THE NEW ERA
A young girl sits on her father’s shoulders during a rally in support of the Equal Rights Amendment in Dubuque, Iowa, ca. 1979. (Courtesy of the Iowa Women’s Archives, University of Iowa libraries, Iowa City)
Most Americans believe that women and men should have equal rights, and most also believe that the Constitution should guarantee these rights. In fact, according to a 2001 poll, nearly three out of every four Americans polled mistakenly believed that the Constitution already includes this guarantee.1 The ERA was passed by Congress in 1972, but it is not in the Constitution. By the 1982 deadline for ratification, which had been extended in 1978, thirty-five states had ratified the ERA, just three states short of the thirty-eight needed for a constitutional amendment.
One current approach, led by Senator Benjamin Cardin, proposes the removal by Congress of the ten-year deadline for ratification of the ERA, to enable ratification by the three additional states needed. The legal issues arising from this approach include whether Congress has the power to change the deadline after it has expired, and whether it can be changed by a majority vote. If the legislation is passed and upheld by the Supreme Court, only three more state ratifications could put the ERA in the Constitution. If unsuccessful, the process of ratification would have to begin all over again.
Beginning again without a deadline is the other approach. Over the course of the past thirty years, Representative Carolyn Maloney and Senator Edward Kennedy were longtime sponsors of the ERA, reintroducing it in every session of Congress. More recently, Senator Robert Menendez has sponsored the ERA in the Senate, and in the House, Representative Maloney has introduced a new ERA with a sentence explicitly mentioning women, drawn from the text originally drafted by Alice Paul in 1923, followed by the text of the ERA passed in 1972.
Some advocates are also promoting state ERAs, which would advance constitutional sex equality rights incrementally, state by state, and reinforce efforts to support a federal ERA.
The ERA Coalition was formed in 2014 to bring organizations and individuals together to support any and all efforts to put equal rights for women into the Constitution, both at the state and the federal level (www.eracoalition.org).
Since 1982, when the extended deadline for ratification of the Equal Rights Amendment expired, the ERA has been reintroduced in every session of Congress. A two-thirds vote of both the House and Senate would be required to send the ERA to the states, where after ratification by thirty-eight states, it would become part of the Constitution. A poll in 2001 found that 96 percent of Americans believed that women and men should have equal rights, and 88 percent believed that the Constitution should guarantee these equal rights. However, nearly three-quarters of the Americans polled—72 percent—mistakenly believed that the Constitution already includes this guarantee.2 No doubt some of these people are thinking of the Fourteenth Amendment and its Equal Protection Clause as that guarantee. As the cases in this book illustrate, however, the Equal Protection Clause has not effectively protected women from pay inequity, pregnancy discrimination, gender-based violence, and other forms of sex discrimination. And it has not effectively promoted equality between women and men.
The first ERA introduced in 1923 by Alice Paul read as follows:
Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation.
By the time the ERA first came to a vote in Congress in 1946, the language had evolved into more or less the form in which it was ultimately passed in 1972:
Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Much debate concerned the potential impact of the ERA on protectionist legislation, and in 1950, Senator Carl Hayden proposed additional language to qualify the ERA so that it would not undermine this legislation. Called the Hayden rider, this language stated: “The provisions of this article shall not be construed to impair any rights, benefits, or exemptions conferred by law upon persons of the female sex.” Many proponents of the ERA opposed the Hayden rider, including the one woman serving in the Senate at the time, Margaret Chase Smith of Maine. Nevertheless, with the rider, the ERA passed the Senate by a two-thirds majority twice in the 1950s.
The Senate continued to debate the ERA, and opposition to the Hayden rider prevailed in 1964, when the Senate Judiciary Committee’s report stated that the rider was unacceptable to women’s rights advocates. “It is under the guise of so-called ‘rights’ or ‘benefits,’ ” the report explained, “that women have been treated unequally and denied opportunities which are available to men.” When the ERA passed both houses of Congress, it was without qualification. When it came to the floor of the House of Representatives in October 1971, it was passed by a bipartisan vote of 354–23. In March 1972, the Senate approved the House version of the ERA by a bipartisan vote of 84–8. The Joint Resolution passed by Congress proposing the Equal Rights Amendment included a preamble with the following language:
The following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years of its submission by the Congress:
As noted before, this seven-year deadline was extended to just over ten years in 1978, but by the expiration of the deadline on June 30, 1982, the ERA remained three states short of the thirty-eight states needed to put it into the Constitution.
Article V of the Constitution, which defines the constitutional amendment process, makes no mention of time limits for ratification. Prior to passage of the Eighteenth Amendment, there were no deadlines for ratification by states in any constitutional amendments passed by Congress. The Eighteenth Amendment, which prohibited the production, transport, and sale of alcohol in the United States, was passed in 1917. Future president Warren Harding, then a senator from Ohio, proposed the seven-year deadline for ratification, reportedly as a way of allowing himself and others to support the amendment, thus gaining favor from Prohibition advocates, while assuming that it would ultimately fail for lack of ratification by states within the time limit. This political calculation backfired when the amendment was ratified by three-quarters of the states and became effective just thirteen months after its passage. The Eighteenth Amendment was subsequently repealed in 1933, even more quickly than it had been adopted, when states ratified the Twenty-First Amendment less than ten months after it was passed by Congress.
The seven-year deadline had no impact on either the ratification or the annulment of Prohibition, but ironically, it served as a precedent for future amendments. All but two of the constitutional amendments passed by Congress since the Eighteenth Amendment have included a seven-year ratification deadline. The two exceptions were the Nineteenth Amendment on women’s suffrage, passed in 1919 without a deadline and ratified in 1920 just over a year later, and the Child Labor Amendment, which was passed in 1924 but never ratified and generally considered unnecessary in light of subsequent congressional legislation upheld as constitutional by the Supreme Court. While most recent amendments to the Constitution have been ratified within a few years of their passage by Congress, the Twenty-Seventh Amendment, called the Madison Amendment because it was introduced by James Madison in 1789, was finally ratified in 1992, more than two hundred years after its passage by Congress. This amendment delays salary increases passed by Congress for its own members from taking effect until after a subsequent public election.
The bills currently pending in Congress that deal with the Equal Rights Amendment represent two different approaches to securing its adoption, one inspired by the ratification of the Madison Amendment in 1992. This approach, known as the “three-state strategy,” relies on the fact that the seven-year time frame for ratification of the ERA was included in the text of the preamble rather than the text of the amendment itself. When it became clear in the late 1970s that the number of states needed for ratification would not be reached by the end of seven years, Representative Elizabeth Holtzman of New York sponsored a bill that extended the deadline to ten years and three months, setting it to expire before the 1982 election. It was signed by President Jimmy Carter in 1978, with a disclaimer indicating the uncertainty over whether his signature was in fact necessary. Advocates of the three-state strategy take the view that the time limit can again be amended, or eliminated, by congressional legislation. In May 2013, Senator Cardin from Maryland introduced S.J. Res. 15 to remove the deadline for ratification of the ERA. A companion bill in the House of Representatives, H.J. Res. 113, is sponsored by Representative Jackie Speier from California.
Jimmy Carter signs a bill extending the ratification deadline for the Equal Rights Amendment, October 20, 1978. (Carter White House Photographs Collection, Jimmy Carter Library, Atlanta, GA)
When, in 1978, the Holtzman bill to amend the time frame for ERA ratification was debated in Congress, one of the proposals made and rejected in committee was that the bill should be passed by a two-thirds supermajority rather than a simple majority. The argument for this proposal was that the preamble, as well as the amendment, had been approved in 1972 by a two-thirds vote, as required by the Article V amendment process. This issue came up again when the bill went to the floor for a vote, but an amendment requiring a two-thirds vote was defeated. The deadline extension passed the House of Representatives by a vote of 233–189, and the Senate a few months later by a vote of 60–36.
The congressional legislation extending the deadline for ratification of the ERA was challenged in an Idaho federal district court by the states of Idaho and Arizona and some individual legislators from the state of Washington, who argued that Washington’s ratification of the ERA was null and void, as it had been conditional on full ratification by three-fourths of the states within the seven-year time frame. Looking to Article V of the Constitution, which governs the passage and ratification of amendments, the district court’s chief judge Marion Callister rejected the argument that the power of Congress to control the amendment process is not subject to judicial review, characterizing the suggestion that the courts should have no role in the process as “completely counter to the intentions of the founding fathers.”3 However, Judge Callister noted that Congress did have the power to determine the “mode of ratification,” meaning making a choice between state legislatures, which is how all but one amendment to date have been considered, and state conventions, an alternative provided for by Article V that has been used once, for the repeal of Prohibition. In giving Congress this power, the judge reasoned, Article V implicitly gave Congress the power to set a time frame for ratification.4
Judge Callister cited a Supreme Court case, Dillon v. Gloss, which had held, with regard to the Eighteenth Amendment—the first amendment to have a time frame—that a deadline was permissible, i.e., that Article V of the Constitution did not require Congress to keep a proposed amendment “open to ratification for all time.”5 Characterizing the process of ratification as “succeeding steps in a single endeavor,” the Supreme Court had suggested a natural inference “that they are not to be widely separated in time.”6 The court had gone even further, saying, “[T]here is a fair implication that it must be sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do.”7
Based on this Supreme Court decision, Judge Callister concluded: “Whether a definite period for ratification shall be fixed so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification.”8 The judge questioned, however, whether Congress, under its power to propose the mode of amendment ratification, had the power to change its proposal once made, and if so, whether that could be done by less than a two-thirds majority. Citing Supreme Court jurisprudence, Judge Callister noted that if no deadline had initially been established for an amendment, Congress would retain its authority to set one. He affirmed that what the time frame itself was, rested entirely within the province of Congress, not subject to court review. However, Judge Callister held that once a time frame was established, it could not be changed. The determination of the time frame, according to his decision, “becomes an integral part of the proposed mode of ratification” and changing it would be like changing the mode of ratification from state legislatures to state conventions. “Once the proposal is made,” Judge Callister held, “Congress is not at liberty to change it.”9
The judge stated further that in any event, the extension of the time frame for the ERA was “in violation of the constitutional requirement that Congress act by two-thirds of both Houses when exercising its article V powers.”10 He rejected the argument that, because it was in the preamble rather than the text of the amendment itself, the time frame could be changed by Congress pursuant to its power under Article I, setting forth the powers of Congress generally, rather than Article V, setting forth the amendment process. It was under Article V, Judge Callister held, that Congress had the power to propose the text of an amendment and the power to propose its mode of ratification, including the time frame. In conclusion, the judge summarized his decision as follows:
While Congress is not required to set a time period in advance of the requisite number of states acting to ratify, if it chooses to do so to remove uncertainty regarding the question, it cannot thereafter remove that certainty by changing the time period. In addition, since it is clear that Congress must act by a two-thirds concurrence of both Houses when acting pursuant to its authority under article V, and because the extension resolution was enacted by only a simple majority, the extension resolution is an unconstitutional exercise of congressional authority under article V.11
The other issue addressed by the Idaho court was the vote of the Idaho legislature in 1978 to rescind its ratification of the ERA, which had been voted for by the state in 1972 just after Congress passed the ERA. Over the course of the decade, five states voted to rescind their ratification of the ERA.12 In considering this issue, Judge Callister outlined three alternative approaches: (i) The state’s power to accept or reject the amendment can be exercised once, and its decision cannot later be modified; (ii) the state has only the power to ratify an amendment, hence only acts of ratification are relevant, and neither prior rejection nor subsequent rescission has any impact on ratification; and (iii) all acts of rejection, ratification, and rescission should be recognized so long as any subsequent rescission is prior to the ratification of the amendment by three-fourths of the states, at which point the amendment becomes part of the Constitution and state ratification can no longer be rescinded.13
Judge Callister adopted this third approach on the theory that allowing subsequent acts of rescission “would promote the democratic ideal by giving a truer picture of the people’s will as of the time three-fourths of the states have acted in affirming the amendment.” Either of the other approaches would, in the court’s estimation, “permit an amendment to be ratified by a technicality—where clearly one is not intended—and not because there is really a considered consensus supporting the amendment which is the avowed purpose of the amendment procedure.”14 The judge reviewed the history of several other amendments where states changed their votes, citing the Fifteenth Amendment as well as the Nineteenth Amendment, in which cases the national government waited for additional ratifications before promulgating the amendments. For these reasons, the judge held that “a rescission of a prior ratification must be recognized if it occurs prior to unrescinded ratification by three-fourths of the states.”15
The Idaho court’s decision was appealed, and the Supreme Court initially agreed to hear the appeal. However, after the extended ratification deadline for the ERA expired in 1982, the case became moot. The Supreme Court vacated the district court’s decision and remanded the case to the lower court with instructions to dismiss it.16 The Idaho court’s decision is therefore null and void. If the three-state legislation sponsored by Senator Cardin and Representative Speier should pass, removing the deadline for ratification, and if Illinois, Virginia, Florida, and/or other states now ratify the ERA, there would likely be litigation over the validity of the process. Although the Idaho court’s decision would have no bearing on the outcome of any future litigation, the arguments made on both sides would be raised again and would all be adjudicated anew: whether Congress has the power to remove the ratification deadline; if so, whether it can be done by a simple majority vote rather than two-thirds; and whether the rescission by five states of their ratification is valid. Judge Callister, a Mormon, had denied a request to recuse himself from the case because of a possible conflict of interest.17 Depending on the court, the decision could come out either way, as there are viable legal arguments on both sides of all these issues.
In practical political terms, the argument for the three-state strategy is that it would be much easier to get a majority vote of Congress than the two-thirds needed for an amendment, and it would be much easier to get three additional states to ratify the ERA rather than starting all over, with ratification by thirty-eight states needed. Illinois, Florida, and Virginia are often mentioned as three states that might ratify the ERA. In 2003, the Illinois House of Representatives voted to ratify the ERA, and in May 2014, the Illinois Senate voted to ratify it. Three times—in 2011, 2012, and 2014—the Virginia Senate passed a joint resolution to ratify the ERA. ERA ratification bills have been introduced in six of the other so-called “unratified” states—Arizona, Arkansas, Mississippi, Missouri, Nevada, and Oklahoma—since the three-state strategy was developed in 1994, and many of these bills have seen legislative action in committee. The other six states that have not ratified the ERA are: Alabama, Georgia, Louisiana, North Carolina, South Carolina, and Utah. If three of these states ratify the ERA, and if the federal legislation removing the deadline is challenged, as it almost certainly would be, the decision on whether the Constitution will have an Equal Rights Amendment will ultimately be made by the Supreme Court.
For those who support the three-state strategy, this is a gamble worth taking. If Congress has the power to set a deadline, arguably Congress has the power to remove it. The text of the preamble to the amendment, which governs only the process and does not form part of the amendment itself, can arguably be changed by a majority vote if it is only the text of the amendment that is found to require a two-thirds vote. The argument that state rescissions are invalid is supported by the fact that in promulgating the Fourteenth Amendment in 1868, Congress listed as ratifying states both states which had rescinded their ratifications and states which had first rejected and then ratified the amendment.18 If successful, the three-state strategy could be an effective way to build on the tremendous amount of work that has already been done to put the ERA into the Constitution. If unsuccessful, however, the process of ratification would have to begin all over again.
Beginning again without a deadline is the other approach, supported by those who are concerned that the three-state strategy will be rejected by the Supreme Court if it fails on any of the legal arguments that must be made for its validity. There are currently two different Equal Rights Amendment texts pending in bills before Congress. One is the 1972 ERA, which contains the same text as the ERA passed in 1972 and which has been reintroduced in every session of Congress since the expiration of the ratification deadline in 1982. In 1983, it was voted out of committee in the House of Representatives for a vote on the floor, which fell six votes short of the two-thirds needed for a constitutional amendment. Since then, the ERA has not once been voted on in either the House or the Senate. In the Senate, for more than twenty years the ERA bill was sponsored by Senator Edward Kennedy. The same bill currently pending in the Senate is sponsored by Senator Robert Menendez from New Jersey. Over the past thirty years there has not been a single congressional hearing on the ERA.
In the House of Representatives, Carolyn Maloney has been the principal sponsor of the ERA for fifteen years. In 2013, Representative Maloney introduced the “new ERA,” H.J. Res. 56, which is the 1972 ERA text with an additional sentence at the beginning. It reads:
Women shall have equal rights in the United States and every place subject to its jurisdiction. 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 new language is an affirmative statement of rights that puts “women” into the Constitution. It helps clarify that the purpose of the amendment is particularly to address the historical discrimination against women referred to in the jurisprudence. If the amendment process is to begin all over again, the “new ERA” takes this opportunity to build on the language of the 1972 ERA in an effort to ensure that the limitations on the Fourteenth Amendment as it has been interpreted are not placed on the ERA as well. While “new,” the language of Representative Maloney’s bill draws heavily from the text originally drafted by Alice Paul in 1923, setting forth a substantive right to sex equality as a vision for the future. Another new feature of the language introduced by Representative Maloney is that it mentions states, as well as Congress, as having the power to enforce the amendment by appropriate legislation.
Supportive members of Congress, as well as the ERA advocates in the women’s movement, generally support all strategies for adoption of the ERA, while some focus on one approach more than the other. There are also advocates focusing on state ERAs, including an initiative that has placed the ERA on the November 2014 ballot in Oregon.19 State ERAs are a way of incrementally advancing, state by state, constitutional protection of women and promotion of sex equality. The promotion of state ERAs is also creating forces on the ground, state by state, that reinforce efforts to support a federal ERA, whether by way of a three-state strategy or a new ERA.
The ERA Coalition was formed in 2014 to bring organizations and individuals together to support any and all of the efforts to put equal rights for women into the Constitution, both at the state and the federal levels. In the years since the ERA campaign of the 1970s, the Fourteenth Amendment, which was then seen as a potential alternative source of legal protection, has been interpreted by the Supreme Court in ways that fail to effectively address sex discrimination. In many ways, the same failings have plagued efforts to address race discrimination as well: the state action requirement, the need to prove intent to discriminate, and the unwillingness otherwise to redress the impact on its victims, no matter how overwhelming the evidence of systemic discrimination. Also of common concern is the treatment of “suspect classifications” as though they already enjoyed equality, and the failure of equal protection analysis under the Fourteenth Amendment to take into account the fact that equal treatment of unequally situated people only perpetuates inequality, leaving them unequally situated.
In the early decades of the twentieth century, the first wave of campaigning for the ERA, when it was introduced in 1923, was plagued by opposition from women as well as men. Fearing that it would undermine legislation designed to protect women from harsh working conditions, these women did not focus on the underlying assumptions of inferiority represented by the laws. Now there is greater understanding that it is the workplace, not the law, that has to be changed to meet the needs of women and men equally rather than meeting the needs of men and using measures such as protectionist legislation to meet the needs of women.
In the second wave of ERA campaigning, which came so close to success in the 1970s and early 1980s, again some women were seen as opposing the ERA. Phyllis Schlafly and her STOP ERA campaign created a media circus, where divisions among women were promoted and highlighted and exploited, if not fabricated, by those with economic and political interests in opposing the ERA. The fears of that time, which were used to fuel the anti-ERA campaign, are largely gone now. The fight over abortion, still controversial, is being played out elsewhere following the landmark Roe v. Wade decision in 1973, when the Supreme Court decided that a woman’s decision to have an abortion fell within the right to privacy under the Due Process Clause of the Fourteenth Amendment. The right to choose abortion is already protected by the Constitution.
To the extent that concern over the financial cost of equality for women was a factor in the ERA’s defeat in 1982, there is a growing recognition around the world that gender equality is not only the right thing to do but that it’s also the smart thing to do. Empowering women has a documented impact on the health and welfare of their families and communities, with significant implications for the national economy. Many of the hidden costs of sex discrimination, such as the financial cost of domestic violence, may not have been taken into account by the opposition to the last campaign for the ERA. Moreover, there are more women in higher positions, politically and economically, than ever before who “hold these truths to be self-evident,” that all men and women are created equal with certain inalienable rights. No matter what their race, class, political party, or economic status, women all have much to gain from the ERA. And the “gender gap” has come to refer not only to wage differentials but also to voting differentials that give women political power to insist that their congressional representatives, regardless of political affiliation, support the inclusion of their rights in the Constitution. This is truly a bipartisan issue. The new campaign for the ERA is also a campaign by women and men, for women and men, with recognition that sex equality is beneficial to men as well as women.
The way our Constitution works, we cannot say with certainty what exactly the ERA will or won’t do for women who are hoping it will end sex discrimination. It is for Congress and state legislatures to pass laws, and for courts to interpret them. What we can say with certainty is that the ERA will give the courts a new standard, a clear and strong statement of sex equality. It will ensure that no Supreme Court justice can ever again say, as Justice Scalia has done, that the Constitution does not prohibit discrimination against women.
State ERAs have been passed in twenty-two states.20 Most of these state constitutional amendments were passed in the 1970s, while the campaign for the federal ERA was in full swing. For women in these states, the ERA offers an additional avenue of recourse with widely varying results, not only because of the courts but also because the language of these ERAs varies. In some states, such as Rhode Island and Florida, the courts have closely tracked the jurisprudence of the Fourteenth Amendment. In other states, such as Colorado, New Mexico, Pennsylvania, and Washington, the courts have gone beyond the Fourteenth Amendment to advance women’s equality. In both Washington and Illinois, the state supreme courts explicitly noted that the passage of the ERA was intended to expand the scope of existing constitutional protection.21 And in Colorado, the state supreme court held that excluding the costs of normal pregnancy care from otherwise comprehensive insurance coverage constitutes sex discrimination in violation of the Colorado ERA.22
Equal rights for women are also in some form or another included in most constitutions around the world. Yet severe forms of sex discrimination persist in many of these countries, where the language of the law is far from reality. The law is a starting point, not an end point. But having sex equality language in the Constitution is a critical step that is missing in the United States. Compounded by the U.S. failure to ratify the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), it is crippling efforts by the United States to claim leadership on women’s rights around the world.
The Fourteenth Amendment could have been interpreted differently as early as the 1880s, soon after its adoption, and the course of legal history would have been very different. Following the Supreme Court’s Gilbert decision in 1976, which denied pregnant women protection under the Fourteenth Amendment’s Equal Protection Clause, Congress passed the Pregnancy Discrimination Act, effectively overruling the Supreme Court’s decision in that case. In other cases, however, such as Morrison, where the Supreme Court struck down the private right of action in the Violence Against Women Act as unconstitutional, the only remedy is to change the Constitution. This book should clarify not only that equal rights are not in the Constitution but also that they need to be there and that they will make a meaningful difference in the daily lives of women and girls across the country.
The power of constitutional democracy is its ability to evolve and respond to needs that it has not to date adequately addressed. The structure is designed to make our imperfect union ever more perfect. The ERA will give women a new lease on life under the law, and it will let the Supreme Court know, when it interprets the ERA, that the intent in passing it was to clarify that equal means equal. Women’s rights are not merely procedural. They are substantive—in other words, real. A statement of the fundamental right to sex equality is needed in the Constitution to ensure that the laws in the United States allow women equal enjoyment of life, liberty, and the pursuit of happiness. Let our generation end the debate over whether women and men are equal. The time for the ERA is now.
(Jennifer Macleod)