement of equal opportunity laws […] [have] not proven to be an adequate device, with [their] powers limited […]” (Chisholm). Pressure from activists eventually pushed Congress to act, and on March 22, 1972, “The Senate passed the Equal Rights Amendment […] which would prohibit discrimination based on sex […] Confidence that ratification would be achieved swiftly was expressed by a number of supporters of the amendment […]” (Shanahan). Numerous civic organizations, like the ACLU and the American Bar Association, allied with the activists, and both political parties threw their support behind the ERA in the 1960s and 1970s (Schechter 115). Still, despite backing from the American public, Congress, and state legislators, the ERA failed to gain enough momentum for ratification as some female activists began worrying about the removal of legal protections for women based on their differences from men (Faue). Ultimately, the passage of the Equal Rights Amendment by Congress was still a milestone for women’s rights, but organized efforts by grassroots conservative groups, confusion over its meaning and greater societal implications, and controversies over its deadline have so far prevented the ratification of the ERA.
As the tumultuous movements of the 60s gave way to a growing conservative movement, Eagle Forum founder Phyllis Schlafly sensed an opportunity to strike back. Organizing thousands of conservative women against the ERA, Schlafly denounced the amendment to take away women’s protections and labeled feminist activists as elitist radicals. The “STOP ERA” campaign (“Stop Taking Our Protections, Equal Rights Amendment”), led by Phyllis Schlafly, argued that the government would be given too much control over women’s lives. Schlafly and others worried that benefits that were given to women, such as during marriage or not having to participate in a military draft would be destroyed by the ERA (Vile). As a New York Times article stated at the time, “[t]here is also general agreement that the amendment would require women to be drafted if men were” (Shanahan). For many women and men, the Equal Rights Amendment seemed to pose a threat to traditional gender roles in society. As the deadline approached, only 35 states had approved the ERA, with some voting to rescind. Still, the divide was not evenly split amongst genders. Seventy-five percent of the women legislators in the three pivotal states required for ratification supported the ERA, but only 46 percent of the men voted to ratify (Thomsen 66). Men had once again decided the fate of women. The defeat of the ERA marked the end of the second feminist movement, and by the time of Reagan’s election, the Moral Majority had all but eroded any remaining support for the ERA and organizations like the National Organization for Women (NOW), the NWPC, the Women’s Equity Action League, and the National Abortion Rights Action League (Bodenner).
But conservatives weren’t the only obstacle to the ERA’s ratification. There was also confusion over the meaning and implications of the Equal Rights Amendment that would lead many men and women to oppose its passage over time. The ERA sparked a debate among feminists on the best method to ensure women’s equality. Some believed that women’s role as mothers prompted legal protections whose importance outweighed that of formal equality. Activists fighting for wage and hour protections for female workers, including labor unions such as the International Ladies’ Garment Workers Union and organizations such as the League of Women Voters, viewed any successful effort to pass an equal rights amendment as jeopardizing these laws. When the Supreme Court declared a D.C. minimum wage law for women unconstitutional in Adkins v. Children’s Hospital (1923), the activists’ worst fears were confirmed (Faue; Vile). However, not all their objections were left unchallenged. Champions of the ERA demurred, stating that although “[o]pponents of the amendment claim its ratification would throw the law into a state of confusion and would result in much litigation to establish its meaning[,] [t]his objection overlooks the influence of legislative history in determining intent and the recent activities of many groups preparing for legislative changes […]” (Chisholm). Nevertheless, ambiguity about exactly what implications the amendment would have lingered. Some dissenters believed the ERA might invalidate statutory rape laws, while others claimed it would require gender-neutral bathrooms or legalize same-sex marriages. As doubts began to be raised by opponents, the ERA faced stiff resistance in ratification, as opposition in just 13 or more states would kill the amendment (Vile). Concomitantly, the Supreme Court began utilizing the equal protection clause to expand women’s rights. In Reed v. Reed (1971) and Frontiero v. Richardson (1973), the court decided in favor of gender equality, declaring in multiple instances that explicit legal differences with regards to the treatment of different genders was unconstitutional. Soon after, the Court declared in Roe v. Wade (1973) that the right of privacy protected women’s freedom to choose whether to have an abortion. Fears that the ERA might require state funding for abortions began bubbling up. Roe v. Wade and other decisions raised fears that further expansions of the Fourteenth Amendment in unanticipated ways might alter societal roles and relations (Vile).
As the deadline for ratification of the ERA neared and subsequently passed by, the controversy surrounding the validity of ratification grew bigger. As many as four states later rescinded their ratification, and in the case of South Dakota, a “sunset” clause revoking ratification after the March 22, 1979 deadline was passed. Legal questions remained over whether states could feasibly retract ratification and the role of state governors and the power of veto with regards to this issue. Lower courts attempted to address such issues; in Idaho v. Freeman (1981), the District Court of Idaho decided that “Idaho had a right to rescind ratification of the ERA, that Congress had no power to extend the ERA deadline, and that, in any case, such a vote would have required a two-thirds majority”. While the case was later appealed to the Supreme Court, the court ultimately chose not to answer these questions, ruling them moot after the 1982 extension passed by Congress failed to garner the required approval of three-quarters of all the states (Vile). In 1997, three professors argued that the ERA remained legally viable because, in 1992, the 27th Amendment was ratified, a full 203 years after it was first passed by Congress (“New”). They argued that “[t]herefore, the Court in Coleman held that Congress, upon receiving notification that three-quarters of the states have ratified an amendment, determines whether the amendment has been ratified in a reasonable period of time” (Held, et al.). The ERA would take effect as soon as three-quarters of the states ratified it, regardless of the deadline associated, because Congress held ultimate arbitrating authority over the timeliness of ratification. Hoping to make a statement, proponents of the ERA continually introduced legislation in every session of Congress, and NOW began allocating resources to push for re-ratification if a new ERA was required. Still, the controversy surrounding the ERA’s deadline means that even if there was enough support, the ERA’s status would still be in limbo.
Although 30 states ratified within a year of its passage, the ERA quickly met strong opposition. Citing the success of Title VII of the Civil Rights Act of 1964 and the Title IX anti-discrimination education act, some observers argued that many of the issues it was intended to solve had already been addressed by other legislation. Despite all that, those backing the ERA argued for the necessity of a constitutional amendment: “Of course laws will not eliminate prejudice from the hearts of human beings. But that is no reason to allow prejudice to continue to be enshrined in our laws—to perpetuate injustice through inaction” (Chisholm). But even though backers of the amendment argued that it was needed to provide a constitutional basis for women’s rights, opponents claimed it was redundant with the Fourteenth Amendment and would lead to the end of existing protections for women (“Equal”). But as Neuwirth points out that, among other things, the ERA would enhance the scope of legal recourse for violence and discrimination against women; the Supreme Court had struck down the Violence Against Women Act, which allowed women to bring cases of gender-based violence in federal courts because there was no basis for such legislation in the Constitution. There are simply some objectives that the ERA would achieve that could not be achieved through any other means. The case for the ERA still stands; there is no basis in the argument that its effects would be and have already been covered by existing legislation. And yet, the ERA failed to reach the 38 states required, due to undoubtedly flawed suspicions from conservative legislatures.
There are still ongoing efforts to ratify the ERA, focusing especially on passing the amendment through the state government of Virginia to reach the final state required for ratification. In fact, there is also broad support for the ERA. According to polls conducted by the Los Angeles Times, “94% of Americans support constitutional equality for women, including […] 99% of 18- to 24-year-olds […] most Americans […] think [women] already have equal rights” (Neuwirth). In the end, despite the actions of conservative leaders and confusion over its consequences and validity, the ERA has had a lasting impact on American society, inspiring numerous other reforms and spurring more feminists to action. Although the feminist movement died down in the 1980s, women continued to make progress in society. By 1993, over 1,500 women were serving in Congress or state legislatures, a huge increase from around 250 just three decades prior (Bodenner). Numerous advances have been made since the era of Roe v. Wade, but ratification would still provide a symbolic victory for all women. As Chisholm best said, “The argument that this amendment will not solve the problem of sex discrimination is not relevant […] When men and women are prevented from recognizing one another’s essential humanity by sexual prejudices […] society as a whole remains less than it could otherwise become”.
- “Adkins v. Children’s Hospital of D. C.” Oyez, www.oyez.org/cases/1900-1940/261us525. Accessed 27 May 2019.
- Bodenner, Chris. “Feminist Movement: Should the Equal Rights Amendment Be Added to the Constitution?” Issues & Controversies in American History, Infobase, 9 Apr. 2007, http://icah.infobaselearning.com/background.aspx?ID=107560. Accessed 29 May 2019.
- Chisholm, Shirley. For the Equal Rights Amendment. N.p, 10 Aug. 1970. SMPS, Accessed 27 May 2019.
- “Equal Rights Amendment.” American History Online. Lincoln Library Press, 2012. FactCite, www.factcite.com/useh/7021090.html.
- Faue, Elizabeth. “Equal Rights Amendment (ERA).” The Emergence of Modern America, Third Edition, Facts On File, 2017. American History, online.infobase.com/Auth/Index?aid=16644&itemid=WE52&articleId=200016. Accessed 30 May 2019.
- “Frontiero v. Richardson.” Oyez, www.oyez.org/cases/1972/71-1694. Accessed 28 May 2019.
- Held, Allison L., et al. “The Equal Rights Amendment: Why the Era Remains Legally Viable and Properly Before the States.” William & Mary Law School Scholarship Repository, 1997, scholarship.law.wm.edu/wmjowl/vol3/iss1/5/.
- “New Drive Afoot to Pass Equal Rights Amendment”. www.washingtonpost.com. Accessed 30 May 2019.
- Neuwirth, Jessica. “Unbelievably, Women Still Don’t Have Equal Rights in the Constitution.” Los Angeles Times, Los Angeles Times, 5 Jan. 2018, www.latimes.com/opinion/op-ed/la-oe-neuwirth-equal-rights-amendment-for-women-metoo-20180105-story.html.
- “Reed v. Reed.” Oyez, www.oyez.org/cases/1971/70-4. Accessed 25 May 2019.
- “Roe v. Wade.” Oyez, www.oyez.org/cases/1971/70-18. Accessed 31 May 2019.
- Schechter, Stephen L. American Governance. Macmillan Reference USA, 2016.
- Shanahan, Eileen. Special to The New York Times. “Equal Rights Amendment is Approved by Congress: Equal Rights Amendment is Approved.” New York Times (1923-Current file), Mar 23, 1972, pp. 1. ProQuest, https://search.proquest.com/docview/119579661?accountid=6361.
- Thomsen, Natasha. Women’s Rights. Facts On File, 2012.
- United States, United States District Court, D. Idaho. State v. Freeman. Federal Reporter, vol. 529, 23 Dec. 1981, p. 1107.
- Vile, John R. “Equal Rights Amendment.” American History, ABC-CLIO, 2019, americanhistory.abc-clio.com/Search/Display/262162. Accessed 28 May 2019.
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