“We hold these truths to be self-evident, that all men are created equal…” How many times have you heard these words from the Declaration of Independence, especially as July 4th rolls around and we’re reminded of the founding of our country? Maybe for you, this time of year conjures up thoughts of hot dogs, fireworks, and mattress sales more than it does thoughts of equality, but as we celebrate this year amid a new-found freedom from the worst of a pandemic, let’s really look at those words.
Our country was built on the principle that all men are created equal; leaving aside for now (although it’s always an important discussion to have) the problematic nature of how our country has treated all men, we should really remember that that isn’t just an expression. Women were denied a seat at the table for centuries, and even now, we’re often left playing musical chairs for the few available to us. But did you know that two suffragettes attempted to change that nearly a hundred years ago by drafting the Equal Rights Amendment, or ERA, and that, technically, that amendment has been ratified? This proposed amendment to the Constitution would essentially end legal distinctions between men and women – but will it ever become a reality?
The Beginnings of the Equal Rights Amendment
The Constitution of the United States and its 27 amendments grant us many rights, but so far it doesn’t have much to say about gender equality. But all the way back in 1923, two suffragettes and members of the National Woman’s Party, Alice Paul and Crystal Eastman, decided it was time to change that. They’d been leaders in the push to get women the vote, and the ERA seemed to them to be the next logical step after the ratification of the 19th amendment; they wanted to make sure that women were never again treated as second-class citizens. Their Equal Rights Amendment didn’t get much support; even so, starting in 1923, it was brought up in every session of Congress. But considering that Congress was full of, ahem, men throughout most of the twentieth century (between 1922 and 1970 only 10 women served in the Senate, with no more than 2 serving at one time), the ERA didn’t make much progress until the 1970s.
A lot had changed in the 5 decades between the introduction of the Equal Rights Amendment and the 1970s: both men and women had won some rights in the workplace (making working class women less worried about how the ERA would affect the fight for women factory workers’ rights), society’s ideas about men and women’s roles were changing, and we got some fierce women in Congress, like Representatives Martha Griffiths and Shirley Chisholm. These women were able to FINALLY put enough pressure on Rep. Emanuel Celler, the powerful chairman of the House Judiciary Committee (who had refused to hold a hearing on the ERA for over 30 years) to get things moving.
In 1972, Congress finally voted on the following two small, but historically monumental sentences: “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 Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” And when they did, the ERA passed in both chambers overwhelmingly, with far more than the two-thirds majority needed to pass – and, if you remember your high school Social Studies, it was then sent out to be ratified by at least three-quarters of the states (currently 38), who were given a seven-year deadline to get it done. Everything seemed to be on track, and then, all of a sudden, it wasn’t.
The Long and Winding Road to Ratification
When you look at the text of the Equal Rights Amendment, there doesn’t seem to be much to disagree with in those two little sentences; in fact, within a year of its approval by Congress, the ERA had been ratified by 30 states. It seemed like things were on track for quick ratification, but then a whole movement of people, like members of the new religious right and conservative activists, came out in force and tried to stop the amendment, arguing that it would lead to things like gender-neutral bathrooms, women being drafted into the military in combat roles, and same-sex marriage. Anti-feminist activist Phyllis Schlafly even started a campaign known as STOP ERA (“stop taking away our privileges”), claiming that the ERA would take away women’s “special status,” and that it would hurt the “traditional” family as well as do away with women’s “right” to be supported by their husbands.
These groups were successful in their attempts to change opinions on the ERA: only 5 more states had ratified the amendment by 1977, and then no more by the deadline, which was pushed until 1982. Not only that, but 5 states (Idaho, Nebraska, Kentucky, South Dakota, and Tennessee) actually voted to rescind their ratification, which would reduce the total number of ratifications to 33. Although it’s still unclear if those states can actually take back their votes, many people wrote the amendment off as dead.
Will the Equal Rights Amendment Be the 28th Amendment?
It turns out, though, the ERA isn’t actually dead. Since 2017, 3 more states (Nevada, Illinois, and, most recently, Virginia) have surprised the nation by voting to ratify it, bringing the grand total of states that have ratified the amendment to: yep, the 38 states required to add it to the Constitution.
But, unfortunately, that doesn’t necessarily mean that the Equal Rights Amendment is about to be made the 28th amendment to the Constitution: supporters and opponents have been fighting over two issues for years, and neither has been fully resolved. First, the deadline to ratify the Equal Rights Amendment has long since passed (the deadline was never extended past 1982). There is some good news on that front, though: earlier this year, the House of Representatives voted to retroactively remove the deadline for ratification. The bad news? This resolution still needs to pass in the Senate, although with the shift in the Senate towards the Democrats, there is a greater potential for it to pass.
Second, the 5 states that voted to rescind their ratification are sticking to their guns, and are therefore insisting that only 33 states have ratified the Equal Rights Amendment. No one is quite sure how to settle this problem, and both the 3 states that have recently ratified the Equal Rights Amendment, and the 5 who have decided to no longer support it are fighting legal battles to have their decisions recognized. There is some precedent, though, on the side of supporters of the ERA: during the ratification process for both the 14th and 15th amendments, states rescinded their ratifications, and Congress decided to, well, ignore them and proceed with adding those amendments to the Constitution anyway.
So for now, things are up in the air, legally speaking, and we still don’t have an Equal Rights Amendment – we’re not even sure whether we have 38 true ratifications from the states. With some arguing that it’s up to Congress to decide, and others saying we should rely on the courts, all we can do is wait and see. But, as Virginia proved to the nation in 2020, the ERA is by no means dead.
Do We Still Need the Equal Rights Amendment?
There’s no denying that women have made great strides in gaining equality under the law since Congress sent the Equal Rights Amendment out for ratification, thanks in part to great legal minds like Ruth Bader Ginsberg – so is the ERA still relevant in the 21st century? Yes! It might just be two little sentences, but having them in the Constitution could still make a difference in terms of the law and American society. After all, as RBG pointed out: “Every constitution in the world written since the year 1950… has the equivalent of an equal rights amendment, and we don’t.”
While there isn’t one magical law that would make women equal in all ways, what the Equal Rights Amendment would do is allow women to challenge laws and norms that stand in the way of their equality. According to Linda Coberly, a lawyer and the chair of the ERA Coalition’s Legal Task Force, a Constitutional amendment “would provide a basis, potentially, for a lawsuit, and courts will need to decide whether any particular law…constitutes discrimination on the basis of sex and is invalid under any equal rights amendment.” The ERA could therefore strengthen the legal basis for combating violence against women, pay inequality and maternity leave, as well as ensure that women couldn’t lose any of the rights that they’ve gained over the decades.
So there you have it: the long and maybe unnecessarily complicated story of an amendment to the Constitution that, to many in the year 2021, seems like common sense. The question remains, though, whether the 100th anniversary of the Equal Rights Amendment’s birth will see us celebrating its addition to the Constitution, or scratching our heads over how to move forward. What do you think?