Equal Rights Amendment

The Equal Rights Amendment (ERA) was a proposed amendment to the United States Constitution that was intended to guarantee equal rights under the law for Americans regardless of sex. Public discussion of the ERA has been greatly reduced since the deadline for its approval passed in 1982, though supporters still actively pursue its adoption.

Text of the ERA

The text of the Equal Rights Amendment, as proposed to the state legislatures in 1972 by the 92nd Congress, with a seven-year deadline for ratification, and as published in Volume 86, United States Statutes At Large (pages 1523–1524), reads as follows:

History in Congress

Although the 1920 ratification of the 19th Amendment had guaranteed American women's right to vote, Alice Paul, a suffragist leader, argued that this right alone would not end remaining vestiges of legal discrimination based upon sex. In 1923, Paul drafted the Equal Rights Amendment and presented it as the "Lucretia Mott Amendment" at the celebration of the 75th anniversary of the 1848 Seneca Falls Declaration of Sentiments.

The National Women's Party took the ERA to Congress in the 1920s, where Senator Charles Curtis and Representative Daniel R. Anthony, Jr.—both Republicans and both from Kansas—introduced it for the first time as Senate Joint Resolution No. 21 on December 10, 1923, and as House Joint Resolution No. 75 on December 13, 1923, respectively. Though the ERA was introduced in every session of Congress between 1923 and 1970, it almost never reached the floor of either the Senate or the House of Representatives for a vote—instead, it was usually "bottled up" in committee. Exceptions occurred in 1946, when it was defeated in the Senate by a vote of 38 to 35, and in 1950, when it was passed by the Senate in a modified form unacceptable to its supporters. The ERA was strongly opposed by the American Federation of Labor and other labor unions as well as by Eleanor Roosevelt and most New Dealers, who contended that women needed government help and should not be forced into the workplace to compete with men.

Representative Martha W. Griffiths of Michigan, however, achieved success on Capitol Hill with her House Joint Resolution No. 208, which was adopted by the House of Representatives on October 12, 1971, with a vote of 354 yeas, 24 nays and 51 not voting (117 Congressional Record 35815). Griffiths' joint resolution was then adopted by the Senate on March 22, 1972, with a vote of 84 yeas, 8 nays and 7 not voting (118 Congressional Record 9598). And with that, the ERA was finally presented by the 92nd Congress to the state legislatures for ratification, as Article V of the Constitution prescribes, with a seven-year deadline for ratification by the required three-quarters of the legislatures (38 legislatures).

The national debate on the ERA has largely subsided, in part because of expanded interpretations of existing statutes and constitutional provisions which have afforded more equal legal treatment of men and women. In Congress, supporters of the ERA have re-introduced the amendment in Congress [1] every term since 1982 without success.

On March 27, 2007, new resolutions were introduced in the House of Representatives and Senate containing the traditional ERA language, but this time with no deadline attached, and this time referring to it as the Women's Equality Amendment. ^{[1] [2]}

Mixed reception in state legislatures

The initial pace of state legislative ratifications was rapid during 1972 and 1973, but then slowed considerably with only three ratifications during 1974, just one in 1975, none at all in 1976, and only one in 1977. The 92nd Congress, in proposing the ERA, had set a seven-year time limit for the Amendment's ratification, and by the end of that deadline on March 22, 1979, a total of 35 of the required 38 states had ratified it. However, five of these 35 states withdrew their ratifications before the deadline arrived. In 1981, the only court to consider the issue ruled that these rescissions were valid. (Idaho v. Freeman, 1981, 459 U.S. 809) Thus, in the view of many (but not all) legal scholars, the 1972 ERA died in 1978, with only 30 of the necessary 38 state ratifications.

However, in 1978, Congress passed a controversial bill, by majority votes (not two-thirds votes), that purported to extend the ratification deadline for 39 months. During this disputed "extension," no new states ratified or rescinded. The only federal court to even consider the issue ruled that this ex post facto extension was unconstitutional. (Idaho v. Freeman, 1981, 459 U.S. 809)

The National Organization for Women attempted to appeal the U.S. district court holdings (in Idaho v. Freeman) that the rescissions were valid and the time extension was unconstitutional, but in 1982 the U.S. Supreme Court declared the entire matter moot, on grounds that the 1972 ERA was dead with or without the rescissions and with or without the purported deadline extension.

As previously noted, five of the 35 states which ratified the ERA rescinded their ratifications before the original 1979 deadline. (Technically, in South Dakota, one of the five, the legislature passed a measure that said its assent would last only until March 22 1979.)

Here are details on the five rescissions:

• • (1) Idaho which ratified the ERA on March 24, 1972, by approving Senate Joint Resolution No. 133, and which then adopted House Concurrent Resolution No. 10 on February 8, 1977, to rescind that ratification.
  • (2) Kentucky which ratified the ERA on June 26, 1972, by approving House (Joint) Resolution No. 2, and which then adopted House (Joint) Resolution No. 20 on March 17, 1978, to rescind that ratification; there is some speculation about Kentucky's rescission in that the rescinding resolution was vetoed by the Lieutenant Governor who was acting as Governor in the Governor's absence. However, the U.S. Constitution provides no role for a governor (nor for the President of the United States) in the constitutional amendment process.
  • (3) Nebraska which ratified the ERA on March 29, 1972, by approving the erroneously-worded Legislative Resolution No. 83 and then approving the correctly-worded Legislative Resolution No. 86; Nebraska lawmakers then adopted Legislative Resolution No. 9 on March 15, 1973, to rescind only the aforementioned Legislative Resolution No. 83—this could mean that Nebraska remains officially in the "ratified" column.
  • (4) Tennessee which ratified the ERA on April 4, 1972, by approving House Joint Resolution No. 371, and which then adopted Senate Joint Resolution No. 29 on April 23, 1974, to rescind that ratification.
  • (5) South Dakota, where lawmakers ratified the ERA on February 5, 1973, by approving Senate Joint Resolution No. 1; then South Dakota legislators adopted Senate Joint Resolution No. 2 on March 1, 1979, stipulating that the ERA's opportunity for ratification—by any state of the Union—would expire on March 22 1979; furthermore, Senate Joint Resolution No. 2 made clear that South Dakota's own ratification of the ERA would only be valid up until March 22, 1979, and that any activities transpiring after that date would be considered by South Dakota to be null and void.

Some law professors believe that a state legislature cannot rescind its prior ratification of a proposed Federal constitutional amendment. However, the U.S. District Court for Idaho held, in Idaho v. Freeman, that the rescissions -- all of which occurred before the original 1978 ratification deadline -- were valid. And, according to research by Prof. Jules B. Gerard, professor of law at Washington University, of the 35 legislatures that passed ratification resolutions, 24 explicitly referred to the 1978 deadline. (Letter to House Judiciary Committee, June 14, 1978)

At various times, in eight of the 15 non-ratifying states, at least one chamber of the legislature approved the ERA, those eight states being:

• • (1) Florida whose House of Representatives voted to ratify the ERA on March 24, 1972, with a tally of 91 to 4; a second time on April 10, 1975, with a tally of 62 to 58; a third time on May 17, 1979, with a tally of 66 to 53; and a fourth time on June 21, 1982, with a tally of 60 to 58.
  • (2) Illinois whose Senate voted to ratify the ERA in May of 1972, with a tally of 30 to 21; and whose House of Representatives voted to ratify the ERA on May 1, 1975, with a tally of 113 to 62; and again on May 21, 2003, with a tally of 76 to 41. At various times, votes were conducted in both chambers of the Illinois General Assembly on the question of ratifying the ERA and while most members voted in favor of ratification, the result would often be less than the three-fifths supermajority vote—a requirement that existed in Illinois when those votes were cast.
  • (3) Louisiana whose Senate voted to ratify the ERA on June 7, 1972, with a tally of 25 to 13.
  • (4) Missouri whose House of Representatives voted to ratify the ERA on February 7, 1975, with a tally of 82 to 75.
  • (5) Nevada whose Assembly voted to ratify the ERA on February 17, 1975, with a tally of 27 to 13; and whose Senate voted to ratify the ERA on February 8, 1977, with a tally of 11 to 10.
  • (6) North Carolina whose House of Representatives voted to ratify the ERA on February 9, 1977, with a tally of 61 to 55.
  • (7) Oklahoma whose Senate voted to ratify the ERA on March 23, 1972, by a voice vote.
  • (8) South Carolina whose House of Representatives voted to ratify the ERA on March 22, 1972, with a tally of 83 to zero.

Extension of ratification deadline

In 1978—as the 1979 deadline approached—the 95th Congress adopted House Joint Resolution No. 638, by Representative Elizabeth Holtzman of New York, which purported to extend the ERA's ratification deadline to June 30, 1982 (Volume 92, United States Statutes At Large, page 3799). It should be noted that House Joint Resolution No. 638 received fewer than a two-thirds vote in both the U.S. House of Representatives and the U.S. Senate. For that reason, it was deemed necessary by ERA supporters that House Joint Resolution No. 638 be transmitted to then-President Jimmy Carter for signature as a safety precaution. Carter did sign the joint resolution, although questioning—on procedural grounds—the propriety of his doing so.

On December 23, 1981, a United States District Court ruled, in the case of State of Idaho, et al. v. Freeman, et al. (529 F. Supp. 1107; judgment stayed January 25, 1982), that the ERA's deadline extension was unconstitutional and, further, that a state legislature may indeed rescind a prior ratification of a proposed amendment to the Federal Constitution. However, when the case was then appealed up to the United States Supreme Court, the Justices dismissed it as "moot" on October 4, 1982, (459 U.S. 809) on the grounds that the revised ratification deadline of June 30, 1982, had itself already passed. Because the nation's highest Court did not issue an opinion on the direct substance of whether the deadline extension was—or was not—valid, the question of the extension's validity remains officially unanswered by the Federal judiciary. The question of a state legislature's ability to rescind a prior ratification likewise remains unanswered.

No additional states ratified the ERA during that extra period of slightly more than three years. In fact, the only occurrence favorable to the ERA between the original deadline of March 22, 1979, and the revised June 30, 1982, expiration date was—as noted earlier—its approval by the Florida House of Representatives on June 21, 1982. Not long afterward, that ratifying resolution was defeated in the Florida Senate by a vote of 16 yeas and 22 nays.

Shift in political attitudes

The political tide changed direction in the late 1970s and throughout the 1980s. The Republican Party withdrew its earlier support for the ERA.^{[citation needed]} The most prominent ERA opposition leader was Phyllis Schlafly, a conservative Republican. According to its critics, the ERA would have granted more power to Congress and to the Federal courts, a stance unpopular at a time when public opposition to expanded Federal government authority—and Federal judicial activism in particular—was growing. Opponents, and even most supporters of the ERA, agree that if freshly re-proposed by Congress, the ERA would have to start from scratch and would need to gain state ratifications all over again—the state approvals achieved during the 1970s being non-transferable.

"Sex Bias in the U.S. Code"

The report, entitled Sex Bias in the U.S. Code, co-authored by Ruth Bader Ginsburg (and sixteen other individuals under the supervision of a government attorney), before Ginsburg became a federal judge, and published in 1977 by the United States Commission on Civil Rights, sought to show how the proposed ERA (for which Ginsburg was a strong advocate) would change Federal laws to make them gender-neutral and to "eliminate sex-discriminatory provisions."

Pro and con arguments

Opponents of the ERA argue that its passage would have far-reaching implications, obliterating traditional distinctions between the sexes. Women, ERA opponents claim, would be required to register for the Selective Service System (the draft) just as men currently do, and would have to serve in combat just as men must. Opponents go on to assert that the ERA would also remove laws that specially protect women, such as labor laws in heavy industry.

Especially since the early 1980s, the potential impact of the ERA on abortion-related laws has become a major factor in the ERA debate. On November 15, 1983, the majority (Democratic) leadership of the U.S. House of Representatives attempted to again pass the ERA (to begin the entire ratification process over again), under a procedure that did not allow consideration of any amendments. The ERA fell short of the required two-thirds vote (278-147) when 14 co-sponsors voted against it, many of them insisting on the need for an "abortion-neutral" amendment proposed by Congressman F. James Sensenbrenner, which read, "Nothing in this Article [the ERA] shall be construed to grant, secure, or deny any right relating to abortion or the funding thereof." Neither house of Congress has voted on any ERA since that day.

The ERA-abortion issue was further fueled by the use of ERAs in state constitutions in lawsuits attacking anti-abortion policies in some states. ERA-based efforts to invalidate restrictions on tax-funded abortions succeeded in Connecticut and, especially, in New Mexico. On November 25, 1998, the New Mexico Supreme Court ruled 5-0 that the state ERA -- very similar to the proposed federal ERA -- prohibited the state from restricting abortion differently from "medically necessary procedures" sought by men, and the court ordered the state to pay for abortions under the state's Medicaid program. ^[3] In its ruling, the court adopted the construction of the ERA urged in the case by the National Abortion and Reproductive Rights Action League, Planned Parenthood, the ACLU, the Center for Reproductive Law and Policy, and the NOW Legal Defense and Education Fund. The doctrine that the ERA language invalidates limitations on tax-funded abortion was also supported in briefs filed by the state Women's Bar Association, Public Health Association, and League of Women Voters. This ruling is now often cited by pro-life groups in debates over ERAs in Congress and various legislatures.^[4]

Other critics have argued that the courts could rule that the ERA would mandate the recognition of same-sex marriage. They point to various court decisions, including a Hawaii Supreme Court decision in 1993, a Baltimore, Maryland circuit court decision in January 2006, the Massachusetts ruling for same-sex marriage in 2003, and to a decision by a California trial court in March 2005, all of which used state bans on sex discrimination as partial justification for the rulings.

Critics also maintain that the ERA would require the integration of single-sex schools, sports teams or even restrooms—they point to a decision by a court in the State of Washington which ordered a fraternal civic organization to admit women, based upon the ERA within its state constitution. Finally, some opponents of the ERA contend that the amendment simply is not necessary, and that other provisions of the Constitution—and various rulings by the U.S. Supreme Court and lower federal courts—provide sufficient support for equal rights for both genders.

Supporters of the ERA characterize these implications as "scare tactics" designed to obscure the real advantages of a constitutional guarantee of equal rights for men and women. Supporters assert that the alleged consequences which opponents maintain would result from the ERA are either without merit, or concern separate issues which the ERA would not affect. For instance, ERA advocates argue that the assertion that the ERA would require women to register for the draft ignores the fact that, under Article I of the Constitution, Congress has always had the power to draft women. Opponents respond that the status quo, in which Congress may draft women—but has chosen not to—is different from a requirement upon Congress to do so.

"Three-state strategy"

Some ERA supporters argue that the earlier 35 ratifications are still valid, and that only three more ratifications are necessary, without Congress having to even resubmit the ERA anew to the nation's state lawmakers. According to this theory, three additional states could belatedly ratify the ERA, arguing that the history of the 27th Amendment—which was ratified more than 200 years after it was first proposed—supports the thinking behind this approach. The theory postulates that, under the 1939 ruling by the U.S. Supreme Court in the case of Coleman v. Miller, Congress would then—in such a scenario—be in a position to decide whether or not the ERA had been validly ratified under the Court's "political question" doctrine which reserves to Congress the power to pass judgment on the validity of a ratification.

The first state legislature to consider an ratification resolution based on the "three-state" theory was Virginia, in 1994. The resolution was not approved.^[5]

In 1996, the Library of Congress' Congressional Research Service issued a report that said, "There is no precedent for Congress promulating an amendment based on state ratifications adopted after a ratification deadline has expired. However, proponents of this course cite as possible precedent the ratification activity of the states regarding the 27th Amendment (the congressional pay, or the 'Madison Amendment') ... proponents of the ERA might wish to adopt a strategy of urging its ratification by state legislatures because their actions might prompt this or a future Congress to proclaim the amendment had been ratified." CRS stressed that it "takes no position on any of the issues."^[6]

In 1997, an article published in the William and Mary Journal of Women and the Law, entitled "Why the ERA Remains Legally Viable and Properly Before the States"^[7] presents a legal rationale for the "Three State Strategy." It argues, based on earlier precedents, that:

1. The 35 ratifications from state legislatures during the 1970s remain valid;
2. Rescissions of prior ratifications are not constitutional;
3. The 1978 extension of the ERA's deadline demonstrates that Congress can amend previously established deadlines; and
4. The 27th Amendment's abnormally long ratification period set a standard of "sufficiently contemporaneous"—a term used during the U.S. Supreme Court's 1921 ruling in Dillon v. Gloss, giving Congress the power to set time limits on constitutional amendments that Congress wishes to set such deadlines on.

The article further reasons that because the Constitution gives Congress the power to propose amendments to the Constitution—and indeed the power to alter aspects of the ratification process itself—that if and when three additional states ratify the ERA, Congress has the power to deem the Amendment properly ratified and duly added to the Constitution.

(However, it bears emphasizing that the 1789 resolution adopted by the First Congress, proposing what is known today as the 27th Amendment ("Madison Amendment"), dealing with congressional pay raises, did not contain any deadline for ratification. This is a critical difference between the 27th Amendment and the defunct 1972 ERA.)

Pursuant to the "three-state" theory, the Illinois House of Representatives on May 21, 2003, adopted a resolution ratifying the ERA—proposed in 1972. However, the Illinois Senate did not ratify the ERA and resolution died at the end of 2004.

On April 5, 2005, the Arkansas Senate voted 16 yeas, 15 nays and 4 "not voting" on a resolution to approve the ERA. Under the Arkansas Senate parliamentary rules, this type of resolution requires a majority vote—that is, at least 18 votes for the amendment. In February 2007, a new resolution to declare the 1972 ERA ratified failed in a committee of the Arkansas House, after 20 legislators (including two members of the committee) withdrew their co-sponsorships of the resolution, a development attributed in part to intervention by pro-life groups.^[8].

Besides Arkansas, ERA ratification resolutions were also introduced in 2007 in Arizona, Florida, Illinois, Missouri, and Mississippi. It remains true, however, that no state legislature has actually passed a resolution based on the "three-state" theory since the theory was first developed in 1994.

Alternatives to the ERA

Despite the ERA's failure at ratification, many of its goals have otherwise been achieved through judicial interpretations of the Civil Rights Act of 1964 and of the Equal Protection Clause of the 14th Amendment. The successes of feminism in altering both the culture and politics of the United States since the 1970s, together with the significant inclusion of women in many fields once traditionally dominated by men, have dampened much of the political momentum that once propelled the ERA.

State ERAs

Since 1879, a total of twenty states have added equal rights amendments to their state constitutions, and unlike the Federal Government, states must comply with the Equal Protection Clause of the Fourteenth Amendment. All of these state-level amendments, like the proposed Federal ERA, prohibit discrimination based on sex. Thirteen of the state-level amendments also prohibit discrimination based on race, national origin, or creed—and three of them even go so far as to prohibit discrimination on account of a physical handicap. Those twenty states are: Alaska, California, Colorado, Connecticut, Florida, Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, Pennsylvania, Texas, Utah, Virginia, Washington, and Wyoming.

Voting against ERA in Congress in 1971 and 1972

Opponents of the ERA, at the time of its proposal by the 92nd Congress, were a very interesting mix of politicians that included many conservatives and a few liberals. In the House of Representatives:

In the Senate:

• Wallace Bennett (1898–1993) (R-UT) (Served 1951–1974)
• James L. Buckley (1923–) (Conservative Party of New York-NY) (Served 1971–1977)
• Norris H. Cotton (1900–1989) (R-NH) (Served 1954–1974)
• James O. Eastland (1904–1986) (D-MS) (Served 1943–1978)
• Samuel J. Ervin, Jr. (1896–1985) (D-NC) (Served 1954–1974)
• Paul J. Fannin (1907–2002) (R-AZ) (Served 1965–1977)
• Barry M. Goldwater (1909–1998) (R-AZ) (Served 1969–1987)
• Clifford P. Hansen (1912–) (R-WY) (Served 1967–1979)
• John C. Stennis (1901–1995) (D-MS) (Served 1947–1989)

References

Further Reading

• Bradley, Martha S., Pedestals and Podiums: Utah Women, Religious Authority, and Equal Rights, Signature Books, Salt Lake City, UT, 2005, ISBN 1-56085-189-9
• Donald T. Critchlow. Phyllis Schlafly and Grassroots Conservatism: A Woman's Crusade Princeton University Press, 2005. 422 pp. ISBN 0-691-07002-4.
• Jane J. Mansbridge. Why We Lost the ERA University Of Chicago Press 1986. ISBN 0-226-50358-5
• Nicholson, Zoe Ann, The Hungry Heart - A Woman's Fast for Justice, Lune Soleil Press, Newport Beach, CA, ISBN 0-9723928-3-1
• Lee, Rex E., "A Lawyer Looks at the Equal Rights Amendment", Brigham Young University Press, 1980. ISBN 0-8425-1883-5

See also

• Unsuccessful attempts to amend the U.S. Constitution
• List of amendments to the United States Constitution
• List of proposed amendments to the United States Constitution
• Reproductive rights - issues regarding "reproductive freedom"
• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
• International Women's Rights Action Watch (IWRAW)
• Women's right to know
• Committee on Women's Rights and Gender Equality
• Equal pay for women
• Feminist history in the United States
• Feminist studies
• History of feminism
• List of feminism topics
• List of notable feminists
• Older Women's League

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