House Democrats take steps to revive a century-year-old effort to add the Equal Rights Amendment to the US Constitution.
This is a news article by the editor.
The Equal Rights Amendment, a legislative priority of feminists for over a century, was resurrected from the dead by the House of Representatives last Thursday. Along mostly partisan lines, the House voted to lift the 1982 deadline for ratification that ended consideration of the amendment after Congress passed it in 1972.
Many Americans today have not heard of the ERA. They’d be surprised to learn it only fell three states short of adoption before the 1982 deadline. If the Senate were to vote to lift the ratification deadline similarly, the amendment could be adopted into the US Constitution with only the ratification of three additional states.
So, what is the ERA?
The ERA is a proposed amendment to the US Constitution, championed by feminists since as early as the 1920s. It would effectively make any and all legal distinctions between men and women unconstitutional.
Proponents of the amendment argue it would solidify true equality. Opponents, such as myself, contend it could have numerous unintended consequences and even remove important protections unique to women.
Initial Bipartisan Support
Support for the ERA was once on the platforms of both major parties. It received support from both Republican and Democratic Presidents. When Congress passed it in 1972, it did so with super-majority support in both Houses. The amendment was initially on the fast-track to adoption and was ratified by 30 states in 1972 and 1973.
Social Conservatives Hit the Brakes
The ERA received sudden and intense opposition in 1972 as conservative women began organizing against it. They argued the provisions of the amendment would remove their distinct and privileged position as mothers and caregivers.
These conservative housewives were joined by many employed women who similarly came to fear they could lose gender-specific protections in the labor market. Even activists and feminists hedged on their support as they realized the measure could make young women eligible to be drafted into the Vietnam War.
While five additional states still voted to ratify the amendment between 1974 and 1977, four states ended up rescinding their original votes for ratification. Congress voted to extend the 1979 deadline to 1982, but no additional states voted for ratification.
New Interest In the ERA
Despite the ERA sitting dormant for nearly forty years, there are many voices among the feminist movement who have continued to advocate for it. Supreme Court Justice Ruth Bader Ginsburg is the most prominent supporter of the ERA.
“The equal rights amendment, in sum, would dedicate the nation to a new view of the rights and responsibilities of men and women. It firmly rejects sharp legislative lines between the sexes as constitutionally tolerable. Instead, it looks toward a legal system in which each person will be judged on the basis of individual merit and not on the basis of an unalterable trait of birth that bears no necessary relationship to need or ability.”
Ginsburg herself advocates for the amendment process to begin anew. But others have worked towards re-opening the question of the originally proposed amendment. These advocates gained victories in their efforts with a spurring of state ratifications in Nevada (2017), Illinois (2018), and Virginia (2020). These state ratifications spurred the efforts to have Congress lift the 1982 ratification deadline.
Opposition to the ERA Has Sharpened
The recent efforts to pass the ERA have been very different from initial efforts in the 1970s. It is has become an almost exclusively Democratic goal. The ratifications in Nevada, Illinois, and Virginia were passed after Democrats won sweeping victories in those states, and Democrats passed them over strong Republican objections. The recent House resolution was similarly an almost purely Democratic effort and received sharp criticism from Republican members.
Not only have the conservative arguments against the ERA become multi-generational convictions, but political ramifications of the amendment have become considerably heightened regarding the impact it could have on the abortion debate. Since abortion laws are gender-specific laws, the amendment could result in the constitutional codification of Roe v. Wade.
Personally, I consider this renewed interest in the ERA as a seriously consequential form of virtue signaling by the Democrats and their allies. The Fourteenth Amendment already guarantees equal protection of the laws. The only real result of the ERA would be a removal of the unique rights and privileges that women enjoy under laws explicitly crafted to their gender realities.
I would even go so far as to say that these modern feminists are betraying the values of early feminism. Women argued successfully for the right to vote in part on their assertion that their unique and vital role as wives and mothers gave them valuable perspective different than those of their husbands. And, that granting a single vote per household, cast by the patriarch, did not adequately represent them.
Women fought for the right to vote to ensure laws were passed with their unique needs in mind. I believe the ERA would prove to be a vast over-correction and could eliminate many of the legislative priorities championed by feminists over the last century.
What Comes Next?
The US Senate is unlikely to vote in favor of lifting the deadline. However, there are Republican Senators who advocate for its adoption, namely Senator Lisa Murkowski.
Regardless, attempting to resurrect the original amendment attempt from the 1970s is unlikely to result in the adoption of the ERA. I mentioned earlier that four states voted to rescind their ratifications. If the proposed amendment were to become an active question once more, there is a clear list of states that would likely similarly vote to rescind their ratifications. Such reliably red states as West Virginia, Texas, Wyoming, and Kentucky would balk at allowing the ERA to be adopted with their almost fifty-year-old seal of approval.
Additionally, given that the amendment is still legislatively dead, it’s likely Nevada, Illinois, and Virginia would have to pass ratification again after the proposed amendment became an active question once more.
Proponents for the ERA would either have to convince upwards of ten additional states to ratify the amendment and hope against any further rescissions from light-red and purple states, or they would have to embark on a lengthy court battle seeking the Supreme Court’s input on whether a state can actually rescind a previous ratification. (The Constitution is silent on this question, though the Supreme Court is unlikely to consent to the enaction of a constitutional amendment on fifty-year-old votes).
It is my view that the ERA effort as presently constituted has almost no chance of becoming law. As I asserted earlier, this is little more than a massive example of virtue signaling from the political Left.
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