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Equal Rights Amendment Experiencing Renewed Urgency

After nearly a century, political climate and #MeToo movement could push the ERA over legal hurdles

spinner image Women hold signs saying E R A Yes and Put Women in the Constitution
Tom Williams/CQ Roll Call

Proposed nearly a century ago, the Equal Rights Amendment (ERA) is periodically propelled forward with a new burst of enthusiasm and a flurry of footwork.

Suffragist and lawyer Alice Paul, who was born about a dozen miles east of Philadelphia in Mount Laurel, New Jersey, introduced the ERA in 1923 to guarantee women equal rights under federal law. Many thought it quickly would become the 20th Amendment — right after the 19th, which had secured women's right to vote in 1920. But it was only in the early ‘70s that the ERA mustered the required backing of two-thirds of Congress to move it toward the states for ratification.

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Then the National Organization for Women fanned out across the country, passionately advocating for the ERA's passage in the states. But when the clock ran out, only 35 of the 38 states required had signed on.

Activists: The ERA's time is now

Today's political climate and the #MeToo movement have added renewed urgency. Within the past three years Nevada, Illinois and Virginia became the 36th, 37th and 38th states to pass the Equal Rights Amendment, but it must surmount additional legal hurdles before it can be added to the U.S. Constitution.

"It's hard to get equal rights when you don't have equal rights,” says Julie C. Suk, a dean and professor of sociology at the City University of New York.

If the amendment does become enshrined in the Constitution, the ERA would require states to intervene in cases of gender violence, guard against discrimination on the basis of pregnancy and motherhood, and provide a federal guarantee of equal pay.

In general, women make 79 cents to a man's dollar, and women of color take home even less. Women who are pushed out of work while they are pregnant have no legal protections, Suk says, noting that only 17 percent of American workers have access to paid parental leave.

Updating the Constitution is the only fail-safe way to root out legal gender-based discrimination, she and others assert.

spinner image Alice Paul
Alice Paul
Bettmann/Getty Images

A brief timeline of the ERA

• 1923. Suffragist Alice Paul writes the original Equal Rights Amendment, which is introduced in Congress.

• 1923 to 1970. A version of the ERA is introduced in every two-year session of Congress but gets held up in committee.

• 1970. Rep. Martha Griffiths, D-Mich., forces the proposed constitutional amendment out of committee with a discharge petition signed by a majority of House members.

• 1971. Griffiths reintroduces the proposal as House Joint Resolution 208. After months of wrangling the House approves it Oct. 12.

• 1972. The Senate approves the identical wording March 22, and the ERA goes to state legislatures with a seven-year deadline for ratification.

• 1978. Congress extends the ratification deadline to June 30, 1982.

• 1982. Deadline passes with only 35 of 38 states having ratified the measure; some states decide to take back their approval.

• 2017. Both houses of the Nevada legislature vote to ratify the ERA 35 years after the congressional deadline, setting the stage for ratification in 2018 in Illinois and 2020 in Virginia.

Source: National Archives

"Many people do not realize women have no guaranteed equal rights under the U.S. Constitution,” says Illinois state Sen. Iris Y. Martinez, a Democrat from Chicago and an ERA backer. “As a woman, I see this as a timeless issue."

7-year ratification window, then 10

The 92nd Congress, which passed the ERA in 1972, did not see it that way. Lawmakers gave state legislatures seven years to ratify the amendment, later extending the deadline to 10 years, but no additional states approved it after 1979.

Five states — Idaho, Kentucky, Nebraska, South Dakota and Tennessee — ratified the ERA but later rescinded their ratifications, although it's not known whether a legislature can undo its ratification of a pending amendment. The 14th Amendment entitling citizens to due process and equal protections was ratified in 1868 with votes from states that later sought to back out.

Current members of the House and Senate are working to have the 1982 deadline removed, reasoning that if Congress had the power to extend the ratification deadline, it also has the ability to remove it altogether. Some point to the 27th Amendment, which founding father James Madison proposed to regulate congressional salaries. It took more 200 years to be ratified.

In mid-February, House Democrats and five Republicans passed a largely symbolic resolution to dispense with the long-passed ERA ratification deadline. In the upper chamber, Sens. Ben Cardin (D-Md.), Tim Kaine (D-Va.), Lisa Murkowski (R-Alaska) and Mark Warner (D-Va.) are sponsoring their own bipartisan resolution to get the ERA back on track, but neither measure is likely to get floor time in the Senate because of lack of support from Majority Leader Mitch McConnell (R-Ky.).

Some advocates, such as Supreme Court Justice Ruth Bader Ginsburg, suggest that supporters start all over, in part because missing the deadline by nearly 40 years poses complications, as does counting those five states that later backed out.

The Washington-based ERA Coalition/Fund for Women's Equality seems to think there is enough momentum to overcome those hurdles. It has more than 100 groups as members working in concert with dozens of lead organizations.

"There is a healthy combination of national coordination and local grassroots activism,” says Jessica Neuwirth, an international women's rights lawyer at Hunter College's Public Policy Institute in New York City and the coalition's co-president.

Support is almost universal, she says, referencing a 2015 coalition survey.

"ERA Coalition polling shows that 94 percent of Americans — and 99 percent of millennials — support a constitutional sex equality amendment,” she says. Millennials, who were born between 1981 and 1996, are ages 24 to 39 today.

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Social issues intertwined with ERA

Existing laws such as the 14th Amendment; Title IX, a 1972 law that protects people from discrimination based on sex in education programs that receive federal money; and the Equal Pay Act, passed in 1963 and revised in 2009, have created some protections for women. But many perceive them as a patchwork of legislation with vulnerable cracks.

"These laws have been helpful, but they are not comprehensive and they can be rolled back anytime,” Neuwirth says.

Some look to the ERA to ease the effect of childbearing on women's careers and how it widens the income gap between men and women.

"If you control for motherhood, women who are not mothers make close to what men make, whether they father or not,” Suk says.

Jennifer Carroll Foy, a lawyer in the Washington, D.C., suburb of Woodbridge, Virginia, who this year helped make her state the 38th to ratify the ERA, gave birth to twin sons during her successful campaign for Virginia's House of Delegates. When she was a student, a Supreme Court decision enabled her to attend the Virginia Military Institute in Lexington, a public college that had refused to admit women.

"I know the struggles of simultaneously being a mother and working a full-time job,” she says. “That's why I am fighting to institute paid family medical leave policies, fair scheduling laws and equal pay for equal work policies. I also believe that we must ensure all women have access to affordable birth control and cancer screenings."

Low wages and violence toward women tend to go hand in hand, ERA supporters say. Working in low-paid service industry jobs, women are particularly susceptible to sexual harassment and may not be able to afford to quit.

"Tarana Burke in the #MeToo movement brought attention to the issues of working-class women and women of color,” Suk says.

Not all women want the ERA

Full text of the Equal Rights Amendment

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.

Pro-ERA activists of the ‘70s hoped the issues would all be sorted out by now. When Congress sent the ERA out to the states, dozens signed on right away, but opposition mobilized, stoking fear that the Equal Rights Amendment would upend societal norms.

Phyllis Schlafly, a conservative leader and popular author of that era, suggested the ERA would set women back. She organized the Stop Taking Our Privileges (STOP) ERA campaign.

In the late 1970s, Schlafly, who died in 2016 at age 92, became a constitutional lawyer, sometimes opening remarks with “I'd like to thank my husband for letting me be here tonight.” STOP ERA advocates baked apple pies for the Illinois General Assembly as legislators debated the amendment.

The organization claimed the proposed amendment would take away sexual assault laws, alimony and the tendency for courts to award custody to mothers in a divorce. They balked at a military that could draft women and warned that single-sex restrooms would be eliminated.

Some of the privileges Schlafly fought to preserve have evolved naturally without the ERA in place:

• Alimony. Women of means may be the ones paying support in a divorce, and shared parental custody is considered ideal.

• Lavatories. Single-stall restrooms increasingly are gender neutral.

• Military. As of January, women account for more than 1 in 6 service members in the four military branches under the Department of Defense. Women constitute 21 percent of Air Force ranks, 20 percent of the Navy, 15 percent of the Army and 9 percent of the Marine Corps.

Schlafly's daughter Ann Schlafly Cori has continued her mother's work as chairwoman of the Alton, Illinois-based Eagle Forum, and she expresses concerns similar to her mother's. She is opposed to the ERA because she says government financing of abortion would be required and any kind of sex segregation would no longer be acceptable, including in prisons or shelters.

But activists say the U.S. needs to play catch-up.

"Sex equality is guaranteed in most constitutions in the world, including every constitution written since World War II,” Neuwirth says.

Ginsburg, the Supreme Court justice, has said the ERA's passage is important to her because she wants to be able to pull out her pocket Constitution to show her granddaughter that the foundational laws of this country ensure all women are equal to men.

Pamela K. Johnson is a writer and filmmaker in Southern California who is completing a historical novel.

Hollywood's take on the ERA

Mrs. America, 9 episodes

(FX on Hulu, streaming starts April 15)

Cate Blanchett plays anti-ERA activist Phyllis Schlafly with Rose Byrne as ERA supporter Gloria Steinem along with a cast of strong Hollywood women in this dramatized story of the 1970s movement to ratify the Equal Rights Amendment and the awakening of opposition led by conservative Schlafly to prevent that from happening.

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