The ERA: How an Amendment Proposed Decades Ago Remains Relevant Today

By Kaitlyn Rentala
Kaitlyn Rentala is a freshman at the University of Pennsylvania studying Philosophy, Politics, and Economics in the College of Arts and Sciences.

“If I could choose an amendment to add to the Constitution, it would be the Equal Rights Amendment. I think we have achieved that through legislation, but legislation can be repealed, it can be altered. So I would like my granddaughters, when they pick up the Constitution, to see that notion – that women and men are persons of equal stature – I’d like them to see that is a basic principle of our society.” - Ruth Bader Ginsburg

​The history of the Equal Rights Amendment (ERA) has been a long and tumultuous one. Despite the widespread media attention the ERA received in the 1970s, itis widely misunderstood today. Shockingly, 80% of Americans, including many lawyers, believe the ERA is a constitutional amendment while in fact it was never ratified. [1] This also begs the question, why wasn’t the ERA ratified? With nearly two-thirds of Americans supporting the amendment, the ERA clearly holds the same cultural relevance today as it did over 40 years ago. [2] However, with the recent ratification of the ERA by Nevada and Illinois, perhaps the more pertinent question is what does the future hold for the ERA?

The ERA was first introduced in 1923 by women’s rights activist Alice Paul in Seneca Falls, over 80 years after the famous 1848 Seneca Falls convention. Named the Lucretia Mott Amendment at that time, Alice Paul testified to the importance of the amendment: "If we keep on this way they will be celebrating the 150th anniversary of the 1848 Convention without being much further advanced in equal rights than we are…If we had not concentrated on the Federal Amendment we should be working today for suffrage…We shall not be safe until the principle of equal rights is written into the framework of our government." [3]

While the amendment garnered massive support from both sides of the aisle as Republicans and Democrats added ratification of the ERA to their political platforms, some progressive labor activists were worried the amendment would diminish protective labor laws that treated women differently from men. Additionally, conservative groups were concerned that the amendment would disrupt the composition of the nuclear family and traditional American values. [4] This initial resistance foreshadowed the opposition the ERA would face decades later.

In 1943, Alice Paul rewrote the official language of the ERA: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." [5] Finally, organized labor groups and politicians started to back the ERA, and the amendment continued to gain traction. The ERA passed in both the House and the Senate on March 22, 1973 and was sent to the states for ratification as per the constitutional amendment ratification process. However, a seven-year time limit on ratification was placed on the ERA. Immediately, 22 out of the 38 states necessary for ratification ratified the ERA, but after 1973, progressed stalled due to the mobilization of opposition against the ERA. [6] The most notable anti-ERA activist was anti-feminist Phyllis Schlafly, who argued that the ERA would deny women the right to be supported by their husbands, would send women into combat, and would abolish single-sex college bathrooms. This, coupled with a rise in conservatism with the election of President Ronald Reagan in 1980, was the final straw for the Republican party. They removed support for the ERA from their party platform in 1980. [7] Even when the time limit for its ratification was extended, the ERA was still three states short on June 30, 1982.

Recently, the ERA has been revived as a source of public interest. In 2017, thanks to the efforts of State Senator Pat Spearman, Nevada became the 36th state to ratify the ERA. Following suit, Illinois became the 37th state to ratify the amendment in April 2018. [8] This means that the ERA is hypothetically one state away from becoming a constitutional amendment. However, this raises two pressing concerns. One, it is unclear if ratification is even possible after the 1982 deadline expiration. Two, after their ratification of the ERA, four states have passed resolutions of “rescission” that claim to void ratification, although it is unclear if “rescission” is constitutional. [9] Regardless, it is clear that the ERA still hold significant political and social relevance. As Illinois State Senator Heather Steans argued: “By ratifying the Equal Rights Amendment we can provide a strong legal protection for women’s rights and prevent rollbacks from Congress or presidential administrations. This amendment is still relevant and necessary.”  [10]

The opinions and views expressed through this publication are the opinions of the designated
authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our
staff, or our clients.

References

[1] Cooper, Cynthia. “Advocates Reignite the Fight for an Equal Rights Amendment.” American Bar Association, 2018, www.americanbar.org/groups/diversity/women/publications/perspectives/2018/october-november/advocates-reignite-fight-an-equal-rights-amendment/.

[2] Ballard, Jamie. “Two-Thirds of Americans Support a Federal Gender Equality Law.” YouGov, 2018, today.yougov.com/topics/politics/articles-reports/2018/06/05/americans-support-gender-equality-law.

[3] “The Equal Rights Amendment.” Equal Rights Amendment, www.equalrightsamendment.org/the-equal-rights-amendment.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Published Mar 25, 2012. “End of An Era.” NYMag.com, 2012, nymag.com/news/frank-rich/gop-era-platform-2012-4/.

[8] Salam, Maya. “What Is the Equal Rights Amendment, and Why Are We Talking About It Now?” The New York Times, The New York Times, 22 Feb. 2019, www.nytimes.com/2019/02/22/us/equal-rights-amendment-what-is-it.html.

[9] Epps, Garrett. “The Equal Rights Amendment Strikes Again.” The Atlantic, Atlantic Media Company, 20 Jan. 2019, www.theatlantic.com/ideas/archive/2019/01/will-congress-ever-ratify-equal-rights-amendment/580849/.

[10] “The Equal Rights Amendment.” Equal Rights Amendment, www.equalrightsamendment.org/the-equal-rights-amendment.

Photo Credit: Montanasuffragettes