The Crestone Eagle • April, 2021
The Equal Rights Amendment: Will it ever be ratified?
by M. Diane Bairstow
“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
—The Equal Rights Amendment
Those 24 words seem so simple and obvious, and yet they are so controversial that 98 years after the Equal Rights Amendment (ERA) was first introduced in Congress, women are still fighting for its passage.
ERA & the first-wave of feminism
The first iteration of the ERA was penned in 1919 by Alice Paul (suffragist) and Crystal Eastman (founding mother of the American Civil Liberties Union or ACLU). They called it the “Lucretia Mott Amendment,” after the 19th century women’s activist. It read, “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.”
In 1923, Senator Curtis and Representative Anthony (Susan B. Anthony’s nephew) introduced the amendment in Congress. It was buried in paperwork and committee; however, Alice Paul continued to bring it before Congress every year thereafter. After her death, other women took up the banner so that it has been introduced in Congress each of the 98 years since.
There was continuous opposition from the Labor and Progressive movements, who feared that women would lose the protections they had won, such as improved sweat-shop conditions and employment hours.
Dissenting women included Mary Anderson, the director of the newly established Women’s Bureau, and Eleanor Roosevelt. Both prominent women’s rights activists believed that women would benefit more from further “discriminatory” laws, such as safety regulations and maternity provisions.
ERA and the second-wave of feminism
In the 60s and 70s the ERA was revitalized. The second wave of feminism pushed it forward into the American Women’s consciousness. In 1970, Democratic Rep. Martha Griffiths of Michigan brought the E.R.A. to the floor of the house by gathering signatures from her colleagues, bypassing a crucial pro-labor committee chair who’d blocked hearings for 20 years.
8 things women couldn’t do before 1970
Get a credit card
Before the Equal Credit Opportunity Act of 1974, women couldn’t get a credit card unless it was co-signed by a man.
Serve on a jury or practice law
In 1973, all 50 states finally allowed women to serve on juries. In the 1960s, 90% of law firms refused to even interview women.
Yale opened its door to women in 1969; West point followed in 1976; and Columbia University lagged behind until 1983;
Equal health insurance
Women paid more for health insurance until this practice was outlawed in 2010.
Get birth control
In 1965 it became legal for married women to get birth control pills. By 1972, all women could.
Work while pregnant
Before the Pregnancy Discrimination Act of 1973, a woman could be denied a job because she was pregnant or might become pregnant, and fired if she became pregnant.
Be free from sexual harassment and marital rape
In 1977 it became legal for a woman to sue her employer for sexual harassment. Marital rape was recognized as a crime during the 1970s.
Be denied classes because of gender stereotype
In the 1960s Kizzen Laki, Editor of The Crestone Eagle, recalls being denied admittance into a shop class in high school because she was a girl. Because of unspoken norms, few girls would have been so bold as to even ask.
The amendment won bipartisan support in both chambers; the House approved it in October 1971; the Senate followed suit in March 1972. It then had to be ratified by three-fourths of the states. The Senate added a 7-year time limit for ratification. That time limit passed without enough states for ratification and the proponents were given another 3 years, and still it wasn’t ratified.
Why not? Enter Phyllis Schlafly
Schlafly, a lawyer, newsletter editor, touring speaker, and political activist, held traditional conservative values and opposed feminism, gay rights and abortion.
She organized the “STOP ERA” campaign. STOP was an acronym for “Stop Taking Our Privileges”. She contended that the ERA would take away gender-specific privileges currently enjoyed by women, including “dependent wife” benefits under Social Security, separate restrooms for males and females, and exemption from Selective Service (the military draft)
In 1972, when Schlafly began her campaign against the Equal Rights Amendment, the ERA had already been ratified by 28 of the required 38 states. Seven more states ratified the amendment after Schlafly began organizing opposition, but another five states rescinded their ratifications. Ten years after it was passed in the Senate, the Equal Rights Amendment was narrowly defeated, having only achieved ratification in a total of 35 states.
The ERA today
Today, in 2021, with a new administration in D.C., there is a renewed effort to achieve ratification of the ERA, and two approaches to this goal. One is to start over; the other is to remove the arbitrary deadline since the ERA has now been passed by 38 states.
On March 1, 2021, Congresswoman Carolyn Maloney (D. NY) and Congressman Tom Reed (R-NY) introduced H.J. Res. 28. It would restart the amendment ratification process previously passed by the House and Senate. The resolution number celebrates that the ERA would be the 28th Amendment to the U.S. Constitution.
Ruth Bader Ginsberg (RBG) favored this approach. In February 2020, speaking at a conference at Georgetown University Law Center, she said. “There’s too much controversy about latecomers . . . Furthermore five states—Nebraska, Tennessee, Idaho, Kentucky, and South Dakota—have all attempted to withdraw their ratification of the ERA.” She concluded “if you count a latecomer on the plus side, how can you disregard states that said ‘we’ve changed our minds?’”
The second approach seeks to eliminate the arbitrary deadlines placed on the original ERA ratification process. Since 38 states have now voted for ratification, some legal scholars think a removal of the time limit would cause the ERA to be ratified. H.J. Res. 17, sponsored by Congresswoman Jackie Speier (D-CA), proposes to do just that. Representatives Maloney and Reed are also cosponsors of this legislation.
Just last month, on March 18, 2021, the House of Representatives passed H.J Res. 17. Afterwards, Jackie Speier spoke at a press
conference. Flanked by women dressed in white honoring the women’s suffrage movement, Speier said “We are the only country in the world with a written constitution that does not have a prohibition against sex discrimination . . . We demand that we be put into the Constitution. There is no expiration date on equality.”
Although a victory, it is a small one. In fact, it’s like deja-vu. In Feb. of 2020, the House also voted to extend the deadline. Perhaps with a new administration in Washington, it will get farther this year. However, the Senate still has to approve the legislation, and there is a high potential for legal battles ahead.
Many who oppose it reflect earlier concerns that it will take away “discriminatory” rights women have already achieved. Also they believe it could lead to unisex bathrooms, prisons, athetic programs, etc. But the strongest opposition comes from the Pro-Life and Anti-Gay movements, who fear it will allow state-sponsored abortion, and that it will give the LGBTQ community equal rights under the law.
The need for equality under the law seems self-evident to women who have experienced injustice in the workplace, at home and in the legal system. In the era of the “Me Too” movement, the need seems more pressing than ever. However, many young women just starting out have not yet bumped up against, or crashed into, the gender wall.
Many Americans don’t realize that without an amendment to the constitution, all the rights we have achieved through Congress could disappear like a mirage in the desert. Many of them have to be renewed regularly, and all of them can be rescinded more easily than they were passed.
To quote the notorious RBG again, “One thing that concerns me is that today’s young women don’t seem to care that we have a fundamental instrument of government that makes no express statement about the equal citizenship stature of men and women. They know there are no closed doors anymore, and they may take for granted the rights they have.”