The Rise and Fall of the Equal Rights Amendment
In 1920, Women in America obtained the legal right to vote (though for Black women, this right was limited by the Jim Crow laws of the South). As suffragettes celebrated their victory, they turned to their next objective: an Equal Rights Amendment. First drafted in 1923 by Alice Paul and Crystal Eastman, two suffragette leaders, the Equal Rights Amendment (ERA) sought to establish gender equality in our Constitution once and for all. The law was introduced to Congress every year since 1923, but it wasn’t until the rise of second-wave feminism led by Betty Friedan, Gloria Steinem, and Shirley Chisholm in the 1970s that it was finally passed. The amendment that passed Congress, having undergone several revisions, contains three sections:
Section 1. Equality of Rights under the law shall not be denied or abridged by the United States or 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.
Currently, our Constitution does not prohibit discrimination on the basis of sex. One may point to the Fourteenth Amendment as a rebuttal to this claim. After all, it does contain the Equal Protection Clause, which affirms that the government cannot “deny to any person within its jurisdiction the equal protection of the laws.” However, this clause does not give total protection against sex-based discrimination – only some. For example, currently, when federal courts review cases involving sex-based discrimination, they apply intermediate scrutiny, meaning that if federal laws target a certain group based on sex, they must “show that its consideration of sex serves an important government interest and that its action is substantially related to achieving that interest.”
Alternatively, the federal courts apply strict scrutiny when considering cases pertaining to race-based discrimination (though some state courts, such as Massachusetts, Hawaii, and California, apply strict scrutiny to cases of sex discrimination as well). Strict scrutiny, as the name implies, requires that the government show a compelling (as opposed to “important”) government interest and that its action is narrowly tailored (as opposed to “substantially related”) to achieving that interest. Essentially, the case for sex-based discrimination must be stronger.
The ERA would address the discrepancy between the treatment of sex-based versus race-based discrimination, requiring that when courts consider laws that discriminate based on sex, they must do so using strict scrutiny. Furthermore, while current laws protect against sex discrimination from employers, for example, the ERA would prohibit sex discrimination by “the government, including in statutes, regulations, employment, and law enforcement,” and this prohibition would be codified in the Constitution, making it a lot harder to roll back.
In terms of what concrete effects the ERA could have, proponents argue it would both strengthen abortion rights and bolster “protections against sex discrimination in areas including gender-based violence (GBV), the workplace, and access to reproductive health care.” On the other hand, opponents claim that the ERA would require co-ed bathrooms or sports at the national and state levels or mandate the allowance of men in sensitive all-female spaces, such as shelters that house women who were victims of partner violence. These worries are, however, misguided, as each of these situations has a “compelling” government interest that is addressed with a “narrowly tailored” exclusion of men and would, therefore, pass the strict scrutiny required to justify sex discrimination.
One common concern regarding the ERA was the inclusion of women in the military draft. The ERA would, in effect, end the exclusion of women from the draft. However, it’s unclear whether the act would end the “reservation of combat roles to male service members”. Essentially, because of the ambiguous nature of the amendment itself, one would expect that it would be up to the federal courts (likely going up to the Supreme Court) to decide how the law would potentially affect the drafting process. With that being said, even without the ERA, the draft could include women, and military leadership has suggested in recent years that maybe it should. Therefore, if a draft is to occur in the future, it’s entirely plausible that women would be compelled to register for it regardless of the ERA.
In theory, the ERA should be uncontroversial as it simply affirms that sex cannot be used as a means for discrimination. However, this required a second-wave of feminism to force Congress to take action. Even then, the ERA was met with resistance. The amendment was finally passed by Congress (meaning that a ⅔ majority in both houses voted in support of the amendment) and was subsequently sent to the states for ratification (¾ of state legislatures must approve the amendment for it to be ratified), with a seven-year deadline set by Congress.
Within the first year, 30 states, including Hawaii, Massachusetts, and New Mexico, ratified the ERA. However, in the following years, support for the ERA stalled, largely due to the influence of anti-ERA, anti-feminist activist Phyllis Schlafly. Schlafly consistently created “worst-case scenarios which, when juxtaposed with the lives of average white women at that time, led many of them to believe that inequality wasn't so bad after all.” For example, it was Schlafly who claimed the ERA would lead to co-ed bathrooms and the inclusion of women in the military draft. Furthermore, Schlafly emphasized the biological differences between men and women to justify the social inequalities that existed between the two, claiming that the ERA would “lose the protection of father and husband”. As an organized, articulate activist, Schlafly utilized his grassroots connections throughout the U.S. to convince citizens and legislators alike that the ERA would have negative effects for women – and she did so successfully. Congress extended the deadline for the Amendment’s ratification another three years (until 1982), but the amendment still did not reach the 38-state threshold for ratification. Upon the passage of the ratification deadline, Schlafly reportedly threw a party and was congratulated by then-president Ronald Reagan.
Recently, though, the ERA has received some renewed traction and attention. Following President Trump’s election in 2016 and the rise of the #MeToo Movement, women all over the United States expressed horror over the state of the nation, mobilizing across several states–Nevada, Illinois, and Virginia–to enact the ERA. With these additional three states, the amendment now has the numbers it needs to become law. However, there still exists the issue of the deadline set by Congress.
During Trump’s 2016-2020 term, the White House issued an opinion that the 1982 deadline still holds, and therefore, the amendment cannot and should not be published by the National Archivist, the person “responsible for the certification and publication of constitutional amendments”. In 2020, Illinois and Nevada challenged this statement, suing the National Archivist in federal court, with the argument that they had met the Constitutional requirements necessary for a proposed amendment to become law. The courts sided against the states, however, ruling that the Congress-imposed deadline is valid.
While it may have seemed that the ERA had become an impossibility, the Biden administration aimed to give it one last shot. Though Biden had previously backed Trump’s stance that Congress’ deadline was valid and the window for ERA ratification had expired, his office changed its stance on this shortly before leaving office, declaring the ERA to be “the law of the land”. While presidents have no formal role in the process of amending the constitution, many proponents of the ERA saw this as a symbolic win. The National Archivist has since refused to enact the amendment, citing the court case that ruled the deadline valid and in effect (therefore declaring the ERA null). With the new Trump administration in full swing, there is now little hope that the 1972 Equal Rights Amendment will ever be implemented.
Alice Kovarik is a first-year studying Economics and International and Public Affairs. She can be reached at alice_kovarik@brown.edu
Cat Gao is a sophomore at Brown University studying Philosophy and Literary Arts. She can be reached at cat_gao@brown.edu