Equal Rights Amendment

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The Equal Rights Amendment (ERA) was a proposed amendment to the United States Constitution which would have guaranteed equal rights under law for Americans regardless of sex.

The deadline for ratification of the ERA—whether that deadline was March 22, 1979, or June 30, 1982—has come and gone and most observers are of the opinion that the ERA is no longer pending before America's state lawmakers for consideration. Other persons, however, maintain that if the legislatures of just three more states ratify it, the ERA could become part of the Constitution. An article[1] published in the William and Mary Law School Journal in 1997 provides the constitutional rationale for the "3-state strategy" and the Library of Congress has issued a report suggesting that this theory is at least worthy of serious consideration. Polls show that a majority of Americans continue to support the ERA, and efforts to introduce ERA ratification resolutions—in the legislatures of those 15 states which never ratified the measure—have increased in recent years. At the Federal level, supporters of the ERA have re-introduced the amendment in Congress[2] every term since 1982 without success. Regardless, the national debate on the ERA has largely subsided, in part because of expanded interpretations of existing statutes and constitutional provisions.

Text

The ERA's text, as proposed in 1972 by the 92nd Congress, and as published in Volume 86, United States Statutes At Large (pages 1523–1524), reads as follows:

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.

SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
SEC. 3. This amendment shall take effect two years after the date of ratification.

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 gender. 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 never reached the floor of either the Senate or the House of Representatives for a vote—instead, it was usually "bottled up" in committee.

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.

Opponents of the ERA in Congress

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:

Note: While Representatives Davis, Erlenborn and Landgrebe opposed the Amendment, they did not vote.

In the Senate:

Note: While Senator Eastland did not vote against it, he was opposed to the Amendment.

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. Also, as of that date, four of those 35 states had subsequently adopted resolutions to rescind their earlier ratifications and a fifth state adopted a resolution declaring that its earlier approval of the ERA would not extend beyond March 22, 1979 (more on that below).

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:

  • 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.
  • 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. It should be noted that, 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.
  • Louisiana whose Senate voted to ratify the ERA on June 7, 1972, with a tally of 25 to 13.
  • Missouri whose House of Representatives voted to ratify the ERA on February 7, 1975, with a tally of 82 to 75.
  • 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.
  • North Carolina whose House of Representatives voted to ratify the ERA on February 9, 1977, with a tally of 61 to 55.
  • Oklahoma whose Senate voted to ratify the ERA on March 23, 1972, by a Voice Vote.
  • South Carolina whose House of Representatives voted to ratify the ERA on March 22, 1972, with a tally of 83 to Zero.

On the other hand, and as previously noted, four of the 35 states which did fully approve the ERA early on later acted to rescind their ratifications and a fifth state announced that—while not actually rescinding its previous assent to the ERA—that assent would last only until March 22, 1979. The following are those actions:

  • 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.
  • 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.
  • 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.
  • 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.

It is believed by some scholars that a state legislature cannot rescind its prior ratification of a proposed Federal constitutional amendment, a Congressional precedent—not a judicial precedent—established in 1868 with irregularities involving the ratification of the 14th Amendment. (See Article V of the United States Constitution.)

In the specific case of South Dakota, its 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 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.

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. 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 U.S. Commission on Civil Rights, sought to show how the proposed ERA (for which Ginsburg was an aggressive advocate) would change Federal laws to make them gender-neutral and to "eliminate sex-discriminatory provisions."

Opposition issues

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. Some states, such as Connecticut and New Mexico, have even ordered the use of tax monies in the case of "medically necessary" abortions, based upon state ERAs, under the theory that women must have health care every bit as comprehensive as that accorded to men. Interestingly, Alice Paul—author of the original ERA, as noted earlier—was an opponent of abortion and described the procedure as "the ultimate exploitation of women."

Other critics have argued that the courts could rule that the ERA would mandate the recognition of same-sex marriage. 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 Supreme Court—provide sufficient support for equal rights for both genders.

Supporters of the amendment 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 [myths[3]] which opponents perpetuate about the ERA are either without merit or concern separate issues which the ERA would not affect.

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).

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 technicality that the revised ratification deadline of June 30, 1982, had 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.

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.

"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.

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"[4] presents the legal rationale for what has come to be known as 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 Supreme Court's 1921 ruling in Dillon v. Gloss, giving Congress the power to set time limits on constitutional amendments that it wishes to set such deadlines on.

The article in the William and Mary Journal of Women and the Law further reasons that because the Constitution gives Congress the power to amend 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 added to the Constitution. The Library of Congress' Congressional Research Service [5] has issued a report suggesting that this theory is at least worthy of serious consideration.

Pursuant to this legal rationale, ratification efforts have increased dramatically during the last few years. The Illinois House of Representatives as late as May 21, 2003, adopted a resolution ratifying the ERA—proposed in 1972—but the Illinois Senate did not follow the House's lead and that particular resolution died in the General Assembly's upper chamber by 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, and while that number would ordinarily be sufficient for adoption in many state legislative bodies, under the parliamentary rules of the Arkansas Senate, a resolution of this type requires a majority vote of the total membership—which would have been at least 18 yeas. ERA ratification resolutions have likewise been introduced in Florida and Illinois during 2005.

To clarify, unlike the aforementioned House Joint Resolution No. 208 of the 92nd Congress and unlike the aforementioned House Joint Resolution No. 638 of the 95th Congress, the 1789 resolution of the 1st Congress, proposing what is today the 27th Amendment did not set any deadline on that measure's ratification by the state legislatures. Furthermore, neither the Supreme Court—nor any lower Federal court—has ruled on whether the 27th Amendment is actually a valid part of the Federal Constitution.

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 20 states have added equal rights amendments to their state constitutions. 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 20 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.

See also