ERA 101 - What is the ERA and Why Does it Matter?
About 2 months ago, I learned that women do not have equal rights in the constitution. This blew my mind. How could this possibly be true? How could I not have known this sooner? I read the NYTimes, watch Samantha Bee and John Oliver and pithy documentaries, I took intersectional feminism classes….how did I miss this? Then I realized that practically nobody knew about the ERA.
Here is a brief history of the Equal Rights Amendment (ERA):
The text is very simple and brief: “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. This amendment shall take effect two years after the date of ratification”. It fits concisely in the stripes of the flag above.
To make an amendment to our constitution there are several steps:
- A person proposes the amendment.
- Two-thirds of the Federal House of Representatives and two-thirds of the Federal Senate must approve it.
- Then two-thirds of our 50 states need to approve it - 38 states. Within every state there is an equivalent of a house of representatives and a senate (every state has a different name for their legislatures), and it needs to pass both of those with a majority, or whatever is dictated by that particular state. Example: Between 2011 and 2016, the Virginia Senate passed a bill ratifying the Equal Rights Amendment, but the House of Delegates did not let it pass committee level. BTW All of Virginia’s House of Delegates is up for election this November...
Alice Paul wrote and proposed the amendment in 1923 after women won the right to vote.
She fought for years building support and consensus and, finally, in 1972 it passed through the Federal House and Senate with wide bipartisan support. It was then sent to the states to ratify; it seemed like a no-brainer to pass. In order to amend the constitution, we need 38 states to ratify the amendment proposed by congress.
By 1977, 35 states had ratified the ERA, and that is how it has stayed till recently. After the Women’s March in 2017, Nevada finally ratified the ERA. Did you hear about this? Neither did I! We are now at 36 of the 38 states needed to ratify. We are so close, but we still do not have equal rights in the constitution. The amendment had a tag-on that said it needed to be ratified by 1983, but the FEDERAL congress can still approve this.
If you are in one of the 14 unratified states (Alabama, Arizona, Arkansas, Florida, Illinois, Missouri, Mississippi, Louisiana, North Carolina, South Carolina, Georgia, Virginia, Oklahoma, Virginia, Utah) you need to make some calls to your STATE officials and everyone should tell all their friends. Join Equal Means Equal !
Why did the fight stop in 1977?
In 1977 the ERA met its nemesis, Phyllis Schlafly. She was a mother of five with a law degree. She was well spoken, always calm, and lobbied senators by baking them fresh bread every day. Her thesis was that women today are a special and privileged class, and we should silently keep those privileges. Her argument was: women aren’t drafted, men must support women, caring for children is a coveted and wonderful job, modern technology is doing a lot of our old grunt-work, etc. etc. If we passed the ERA, legal protections for women would disappear and women would be drafted. Plus, all public bathrooms would become unisex, and there could be gay rights, and abortions all over the place. She argued that life now is so awesome and after the ERA there would be horrifying unintended consequences. She won a lot of converts with these arguments.
White, hetero-normative, conservative christian, happily-married, wealthy women, who want to have kids and want to stay home have it made! If only we could all be exactly like her, we’d really be sitting pretty. But sadly, most of the married population needs 2 incomes to sustain a household, and a growing number kids in America have single parents. Some people are in dangerous relationships, and they can’t leave because many shelters won’t allow children. Some women have to prevent or abort their babies because they are scared that they will get fired from their job, lose their insurance, and become homeless with a newborn. Some women don’t want to get married or have babies. Some women can’t get pregnant to save their lives, some seem immune to birth control. Some people form non-traditional families in all sorts of different ways. Let’s not even start with the challenges of being a single dad, with nowhere to change a diaper next to the urinals.
Luckily, evolving ideas allowed for us to take an existing amendment that was definitely not for women, and bend it to fit our times. The 15th amendment gave equal rights to “negro males” including the right to vote in 1868, while it declared the southern debts of the civil war null and void. It was also the first use of the word “male” in the constitution, making it very clear that it did not also give women the right to vote yet. The writers purposely excluded women. Suffragists were previously fighting simultaneously for the end of slavery and women’s suffrage. But while this amendment was in debate, women were forced to choose sides: either white women got the vote or black men got the vote. The debate got ugly and very racist.
But somehow, we managed to tie this law, despite it’s history, into a law that included women in many supreme court discrimination cases. A young Ruth Bader Ginsberg was one of the pioneers of this technique. Curiously, all of her sex-discrimination cases had male plaintiffs, thus showing how sexism hurts everyone. This fluidity in our constitution is beautiful! We managed to make a pretty good dinner using only what was in the refrigerator, but all we had was eggs, rice, celery and few spices.
But still - so few people know that we never won the ERA fight! I think that is why the fight slowed. I’ve heard some older feminists say that they didn’t talk about it because it was embarrassing or “too sad”. In some panels I heard the experts say that the younger generation doesn’t care. I want to scream, “We didn’t know! No one told us! No one talks about it!” Over the years we’ve been able to patchwork laws to approximate equality, which allows conservatives to ask “what rights did you wish you had?” Some people on the left say “there are more important things” or “a law won’t fix anything”. To the people who worry about “unintended consequences”, every democratic country in the world has had equal rights in their constitution since WW2.
Don’t even get me started on CEDAW (Convention for the Elimination of all forms of Discrimination Against Women)! The “unintended consequences” are pro-choice and pro-LGBTQAI outcomes, the military draft, and worries that women will be able to sue for back pay on years of underpay. Well, the women’s draft is already possible in our constitution; it happened in WW2. Germany has had equality for women in their constitution since 1949, and they just approved gay marriage in June of 2017. African Americans have not received reparations for slavery, so I doubt women will get any official monetary payback, but maybe there will be some form of affirmative action (assuming Jeff Sessions doesn’t succeed). Progress is inevitable, but it also happens when it happens, and happens in different ways.
There are millions of reasons why this is needed today. Here are five solid ones in a Teen Vogue article. In addition, if we just break down the pay gap, we might see that most of the people living at or below the poverty line are women including many women of color for whom the pay gap is more extreme. If they were making the same as men, they would no longer be under the poverty line. We pay the women who watch our kids less than the man who watches our cars. When a man becomes a father he is more likely to be recommended for a promotion, but somehow the opposite holds true for women who are routinely overlooked for promotions when they become (or may become) mothers. I personally noticed that pre-Obamacare, my health insurance was more expensive than my husband’s. Although Obamacare sought to fix that, getting a policy as a married couple was more expensive than getting 2 policies. Women in the past 10-15 years have been fired for using birth control, or getting in vitro fertilization, and one state legislature just made a law saying that was totally fine on religious grounds. The late Justice Antonin Scalia said, "If the current society wants to outlaw discrimination by sex, you have legislatures." There is currently no basis for sex equality in the constitution.
So many people are unaware of their state and local legislatures, but the state legislators are the ones that are actively voting down the ERA, despite public opinion. The state legislatures are also the origin of some of the most absurd laws. Indiana and Texas laws say that even the tiniest fetus needs a funeral. North Carolina recently passed a law that a woman cannot revoke consent once she is penetrated. Anti-trans bathroom bills are a state-by-state issue. If our legislative bodies were as diverse as society, maybe these things wouldn’t happen. The US federal legislature is only 19% female. Sweden is 45% female in their legislature, and they have very progressive policies on birth control, sex ed, and child care. Afghanistan is 28% female because America fought for this quota, but we have no similar quota to achieve parity.
What can I do?
Good things can happen too! Pay attention and connect with your local government; state legislatures, city council, governor, and mayor all have tremendous power. Several cities and states are fighting to be immigration safe-havens in the face of anti-immigration federal statutes. NY state is currently discussing universal health care, regardless of what the federal government says on repeal and replace (again - call your reps!). Some states are following the Paris Climate Accord. Some states are legalizing pot, and making lots of money for schools, health, and infrastructure of the state. We can harness states rights for good if we know what is going on. Vote in upcoming elections, even the boring ones! If your state has no elections, support candidates in states that do. Talk to people, even when they disagree with you. Join Equal Means Equal, a movement to complete the ratification of the original Equal Rights Amendment to the US Constitution. Remember, we have tremendous power if we are informed and take action.
Main image by Natalie White.