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The Equal Rights Amendment: A Century in the Making

In a discussion organized by the Brennan Center, experts and activists will examine the renewed push for ratification of the ERA.

The Equal Rights Amend­ment is making a comeback. Nearly a century has passed since the ERA was first intro­duced in Congress, and four decades have passed since its unsuc­cess­ful rati­fic­a­tion campaign. But there is now revived interest in enshrin­ing the prin­ciple of gender equal­ity in our Consti­tu­tion. Over the past two years, the state legis­latures in Nevada and Illinois have rati­fied the ERA by comfort­able margins, breath­ing new life into the proposed amend­ment. Advoc­ates now believe that achiev­ing the neces­sary 38 state rati­fic­a­tions is possible.

What is in store for the ERA? And how might it advance the fight for gender equal­ity in the United States today? These ques­tions are resur­fa­cing across the coun­try. And in a day-long event organ­ized by the Bren­nan Center for Justice, an array of politi­cians, schol­ars, legal advoc­ates, and activ­ists will exam­ine the implic­a­tions of this modern move­ment for legal change.

The ERA was origin­ally draf­ted by suffra­gette Alice Paul and first intro­duced in Congress in 1923, three years after the Nine­teenth Amend­ment was rati­fied. Seek­ing to build on the polit­ical momentum that opened the ballot box to women, Paul and other activ­ists launched an effort to secure women’s full and expli­cit right to equal­ity under the law. The original proposal read:

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.

Paul and other advoc­ates spent decades lobby­ing for the Equal Rights Amend­ment. Each Congress intro­duced a resol­u­tion propos­ing the ERA, but to no avail.

The ERA’s polit­ical fortunes began to improve over time, partic­u­larly as the women’s move­ment gained strength. In 1969, Shir­ley Chisholm, the first African Amer­ican woman elec­ted to Congress and “no stranger to race preju­dice,” called on her colleagues to adopt the ERA, explain­ing “that in the polit­ical world I have been far oftener discrim­in­ated against because I am a woman than because I am black.” The follow­ing year, Martha Grif­fiths, the amend­ment’s tire­less spon­sor, whipped enough votes in the House to get the ERA resol­u­tion out of commit­tee through the seldom-used discharge peti­tion. (Grif­fiths had also played a pivotal role in getting the Civil Rights Act of 1964 to ban sex discrim­in­a­tion.) Finally, in 1972, nearly half a century after it was first intro­duced, a slightly modi­fied version of the ERA resol­u­tion was adop­ted by both cham­bers of Congress. It read:

Equal­ity of rights under the law shall not be denied or abridged by the United States or any State on account of sex. The Congress shall have the power to enforce, by appro­pri­ate legis­la­tion, the provi­sions of this article.

The meas­ure garnered imme­di­ate and over­whelm­ing support from both Demo­crats and Repub­lic­ans — well beyond the two-thirds required to propose a consti­tu­tional amend­ment — and even an endorse­ment from Pres­id­ent Richard Nixon. Advocacy groups like the National Organ­iz­a­tion for Women lauded the proposed ERA as it was sent to the states for rati­fic­a­tion in March 1972. It seemed like a sure bet: The ERA was almost certain to become the 27th Amend­ment. By the end of 1973, 30 state legis­latures had moved quickly to ratify it.

But momentum slowed. Just five more states signed on in the follow­ing years as the ERA met a wave of conser­vat­ive resist­ance led by Phyl­lis Schlafly, a lawyer and self-described home­maker from Illinois. Schlafly led the STOP ERA campaign, which appealed to base fears — for example, that the amend­ment would lead to women serving in combat and the elim­in­a­tion of single-sex bath­rooms. Many have cred­ited the STOP ERA campaign with derail­ing the proposed amend­ment. Congress took the unusual step of extend­ing the rati­fic­a­tion dead­line, but the campaign still failed to obtain the support of the required 38 states. Complic­at­ing matters further, legis­latures in five states that initially suppor­ted the ERA voted to rescind their rati­fic­a­tion. When the exten­ded dead­line finally lapsed in 1982, ERA advoc­ates conceded defeat.

In the follow­ing decades, the fight for gender equal­ity made signi­fic­ant progress in spite of the fail­ure to ratify the ERA. Women have surpassed men in college enroll­ment and now actively serve along­side men in the armed forces. The percent­age of women in the labor force has risen to nearly 60 percent. Women have made tremend­ous inroads at the highest levels of busi­ness, nonprofits, and govern­ment. Consti­tu­tional lawyers, work­ing through the courts, helped fuel the rise of a new gender equal­ity juris­pru­dence based on the 14th Amend­ment’s guar­an­tee of equal protec­tion. This legal and social change was made possible by the pion­eer­ing work of activ­ists, advoc­ates, and legis­lat­ors.

And yet, Amer­ican women have not yet achieved equal status. Women are paid approx­im­ately 80 cents for every dollar that their male coun­ter­parts make and, in the case of women of color, even less. Women are overrep­res­en­ted in the lowest wage posi­tions, which are less likely to offer job secur­ity and crit­ical employ­ment bene­fits. Sexual harass­ment in the work­place is preval­ent, as the #MeToo and #TimesUp move­ments have laid bare. The United States is the only developed coun­try without a national paid family leave policy. And even as women have increased their ranks in polit­ical lead­er­ship, the dispar­it­ies are still very evid­ent. When this “Year of the Woman” concludes, the 2018 midterm elec­tions will have ushered in a record number of women to Congress — and still, just 22 percent of our federal lawmakers will be women.

So it is no surprise that Amer­ic­ans of all polit­ical stripes are taking a fresh look at the Equal Rights Amend­ment. With states like Arizona, South Caro­lina, and Virginia vying to be lucky number 38, now is the time for deep consid­er­a­tion — on the substance and strategy, the polit­ics and policies — to determ­ine what the ERA can and should mean for gender equal­ity in the U.S. in the 21st century.

(Image: John Olson/Getty)