Primary Source: The Equal Rights Amendment, Part 3
Today: Is there still a chance?
We finish our dive into the primary sources of the Equal Rights Amendment (ERA) in the final part of this series. In Part 1, we looked at the origin of the amendment and its supporters and detractors through the 1960s. In Part 2, we focused on the headline-making clash between pro- and anti-ERA forces in the 1970s. Now we take a glimpse at today.
When Congress passed the ERA in 1972, both parties agreed to a seven-year deadline for states to ratify it. In 1978, when it looked like ratification would fail, Congress passed and President Jimmy Carter signed a four-year extension. No new states signed on. In fact, five states voted to rescind their ratification. By the time the extension expired, thirty-five of the required thirty-eight states had ratified the amendment (depending on the legality of the five states’ rescissions).
Now, on the heels of the current #MeToo movement, the ERA is back in the news. There have been recent pushes in Nevada, Illinois, Virginia and Arizona to become the final three states to push the ERA over the goal. But commentators don’t agree that this is even legal, or if we even need it.
Are the arguments for and against the ERA valid? Is this an amendment we need today, and is it worth amending our Constitution to include it? Is there a legal way to ratify the ERA today?
Three legal scholars see why an ERA is needed.
Legal arguments can become mind-numbing in the span of a few sentences, so first, some background. When judges try to decide whether something discriminatory is acceptable, they put it to a test. There are three tiers to this test, and each addresses if it’s allowable to discriminate. Essentially, the higher the tier, the harder it is for a discriminatory law to be considered okay.
Minimum scrutiny (lowest tier). The government only has to show that a discriminatory law serves a legitimate interest. (Example: age discrimination. A city passes a law that says no one over age 100 can be hired as a firefighter.)
Intermediate scrutiny (middle tier). The government has to show that a discriminatory law serves an important interest. (Example: gender discrimination. A city passes a law that says no women can be hired as firefighters.)
Strict scrutiny (highest tier). The government has to show that a discriminatory law serves a compelling interest. (Example: racial discrimination. A city passes a law that says no Asians can be hired as firefighters.)
One of the goals of ERA supporters was to “promote” gender discrimination into the strict scrutiny tier, making it more difficult to discriminate on the basis of gender. In their 2006 article, legal scholars Lisa Baldez, Lee Epstein and Andrew D. Martin explain how the ERA will help.
[W]ithout an ERA, according to many commentators, the justices will continue to invoke (or perhaps ignore) the murky intermediate rule, upholding or voiding classifications as they see fit, and judges on state and lower federal courts will do the same or even concoct their own approaches to sex discrimination . . . But with an ERA, jurists will be forced (1) to elevate sex to a suspect class [strict scrutiny], which in turn will lead them (2) to eradicate virtually all sex-based classifications . . . as they now do in the case of race. . . .
[I]f we believe that it is desirable for courts to produce a larger number of equality-oriented outcomes, then an ERA is neither an impediment nor a constitutional redundancy. Quite the opposite: while ERAs do not have a direct effect on judicial decisions, they do, even after controlling for other relevant factors, increase the probability of a court applying a higher standard of law to adjudicate claims of sex discrimination. And the application of a higher standard of law, even after controlling for other relevant factors, increases the probability of a court reaching a disposition favorable to litigants alleging a violation of their rights.
A journalist calls renewing the ERA “farcical.”
Nevada voted to ratify the amendment on March 22, 2017. Illinois, once a fierce battleground for opponent Phyllis Schlafly, followed on May 30, 2018. With the current push for the ERA, legal questions have arisen, notably: 1) Did the ratification deadline of 1982 really count? 2) Are states allowed to rescind their ratification? Prominent Washington Post columnist George Will says yes to both in his June 13, 2018 column.
[C]onstitutional morality has evolved the principle that ratification should occur during a predetermined period of deliberation, reflecting (in the Supreme Court’s words) a “sufficiently contemporaneous” consensus of at least (nowadays) 38 states “at relatively the same period.”
So, Congress, as has been customary since the 18th Amendment (Prohibition, 1919), required ERA ratification within seven years, which was generous: The first 10 amendments (a.k.a. the Bill of Rights) were ratified in 27 months. Leaving aside the 27th Amendment, pertaining to congressional salary increases (dormant for 203 years, resuscitated in the anti-Congress fever of 1992), the average time for ratifying amendments since the first 10 has been 16 months, and no amendment has taken even four years. The 26th Amendment (lowering the voting age to 18) took less than four months. . . .
The only federal court to rule on the four-year extension held it unconstitutional and said all rescissions were valid. Now, however, ERA advocates argue that the clock can never expire on ratification — states can vote over and over (as Illinois has done) until they ratify it, and no ratification can be rescinded. In 2017, Nevada ratified the cadaver, so ERA proponents insist they are just one state away from victory. But, inconveniently, ERA supporters in Congress have repeatedly reintroduced it (most recently in January 2017), thereby conceding that the process must begin again.
Which is farcical. In 1972, there were 13 women in the House and two in the Senate. Today there are 90 in the House and 23 in the Senate, reflecting 46 years of legal and social changes that a prompt ratification of the ERA would not have hastened and that consignment of the ERA to the attic of 1970s nostalgia — hip-hugging bell-bottoms, etc. — will not impede.
A law student argues that there are no deadlines.
Many legal scholars agree that the chance to ratify the ERA has expired, but in a 1999 article published in The University of Chicago Law Review, law student Mason Kalfus refutes that argument. The Twenty-seventh Amendment, for example, was ratified in 1992 . . . 202 years after it was approved in Congress. Kalfus claims that time limits on ratification violate Article V of the Constitution, which lays out the amendment process.
The Constitution specifies that amendments are valid “when ratified.” The phrase “when ratified” is the only reference in Article V to time limitations on amendments. It does not say “when ratified according to the terms of Congress”; rather, it specifies simply “when ratified.” However vague, the text addresses the issue at hand, and potentially suggests that amendments, once proposed, are to be left entirely to the States until ratification. . . .
If Congress is concerned about the States ratifying an amendment after seven years, why propose the amendment at all? If the proposed amendment might not be a good idea in seven years, what will happen if it is ratified? It is far better to have an aged proposal floating around than an unwise amendment permanently a part of the Constitution. Chief Justice John Marshall said that the Constitution is “intended to endure for ages to come.” Amendments that might not be a good idea in seven years (or even longer) threaten the Constitution’s endurance. Ironically, the first amendment to be proposed with a time limit — the Prohibition Amendment — exists today as the quintessential hasty error of constitutional history. The record suggests that had Congress not been able to put a time limit on the amendment, it might not have passed. But Congress, driven by the issue of the day and able to ensure that the proposed amendment would not unexpectedly reach beyond its short-lived usefulness, proposed an amendment to address that issue — only to have to repeal the amendment eleven years later.
Arizona rejects the latest chance to ratify the ERA.
The ratification of the Twenty-seventh Amendment inspired ERA proponents to renew their efforts. After Nevada’s and Illinois’s approvals, with supposedly one state left, organizers trained their focus on Virginia. That effort failed in January, 2019. Next on the list: Arizona. AZCentral reports the outcome.
Despite pledges of support from a handful of moderate Republicans, proponents of the Equal Rights Amendment failed Wednesday [March 13, 2019] to force a ratification vote in the Arizona Senate.
Republicans in the state Legislature for the third year in a row refused to allow a vote on the ERA.
Arizona drew national attention this week after ERA supporters expressed hope that it could be the crucial 38th state to ratify the amendment and place it in the U.S. Constitution. . . .
But the ERA never received a hearing because Senate Judiciary Committee Chairman Eddie Farnsworth, R-Gilbert, refused to allow it. He also blocked it last year when he chaired the House Judiciary Committee. . . .
“We’ve never been this close in Arizona to ratifying the Equal Rights Amendment,” [State Senator Victoria] Steele said. “We’ve been on this path for 96 years. There’s no way we’re quitting now.”
A journalist claims, “We’re already living in Phyllis Schlafly’s nightmare.”
With the ERA back in the news, analysts are wondering if the need for it is still there. It has been forty-seven years since its passage through Congress, and much has changed. In her February 16, 2019 New York Times column, Susan Chira weighs in.
When Phyllis Schlafly crusaded against the Equal Rights Amendment in the 1970s as a threat to all-American motherhood, she handed out freshly baked bread and apple pie to state legislators. She warned of a dystopian post-E.R.A. future of women forced to enlist in the military, gay marriage, unisex toilets everywhere and homemakers driven into the workplace by husbands free to abandon them.
The E.R.A., which had been sailing to ratification, failed. Yet gay marriage is now the law. Women in the military see combat, although women are not required to register for the draft. [They may be soon.] Six women — so far — are running for president. A record-shattering number of women have claimed seats in Congress. And the percentage of prime-working-age women participating in the labor force has soared from 51 percent in 1972, when Congress passed the E.R.A., to more than 75 percent last year.
So what protections did American women earn without a constitutional amendment? Did the country get everywhere the people pushing for the amendment wanted it to go? . . .
Some of the very arguments Mrs. Schlafly deployed decades ago resurfaced in the recent state legislature debates. In Nevada, Illinois and Virginia, conservative women denounced the amendment. Women already have equal rights, and an amendment would take away remaining privileges, they argued. It would make it illegal to separate the sexes in bathrooms, college dormitories or school sports, they claimed. Women would lose programs like food subsidies aimed at mothers and female-only scholarships.
What the E.R.A. would change and what it would not is both bitterly contested and hypothetical. During the 1970s and 80s, a determined corps of lawyers led by Ruth Bader Ginsburg persuaded the Supreme Court to extend the equal protection clause of the 14th Amendment to cover many forms of sex discrimination. After the E.R.A. stalled, legislators passed a bevy of new laws. Together, these had the effect of opening new doors for women.
But advocates point to gaps in existing laws and Supreme Court decisions that have limited enforcement, particularly in the areas of violence against women, sexual harassment and equal pay.
Justice Ginsburg, speaking at the Aspen Institute in 2017, said that while women had come “almost as far” under the 14th Amendment as they would have under the E.R.A., she still believed an amendment had practical and symbolic value. “I would like to be able to take out my pocket Constitution and say that the equal citizenship stature of men and women is a fundamental tenet of our society like free speech,” she said. . . .
And our understanding of gender has changed in ways unimagined either by the suffragists who first drafted an equal rights amendment when women won the vote a century ago or the backers of the E.R.A. a half-century later. A real push for this amendment now might affect the treatment of trans people and who is legally seen as a man or a woman. . . .
“It’s almost more important in times like these to have very explicit constitutional language,” [ERA Coalition co-founder Jessica] Neuwirth said. “If the law says no discrimination on the basis of sex, then no matter what your legal ideology as a judge, the more concrete the language is, the better off people are going to be.”
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