The ERA Is Back in the News—This Is Why You Should Be Paying Attention

Jun 12, 2018
In The News

The Equal Rights Amendment (ERA), a fundamental cause for many second-wave feminists in the seventies and eighties, is now back in the conversation in a very real way. And it just might pass this time, especially if a new group of activists have anything to say about it.

Last month the state of Illinois became the thirty-seventh state to ratify the ERA, an amendment to the United States Constitution meant to protect Americans from discrimination based on their sex. That means we're only one state away from ratification.

There's a decent chance that this comes as news to you, even if you have (sort of) followed the long and complicated history of the amendment. But there exists a steadfast group of women, both inside the government and beyond, that have been working for its ratification for years, including Democratic Congresswoman Carolyn Maloney (D–N.Y.).

“Women are half the population and yet the only right we are guaranteed in the Constitution is the right to vote. By finally ratifying the Equal Rights Amendment we will change that and usher in a new chapter in this nation where equal will truly mean equal for everyone," Maloney tells Glamour."The ERA is the legal bedrock from which we can fight for and win equal pay for equal work, end sexual harassment and assault, and end gender discrimination. We have an unprecedented opportunity to harness the energy of the Me Too and Time’s Up movements, of the race to the polls and record number of women running for office, to create lasting change for generations to come. We must seize it.”

And then there are women like actress and activist Alyssa Milano who have been supporters of the ERA for years, but are more recently taking concrete action. Last week Maloney held a shadow hearing about the ERA, where Milano was one of her witnesses.

"I think the craziest thing is that most people think that women are protected and covered under the law of our Constitution," Milano told Glamour. "And when I tell them that they are not guaranteed equal justice under the Constitution, women are normally shocked."

While she grew up in a politically active family and was familiar with the ERA, "It wasn’t until the Me Too movement took off that it felt like now is the right time to potentially bring this back up," she says.

Here's a breakdown of everything you need to know about the ERA and what's next for the amendment.

What exactly does the amendment say?

The amendment itself is pretty straightforward and broken down into three parts.

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.

Section 2 The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3 This amendment shall take effect two years after the date of ratification.

When was the ERA first written?

The Equal Rights Amendment dates all the way back to the suffragette movement and Alice Paul, then head of the National Women's Party. She drafted the first version and it was introduced to Congress in 1923.

It's been around since 1923 and it's still not an amendment?

That's correct. From 1923 to 1970, it was introduced into every session of Congress but often lingered in committee, awaiting a full hearing. It was narrowly defeated in the senate in 1946.

Then, in 1967, the new National Organization for Women (NOW) took up the cause. In 1972 Congress passed the ERA by the necessary two thirds majority, and the amendment went to the states for ratification with a seven-year window, later extended to June 30, 1982.

However, the amendment fell short by three states and failed to be ratified by the deadline.

It was officially reintroduced into Congress in 1982.

Wait, remind me, how does ratification work again?

The process is set up by Article V of the Constitution.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Basically, there are two ways to propose an amendment—either by the Congress with a two-thirds vote in both the House of Representatives and the Senate or by a convention of states called for by two thirds of the state legislatures. Then it moves to the ratification step to become part of the actual Constitution. This happens when the legislatures of three fourths of the states (or 38 out of 50) vote to ratify or state-ratifying conventions in three fourths of the states.

That's what makes Illinois' recent vote to ratify significant. They were number 37.

Who are some notable supporters?

From Alice Paul and her fellow suffragettes to Gloria Steinem and Shirley Chisholm, the list can read like a who's who of feminism.

Supreme Court Justice Ruth Bader Ginsburg has said, "If I could choose an amendment to add to the Constitution, it would be the Equal Rights Amendment.”

The movement also had the support of the unions by way of the AFL-CIO (who voted to support in 1973), the Democratic party, and myriad women's organizations.

Now groups like the ERA Coalition and the ERA Education Project are working on the cause.

In the wake of the Illinois news, support continues to grow online.

It seems like a good thing for women. What's the opposition all about?

The most prominent figure in the opposition of the ERA was conservative activist and antifeminist Phyllis Schlafly (founder of the Republican National Coalition for Life and Stop ERA), who passed away in 2016 at age 92. Her obituary in The Washington Post notes that she is credited with almost single-handedly stopping the amendment's ratification through grassroots organizing.

Schlafly believed that the ERA was antifamily and anti-American.

"Since the women are the ones who bear the babies and there's nothing we can do about that, our laws and customs then make it the financial obligation of the husband to provide the support," she said in 1973. "It is his obligation and his sole obligation. And this is exactly and precisely what we will lose if the Equal Rights Amendment is passed."

"ERA means abortion funding, means homosexual privileges, means whatever else," she argued.

Many agreed with her opposition position, including Ronald Reagan.

Another popular argument against the ERA was that it was simply unnecessary because the Fourteenth Amendment already held that no state could “deny to any person within its jurisdiction”—including women, presumably—“the equal protection of the laws.”

Which states have not ratified the ERA?

Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.

Why is it back in the conversation now?

There has always been behind-the-scenes action on the amendment, and as previously mentioned, it gets reintroduced in Congress almost every year. But it has definitely not been prominent in the news for quite some time. It would not be a stretch to believe the the conversation around the ERA has heated up in the wake of the cultural moments like the election of Donald Trump, the Women's March, and the #MeToo movement.

Jen Deaderick, who is writing a history of the ERA and runs the Equal Rights Amendment Facebook pagetalked to Slate in April about the resurgence. "It still did seem like everyone was just spinning their wheels for a while. But then the Women’s March happened last year, and in its wake Nevada suddenly ratified the ERA," she says. "So we went from needing three more states to ratify to only needing two." (In March 2017 Nevada became the first state in four decades ratify the ERA.)

So much has changed since the ERA was first conceived. Do we still need it?

Simply put, yes. There is much progress that has happened both culturally and legally, but without a constitutional amendment, those changes are not permanent.

"In the seventies, the ERA was part of the second-wave agenda. Women’s advocacy groups like NOW pushed through all sorts of laws and won lots of court cases that helped even the playing field for women," explains Deaderick. "There’s also been a tremendous cultural change, so it can be hard to imagine going backward. But the thing about laws and judicial rulings is that they can be repealed and overturned. Enshrining equality for the sexes in the Constitution wouldn’t immediately solve every issue, and might not even make all that much difference initially in our laws and courts, but it would provide an important bulwark against backward movement. We can’t count on Ruth Bader Ginsburg living forever."

"The #MeToo movement has underscored the importance of strong legal protections for women's rights, and our resolve to secure these Constitutional guarantees is unwavering," National Organization for Women President Toni Van Pelt said in a statement to NPR.

What happens if the thirty-eighth state votes to ratify?

Likely, a lot of court battles and serious lobbying, according to The New York Times.

There would be arguments about the original 1982 deadline, though there seems to be a possibility (per the Congressional Research Service) that that could simply be extended. Or Congress may need to pass the amendment anew, meaning each state would need to ratify again.

But whatever the case, we're one state away from finding out. So basically, buckle up!