Equal Rights Amendment
|
|
The Equal Rights Amendment (ERA) was a proposed amendment to the United States Constitution which would have guaranteed equal rights under law for Americans regardless of sex. The deadline for ratification of the ERA has expired and most observers are of the opinion that the ERA is no longer pending before America's state lawmakers for consideration. Other persons, however, maintain that if the legislatures of just three more states ratify it, the ERA would become part of the Constitution.
| Contents |
Text of the ERA
The ERA's text, as proposed in 1972 by the 92nd Congress, and as published in Volume 86, United States Statutes At Large (pages 1523–1524), reads as follows:
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.
SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
SEC. 3. This amendment shall take effect two years after the date of ratification.
The ERA's history in Congress
Although the 1920 ratification of the 19th Amendment had guaranteed American women's right to vote, Alice Paul, a suffragist leader, argued that this right alone would not end remaining vestiges of legal discrimination based upon gender. In 1923, Paul drafted the Equal Rights Amendment (ERA) 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 never reached the floor of either the Senate or the House of Representatives—instead, it was usually "bottled up" in committee.
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 of Representatives on October 12, 1971, with a vote of 354 yeas, 24 nays and 51 not voting (117 Congressional Record 35815). 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 (118 Congressional Record 9598). And with that, the ERA was finally presented by the 92nd Congress to the state legislatures for ratification, as Article V of the Constitution prescribes.
Mixed reception for the ERA in the state legislatures
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 its ratification, and by the end of that deadline on March 22, 1979, a total of 35 of the required 38 states had ratified it. Also, as of that date, five of those 35 states had subsequently adopted resolutions to rescind their earlier ratifications (more on that below).
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 vote of 91 to 4; a second time on April 10, 1975, with a vote of 62 to 58; a third time on May 17, 1979, with a vote of 66 to 53; and a fourth time on June 21, 1982, with a vote of 60 to 58.
- Illinois whose Senate voted to ratify the ERA in May of 1972, with a vote of 30 to 21; and whose House of Representatives voted to ratify the ERA on May 1, 1975, with a vote of 113 to 62; and again on May 21, 2003, with a vote of 76 to 41. It should be noted that, at various times, votes were taken in both chambers of the Illniois 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 vote of 25 to 13.
- Missouri whose House of Representatives voted to ratify the ERA on February 7, 1975, with a vote of 82 to 75.
- Nevada whose Assembly voted to ratify the ERA on Feburary 17, 1975, with a vote of 27 to 13; and whose Senate voted to ratify the ERA on February 8, 1977, with a vote of 11 to 10.
- North Carolina whose House of Representatives voted to ratify the ERA on February 9, 1977, with a vote 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, by a vote of 83 to Zero.
On the other hand, and as previously noted, five of the 35 states which did fully approve the ERA early on later acted to rescind their ratifications as follows:
- 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 rescinding resolution was vetoed by the Lieutenant Governor who was acting as Governor in the Governor's absence.
- 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 that ratification.
- South Dakota which ratified the ERA on February 5, 1973, by approving Senate Joint Resolution No. 1, and which then adopted Senate Joint Resolution No. 2 on March 1, 1979, stipulating that the ERA's opportunity for ratification would expire on March 22, 1979; furthermore, Senate Joint Resolution No. 2 made clear that South Dakota's ratification 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.
- 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.
It is believed by some persons that a state legislature cannot rescind its prior ratification of a proposed federal constitutional amendment, a Congressional precedent—not a judicial precedent—established in 1868 with irregularities involving the ratification of the 14th Amendment. (See Article V of the United States Constitution.)
Extension of the ERA's ratification deadline
In 1978—as the 1979 deadline perilously approached—the 95th Congress adopted House Joint Resolution No. 638, by Representative Elizabeth Holtzman of New York, which extended the ERA's ratification deadline to June 30, 1982 (Volume 92, United States Statutes At Large, page 3799). But no additional states ratified the ERA during that extra period of slightly more than three years. 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. Florida's Senate, though, did not emulate its House's example.
National political climate turned against the ERA
The political tide changed direction in the late 1970s and throughout the 1980s. The Republican Party withdrew its earlier support for the ERA. Political opposition to the ERA was led by Phyllis Schlafly, a conservative Republican. According to its critics, the ERA would have granted more power to Congress and to the federal courts, a position unpopular at a time when public opposition to expanded federal government powers—and federal judicial activism in particular—was growing.
Supporters of the ERA have re-introduced the amendment into Congress every term since 1982 without success. Opponents—and even most supporters of ERA—agree that if 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.
Three-state strategy
Some, but not all, ERA supporters argue that the earlier 35 ratifications are still valid, and that only three more ratifications are necessary without Congress having to even resubmit the ERA to the nation's state lawmakers. Congress could then, the theory goes, recognize the three additional ratifications retroactively, arguing that the history of the 27th Amendment—which was ratified over 200 years after it was first proposed—proves the validity of their approach. This theory further assumes that the five states which rescinded should still be counted in support of the ERA. Pursuant to this fanciful theory, as noted earlier, the Illinois House of Representatives as late as May 21, 2003, adopted a resolution ratifying the ERA—proposed in 1972—but the Illinois Senate did not follow the House's lead and that particular resolution died in the General Assembly's upper chamber. For clarification, unlike the aforementioned House Joint Resolution No. 208 of the 92nd Congress and unlike the aforementioned House Joint Resolution No. 638 of the 95th Congress, the 1789 resolution of the 1st Congress, proposing what is today the 27th Amendment, did not set any deadline for that measure's ratification by the state legislatures. Furthermore, neither the Supreme Court—nor any lower court—has ruled on whether the 27th Amendment is actually a valid part of the federal Constitution.
Issues in opposition to 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 Selective Service System (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. Some states, such as Connecticut and New Mexico, have even ordered the use of tax monies in the case of medically-necessary abortions based upon state ERAs, under the theory that women must have health care every bit as comprehensive as that accorded to men. Interestingly, Alice Paul—author of the original ERA, as noted earlier—was an opponent of abortion and described the procedure as "the ultimate exploitation of women".
Other critics have argued that the courts could rule that the ERA would mandate the recognition of same-sex marriage. Critics also maintain that the ERA would require the integration of single-sex schools or sports teams—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 contended that the amendment simply was not necessary, and that other provisions of the Constitution provide sufficient support for equal rights for both genders.
Alternative paths to equality
Despite the failure to ratify the ERA, many of its goals have otherwise been obtained through judicial interpretations of the Civil Rights Act of 1964 and of the Equal Protection Clause of the 14th Amendment. The successes of feminism in altering both the culture and politics of the United States since the 1970s, together with the significant inclusion of women in many fields once traditionally dominated by men, have dampened much of the political momentum that once propelled the ERA.
State ERAs
Since 1879, a total of 20 states have added equal rights amendments to their state constitutions. All of these amendments, like the federal ERA, prohibit discrimination based on sex. Thirteen of the amendments also prohibit discrimination based on race, national origin, or creed, and three of them even go so far as to prohibit discrimination on account of a physical handicap. Those 20 states are: Alaska, California, Colorado, Connecticut, Florida, Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, Pennsylvania, Texas, Utah, Virginia, Washington, and Wyoming.