Equal Rights Amendment

United States of America
This article is part of the series: United States Constitution
Original text of the Constitution
Preamble Articles of the Constitution I · II · III · IV · V · VI · VII
Amendments to the Constitution
Bill of Rights I · II · III · IV · V VI · VII · VIII · IX · X Subsequent Amendments XI · XII · XIII · XIV · XV XVI · XVII · XVIII · XIX · XX XXI · XXII · XXIII · XXIV · XXV XXVI · XXVII Unratified Amendments I(1) · XIII(1) · XIII(2) · XX(1) · XXVII(1) · XXVII(2)
Other countries ·  Law Portal view talk edit

The Equal Rights Amendment (ERA) was a proposed amendment to the United States Constitution. The ERA was originally written by Alice Paul and, in 1923, it was introduced in the Congress for the first time. In 1972, it passed both houses of Congress and went to the state legislatures for ratification. The ERA failed to receive the requisite number of ratifications before the final deadline mandated by Congress of June 30, 1982 expired and so it was not adopted.

Text

Section 1. 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. The Congress 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.^[1][2]

History

Before 1972

Although the Nineteenth Amendment had prohibited the denial of the right to vote because of a person's sex, Alice Paul, a suffragist leader, argued that this right alone would not end remaining vestiges of legal discrimination based upon sex. Paul drafted the Equal Rights Amendment and, in 1923, presented it as the "Lucretia Mott Amendment" at the celebration of the 75th anniversary of the 1848 Seneca Falls Convention and the Declaration of Sentiments.^[3]

Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation.

The National Woman's Party took the ERA to Congress in the 1920s, where Senator Charles Curtis, a future Vice President, and Representative Daniel R. Anthony, Jr.—Susan B. Anthony's nephew, both Kansas Republicans, introduced it for the first time as Senate Joint Resolution No. 21 on December 10, 1923, and as House Joint Resolution No. 75 on December 13, 1923, respectively. Though the ERA was introduced in every Congressional session between 1923 and 1970, it almost never reached the floor of either the Senate or the House for a vote — instead, it was usually "bottled up" in committee. Exceptions occurred in 1946, when it was defeated in the Senate by a vote of 38 to 35 and, in 1950 and 1953, when it was passed by the Senate with the Hayden Rider, making it unacceptable to ERA supporters.^[4][5] The Hayden Rider said:

The provisions of this article shall not be construed to impair any rights, benefits, or exemptions now or hereafter conferred by law upon persons of the female sex.

In 1958, President Dwight Eisenhower asked a joint session of Congress to pass the Equal Rights Amendment, the first President to show such a level of support for the amendment. However, whenever the ERA was proposed the Hayden Rider was added; this would make the amendment unacceptable to the National Woman's Party, who would then ask that the ERA be withdrawn.

The Republican Party included support of the ERA in its platform beginning in 1940, renewing the plank every four years until 1980.^[6] The ERA was strongly opposed by the American Federation of Labor and other labor unions, who feared the amendment would invalidate protective labor legislation for women. ERA was also opposed by Eleanor Roosevelt and most New Dealers, who either contended that women needed government protection, that men did not or otherwise did not want the only labor protections abolished before they could be extended to men as well, as it would likely be a blow to unions and the movement for labor laws. The amendment was opposed by most northern Democrats, who aligned themselves with the anti-ERA labor unions and supported by southern Democrats and most Republicans.^[6] In 1944, the Democrats made the divisive issue to include the ERA in their platform, but the Democratic Party did not become united in favor of the amendment until Congressional passage in 1972.^[6] The main support base for the ERA until the late 1960s was among wealthy, conservative women. The League of Women Voters, formerly the National American Woman Suffrage Association, opposed the Equal Rights Amendment until 1972 fearing the loss of protective labor legislation. Despite this, the amendment kept in line with the views of women's rights advocated by early feminists like Lucretia Mott, Elizabeth Cady Stanton, and Susan B. Anthony.

In 1961, feminists encouraged the newly elected President John F. Kennedy to support the ERA. Though Kennedy was elected on a pro-ERA platform and took a position favoring the amendment in a letter to Mrs. Emma Guffey Miller, the chairman of the National Woman's Party, he did not speak out in favor of the amendment due to his ties to labor.^[7] Esther Peterson, a feminist and the highest-ranking woman in the Kennedy administration, publicly opposed the Equal Rights Amendment and referred to the National Woman's Party members, most of them aging suffragettes, as the "Old Frontier". As a concession to pro-ERA feminists, Kennedy appointed a blue-ribbon commission on women, the President's Commission on the Status of Women, to investigate the problem of sex discrimination in the United States. The Commission was chaired by Eleanor Roosevelt who dropped her opposition to the ERA in the 1950s to support the United Nations Charter and the United Nations Declaration of Human Rights which had similar language. In the early 1960s, Roosevelt announced that, due to unionization, she believed the ERA was no longer a threat to women as it once may have been and told supporters that they could have the amendment if they wanted it. The Commission helped win passage of the Equal Pay Act of 1963 which banned sex discrimination in pay in a number of professions (it would later be amended in the early 1970s, at the demand of feminists, to include the professions it initially excluded) and secured an Executive Order from Kennedy eliminating sex discrimination in the civil service. The commission, made largely of anti-ERA feminists with ties to labor, proposed remedies to the widespread sex discrimination it unearthed and in its 1963 final report held that on the issue of equality "a constitutional amendment need not now be sought".^[8] The commission established state and local commissions on the status of women and arranged for follow-up conferences in the years to come. The following year, the Civil Rights Act of 1964 banned workplace discrimination not only on the basis of race, religion, and national origin, but also on the basis of sex, thanks to the lobbying of Alice Paul and Coretta Scott King and the skillful politicking of Representative Martha W. Griffiths of Michigan.

A new women's movement gained ground in the later 1960s as a result of a variety of factors: Betty Friedan's bestseller The Feminine Mystique; the network of women's rights commissions formed by Kennedy's national commission; the frustration over women's social and economic status; and anger over the lack of government and Equal Employment Opportunity Commission enforcement of the Equal Pay Act and Title VII the Civil Rights Act. In June 1966, at the Third National Conference on the Status of Women in Washington, D.C., Betty Friedan and a group of activists frustrated with the lack of government action in enforcing Title VII of the Civil Rights Act formed the National Organization for Women to act as an "NAACP for women", demanding full equality for American women. In 1967, at the urging of Alice Paul, NOW endorsed the Equal Rights Amendment. The decision caused some union Democrats and social conservatives to leave the organization and form the Women's Equity Action League (within a few years WEAL also endorsed the ERA), but the move to support the amendment benefited NOW, bolstering its membership. By the late 1960s NOW had made significant political and legislative victories and was gaining enough power to become a major lobbying force. In 1969, newly elected Representative Shirley Chisholm of New York gave her famous speech "Equal Rights for Women" on the floor of Congress.

1972 approval by Congress

Representative Martha Griffiths stands outside the United States Capitol after ERA passes the House for the first time in 1970. It would be rejected from the Senate in 1971 and passed in the House again later that same year, that time to be approved by the Senate in 1972, sending it to the states for ratification.

In February 1970, NOW picketed the United States Senate, a subcommittee of which was holding hearings on a Constitutional amendment to lower the voting age to eighteen. Feminists disrupted the hearings demanding a hearing on the Equal Rights Amendment and won a meeting with Senators to discuss the ERA. That August millions of American women held a nationwide Women's Strike for Equality to demand full social, economic, and political equality. Said Friedan of the strike, "All kinds of women's groups all over the country will be using this week on August 26 particularly, to point out those areas in women's life which are still not addressed. For example, a question of equality before the law; we are interested in the Equal Rights Amendment." In Washington, D.C., protesters presented a sympathetic Senate leadership with a petition for the Equal Rights Amendment at the U.S. Capitol. In 1970, Congressional hearings began on the ERA.

Representative Martha Griffiths of Michigan achieved success on Capitol Hill with her House Joint Resolution No. 208, which was adopted by the House on October 12, 1971, with a vote of 354 yeas, 24 nays and 51 not voting.^[9] Griffiths's joint resolution was then adopted by the Senate on March 22, 1972, with a vote of 84 yeas, 8 nays and 7 not voting.^[10] The Senate version passed after an amendment proposed by Senator Sam Ervin of North Carolina that would exempt women from the draft failed.^[6]

The ERA was then presented by the 92nd Congress to the state legislatures for ratification with a seven-year deadline for ratification. President Richard Nixon immediately endorsed the ERA's approval.^[6]

In the state legislatures and the courts

The initial pace of state legislative ratifications was rapid, with 30 ratifications by the end of 1973. Then it slowed with just three ratifications during 1974, one in 1975, none in 1976, and one in 1977. The 92nd Congress, in proposing the ERA, had set a seven-year time limit for its ratification and by the March 22, 1979 deadline, 35 of the required 38 states had ratified.

In 1978, the Congress approved a controversial joint resolution by a simple majority (not a two-thirds supermajority) that purported to extend the ratification deadline to June 30, 1982. President Jimmy Carter was asked to sign the joint resolution, which he indeed did, although expressing doubt--on purely procedural grounds--as to the propriety of his doing so.^[11] During this disputed extension, no additional states ratified or rescinded.

  Ratified

  Ratified, then rescinded

  Not ratified, but approved by one house of state legislature

  Not ratified

The legislatures of four states rescinded their ratifications before the March 22, 1979 deadline. A fifth state, South Dakota--while not going quite so far as to rescind--adopted a resolution declaring its ratification to be valid only up to and including March 22, 1979.

Here are details of the rescissions:^[12]

1. Idaho, which ratified the ERA on March 24, 1972, by approving Senate Joint Resolution No. 133, then adopted House Concurrent Resolution No. 10 on February 8, 1977, to rescind that ratification.
2. Kentucky, which ratified the ERA on June 26, 1972, by approving House (Joint) Resolution No. 2, then adopted House (Joint) Resolution No. 20 on March 17, 1978, to rescind that ratification; the Lieutenant Governor of Kentucky, Thelma Stovall, who was acting as Governor in the Governor's absence, issued a veto of the rescinding resolution, but the U.S. Constitution provides no role for a governor (nor for the President of the United States) in the constitutional amendment process.
3. Nebraska's unicameral legislature which ratified the ERA on March 29, 1972 by approving the erroneously-worded Legislative Resolution No. 83 (and then approving the correctly-worded Legislative Resolution No. 86), later adopted Legislative Resolution No. 9 on March 15, 1973, to rescind only the aforementioned Legislative Resolution No. 83. This could mean that Nebraska remains officially in the "ratified" column, but appears to have been understood at the time to have been a full rescission of its previous ratification.^[13]
4. Tennessee, which ratified the ERA on April 4, 1972, by approving House Joint Resolution No. 371, then adopted Senate Joint Resolution No. 29 on April 23, 1974, to rescind that ratification.

In a fifth state, South Dakota, lawmakers ratified the ERA on February 5, 1973, by approving Senate Joint Resolution No. 1. Then, they adopted Senate Joint Resolution No. 2 on March 1, 1979, stipulating that the ERA's opportunity for ratification—by any state of the Union—would expire on March 22, 1979; furthermore, Senate Joint Resolution No. 2 made clear that South Dakota's own ratification of the ERA would only be valid up until March 22, 1979, and that any ratification activities transpiring after that date would be considered by South Dakota to be null and void.

At various times, in nine of the 15 non-ratifying states, at least one chamber of the legislature approved the ERA, those nine states being:

1. Florida whose House of Representatives voted to ratify the ERA on March 24, 1972, with a tally of 91 to 4; a second time on April 10, 1975, with a tally of 62 to 58; a third time on May 17, 1979, with a tally of 66 to 53; and a fourth time on June 21, 1982, with a tally of 60 to 58.
2. Illinois whose Senate voted to ratify the ERA in May 1972, with a tally of 30 to 21; and whose House of Representatives voted to ratify the ERA on May 1, 1975, with a tally of 113 to 62; and again on May 21, 2003, with a tally of 76 to 41. At various times, votes were conducted in both chambers of the Illinois General Assembly on the question of ratifying the ERA and while most members voted in favor of ratification, the result would often be less than the three-fifths supermajority vote—a requirement that existed in Illinois when those votes were cast.
3. Louisiana whose Senate voted to ratify the ERA on June 7, 1972, with a tally of 25 to 13.
4. Missouri whose House of Representatives voted to ratify the ERA on February 7, 1975, with a tally of 82 to 75.
5. Nevada whose Assembly voted to ratify the ERA on February 17, 1975, with a tally of 27 to 13; and whose Senate voted to ratify the ERA on February 8, 1977, with a tally of 11 to 10.
6. North Carolina whose House of Representatives voted to ratify the ERA on February 9, 1977, with a tally of 61 to 55.
7. Oklahoma whose Senate voted to ratify the ERA on March 23, 1972, by a voice vote.
8. South Carolina whose House of Representatives voted to ratify the ERA on March 22, 1972, with a tally of 83 to zero.
9. Virginia whose Senate voted to ratify the ERA on February 7, 2011, with a tally of 24 to 16 (Senate Joint Resolution No. 357).

In Idaho v. Freeman, the United States District Court for the District of Idaho ruled that the rescissions — all of which occurred before the original 1979 ratification deadline — were valid. According to research by Professor Jules B. Gerard, professor of law at Washington University in St. Louis, of the 35 legislatures that passed ratification resolutions, 24 explicitly referred to the 1979 deadline.^[14] The court also ruled that the extension of the ratification deadline was unconstitutional. The National Organization for Women appealed both rulings. In NOW v. Idaho, 459 U.S. 809 (1982), the U.S. Supreme Court declared the entire matter moot on the grounds that the 1972 ERA was dead with or without either the rescissions or the purported deadline extension.^[15]

Since 1995, ratification resolutions were introduced, but failed to win full approval in Arizona, Arkansas, Florida, Illinois, Mississippi, Missouri, Oklahoma, and Virginia.^[16][17]

Extension of ratification deadline

In 1978—as the 1979 deadline approached—the 95th Congress adopted House Joint Resolution No. 638 (H. J. Res. 638), by Representative Elizabeth Holtzman of New York, which purported to extend the ERA's ratification deadline to June 30, 1982.^[18] H. J. Res. 638 received less than two-thirds of the vote in both the House of Representatives and the Senate; for that reason, it was deemed necessary by ERA supporters that H. J. Res. 638 be transmitted to then President Jimmy Carter for signature as a safety precaution. Carter signed the joint resolution, though he questioned on procedural grounds the propriety of his doing so.

President Carter signing the extension

No additional states ratified the ERA during that extra period of slightly more than three years. On June 18, 1980, a resolution in the Illinois House of Representatives resulted in a vote of 102-71 in favor, but Illinois required a three-fifths majority on constitutional amendments and so the measure failed by five votes. The closest the ERA came to gaining an additional ratification between the original deadline of March 22, 1979 and the revised June 30, 1982, expiration date was when it was approved by the Florida House of Representatives on June 21, 1982. In 1982, seven female ERA supporters went on a hunger strike and seventeen chained themselves to the door of the Illinois senate chamber; none of this resulted in any state ratifications.^[19] In the final week before the deadline, that ratifying resolution was defeated in the Florida Senate by a vote of 16 yeas and 22 nays. Even if Florida had ratified the ERA, the proposed amendment would still have been two states short of the required 38 (seven states short if the rescissions are valid).

On December 23, 1981, a United States District Court ruled that the ERA's deadline extension was unconstitutional and that a state legislature may rescind its prior ratification of a proposed amendment to the Constitution.^[20] The case was appealed to the Supreme Court of the United States. The Administrator of General Services claimed that the required number of states (38) had not ratified the amendment even if the deadline extension was valid and the rescissions were invalid:

"the Amendment has failed of adoption no matter what the resolution of the legal issues presented here."^[21]

The Supreme Court agreed and ordered the case dismissed as moot on October 4, 1982,^[22] thereby recognizing that the ERA had failed to win ratification, but did not issue a ruling on the merits of either the deadline extension issue or the rescission issue in this case.

Shift in political attitudes

The political momentum changed during the late 1970s and throughout the 1980s. At the 1980 Republican National Convention, the Republican Party platform was amended to qualify its support for the ERA. The most prominent opponent of the ERA was Phyllis Schlafly, a conservative Republican.^[6] Critchlow and Stachecki argue that public opinion in key states shifted against the ERA as opponents, operating on the local and state levels, won over the public to their side. The state legislators in battleground states followed public opinion in defeating the ERA. Many ERA supporters blamed their defeat on sinister undemocratic special forces, especially the insurance industry and right-wing organizations, suggesting they funded an opposition that subverted the democratic process and the will of the pro-ERA majority.^[23] They argued that while the public face of the anti-ERA movement was Phyllis Schlafly and her STOP ERA organization, there were other important groups in the opposition as well, such as the powerful National Council of Catholic Women and (until 1973) the AFL–CIO labor unions. Critchlow and Stachecki say the anti-ERA movement was based on strong support among Southern whites, evangelical Christians, Mormons, Orthodox Jews, and Roman Catholics, including both men and women.^[24]

State constitutions

Twenty-one states have a version of the ERA in their state constitutions. Sixteen of those states ratified the federal ERA, while five did not.^[25]

Ratified the federal ERA

Did not ratify the federal ERA

• Florida
• Illinois
• Louisiana
• Utah
• Virginia

Three-state strategy

The three-state strategy is an argument made by some ERA supporters that the earlier 35 state ratifications are still valid and therefore only three more are needed in order to add the ERA to the Constitution, without Congress resubmitting it to state lawmakers. Since 1994, proponents of the three-state strategy have promoted ratification resolutions in the legislatures of most of the 15 states that never ratified the ERA approved by Congress in 1972. These attempts have met stiff resistance—some opponents characterize the measures as "resurrection resolutions"—and no legislature has approved one.

The three-state strategy was publicly unveiled at a press conference held in Washington, D.C., in December 1993. According to an Associated Press report, "a coalition of women's groups," operating under the name "ERA Summit," planned "to ask Congress to nullify 1982 deadline for ratification."^[26] Early the following year, Representative Robert E. Andrews, Democrat from New Jersey, introduced a resolution in the House of Representatives to require that "when the legislatures of an additional three states ratify the Equal Rights Amendment, the House of Representatives shall take any legislative action necessary to verify the ratification of the Equal Rights Amendment as a part of the Constitution."^[27] No action was taken on the resolution.

A 1997 William and Mary Journal of Women and the Law article by three law students explained the legal rationale for the "three-state strategy":^[28]

1. The 35 ratifications from state legislatures during the 1970s remain valid;
2. Rescissions of prior ratifications are not constitutional;
3. The 1978 extension of the ERA's deadline demonstrates that Congress can amend previously established deadlines; and
4. The Twenty-seventh Amendment's more than 202 year ratification period set a standard of "sufficiently contemporaneous"—a term used during the U.S. Supreme Court's 1921 ruling in Dillon v. Gloss—giving Congress the power to set time limits on constitutional amendments. Dillon v. Gloss was later modified by Coleman v. Miller, a decision also cited as a basis for the three state strategy.

The article further reasoned that because Article V of the Constitution gives the Congress the power to propose amendments to the Constitution—including changing aspects of the ratification process itself—that if three additional states ratify the ERA, the Congress has the power to deem the ERA properly ratified and duly added to the Constitution.

In 1996, the Library of Congress's Congressional Research Service issued a report that said, "There is no precedent for Congress promulgating an amendment based on state ratifications adopted after a ratification deadline has expired. However, proponents of this course cite as possible precedent the ratification activity of the states regarding the 27th Amendment... proponents of the ERA might wish to adopt a strategy of urging its ratification by state legislatures because their actions might prompt this or a future Congress to proclaim the amendment had been ratified." CRS stressed that it "takes no position on any of the issues."^[29]

On June 21, 2009, the National Organization for Women resolved to support both the three-state strategy and any strategy to submit a new ERA to the states for ratification.^[30]

On July 7, 2009, at a press conference outside the U.S. Capitol to announce the reintroduction of the ERA in Congress, activists supporting the three-state strategy distributed a flyer opposing reintroduction, saying "this is not the time to start over and ignore the work ERA advocates have already done."^[31]

Opponents of the three-state strategy point out that the 1789 resolution proposing what is now the Twenty-seventh Amendment did not contain a deadline for ratification. This amendment was ratified in 1992, more than 202 years after its passage by Congress.^[32]

On February 6, 2011, the Senate of Virginia approved a measure to ratify the Equal Rights Amendment. It is less likely that the Virginia House of Delegates, where similar resolutions have never progressed to a vote, will also approve it.^[33]

Subsequent congressional action

The amendment has been reintroduced in every session of Congress since 1982. Senator Ted Kennedy (D-MA) championed it in the Senate during the 99th Congress through the 110th Congress. Senator Robert Menendez (D-NJ) introduced the amendment symbolically at the end of the 111th Congress and has supported it in the 112th Congress. In the House of Representatives, Carolyn B. Maloney (D-NY) has sponsored it since the 105th Congress,^[34] most recently in May 2011.^[35]

In 1983, the ERA passed through House committees with the same text as in 1972; however, it failed by six votes to achieve the necessary two-thirds vote on the House floor. That was the last time that the ERA received a floor vote in the Congress.^[36]

At the start of the 112th Congress on January 6, 2011, Senator Menendez, along with Representatives Maloney, Jerrold Nadler and Gwen Moore, held a press conference advocating for the Equal Rights Amendment's adoption.^[37] On March 8, 2011, the 100th Anniversary of International Women's Day, Representative Tammy Baldwin (D-WI) introduced legislation (H.J.Res 47) to remove the Congressionally imposed deadline for ratification of the Equal Rights Amendment.^[38] Bill co-sponsors include Representatives Robert Andrews (D-NJ), Jackie Speier (D-CA), Luis Gutierrez (D-IL), Chellie Pingree (D-ME) and Debbie Wasserman Schultz (D-FL).^[39]

See also

• History of women in the United States
• List of proposed amendments to the United States Constitution
• Fourteenth Amendment to the United States Constitution
• Nineteenth Amendment to the United States Constitution
• National Woman's Party
• Alice Paul
• Martha Griffiths
• Equal pay for women
• History of feminism
• First-wave feminism
• Second-wave feminism
• Women's suffrage in the United States
• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

References

Further reading

• Baldez, Lisa; Epstein, Lee; Martin, Andrew D. (2006). "Does the U.S. Constitution Need an Equal Rights Amendment?". Journal of Legal Studies 35 (1): 243–283. doi:10.1086/498836. 
• Bradley, Martha S. (2005). Pedestals and Podiums: Utah Women, Religious Authority, and Equal Rights. Salt Lake City, UT: Signature Books. ISBN 1560851899. 
• Critchlow, Donald T. (2005). Phyllis Schlafly and Grassroots Conservatism: A Woman's Crusade. Princeton, NJ: Princeton University Press. ISBN 0691070024. 
• Critchlow, Donald T., and Cynthia L. Stachecki. "The Equal Rights Amendment Reconsidered: Politics, Policy, and Social Mobilization in a Democracy," Journal of Policy History Volume 20, Number 1, 2008 online
• Lee, Rex E. (1980). A Lawyer Looks at the Equal Rights Amendment. Provo, UT: Brigham Young University Press. ISBN 0842518835. 
• Mansbridge, Jane J. (1986). Why We Lost the ERA. Chicago: University of Chicago Press. ISBN 0226503585. 
• McBride, Genevieve G. (2005). "'Forward' Women: Winning the Wisconsin Campaign for the Country's First ERA, 1921)". In Peter Watson Boone (ed.). The Quest for Social Justice III. Milwaukee, WI: UW-Milwaukee. ISBN 1879281260. 
• Nicholson, Zoe Ann (2004). The Hungry Heart - A Woman's Fast for Justice. Newport Beach, CA: Lune Soleil Press. ISBN 0972392831. 

External links

• Alice Paul Institute
• United4Equality
• Eagle Forum