Congress should join the campaign for constitutional equality
Today the Judiciary Committee’s Subcommittee on the Constitution will hold a hearing on the Equal Rights Amendment (ERA), the first hearing on the ERA in more than 35 years. There is a whole new generation of young women and men who have no recollection of the ERA, who are learning for the first time that women do not have constitutional equality. They are outraged.
The Equal Rights Amendment was written almost a century ago, just following the adoption of the 19th Amendment finally giving women the right to vote. Almost 50 years later, Congress passed the ERA in 1972 and sent it to the states for ratification with a seven-year deadline. Following an initial fast wave of ratifications — 22 states in that same year — ratifications slowed. Despite an extension of the deadline to 1982, the amendment fell three states short of the 38 needed by the time the deadline expired.
The arguments against the ERA that were made in the 1970s, grounded in fear, are largely gone. The fear of women in combat has been replaced by a clear understanding that the exclusion from combat has hindered the advancement of women in the military, who want and now have the right to serve in combat. The fear of gay marriage has been replaced by recognition of the right to marriage equality by the Supreme Court. And the belief that a women’s place was exclusively in the home has been replaced by the work-life balancing act millions of women undertake to have a career as well as a family.
Some members of Congress, notably Rep. Carolyn Maloney (D-N.Y.), have kept the ERA alive over the decades, and it has been introduced in every session since 1982. More recently, following the ratification of the Madison Amendment 200 years after its passage by Congress, a new strategy was launched to remove the 1982 deadline. Championed by Sen. Ben Cardin(D-Md.) and Rep. Jackie Speier (D-Calif.), this so-called “three-state strategy” came to life when in 2017 the state of Nevada voted to ratify the ERA — the first state to vote for ratification since the 1970s.
State Sen. Pat Spearman, who led the successful ratification in Nevada and who is one of the witnesses to testify today, sparked a renewed effort across the country to complete the ratification process. In 2018, Illinois became the 37th state to ratify the ERA. Similar efforts are ongoing in many states, including Arizona, Florida, Georgia, Louisiana, North Carolina and Virginia. The “three-state strategy” is now the “one-state strategy” and the race is on to be the 38th state. In 2019, Virginia fell short by just one vote.
The greatest question most Americans have about the ERA is, why do we need it? Yet we all know that women in America are still far from equality in everything from economic power and political representation to civil rights and social status. On average, women make 80 cents for every dollar made by men — less for women of color — and under existing law, the courts have held that an employer can pay a woman less than a man for doing the same work if the reason for paying her less is that she was paid less in her last job. Pregnant women have been fired without effective legal recourse for seeking workplace accommodations such as lighter lifting, sitting at the cashier or even taking extra bathroom breaks. Victims of sexual assault and domestic violence have been denied justice because the Supreme Court has ruled that there is no basis in the Constitution for them to bring cases in federal court.
The Equal Rights Amendment would help promote equality in two ways — by providing additional avenues of legal recourse and by incorporating in the highest law of our land the message to all that sex equality is a fundamental human right. According to an ERA Coalition poll, 94 percent of Americans support constitutional equality for women, including 90 percent of all men polled and 99 percent of millennials. Equal rights is a nonpartisan issue that transcends politics, age, geography and gender.
Most Americans — 80 percent — think we already have constitutional protection of equal rights. Most countries in the world do, and it is hard to imagine that we wouldn’t. But the Constitution was written by white men who owned land, and women were intentionally left out, as were all others. This omission has helped to perpetuate a lack of respect for women and engendered a culture that has allowed sexual harassment and other forms of violence and discrimination to flourish with impunity.
The #MeToo movement has ignited a deep anger that has mobilized into a movement demanding fundamental changes in the way women are treated. Those changes should start with the Constitution, and this process began in 1972 when Congress passed the Equal Rights Amendment and sent it to the states for ratification.
Article 5 of the Constitution says nothing about deadlines for ratification of amendments. Congress created a deadline for the ERA in 1972 and extended it in 1978. Congress can remove the deadline altogether in 2019, enabling states such as Nevada and Illinois to act effectively in accordance with the will of their citizens. Members of Congress who don’t support the Equal Rights Amendment are on the wrong side of history and should be held accountable in the next election. It’s time for the ERA.