Why should you care, who would benefit?
It turns out, explaining why we need the ERA is complicated.
It’s not as though we don’t already have many laws against maltreatment of women, explains Wendy Murphy, director of the Women’s and Children’s Advocacy Project at New England Law School and Equal Means Equal’s legal advisor. Women are also already protected, in some sense, by the Equal Protection clause of the 14th amendment (“nor shall any State...deny to any person within its jurisdiction the equal protection of the laws”). But the rub is that equal enforcement of any of the existing laws against sex discrimination is not required. That is because sex, specifically, is not a protected category explicitly mentioned in the Constitution the way, for example, religion or race are.
This has two reverberating effects. First of all, it allows the government to get away with laws and policies that treat men and women differently, often to the detriment of women.
In cases in which constitutionally protected categories are the main issue, the court must apply what’s known as “strict scrutiny” to judge whether or not a law is constitutional. Strict scrutiny requires the court to apply something called the “least restrictive means test,” which means that the law can only stand if there is a good reason for the law and there is no other less restrictive or imposing way for the government to accomplish its cited aim. “If you can put forth a single other way the government can accomplish their goal, the law is immediately struck down,” Murphy says.
Consider a provision to a Massachusetts law that allows convicted rapists who impregnate their victims to seek custody and visitation rights to the child through the family court system. It should be easy to argue that this is a grave injustice and a huge imposition on women — if the father is a convicted rapist, why should the mother be legally bound to face her attacker (again and again for 18 years) in yet another courtroom?
Without the ERA, and without the strict scrutiny that comes with it, the woman’s right to cut all ties to her rapist is less important than the government’s interest in forcing the rapist to pay child support. “The law clearly has a disproportionate impact on women,” Murphy says, who’s been trying to sue the state on behalf of a woman in this very situation for more than six years now. “My argument is: Fine, child support and forcing the rapist father to pay it is not an illegitimate government interest. However, there’s an alternative,” Murphy says. Easily, the judge in the criminal court could order the rapist to pay fines or restitution at sentencing. This way, there’s no need to go to family court. “It’s a less restrictive imposition on women,” Murphy says. “If I had strict scrutiny, I could win. But because women aren’t entitled to that, there is no reason for the court to even consider this a violation of someone’s constitutional rights.”
If that isn’t bad enough, the absence of the ERA and the strict scrutiny that would come with it also makes it much harder for individuals to sue employers. Let’s say you are being sexually discriminated against at work — whether you’re being sexually harassed, or your male counterpart is being paid more than you, or you’ve been fired because you got pregnant. The bar you as a victim must meet to prove that the harassment was a violation of your rights under laws such as Title VII, and even the equal protection clause of the Constitution, is much higher than if you were accusing someone of discriminating against you on the basis of religion or race. “The state of play right now is that men and women are different, so some discrimination is allowed,” says Caroline Fredrickson, president of the American Constitution Society. In the end, what this means in practice is that, even if a law says sex-based harm is technically illegal, the law lacks teeth.
With the ERA, there would be this added (and very powerful) layer of protection: not just state or federal law, but an explicit, inarguable, statement that discrimination on the basis of sex is a violation of constitutional rights.
Would anyone really want to turn back the clock on women's advancement?
YES. Many people do.
Examine the members of Congress who have:
tried to cripple Title IX, which requires equal opportunity in education
opposed the Violence Against Women Act, the Fair Pensions Act, and the Paycheck Fairness Act
voted to pay for Viagra for servicemen but oppose funding for family planning and contraception
for decades blocked U.S. ratification of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
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Change the status quo
The most important effect of the ERA would be the clarification of the status of sex discrimination for the courts, the decisions of which still demonstrate confusion regarding such claims. For the first time, “sex” would be a suspect classification, like race, and would require the same level of “strict scrutiny” and have to meet the same high level of justification – a “necessary” relation to a “compelling” state interest – as the classification of race.
The current legal and judicial systems still often have an impact on women that works to their disadvantage, because those systems have traditionally used the male experience as the norm. Therefore, lawmakers and judges must be encouraged to include equitable consideration of female experiences as they deal with issues of Social Security, taxes, wages, pensions, domestic relations, insurance, violence, and more. Without an Equal Rights Amendment providing motivation, the status quo will change much more slowly.
Where gender equality is already the norm in workplaces, men:
Who have better access to flexible work are more productive in their jobs, report higher work performance, cope better with higher workloads, have fewer absences and have lower levels of personal stress and burnout.
Are more free to be themselves and step outside of stereotypical ideas of what it means to be a “man” — asking for help when we need it and being free to express our emotions instead of bottling them up.
Are more likely to have access to and take advantage of work life policies and spend more time with their families.
Have better relationships with their co-workers, spouses/partners, and children.
History of the ERA
Alice Stokes Paul (1885-1977), a Quaker from Mount Laurel, New Jersey, was a key figure in the passage of the 19th Amendment, which granted women the right to vote. While many suffragists left public life after the enactment of the 19th Amendment, Alice Paul believed the true battle for equality had yet to be won. In 1923, Paul announced that she would be working for a new constitutional amendment, one she authored and initially named the “Lucretia Mott Amendment.” Renamed in 1943 as the Equal Rights Amendment (ERA), it called for absolute equality stating, “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” The ERA was introduced in every session of Congress from 1923 until it passed in 1972. During the 1940s, both the Republicans and Democrats added the ERA to their party platforms. In 1943, the ERA was rewritten and dubbed the “Alice Paul Amendment.” In its current wording it reads, Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
“There is nothing complicated about ordinary equality.”
Alice Stokes Paul, author of the ERA
In 1972, the ERA passed both houses of Congress and went to the states for ratification. Congress placed a seven-year deadline on the ratification process, a comparatively short deadline for an amendment, especially when considering that most amendments are never given deadlines to begin with. This time limit was placed not in the words of the ERA itself, but in the proposing clause. Like the 19th Amendment before it, the ERA barreled out of Congress, getting 22 of the necessary 38 state ratifications in the first year. The pace slowed as opposition groups began to organize – only eight ratifications in 1973, three in 1974, one in 1975, and none in 1976. Despite a Congressional extension through June 30, 1982, the ERA did not succeed in getting an additional three state ratifications before the deadline.
When gender equality is the norm, men:
Will have greater freedom of choice in their career, and will no longer face discrimination or disapproval when taking on career paths, caring responsibilities and activities traditionally reserved for women.
Will be enabled and encouraged to take extended parental leave and to work flexibly, to take more equal responsibility in caring for children.
The ERA is an amendment for both men and women – it is not just a woman’s issue. Issues of custody, employment, and fair wages are important to both sexes and an Equal Rights Amendment would guarantee equal legal rights without regard to sex.
Everyone benefits from Gender Equality
It’s vital for men to believe in gender equality in order for belief systems to shift and gender equality is something that men should want to believe in, because it benefits everyone. The countries that have the most gender equality score highest on the happiness scales. Countries with greater gender equality are usually more economically successful – women who are educated and in the workplace are great economic assets. There is also evidence that companies that have greater gender equality tend to be better places to work.
Gender equality is a win-win for everyone. And to fully empower girls, we must also engage boys and men. We’re all in this together, and we need to carry this together.
Only one More state needs to ratify the Amendment
There are two movements to pass the ERA today. One route would require the ERA to start over again in Congress be voted on again, requiring the amendment’s passage by two-thirds of each house of Congress and then ratification by 38 states. An alternative strategy, which we are working toward, maintains the legal viability of the existing 37 state ratifications and only one more state ratification is needed to complete the process and make the ERA the 28th Amendment to the Constitution.
Section 1: Women shall have equal rights in the United States and every place subject to its jurisdiction. 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: Congress and the several States 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.
Liberty and Justice for all
It is necessary to have specific language in the U.S. Constitution affirming the principle of equal rights on the basis of sex because for more than two centuries, women have had to fight long and hard political battles to win rights that men (initially certain white men, and eventually all men) possessed automatically because they were born male.
It was not until as recently as 1971 that the 14th Amendment's equal protection clause was first applied to sex discrimination. Even today, a major distinction between the sexes is present from the moment of birth — the different legal standing of males and females with respect to how their constitutional rights are obtained. As demonstrated in 1996 by the last major Supreme Court decision on sex discrimination, which dealt with admission of women to Virginia Military Institute (VMI), we have not moved beyond the traditional assumption that males hold rights and females, if treated unequally, must prove that they hold them.
The Equal Rights Amendment would remove that differential assumption. The VMI decision now tells courts to exercise "skeptical scrutiny" requiring "exceedingly persuasive" justification of differential treatment on the basis of sex, but prohibition of sex discrimination is still not as strongly enforceable as prohibition of race discrimination. Ironically, under current court decisions about sex and race discrimination, a white male claiming race discrimination by a program or action is protected by strict scrutiny, but a black female claiming sex discrimination by the same program or action is protected by only skeptical, not strict, scrutiny.
We need the Equal Rights Amendment to clarify the law for the lower courts, whose decisions still reflect confusion and inconsistency about how to courts deal with sex discrimination claims. If the ERA were in the U.S. Constitution, it would - in many cases - influence the tone of legal reasoning and decisions regarding women's equal rights, producing a cumulative positive effect over time as discrimination cases are brought forth.
Additional Points to Consider
The 19th Amendment, granting women suffrage is the only mention of the word “woman” in the U.S. Constitution. Furthermore, the only right guaranteed to women by federal law is the right to vote.
According to the American Association of University Women (AAUW), among full-time, year-round workers, women earn 77% of what men earn. This disparity increases even more for African American and Hispanic women. Additionally, women are half as likely to receive a pension, and those that do receive almost half as much. Social Security still defines women as dependents and therefore women who have been in the workforce for decades still receive lower payments.
The ERA would not make all single-sex institutions unconstitutional – only those whose aim is to perpetuate the historic dominance of one sex over the other. Single-sex institutions that work to overcome past discrimination are currently constitutional and are likely to remain so.
The 14th Amendment, providing an equal protection clause to all U.S. citizens, was not originally intended to apply to women, as it predates the 19th Amendment. As proof of this, Susan B. Anthony voted in the 1872 presidential election, was arrested two weeks later, and was convicted the following year for illegal voting. At her trial, she attempted to use the 14th Amendment to defend her actions, but the judge ruled that the amendment did not apply to her because she was a woman.
The Equal Rights Amendment would prevent a rollback of the legal advances women have gained. It is important to remember that as governments change from conservative to liberal, citizens, neither male nor female, should not be subject to lose their right to vote, their right to free speech, or any other of their constitutional rights due to a change of political opinion.
The ERA does not add new laws to the U.S. Constitution, it only guarantees the rights currently within it. Issues like abortion, same-sex marriage, unisex bathrooms, and the female draft exist separately from the ERA and would not become law upon the ERA’s passage.
The ERA would affirm the purpose that began with the writing of the U.S. Constitution, the basic human right of constitutional protection.