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Equal Rights Amendment Symposium 2018

In a discussion organized by the Brennan Center for Justice with the NYU Review of Law & Social Change, experts and activists examined the renewed push for ratification of the ERA.

Published: October 8, 2019

Melissa Murray, “The Equal Rights Amendment: A Century in the Making Symposium Foreword”

“Now We Can Begin,” wrote activist and journalist Crystal Eastman on the heels of the Nineteenth Amendment’s passage. Feminists celebrated the culmination of the hard-won fight for women’s suffrage, but they also immediately recognized and rallied for the work ahead. With the vote amplifying their voices, women turned toward combating gender inequity in the home and in the workplace. In 1923, Eastman, Alice Paul, and other leading female advocates arranged to have the first Equal Rights Amendment (ERA) introduced in Congress. In 1972, nearly fifty years later, Congress finally passed a version of the ERA. Thirty-six states quickly committed, but the amendment ultimately fell three states shy of the total needed for ratification. After decades of dormancy, ERA proponents have revived the cause. Since 2017, Nevada and Illinois have both signed on, leaving just one more state (and a couple procedural questions) between the ERA and ratification.

In this introductory foreword, Murray offers an overview of the ERA’s development and recent revival. She argues that this renewedpush makes clear that interest in the ERA is not merely academic or historical, but rather an urgent and necessary response to the many threats to women’s rights and women’s equality that have emerged over the last decade.

Steven Andersson, “The Equal Rights Amendment—A Plumber’s Perspective”

On May 30, 2018, Illinois became the 37th state to ratify the ERA. In this essay, former state representative Steven Andersson likens his role in the milestone to that of a plumber: installing the final connections in a pipeline that feminists advocates have been carefully crafting for decades. As a pro-life Republican, Andersson may seem an unlikely ally, but his success in Illinois demonstrates the importance of bipartisan solidarity in advancing the amendment. Andersson offers six strategies for convincing legislators to support the ERA: 1) emphasize the political reality that elected women in record numbers in 2018, 2) discredit the opposition, 3) offer anecdotes that illustrate women’s individual experiences with sex-discrimination, 4) appeal to emotion, 5) point to evidence that the parade of horribles that ERA opponents threatened never played out, and 6) resort to browbeating when necessary.

Wilfred Codrington III, The Benefits of Equity in the Constitutional Quest for Equality

Is equality truly the most promising principle for addressing today’s gender discrimination challenges? In this essay, Codrington argues that, amid the excitement and controversy surrounding the ERA’s recent revival, this essential question has been left out of the discussion. He maintains that courts presiding over discrimination cases should apply principles of equity. While equality requires a polarized view of a problem—the balancing of a two-sided scale—equity is far more dynamic and can be applied under, besides, or against the law. Codrington does not suggest that we abandon the idea of equality and, in fact, he wholeheartedly supports the passage of the ERA. But he proposes adding an equity-based analysis to the existing legal equality framework. Equity is, after all, far less foreign to the U.S. legal system: our courts already have the authority to invoke it, and it fits seamlessly and symbiotically with our foundational principle of liberty. Codrington concludes by refuting the counterargument that using equity in this context would invite too much judicial discretion, and by illustrating equity’s potential according to the facts in the 2007 Supreme Court case, Ledbetter v. Goodyear Tire & Rubber Co. 

Cary Franklin, The ERA, the Military, and the Making of Constitutional Meaning

ERA opponents, past and present, have argued that the ERA’s broad guarantee of constitutional gender equality is so broad as to render it meaningless or, worse, prone to excessive judicial discretion. Franklin rebuts the claim that the ERA would give judges a platform from which to remake American society along radical feminist lines by looking at the ERA’s relationship to the issue of women in the military. With the Vietnam War raging, both ERA advocates and opponents employed arguments about the military, and Franklin shows how these arguments in turn influenced courts’ understanding of sex discrimination and interpretation of the Fourteenth Amendment’s Equal Protection Clause. Franklin admits that the legislative history contains substantial ambiguities: for instance, it lends little clarity to the question of what implications the ERA would have on women’s service in combat positions. But the history does show a striking degree of responsiveness on the part of courts to social movement activism, which suggests that the federal judiciary today is no more likely to use the ERA as a vehicle for imposing radical feminist constitutional interpretations on an unwilling nation than it was in the late 1970s.

Caroline Frederickson, How the Most Important U.S. Civil Rights Law Came to Include Women

Frederickson tells the symbiotic history of two iconic laws: the Equal Rights Amendment and Title VII. She argues that the addition of “sex” to Title VII, a classic story of opportunism, was only possible due to a long history of advocacy, and many congressional votes, in favor of the ERA. In turn, the success of the ERA, which came so close to being adopted, was helped significantly by the prior passage of Title VII. Frederickson brings to life the laws’ intertwined history and explores its significance to our present ERA debates. She argues that, even if the ERA adoption effort continues to stall, other advances in the form of new legislation and state constitutional provisions will grow out of the fertile ground tilled by ERA activists and women leaders.

Helen Hershkoff, Some Questions About #MeToo And Judicial Decision Making

Hershkoff’s essay explores some of the difficult issues raised by the social movement #MeToo and its relation to judicial decision making. Hershkoff shifts attention from complaints of alleged sexual misconduct in the workplace committed by judges, to complaints of alleged gender-related workplace violations—for example, claims of pay equity, employment discrimination, and sexual harassment—that judges who have been accused of sexual misconduct may be tasked to decide.Part I surveys the judiciary’s current information-disclosure regime about judicial sexual misconduct; Part II identifies particular cognitive biases that may generate or exacerbate implicit bias and negatively affect judicial decision making; and Part III considers the sufficiency of norms of judicial self-governance to counteract any unintended spillover effects of gender misconduct complaints in unrelated cases involving gender-related claims. 

John Kowal, The Equal Rights Amendment’s Revival: Questions for Congress, the Courts, and the American People

Is the ERA really one state away from ratification? Kowal examines the procedural hurdles surrounding the recent revival of interest in ratifying the ERA. First, he investigates the issue of timing. While the deadline that Congress set for the ERA’s ratification expired in 1982, he concludes that history and Supreme Court precedent offer no definitive answer on whether such a deadline is enforceable. The Constitution stipulates no fixed period for the ratification process; the deadline was a Prohibition-era invention. He also reflects on the relevance of the Madison Amendment, which was sent to the states in 1789 but not ratified until 1992. Second, Kowal addresses whether states can act to rescind their support of a constitutional amendment before it is finally ratified. Does the action of five states that ratified the ERA only to later withdraw their backing have legal force? Kowal considers historical precedent in the context of the Fourteenth Amendment’s ratification, the likelihood that the Supreme Court would weigh in on the question, and the possible consequences for advocacy efforts to call an Article V Convention of the States. Finally, Kowal explores whether a “fresh start strategy”—proposing a new amendment for gender equality—is a feasible and attractive alternative.

Lenora Lapidus, Ruth Bader Ginsburg and the Development of Gender Equality Jurisprudence under the Fourteenth Amendment

During the 1970s, while state legislators were debating ratification of the ERA and the second wave women’s movement was in full swing, constitutional lawyers were engaged in a parallel process to establish equal rights for women under the Fourteenth Amendment through the courts. Lapidus surveys some of the major cases that Ruth Bader Ginsburg, her predecessor as founding director of the ACLU Women’s Rights Project, litigated to establish this constitutional protection under the Fourteenth Amendment. Lapidus then also explores how Ginsburg continued to develop the doctrine of full gender equality as a Supreme Court Justice, beginning with the pivotal case United States v. Virginia (1996) up to the recent Sessions v. Morales-Santana(2017). Lapidus concludes with a discussion of the gender inequity that persists today and the ACLU’s current efforts at combatting sex discrimination in the workplace, marketplace, schools, and criminal justice system.

On May 5, 2019, Ms. Lapidus passed away after a long fight with breast cancer. Read a tribute by her fellow symposium contributors and leading advocates here.

Jessica Neuwirth, Time for the Equal Rights Amendment

Virtually no one today argues against the ERA as a matter of principle. The challenge is rather the misbelief that equal rights for women must already be in the Constitution and a widespread lack of awareness of the ERA. Neuwirth, founder and co-president of the ERA Coalition, tackles this challenge by demonstrating why a constitutional guarantee of gender equality is still urgently needed. Despite all of the legal advances that women’s rights advocates have achieved since the 1970s, many significant legal gaps remain, and the ERA would provide a much-needed solid constitutional basis for legislation advancing women’s equality. Moreover, amending the Constitution to include sex equality as a fundamental human right would send a clear public message that women are no longer to be treated as second-class citizens. The recent revival of the ERA ratification effort shows that many Americans, and their representatives in Congress, agree. Neuwirth explains how advocates are working to address the potential procedural barriers to ratification and explores alternative strategies for a new equal rights amendment with bolder, broader language.

Julie Suk, Transgenerational and Transnational: Giving New Meaning to the ERA

If the ERA revival is successful, how should we construe the meaning of a constitutional amendment introduced in 1923 and adopted in 1972? Suk argues that activists and scholars must create a robust public discourse to update its meaning to tackle twenty-first-century issues like #MeToo, unequal pay between women and men, and the failure to accommodate pregnancy in the workplace. To confront this challenge, Suk’s essay applies a transnational lens, putting the ERA effort in comparative perspective and looking to the examples of other nations around the world that have added gender equality provisions to their constitutions. Drawing on lessons from Germany and France, Suk argues that ERA’s primary role in the U.S. constitutional landscape should be as a shield rather than a sword, clarifying and legitimizing initiatives to eliminate gender subordination.

Jennifer Weiss-Wolf, The ERA Campaign and Menstrual Equity

The long-awaited ratification of the ERA would help to rectify myriad legal and policy inequities that persist in our society. But there is one issue at the heart of the ERA’s goals that has been largely absent from the conversation thus far: menstruation and the emerging movement for “menstrual equity.” In the United States and throughout the world, many lack adequate resources—basic supplies, facilities, information, support—for managing their periods due to pervasive misogynistic stigma and the disproportionate poverty that women and girls face. Weiss-Wolf’s essay describes the progress of that agenda through policy advocacy, litigation, and social activism, and explains why menstrual equity belongs in discourse about—and will be an invaluable asset for—the campaign to ratify the ERA.