ERA Redux?

A recent editorial in the New York Times suggests that the time for passage of the Equal Rights Amendment–long comatose (actually, I thought it was dead)–may finally be at hand.

The editorial begins with a recognition of the Trump Administration’s negative consequences, especially for women:

Having a sexist in the Oval Office who curries favor with conservative religious groups is having dire consequences. Health workers in developing nations are preparing for a rise in unsafe abortions due to President Trump’s reinstatement of the global gag rulethat prohibits federal funding of groups that provide abortion services or referrals. Here at home, his administration has been hostilenot only to abortion access, but even to birth control.

A full list of the “Trump Effect” would be much longer, of course; it is a mistake to put “women’s issues” in some sort of separate category limited to matters of reproduction and discrimination. Women’s issues are human issues, and vice-versa–the damage this administration is doing to policies ranging from the environment to poverty to international relations affects all genders, just as family planning and child care policies affect men as well as women.

That said, the daily assaults have generated a monumental resistance.

Rage at the election of a man who boasted about grabbing women’s genitals helped set off the #MeToo movement’s reckoning with sexual misconduct. A record number of women are running for office around the country, many of them announcing their candidacies after participating in women’s marches the day after Mr. Trump’s inauguration.

And now, on Mr. Trump’s watch, feminists could reach a goal nearly a century in the making, and that many assumed would never come to pass — ratification of the Equal Rights Amendment to the Constitution. It states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

What prompts this possibility?  Evidently, the Illinois State Senate recently passed a bill to ratify the E.R.A.  If the Illinois House passes the same legislation (supporters are cautiously optimistic) — then Illinois will become the 37th state to ratify the amendment.

Just one additional state would be needed, and the long-languishing amendment would become part of the Constitution. Maybe.

Thirty-five states had signed on by 1977, ahead of the 1982 deadline established by Congress. Extensive–one might say hysterical– conservative opposition then arose, preventing further ratification. Virtually nothing happened after that, until Nevada suddenly ratified it last year.

There are some questions about what will happen if a 38th state ratifies the amendment, given that it would miss the deadline Congress set by at least 36 years, and five states have even voted to rescind their ratifications. But E.R.A. supporters and some legal experts make a plausible case that the amendment should still be recognized, pointing to, among other things, the 27th Amendment, on congressional pay, which was ratified more than 200 years after its passage by Congress, although no deadline had been set.

If the ERA were to be ratified, I’m not sure what it would do. As the editorial notes, there is a substantial body of 14th Amendment jurisprudence that protects the equal rights of women.

The fight against the E.R.A. is being led by groups on the religious right like the Illinois Family Institute, using arguments that are the ideological heirs of those so vociferously expressed by Phyllis Schlafly, whose group Stop E.R.A. — the first word standing for “Stop Taking Our Privileges” — which became the Eagle Forum, prevented the E.R.A.’s ratification at the time.

Those arguments include fearmongering about how coed locker rooms could become standard and alimony for women outlawed — arguments that are hard to take seriously but that nonetheless helped Mrs. Schlafly to very effectively convince Americans, including many women, that the E.R.A. was bad news. (Mrs. Schlafly, who died in 2016, would no doubt be appalled that her home state, Illinois, could now play such a pivotal role in ratification.)

Another conservative talking point is that the E.R.A. would lead to abortion restrictions being struck down. That outcome is not at all certain, but it would help many women. (For obvious reasons, the anti-E.R.A. crowd already had to slink away from an argument that the amendment would lead to legalizing same-sex marriage.)

Do we still need the ERA? Case law can be overturned; a constitutional amendment cannot–at least, not easily. Ratification would add an extra layer of protection against discrimination for both men and women . Given the appalling people that are being placed on the federal bench by Trump and the GOP, that’s no small matter. And of course, as the editorial pointed out, “This could become especially important if Mr. Trump gets to pick additional conservative Supreme Court justices.”


  1. Sheila,

    “There are some questions about what will happen if a 38th state ratifies the amendment, given that it would miss the deadline Congress set by at least 36 years, and five states have even voted to rescind their ratifications. But E.R.A. supporters and SOME LEGAL EXPERTS make a plausible case that the amendment should still be recognized, pointing to, among other things, the 27th Amendment, on congressional pay, which was ratified more than 200 years after its passage by Congress, ALTHOUGH NO DEADLINE HAD BEEN SET.”

    Talking about PIE IN THE SKY. I’m all for women’s rights, but how can this succeed? Who cares about winning? Let’s just continue to AVOID POLITICAL REALITY.

  2. Doesn’t the fact it’s 2018 and we’re still talking about “equal rights for women” or anybody else still a problem?

    Once again, which billionaire is behind, the “Illinois Family Institute”. It took a few minutes on Google to find their parent, Family Research Council:

    Yea, it’s a fraud.

    Why are we even discussing why women, or anybody else who lives on this planet, should have equal rights?

    Oh yes, because Christianity is a patriarchal system. Meanwhile, the country which claims Christian roots, “Killed female witches, stole land from and slaughtered Native Americans, and enslaved African men and women.” As we’ve all learned, many owners of slaves also mated with them. DNA tests don’t lie…;)

    Think about this wedge issue. Biblical references to public policy should invoke an immediate loss of non-profit status. Period.

    This is another issue which should firmly be written by the #DNC. However, both “political parties” have effectively neutered the IRS when they were accused of targeting right-wing groups— the mission of the IRS. They were doing their jobs and got hammered. Who could possibly get mad at the IRS when front groups like Family Research Council or other religious groups use their “nonprofit status” to promote public policies?

    These entities are a fraud…they’re shell groups…fronts….for some billionaire or organization to funnel dollars. Period. “If it’s against what the Bible says, it must be stopped!”

    Also, my glaring question is, who is at fault here?

    The manipulators behind these fraudulent organizations or those who believe their propaganda?

    And don’t forget about the media who shoves a microphone and camera in front of the hired hands involved with these groups giving them instant credibility versus exposing them as the true frauds.

    The human species is one. No one is better or worse than anybody else.

  3. Marv ; (7:02 a.m.) This statement gets my vote; “At the moment, this country is a BAD JOKE.” But the only ones laughing are the ones in full control; Legislature, Executive and Judicial in the hands of one party which has steadily bastardized the Constitution which gave them the power to do so.

    I remember the battle for the ERA and the argument that there are already laws in effect supporting women’s rights so no need for the ERA. There WAS also the Civil Rights amendment giving all American citizens regardless of race, basic civil, civic and human rights which appears to be defunct along with the separate rights for women. Civil rights and women’s rights under the law have not helped Black women; “Do we still need the ERA? Case law can be overturned; a constitutional amendment cannot–at least, not easily. Ratification would add an extra layer of protection against discrimination for both men and women.” That “extra layer of protection” protecting both men and women brought to my mind the determined actions by Republicans to destroy in entirety the Planned Parenthood Clinic system which provides medical care to men as well as women. They do not have to state their political affiliation to qualify for assistance.

  4. Let’s not forget that the 14th Amendment was in place for over 50 years before the 19th Amendment was passed. If the 14th Amendment were all that was required, why did we need a separate amendment in order to vote? I’ll quote Justice Frankfurter once again, “The only Constitutional right women have is the right to vote.” Isn’t it about time to grant us the full privileges of citizenship?

  5. 14th amendment relevant clause:

    No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    A woman being a “person” and “equal protection of the laws” are the most relevant provisions. (Just to clarify the discussion.)

  6. When 45 was elected my hope was that he would stir up so much controversy that it would fire up citizens everywhere to demand positive change.

    The seeds of change have been planted. It may take a decade or two to completely bring about some of the positive changes that have been needed for a long time, but I believe they will happen.

  7. Answer me this – if women have ‘equal protection’, why is it that it’s so much more difficult for women to obtain the Real ID driver’s license? How many men need to obtain documentation of (perhaps multiple) name change(s) from their birth certificate?

  8. Peggy Hannon: “Isn’t it about time to grant us the full privileges of citizenship?”
    President Trump: “Are you kidding?”

  9. It may be a nice discussion to have regarding the ERA, but the current SCOTUS’s composition simply will not allow it to become part of the Constitution. They will find some way to put it back on the shelf.

    This SCOTUS, with its five “conservative” Justices is all-in for the backwardness of the true believers. Nothing will come of this until progressives control our Federal and state governments.

  10. John Neal makes an important point by highlighting the wording of the 14th Amendment. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

    As Section 5 states Congress has the power to “seal the deal” of equal protection of the laws.

    That said the 14th Amendment is hollow when you have, men for the most part, who can take advantage of their positions of immense power to exploit woman such as Harvey Weinstein, Charlie Rose, Bill O’ Riley, The Trumpet (aka Agent Orange), among others. The legendary casting couch is no myth, it is a reality that exists not just in Hollywood.

    Laws exist to prevent exploitation. Prole Woman who stand up against sexual harassment can be crushed by a class system, controlled by the old boy network. Silence can also be bought as in the case of Stormy Daniels.

    Woman are not the only victims. The revelations of sexual attacks covered up by the Catholic Church is one more example victimization that can go unpunished.

  11. Does anybody besides myself think fundamentalist Christians are just a beheading away from being just like fundamentalist (radical) Islamists? If Jesus came back today, he would be deported or banned from entering this country. Marx said religion is the opium of the people. I think it’s more like a lobotomy!

  12. Once upon a time back in the early 1970’s, with several other classmates and our college professor, attended a TV session of The Phil Donahue Show in Dayton, Ohio. The topic of day involved passage of the ERA. Phil’s guest that day was the anti-ERA proponent, Phyllis Shafley. As a young college student supporting the ERA sitting amidst a group of middle aged and older mothers all seemingly against the ERA, I got singled out by Phil during a break, and was asked my opinion when the cameras came back on. Among other things, I will never forget the woman who verbally accosted me afterwards saying that I shouldn’t be able to take a seat in a law school class over her son (implying that men should have preference for getting into law school). For the record, I had not applied to law school at that point in my life and would not have been competing with her son for a seat. It’s those memories and current ones where men are making personal & medical decisions for women (as if a woman doesn’t have the mental ability to do so), always putting women in a lower place, that illustrate why the ERA is still needed in this country.

  13. Kathy,

    You go, girl. I’ve always said that religion keeps coming to the rescue of sanity, no matter what the subject.

  14. We are all victims irrespective of gender when women do not have the identical rights afforded men, and we should also consider (albeit secondarily) what equal pay for equal work would do for aggregate demand in our economy. If women who do equal work were paid the same as their male counterparts, consider what that decrease in wage inequality and increase in wherewithal would do for the economy. It would, obviously, give impetus to aggregate demand for goods and services, and it is demand (not tax cuts, not right to work laws, not bumps in the Dow etc.) that determine economic growth, the holy grail of capitalist economies. Consider also that if women had identical constitutional rights as men that when the men got a raise the women would also geta raise, adding further stimulus to demand and economic growth. In time there would be no distinction in pay between gender-based employees doing identical work.

    The downer if such a constitutional amendment became part of our organic law > Expect resistant employers to go to court in a case with the argument that the work performed by women is not identical – thus even a constitutional amendment if adopted would still be subject to judicial scrutiny. A statement of congressional intent accompanying passage of such a constitutional amendment would be helpful in leaving the Supreme Court however right wing no room for interpretation.
    I vote yes to such a constitutional amendment requiring parity of income between men and women for the same work for reasons of economic fairness and justice and also for economic growth sure to ensue from adoption of such an enlightened and overdue policy.

  15. There are two regulatory forces on our behavior, the law and our culture. The law is black and white and collectively and ideally uniformly applied but culture is what we each observe others we deem to be like us actually doing so it reinforces diversity whereas the law reinforces uniformity. Both make significant differences in our lives. Of course also the consequences of breaking the law are tangible vs breaking with your culture which is very rare and “only” social.

    The ERA would move the culture of gender equality from those who accept it culturally now to everyone regardless of their culture. So for some portion of us neither legal or culture us would be affected, while for some, especially those the law would have the greatest affect on, lawmakers who are stuck in a culture of gender inequality, it would be profound.

    Considering all of this some would think makes the passage of the ERA inconsequential except perhaps in the wording of certain laws (I don’t know personally if all laws or only future laws) but like happens with all laws at the intersection of culture and law it codifies who we hope to become as a nation (as did the Constitution and Declaration of Indpendence). That’s reason enough to me because it wouldn’t effect my actions at all. For those who are culturally opposed to it however the pressure would begin with the realization that their gender culture is at odds with perhaps their nationalistic culture. The country would be defined as antisocial to them.

    Isn’t that just another layer of what we read going on in the news everyday?

  16. The ERA very nearly passed before that hypocrite Phyllis Shafley whipped the extreme right up about bathrooms and whether women would be required to serve in the military. I’ve long thought that it was time to rejuvenate the ERA, and with her out of the way (finally) and the question about military service rendered moot, maybe we can get somewhere. In the meantime, there’s not much we can do about the right’s obsession with bathrooms.

  17. Kathy,

    Re: “Does anybody besides myself think fundamentalist Christians are just a beheading away from being just like fundamentalist (radical) Islamists?”

    I am with you.

  18. The constitutional language – “Equal protection of the laws” – SHOULD always have protected women, racial and religious minorities, the handicapped, and others, but it didn’t and hasn’t. Women have progressed inch-by-inch but there are miles to go, and the ERA would speed the legal journey.

  19. As I understand history the passage of the original Ammendments was controversial because some thought them to be redundant. They thought that those rights were implied by the original document. Others wanted even more assurance.

    The ERA is the same argument all over again.

    Most people now fully accept the original 10 Ammendments as essential in clarifying the contract between those governed and those they choose to govern.

    In that way the ERA is equivalent to the original Bill of Rights and the fact that it’s been such a difficult law to pass reveals our culture around rights. More for me at your expense please.

  20. I certainly do remember the fight for passage of the ERA. A group I belonged to marched in the snow in front of the State House urging passage the ERA. Then we moved inside and buttonholed legislators, again urging passage. We gave talks and wrote letters. We came so close. I attribute failure to the Eagle Forum (a stepchild of the John Birch Society) and its accusations that the ERA would lead to single-sex bathrooms ( the bathroom obsession again) and drafting of women into the military, to mention two of their fears. I think now that we proponents needed more ammunition for combating these fears. I also think we still need the ERA because women obviously are not fully protected by the 14th Amendment. I hope Illinois does ratify the ERA if for no other reason than that it will bring the issue to the forefront again.

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