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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.