The Equal Rights Amendment Is Not Dead Yet

The Equal Rights Amendment Is Not Dead Yet

Illustration: Angelica Alzona (GMG)

On March 22, 1972, in an 84–8 vote, the United States Senate passed the Equal Rights Amendment.

The mission of the ERA, as set out in its first clause, was simple enough: to ensure that “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 vote was one step in a seemingly assured journey for the ERA. It had widespread bipartisan support. It had already passed in the House. It was endorsed by President Richard Nixon. Americans were in favor of it. Its success appeared virtually guaranteed. Just 38 states had to ratify it, and many did so swiftly: Thirty approved the Equal Rights Amendment within a year.

We all know where the story goes next. The amendment—even with its goodwill, its momentum, its supposedly non-controversial objective—would ultimately falter thanks to a furious backlash led by activist Phyllis Schlafly and a newly galvanized conservative movement.

By the 1979 deadline Congress had put in place to approve the amendment, only 35 of the necessary 38 states had done so. During that time, five states even tried to rescind their ratification. Congress went so far as to extend the deadline to 1982, but no new states approved it in those ensuing years. Three states short of the requirement for ratification into the U.S. Constitution, the Equal Rights Amendment was—for all practical purposes—dead.

After that, the ERA continued to be re-introduced to every session of Congress after 1982 (it made it out of committee in exactly one of those years, 1983), but it largely sat dormant for decades.

Then in 2017, things took a bizarre turn—at least in the eyes of anyone who hadn’t thought about the ERA since the ‘80s. On March 22 of that year, on the 45th anniversary of the Senate’s approval, Nevada became the 36th state to ratify the amendment. Illinois followed suit on May 30, 2018, becoming the 37th state to ratify. Now, at the dawn of 2019, a few states are inching ever closer toward becoming the 38th state to ratify the Equal Rights Amendment, nearly 100 years after it was first introduced to Congress.

If another state does indeed vote to ratify, the ERA will have ostensibly crossed the last major threshold toward becoming a constitutional amendment. But it will be doing so a full 37 years past the congressional deadline, and amid considerable uncertainty about its legal viability. Still, long after it was declared dead, it’s clear the ERA still has some life in it.

These developments should, in theory, be big news. But you’d be forgiven for not having heard a thing about it. At a time when women are protesting, organizing, and resisting all over the country, the ERA has barely come up in the popular discourse. That’s not to say it isn’t there, but the groundswell is missing. The news coverage is present, but tepid.

Let’s be clear: If the Equal Rights Amendment was implemented, it would be a huge deal—a history-making, landmark event that would end a nearly century-long campaign, serve as a powerful message in this particular moment, and aim to set a standard for this country going forward. So why isn’t anyone paying attention? And even if it did pass, would anything actually change?

This image was removed due to legal reasons.

While the ERA languished, progress on women’s rights was made elsewhere through state laws and other legislation. Some protections were in place even before the ERA movement. By now, we’ve got the Equal Credit Opportunity Act, the Pregnancy Discrimination Act, the Violence Against Women Act, language in the Affordable Care Act, the Family and Medical Leave Act, the Equal Pay Act (though we know how well that one is working out), Title VII, Title IX, and 24 states with their own form of an ERA. Many ERA opponents point to these measures to argue that “women are already equal under the law.”

In the last few years, however, proponents have achieved notable gains through the so-called “three-state strategy” to officially lock down the remaining three states needed for ratification. The efforts of advocates, paired with the political climate, a reinvigorated feminist movement, and (to some degree) a book, Equal Means Equal: Why the Time for an Equal Rights Amendment Is Now and documentary, Equal Means Equal, have all propelled the recent developments on the formerly immobile ERA.

And while the issue of abortion has remained a talking point of anti-ERA conservatives over the years, many of the other issues raised by the Schlafly-led opposition of the ‘70s and ‘80s have disappeared. Women now serve in the military in high-ranking positions and with equal benefits (though it took until 2016 for all restrictions to be lifted), same-sex marriage has been legalized, there are more women in the workplace than ever before, and conservatives now have a whole new set of issues to be needlessly enraged about when it comes to public restrooms.

While we can’t be certain how the ERA might play out if it’s enacted, it’s worth asking what broader implications its passage might have. It’s not a coincidence that the amendment has seen a resurgence in the last few years. Problems that might not have been evident to the masses in 2008 (white supremacy and rampant sexual harassment in the workplace, for example) are glaring in 2019, and the Trump administration has certainly had a hand in emboldening the ERA movement.

So is there value in the ERA beyond its immediate functionality? This has long been a question; in 1982, as the Illinois General Assembly failed to ratify the ERA, journalist Dianne Ross wrote, “Never had the public’s expectations of what the legislature should do run so far beyond the political realities of what the legislature could do.”

Even supporters question whether the amendment would serve much of a practical purpose. Joanna Grossman, a professor at the Dedman School of Law at Southern Methodist University who specializes in sex discrimination and family law, told Splinter that, while she’d be “thrilled” if the ERA passed, she’s unsure whether it would have any actual effect.

“A lot of what the ERA would originally have done has already been done by the Supreme Court, just through interpreting the Equal Protection Clause,” Grossman said. “Through a lot of work that was mostly done in the ‘70s and ‘80s, the Supreme Court has in effect created a constitutional right of sex equality.”

Martha Davis, a professor at the Northeastern University School of Law, told Splinter that she believes the amendment could effect change if it extends further than the Equal Protection Clause.

“Well, the courts don’t have a completely free rein, right?” Davis said. “I would expect that the court would feel constrained to interpret the ERA to enhance and go beyond the Equal Protection Clause because otherwise there wouldn’t be any reason to adopt it.”

You might see a pattern emerging here. If you’ve read anything about the ERA in recent years, you’ve probably read about the Equal Protection Clause of the 14th Amendment. That’s because many opponents to the ERA cite it as sufficient language to cover gender equality and ban discrimination under the law (in short, it promises citizens “equal protection of the laws”), and the Supreme Court has ruled accordingly multiple times. That assertion is up for debate, however, and was most notably questioned (albeit quite gently) by the late conservative Supreme Court Justice Antonin Scalia. In a 2011 interview, Scalia said, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”

It should be noted that Scalia was a man so conservative that he opposed affirmative action, abortion, and same-sex marriage and advocated originalism with regard to the Constitution. So while that quote is often touted as evidence of Scalia’s support for the ERA, it’s a pretty bland statement made, in all likelihood, in spite of himself.

The activists keeping the flame burning for the ERA, meanwhile, are adamant that current laws are not nearly enough.

“It’s so inconsistent,” Carol Jenkins, of the ERA Coalition, which advocates for the amendment’s passage, told Splinter. “Would you like to gamble on the state you live in about whether or not you were safe or had equal rights? It’s that patchwork that simply has not served women well.”

Eleanor Smeal, the president and a cofounder of the Feminist Majority Foundation, agrees. She cited Education Secretary Betsy DeVos’ attacks on Title IX as just the latest example of the ultimate weakness of legislation compared to a Constitutional Amendment.

“We know the weakness of the current structure,” Smeal told Splinter. “Title VII [aka the Civil Rights Act, which bans discrimination based on color, race, religion, sex or national origin] was almost gutted and we had to fight to restore it. Title IX: We have fought to keep it. There are constant attacks on it. Constant. Both of these acts are rather weak. One of the reasons that women are so discriminated against? People can get away with it.”

Professor Grossman said that the broader social meaning of the ERA could have some real value—not in expanding women’s rights, necessarily, but preserving them.

“Sometimes you move the ball forward by just staying in place,” she said. “You need a strong social movement to counteract it could be that it’s worth it and it’s useful even if at the end of the day we’re at the same spot, because maybe we actually would have gone backwards more.”

But it’s impossible to say exactly how the ERA would be interpreted in the courts. Advocates seem certain that it would result in a fairer and more secure country for women—particularly with regard to sexual harassment and the pay gap—but there’s really no way of knowing for sure. The hard-right turn of the courts under Trump mean that there’s no guarantee that the law would be interpreted the way ERA proponents want—and in a world where our concept of gender identity is changing so rapidly, it’s easy to envision trans and non-binary people being left on the sidelines.

“There is an argument that the ERA might be interpreted to be a little bit of a stricter standard,” Grossman said. “There are a few things that might now survive constitutional review and under the ERA would not, but it’s not very many things and it’s not clear that that’s true.”

Smeal, who’s been fighting for the ERA since the ‘70s, said she values the symbolic weight of the amendment as much as its legal impact.

“We don’t want another generation to waste 40 years fighting for justice. An Equal Rights Amendment would give women a basic right that you can’t discriminate on the basis of sex,” she said.

While the opposition to the ERA remains largely the same (Phyllis Schlafly died in 2016, but her daughter, Anne Schlafly Cori, has taken up the mantle), advocates say the years since the amendment failed have given new shape to the pro-ERA movement. Jenkins, along with Carol Robles-Román of the ERA Coalition, said that while the movements of the ‘70s and ‘80s often failed women of color, they are now at the forefront (Jenkins is black and Robles-Román is Latina).

“The new era for the ERA has women of color legislators being the chief sponsors in just about every state that’s carrying a bill and that’s really significant,” said Robles-Román. “It’s a game changer. It puts a different face on this movement and this equality.”

It also wouldn’t be the first time that black and Latina women were the vanguard of social progress as white women held themselves and the women around them back.

“Women of color have more to gain by an Equal Rights Amendment than probably any other group because we are most discriminated against,” Jenkins said. “Now we are stepping forward and saying, ‘This is my country.’”

Another possible game-changer for the ERA? The internet. Hashtags like #EqualRightsNow and Facebook events that result in millions of people rallying across the country simply didn’t exist during the initial push for the ERA. The internet has similarly galvanized same ERA opponents and the right, of course. Smeal called the anti-ERA rhetoric “more extreme” than it used to be, but Robles-Román said that the “Phyllis Schlafly bullshit” feels less prominent to her now.

In fact, the biggest organizing hurdle for the ERA might be among its potential supporters, not its opponents. For one thing, there is a good deal of misinformation about the basic status of the amendment. In a 2016 survey, the ERA Coalition found that of those polled, 80 percent believed that the ERA had already been passed.

I myself must admit that despite being a fairly engaged and active citizen, the resurgence of the ERA barely made a blip on my radar when Nevada and Illinois ratified in 2017 and 2018. I didn’t really start paying attention until I received a mailer from the Feminist Majority last fall. The letter—emblazoned with the vintage “ERA YES” logo—declared (with every single word underlined), “The fight to win women’s constitutional equality moves ever closer to realization.” I’d vaguely remembered reading something at some point about Illinois, but felt a sense of embarrassment and confusion that the rest of the story had completely passed me by.

I wasn’t alone. Aside from the people directly working on the campaign, nearly everyone I spoke to about this piece in the course of writing it had to take a moment to register what I was even talking about.

Kolieka Seigle, the new president of the California branch of the National Organization for Women, is the first black woman to hold that office and, at 35, the youngest. Despite being part of an organization advocating for the ERA, she told Splinter she agrees that the energy for the amendment feels absent among young feminists and online.

“I started getting very invested when Nevada came through in 2017 and then Illinois in 2018. But I thought there would have been much more, much more of a splash,” she said.

Seigle cited ignorance, confusion over the deadline issue, and a false sense of security as reasons for the lack of urgency among many women when it comes to the ERA. And while she said she has concerns about intersectionality and inclusion when it comes to the (theoretical) enforcement of the ERA, Seigle called the amendment a “great first step” in guaranteeing rights for all women, not just “the de facto white women.”

“We need to be taking the concerns of women of color, women with disabilities, obviously the LGBTQ community, and making sure that that is all included into the implementation of the ERA,” she said.

Beyond all of those issues, there is the basic issue of apathy and weariness to contend with. My own mother—a retired journalist and a feminist activist—laughed when I told her I was writing something about the ERA. “Uh, why??” she asked. She hadn’t heard much of anything about these developments either. After I filled her in, I asked for her reaction to the news that the ERA maybe, possibly, had a chance of ratification. “Honestly, so what?” she said.

To my mom, the concept of equality of the sexes was as deeply obvious in the ‘70s as it is now, regardless of what the law said. Back then, she assumed the ERA would be ratified with ease, only to watch it slowly crumble. This is the woman who expressed feeling a certain amount of betrayal when, in 2008, I gleefully threw my support behind Barack Obama instead of Hillary Clinton without much thought. During one of the many conversations we had about the primaries that year, she told me that once I was out in the workforce, I’d see how much the world hates women. At first, it shocked me that my mom didn’t really care about the ERA in 2019, but as I thought more about it, it made sense.

“I’ve had to fight my own battles for 40 years now,” she said. “At this point, I just don’t know what difference it would make.”

About 30 minutes after we spoke, my mom emailed me a piece she’d written in 1975 while at Columbia Journalism School. Here’s the lede (one she still remembered well because her professor had read it in front of the class): “Although it’s only April, the year is already over for many supporters of the Equal Rights Amendment.” The story goes on to outline the drop-off in support for the ERA, the ongoing fight to ratify, and the mounting opposition. My mom had written this story 40 years ago. Of course she’d have some resistance to the idea of the ERA now. Why would things—especially in this particular moment—be any different today?

“Passing laws is one thing, winning hearts and minds for equality of the sexes is another,” she wrote. “Xoxo.”

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Still, the issues being raised by opponents of the Equal Rights Amendment become almost irrelevant in the face of far more pressing questions. For one, can this thing even become a Constitutional Amendment anymore?

While legal analysts differ in their opinions, there does seem to be a general expectation that either way, Congress and/or the Supreme Court will have to decide what to do. I contacted over 20 constitutional law professors across the country for this story. None would speculate on what might happen if a 38th state ratifies.

ERA proponents are currently aiming to complete the “three-state strategy” in 2019 by securing the 38th state necessary for ratification. The focus had most recently been on Virginia, where a group of lawmakers mobilized around the issue. But despite some signals of support from local governments, and passage in the Virginia Senate just last week, the ERA went on to fail in the GOP-controlled House. The news is more proof of what has been true all along for the ERA: success is far from guaranteed.

Of the other states yet to ratify, North Carolina, Georgia, and Arizona are seen as the best possibilities to tip the ERA over the edge, but even then, the amendment has a pretty sizable issue—the deadline for ratification passed literal decades ago. That sticking point is one proponents are hoping to bypass, in part because the deadline was set by Congress and isn’t in the actual text of the amendment.

“We believe that the deadline is unconstitutional,” Smeal told Splinter. “We also believe that it can be lifted. What Congress makes, Congress can change.”

Congress would likely have to vote on whether to invalidate the deadline or not. It would also have to decide how to handle the five states that voted to revoke their ERA ratifications. For what it’s worth, the request to move the deadline has been made before: back in 2011, such legislation was introduced by then-Wisconsin Rep. Tammy Baldwin (now a senator). Similar legislation is currently being put forth by Sen. Ben Cardin and Rep. Jackie Speier.

That idea isn’t so far-fetched. In fact, there’s some precedent: It took Congress over 200 years to pass the 27th Amendment, which prohibits members of Congress from giving themselves a raise. That case wasn’t exactly analogous, as the amendment was never given a deadline to begin with, but it was soon after the 27th Amendment was ratified that the modern ERA movement began to strategize. Now, if the ERA succeeds in its quest, it’ll likely do the same—providing a precedent for other long-dead amendments with hope of a revival.

Whether it will be effective remains to be seen, but Jenkins and Robles-Román said they they’ve already met with members of Congress who are on board with the motion.

“I think people are beginning to understand that to oppose this sends a wrong, discriminatory message to everyone, men and women in this country,” said Jenkins.

If Congress or the Supreme Court does go through with approving the ratification—and that is a giant if—that would be the final hurdle for the Equal Rights Amendment. President Trump cannot veto it, and while its actual meaning would certainly be argued to death in courts for many years to come, its place in the Constitution would be solidified.

After all this time, it’s entirely possible that 2019 will bring this long history and the many threads within it to some kind of conclusion. A 38th state (or more) could ratify, and the questions around the deadline, the states that rescinded their ratification, and whether the ERA as it stands could still become an amendment could all be answered. A new Congress with an historic number of women could be the one to decide whether the Equal Rights Amendment becomes law. Or a Republican Senate could strike it down. Or it will never even make it that far.

A few weeks after I spoke with my mom about the ERA, she mailed me two copies of Time she’d dug up from the basement. One was from 1990 (Women: The Road Ahead); the other was from 1984 (Geraldine Ferraro: A Historic Choice). We spoke on the phone again, and her outlook had softened somewhat. “I’m curious what people tell you about whether it could make a difference,” she said. “Let me know what you find out.”

I found myself returning to a piece by Barbara Ehrenreich from the 1990 issue headlined, “Sorry, Sisters, This Is Not the Revolution.” The last paragraph rattled around in my head.

“Maybe, now that women have got a foot in the door, it’s time to pause and figure out what we intend to do when we get inside. Equality with men is a fine ambition, and I’ll fight for any woman’s right to do any foolish or benighted thing that men are paid and honored for. But ultimately, assimilation is just not good enough. As one vintage T shirt used to say, IF YOU THINK EQUALITY IS THE GOAL . . . YOUR STANDARDS ARE TOO LOW.”

It’s been nearly three decades since Ehrenreich wrote that, the base threshold of equality—at least as a constitutional right—is something we’re still reaching for.

I called Ehrenreich to ask her about that 1990 piece and the state of the feminist movement today. She told me she hadn’t been aware of the recent progress on the ERA, and that she had been among those in the women’s movement who found the amendment “a little nebulous” even if they supported it in principle. Instead, Ehrenreich said she focused her attention on what she felt were more pressing issues, like the battle over welfare reform.

While she couldn’t speak specifically to the push for the ERA, her thoughts on the fight for equality in broader terms have largely remained the same.

“Is our goal really to have whatever men have?” she said. “Because I just don’t think that’s enough.”

We went on to talk about the things women have gained in the last 30 years (admission into the military, though the trans military ban remains a huge caveat) and the things many women have lost (access to abortion). We talked about Trump, having to play defense in the current political climate, and finding hope in the incoming class of progressives Congress, who, for now, seem to be playing offense instead.

As we spoke, I was reminded yet again that many of the same dynamics from decades ago are still in place today. We’ll have to wait many more years for any semblance of answers to the bigger questions the ERA fight raises. What will it take for women in this country to level the playing field? How long and by what means? In the long, frustrating battle to make any gains at all, what does winning even look like anymore?

Social Editor, Splinter