Primary Source: The Equal Rights Amendment, Part 1
The early years: Five decades of obscurity.
On March 13, 2019, forty-seven years after Congress passed the Equal Rights Amendment (ERA), supporters marched on the Arizona state capitol in Phoenix. Their goal was to persuade the state Senate to ratify the national amendment, as they needed, arguably, one more state to sign on to make the amendment a reality.
The amendment is simple, yet its history and its long, winding road is complex. It was sailing toward ratification in the early 1970s but unexpectedly stalled; now there’s a renewed effort to push it over the goal. But even among legal experts there is debate about whether it can still be ratified today, and how many states actually ratified it in the first place.
In a three-part series, we will look at primary sources that cover all sides of this persistent proposal. In Part 1, we will discover its origin and its early supporters and detractors. In Part 2, we will study its moment in the spotlight in the 1970s. In Part 3, we will consider its current-day resurgence.
What exactly is the ERA? Are the arguments for and against it valid? Is this an amendment we need today, and is it worth amending our Constitution to include it?
Women’s rights advocates draft the Equal Rights Amendment.
In 1920 supporters of women’s rights scored a major victory with the passage of the Nineteenth Amendment guaranteeing women’s suffrage. Buoyed by that success, Alice Paul and other members of the National Woman’s Party turned their energy to a constitutional right to equality. She and Crystal Eastman wrote the first draft of the ERA, which was then introduced in Congress in 1923 by Congressman Daniel Anthony, Susan B. Anthony’s nephew.
The National Women’s Party kicks off the ERA campaign.
The Seneca Falls Convention of 1848 is hailed as the first convention in American history to focus on women’s rights. To kick off the ERA campaign, the National Women’s Party returned to Seneca Falls, New York in 1923, on the seventy-fifth anniversary of that first convention. Alva Belmont, a millionaire socialite and important women’s suffrage supporter, spoke in the opening address.
In Seneca Falls we stand on consecrated ground, the birthplace of women’s emancipation when 75 years ago women came together to tell the world that slavery could no longer hold half the race. The Woman’s Party today is working for nothing more than the complete fulfillment of the demand for equality made here in 1848. In three-quarters of a century complete equality has been won only in the vote. Discriminations continue to exist in education, in industry, in the professions, in political office, in marriage, in personal freedom, in control of property, in guardianship of children, in making contracts, in the church and in the double moral standard. We have carried out only a part of the command, the fight must go on. Let every woman here consecrate herself to toil to the end that women as well as men shall be free in the United States.
Frances Perkins declines to endorse . . . and to donate.
Frances Perkins was the first woman appointed to a Cabinet position when President Franklin Roosevelt nominated her in 1933. She served as Secretary of Labor until 1945, the longest tenure for that position. Jane Grant, a journalist and ardent feminist, wrote to Perkins asking for her endorsement of the amendment. On July 8, 1944, Perkins replied.
I think you know that I have given that amendment a great deal of consideration and have thought about it for a long time. The more I think of it, the more I am convinced that it is the wrong way to go about removing such handicaps as remain to women at this time. No one has been more gratified than I have at the excellent showing which women have made in the war industries. I knew, of course, that they would do it. There has never been any doubt in my mind about the capacity of women to work and their skill and intelligence has always made them very capable, but they have been successful in industry only when industrial conditions have been adapted to their needs. Those women who have worked so well in the war industries have worked under the protection either of State laws which limit their hours and establish certain working conditions designed to make them comfortable and relieve their strain, or they have worked under rules and regulations promulgated by the War Department, the Navy Department, based on recommendations of the Women’s Bureau of the Department of Labor for hours, shifts, sanitary facilities, rest periods, special provision of time off for performing household duties, and for their peculiar forms of illness, including pregnancy and menstruation. Intelligent employers desiring to get as much work as possible from their employees, particularly in this manpower shortage, have sought advice of this sort and have readily agreed to put such rules into operation, and they have not put such rules into operation for the men. Women do excellent work when the conditions of industry are modified to make it possible for them to do so, and they earn good wages under those circumstances too. . . .
I am aware that there are certain other matters which are regarded as disabling by the Woman’s Party and which they seek to remove by the blanket amendment method. I have always thought it was unintelligent to proceed blindly, and an amendment to the Constitution is a matter so complex as this has results which are unforeseeable. The civil disabilities of women are being removed gradually by legislation — indeed quite rapidly, and I see no reason why we should not proceed in that method, knowing what we are doing, rather than knocking out blindly not only the industrial legislation which I feel is so essential, but also some of the laws and judicial interpretations of common law which protect the family as an institution and stabilizes in fact a woman’s status in the family relationship. Some of these old common-law provisions are, of course, outmoded, but gradually the Courts, proceeding in the regular Anglo-American method of treatment of the common law, are interpreting and reapplying the ancient principles to modern times.
And may I say, my dear Jane, that I thought the pamphlet which you enclosed to me was particularly inept. I read it carefully, thinking I might find something new in it, but I didn’t. I am afraid that it is an appeal to prejudice, pride and publicity, so, under the circumstances, I am sure that you will forgive me if I do not subscribe to the Woman’s Party fund of $25,000. I hope your amendment will never be carried, but I, nevertheless, with deepest affection for you, gladly admit your right to differ with me in this or other matters.
A president supports the ERA for the first time.
Although both the Democratic and Republican parties had included support of the ERA in their platforms, no president had made an official endorsement since the amendment was introduced. In a re-election campaign speech in 1956, President Dwight Eisenhower referred to the ERA. After his victory, he mentioned the amendment by name. The National Women’s Party was ecstatic.
October 25, 1956, in his re-election campaign speech at Madison Square Garden:
We shall ask, as we promised in our platform, to insure women everywhere in our land equality of rights.
January 16, 1957, in his budget message to Congress:
The platforms of both major parties have advocated an amendment of the Constitution to insure equal rights for women. I believe that the Congress should make certain that women are not denied equal rights with men.
Opponents claim that women are already protected.
Opponents often claimed, and still do, that women were already protected by federal laws, negating the need for the ERA. Among the laws they pointed to were the Fourteenth Amendment, the Fifth Amendment, the Equal Pay Act, and Title VII of the Civil Rights Act.
Fourteenth Amendment:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Fifth Amendment:
While the Fourteenth Amendment is commonly cited as the “equal protection” amendment, it only refers to the states. The Due Process Clause of the Fifth Amendment refers to the federal government.
No person shall . . . be deprived of life, liberty, or property, without due process of law . . .
Equal Pay Act of 1963:
Congress passed and President John F. Kennedy signed into law the Equal Pay Act in 1963, which amended the Fair Labor Standards Act of 1938. The Equal Pay Act originally didn’t cover executives, administrators, professionals and outside salespeople, but those positions became included when the Educational Amendments Act of 1972 was passed.
SEC. 2.
(a) The Congress hereby finds that the existence in industries engaged in commerce or in the production of goods for commerce of wage differentials based on sex
(1) depresses wages and living standards for employees necessary for their health and efficiency;
(2) prevents the maximum utilization of the available labor resources; (3) tends to cause labor disputes, thereby burdening, affecting, and obstructing commerce;
(4) burdens commerce and the free flow of goods in commerce; and
(5) constitutes an unfair method of competition.
(b) It is hereby declared to be the policy of this Act, through exercise by Congress of its power to regulate commerce among the several States and with foreign nations, to correct the conditions above referred to in such industries.
Title VII of the Civil Rights Act of 1964:
In response to the Civil Rights Movement, Congress passed and President Lyndon Johnson signed the landmark Civil Rights Act of 1964. While the bill was being debated, Virginia Representative Howard Smith, in a move widely seen as a poison pill to the legislation, proposed to add “sex” to the groups protected under the bill’s Title VII employment provisions. Much to everyone’s surprise, the amendment to the bill passed. President Johnson signed the bill on July 2, 1964.
SEC. 703. (a) It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Next up: Part 2 of “Primary Source: The Equal Rights Amendment.” The battle heats up in the 1970s, when Congress passes it and the states are asked to ratify.
I am currently working on a book about Ah Toy, the first Chinese brothel madam in gold rush San Francisco.
Follow me to read more. Please share this post and your comments.
