equal rights policy

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Equal Rights Amendment

The Equal Rights Amendment (ERA) is a failed proposed amendment to the United States Constitution intended to guarantee equal rights under the law for Americans regardless of sex, which failed to gain ratification before the end of the deadline. Although the ERA has been reintroduced in every Congress since 1982, public attention to the ERA has greatly diminished.

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.

History

History in Congress

Although the 1920 ratification of the Nineteenth Amendment had guaranteed that the right to vote could not be denied because of sex, Alice Paul, a suffragist leader, argued that this right alone would not end remaining vestiges of legal discrimination based upon sex. In 1923, Paul drafted the Equal Rights Amendment and presented it as the "Lucretia Mott Amendment" at the celebration of the 75th anniversary of the 1848 Seneca Falls Declaration of Sentiments.

The National Women's Party took the ERA to Congress in the 1920s, where Senator Charles Curtis and Representative Daniel R. Anthony, Jr.—both Republicans and both from Kansas—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 session of Congress 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, when it was passed by the Senate in a modified form unacceptable to its supporters. The ERA was strongly opposed by the American Federation of Labor and other labor unions as well as by Eleanor Roosevelt and most New Dealers, who contended that women needed government help and should not be forced into the workplace to compete with men.

Representative Martha W. Griffiths of Michigan, however, 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. Griffiths' joint resolution was then adopted by the Senate on March 22, 1972, with a vote of 84 yeas, 8 nays and 7 not voting. With that, the ERA was finally presented by the 92nd Congress to the state legislatures for ratification, as Article V of the Constitution prescribes, with a seven-year deadline for ratification by the required three-quarters of the legislatures (38 legislatures).

The national debate on the ERA has largely subsided, in part because of expanded interpretations of existing statutes and constitutional provisions which have afforded more equal legal treatment of men and women. In Congress, supporters of the ERA have re-introduced the amendment in Congress every term since 1982 without success.

On March 27, 2007, new resolutions were introduced in the U.S. House of Representatives and U.S. Senate as H.J. Res. 40 and S.J. Res. 10, respectively. They contain the traditional ERA language, but this time with no deadline attached. The congressional sponsors referred to the new resolutions by the name "Women's Equality Amendment," but this title does not appear in the resolutions, and some groups backing the proposals continue to refer to them as the gender neutral "Equal Right Amendment.

In the state legislatures and the courts

The initial pace of state legislative ratifications was rapid during 1972 and 1973, but then slowed considerably with only three ratifications during 1974, just one in 1975, none at all in 1976, and only one in 1977. The 92nd Congress, in proposing the ERA, had set a seven-year time limit for the Amendment's ratification, and by the end of that deadline on March 22, 1979, a total of 35 of the required 38 states had ratified it. Five of these 35 states withdrew their ratifications before the deadline arrived.

In 1978, the Congress passed a controversial bill by a simple majority (not a two-thirds supermajority), which disputedly extended the ratification deadline by 39 months. During this disputed extension, no new states ratified or rescinded. In Idaho v. Freeman (1981) a federal district court ruled the extension to be unconstitutional.

The National Organization for Women appealed the U.S. district court holdings in Idaho v. Freeman. In NOW v. Idaho, 459 U.S. 809 (1982), the U.S. Supreme Court declared the entire matter moot, on grounds that the 1972 ERA was dead with or without either the rescissions or the purported deadline extension.

As previously noted, five of the 35 states which ratified the ERA rescinded their ratifications before the original 1979 deadline.

Here are details on the five rescissions:

Idaho which ratified the ERA on March 24, 1972, by approving Senate Joint Resolution No. 133, and which then adopted House Concurrent Resolution No. 10 on February 8, 1977, to rescind that ratification.
Kentucky which ratified the ERA on June 26, 1972, by approving House (Joint) Resolution No. 2, and which then adopted House (Joint) Resolution No. 20 on March 17, 1978, to rescind that ratification; there is some speculation about Kentucky's rescission in that the Lieutenant Governor of Kentucky, Thelma Stovall, who was acting as Governor in the Governor's absence, issued a veto of the rescinding resolution. However, the U.S. Constitution provides no role for a governor (nor for the President of the United States) in the constitutional amendment process.
Nebraska 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; Nebraska lawmakers then 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.
Tennessee which ratified the ERA on April 4, 1972, by approving House Joint Resolution No. 371, and which then adopted Senate Joint Resolution No. 29 on April 23, 1974, to rescind that ratification.
South Dakota, where lawmakers ratified the ERA on February 5, 1973, by approving Senate Joint Resolution No. 1; then South Dakota legislators 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 activities transpiring after that date would be considered by South Dakota to be null and void.

The U.S. District Court for Idaho held, in Idaho v. Freeman, that the rescissions — all of which occurred before the original 1979 ratification deadline — were valid. According to research by Prof. Jules B. Gerard, professor of law at Washington University, of the 35 legislatures that passed ratification resolutions, 24 explicitly referred to the 1979 deadline.

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

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.
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.
Louisiana whose Senate voted to ratify the ERA on June 7, 1972, with a tally of 25 to 13.
Missouri whose House of Representatives voted to ratify the ERA on February 7, 1975, with a tally of 82 to 75.
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.
North Carolina whose House of Representatives voted to ratify the ERA on February 9, 1977, with a tally of 61 to 55.
Oklahoma whose Senate voted to ratify the ERA on March 23, 1972, by a voice vote.
South Carolina whose House of Representatives voted to ratify the ERA on March 22, 1972, with a tally of 83 to zero.

Extension of ratification deadline

In 1978—as the 1979 deadline approached—the 95th Congress adopted House Joint Resolution No. 638, by Representative Elizabeth Holtzman of New York, which purported to extend the ERA's ratification deadline to June 30, 1982. It should be noted that House Joint Resolution No. 638 received fewer than a two-thirds vote in both the U.S. House of Representatives and the U.S. Senate. For that reason, it was deemed necessary by ERA supporters that House Joint Resolution No. 638 be transmitted to then-President Jimmy Carter for signature as a safety precaution. Carter did sign the joint resolution, although questioning—on procedural grounds—the propriety of his doing so.

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. However, Illinois required a 3/5ths majority on constitutional amendments, and the measure failed by five votes. In fact, the only occurrence favorable to the ERA between the original deadline of March 22, 1979, and the revised June 30, 1982, expiration date was—as noted earlier—its approval by the Florida House of Representatives on June 21, 1982. 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 become the 36th state to ratify the ERA, the amendment would still have been two states short of the required 38 (or seven states short, if rescissions are valid).

On December 23, 1981, a United States District Court ruled that the ERA's deadline extension was unconstitutional and, further, that a state legislature may indeed rescind a prior ratification of a proposed amendment to the Federal Constitution. The case ultimately was appealed to the Supreme Court of the United States. The United States Solicitor General claimed that the required number of states (38) had not ratified even if the deadline extension and the rescissions were valid, and that "the Amendment has failed of adoption no matter what the resolution of the legal issues presented here. The Supreme Court agreed and ordered the case dismissed as moot on October 4, 1982. The Supreme Court thereby recognized that the 1972 ERA had failed to win ratification, but the Court did not issue a ruling on the merits of the either the deadline extension issue or the rescission issue in this case.

Shift in political attitudes

The political tide changed direction in the late 1970s and throughout the 1980s. At the 1980 Republican National Convention in Detroit, Michigan, the Republican Party platform was amended to qualify its support for the ERA. One of the most prominent opponents to the ERA was Phyllis Schlafly, a conservative Republican. According to its critics, the ERA would have granted more power to Congress and to the federal courts, a stance unpopular at a time when public opposition to expanded Federal government authority—and Federal judicial activism in particular—was growing. Opponents, and even most supporters of the ERA, agree that if freshly re-proposed by Congress, the ERA would have to start from scratch and would need to gain state ratifications all over again—the state approvals achieved during the 1970s being non-transferable.

State constitutions

Twenty-one states have a version of the ERA in their state constitutions. Sixteen of them ratified the federal amendment, while five did not.

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.

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. Early the following year, Congressman Robert E. Andrews (D-NJ) 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. No action was taken on the resolution, which has also been introduced in subsequent Congresses.

An article published in the William and Mary Journal of Women and the Law in 1997 explains a legal rationale for the "three-state strategy." It argues that:

The 35 ratifications from state legislatures during the 1970s remain valid;
Rescissions of prior ratifications are not constitutional;
The 1978 extension of the ERA's deadline demonstrates that Congress can amend previously established deadlines; and
The Twenty seventh Amendment's 202½ 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, which is also a basis for the three state strategy.

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

Opponents of the three-state strategy point out that the 1789 resolution proposing what is known today as the Twenty seventh Amendment ("Madison Amendment"), dealing with congressional pay raises, did not contain a deadline for ratification.

In 1996, the Library of Congress' 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.

Several state legislatures have considered the three-state strategy, but none have passed a resolution:

The first state legislature to consider a ratification resolution based on the "three-state" theory was Virginia, in 1994. The resolution was not approved.
The Illinois House of Representatives on May 21, 2003, adopted a resolution ratifying the ERA—proposed in 1972. However, the Illinois Senate did not ratify the ERA and resolution died at the end of 2004.
On April 5, 2005, the Arkansas Senate voted 16 yeas, 15 nays and 4 "not voting" on a resolution to approve the ERA. Under the Arkansas Senate parliamentary rules, this type of resolution requires a majority vote—that is, at least 18 votes for the amendment.
During 2007, ERA ratification resolutions were introduced in Arizona, Arkansas, Florida, Illinois, Louisiana, Missouri, and Mississippi. The Arkansas resolution (HJR 1002) failed in a committee of the state House, after 20 legislators (including two members of the committee) withdrew their co-sponsorships of the resolution. Pro-life groups claim the change was due in part to their intervention. On May 15, 2007, the Committee on Civil Law and Procedure of the Louisiana House defeated a similar ERA ratification resolution (HCR 4), on a vote of 5 to 4.

Criticism of the ERA

Opponents of the ERA argue that its passage would have far-reaching implications, obliterating traditional distinctions between the sexes. Women, ERA opponents claim, would be required to register for the draft just as men currently do, and would have to serve in combat just as men must. Opponents go on to assert that the ERA would also remove laws that specially protect women, such as labor laws in heavy industry.

Especially since the early 1980s, the potential impact of the ERA on abortion-related laws has become a major factor in the ERA debate. On November 15, 1983, the majority (Democratic) leadership of the U.S. House of Representatives attempted to again pass the ERA (to begin the entire ratification process over again), under a procedure that did not allow consideration of any amendments. The ERA fell short of the required two-thirds vote (278-147) when 14 co-sponsors voted against it, many of them insisting on the need for an "abortion-neutral" amendment proposed by Congressman Jim Sensenbrenner, which read, "Nothing in this Article [the ERA] shall be construed to grant, secure, or deny any right relating to abortion or the funding thereof." Neither House of the Congress has voted on any ERA since that day.

The ERA-abortion issue was further fueled by the use of ERAs in state constitutions in lawsuits attacking pro-life/anti-abortion policies in some states. ERA-based efforts to invalidate restrictions on tax-funded abortions succeeded in Connecticut and, especially, in New Mexico. On November 25, 1998, the New Mexico Supreme Court ruled 5-0 that the state ERA — very similar to the proposed federal ERA — prohibited the state from restricting abortion differently from "medically necessary procedures" sought by men, and the court ordered the state to pay for abortions under the state's Medicaid program.

In its ruling, the court adopted the construction of the ERA urged in the case by the National Abortion and Reproductive Rights Action League, Planned Parenthood, the ACLU, the Center for Reproductive Law and Policy, and the NOW Legal Defense and Education Fund. The doctrine that the ERA language invalidates limitations on tax-funded abortion was also supported in briefs filed by the state Women's Bar Association, Public Health Association, and League of Women Voters. This ruling is now often cited by pro-life/anti-abortion groups in debates over ERAs in Congress and various legislatures.

Other critics have argued that the courts could rule that the ERA would mandate the recognition of same-sex marriage. They point to various court decisions, including a Hawaii State Supreme Court decision in 1993, a Baltimore, Maryland circuit court decision in January 2006, the Massachusetts Supreme Judicial Court ruling for same-sex marriage in 2003, and to a decision by the Supreme Court of California in May 2008, all of which used state bans on sex discrimination as partial justification for the rulings.

Critics also maintain that the ERA would prohibit single-sex schools, sports teams or even restrooms—they point to a decision by a court in the State of Washington which ordered a fraternal civic organization to admit women, based upon the ERA within its state constitution. Finally, some opponents of the ERA contend that the amendment simply is not necessary, that other provisions of the Constitution— as interpreted by various rulings by the U.S. Supreme Court and lower federal courts— provide sufficient support for equal rights for both genders and that the amendment would imply that women had never been equal under the law before the amendment's passage.

Supporters also point out that the likely legal interpretation of the ERA would be to review government, but not private, sponsored sex distinctions under strict scrutiny (the level of legal scrutiny currently afforded to racial discrimination). While strict scrutiny is a very high level of legal scrutiny, it does not preclude all governmental acts regarding a suspect class.