“’The time has come,’ the Walrus said, ‘to talk of many things: Of shoes, and ships, and sealing-wax’”*––and the long proposed Equal Rights Amendment to the Constitution. It reads simply: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
Constitutional amendments are not easy to pass. They need a two-thirds vote in both houses of Congress and ratification by three-fourths of the states. After passing out of Congress and ratified by states, the president cannot veto.
The Equal Rights Amendment is a prime example of the 230-year, checkered past the U.S. has with granting equality to all citizens. The ERA was first introduced into Congress in 1923 by National Women’s Party founder, Alice Paul and Crystal Eastman. Ms. Paul continued to work for passage until her death in 1977. She saw the amendment pass out of Congress and go to the states for ratification in 1972. Hawaii became first to pass the amendment on March 22, the first day of the process. Their five-hour time delay from Washington D.C. made it possible to spring into immediate action and vote for ratification that same day. Unfortunately, Ms. Paul never got a chance to see her project come to fruition.
The original ratification process was given an arbitrary seven-year window, and when only 35 states ratified by March 22, 1979, Congress and President Jimmy Carter extended the deadline until June 30, 1982. No additional states ratified in that time. Five states tried to rescind their vote, but no official rescinding has been authorized. The backtracking came on the heels of ultra-conservative activist Phyllis Schlafly mobilizing women in opposition. They argued the ERA would eliminate workplace protections specifically for women (the old one-bathroom scare tactic) and cause issues like alimony and child-custody in divorces to go away. Schlafly’s actions created the ERA stall.
Finally, today’s ethos suggests that enacting the ERA should be a no-brainer.
Renewed interest prompted Nevada in 2017 and Illinois in 2018 to become the 36th and 37th states to ratify. Because the deadlines were arbitrary and there is no timeline written into the amendment itself, these states are being counted as ratified states, leaving only one more state to finally log the amendment into the Constitution.
Along comes Election Day, 2019 and Virginia, one of the 13 states that has not voted for the amendment, gets Democratic majorities in both legislative houses and has a sitting Democratic governor. The Virginia Senate passed the measure, but the last House vote was a 50-50 tie, meaning the vote failed. The new House and governor have promised Virginia will become the deciding state to ratify the 28th Amendment, 97 years after suffragettes wanted to pair the ERA with the 1920 19th Amendment granting women the right to vote.
But, of course, it isn’t that easy. There were legal dilemmas created because time limits were added, even though the amendment itself has no expiration date, and five states expressed interest in rescinding their votes. Supreme Court precedent calls for speedy action, but is not essential. The 27th Amendment, banning Congress from voting themselves salary increases, was first ratified by Ohio in 1873 and finally passed by Michigan in 1992––119 years of debate. Statutory language also nixes state efforts to rescind amendment votes. All prior efforts have been ignored and amendments became valid. If Virginia becomes the critical 38th state to ratify the ERA, it will likely take a vote of Congress to sanction the lengthy time span and void the arbitrary time constraints. We’ll cross our fingers.
We’ve made progress on issues regarding women’s rights over the years, but we need the ERA sanctioned as a Constitutional amendment. Here’s why: Permanence. Executive orders are dismissed with the stroke of a pen, acts are overturned by courts and replaced with new ones. Constitutional amendments are our most lasting laws. We have 27 amendments, and 26 of them are functioning. In our history, we’ve overturned just one amendment––the prohibition of liquor in the U.S. Next: The Civil Rights Act, passed in 1964, addresses of a lot of women’s issues as well as those for black Americans. But, there are loopholes. The Education Amendments Act of 1972 came out of need to close some of those loopholes. Title IX of that act eliminates discrimination against women in schools, but is only valid for institutions that receive federal aid. The 28th Amendment would close that loophole and others, including going a long way to create a legal base to correct equal pay inequities that exist today.
American women deserve to have their rights codified as strongly and as permanently as we have available under law. Women’s rights were muddied in the original body of the Constitution. Women were not specifically segregated against like black Americans, but were left out of any voting role and ownership rights reserved for men. There are several amendments eliminating a variety of discriminations, but we owe it to women to create this “on account of sex” foundation, sanctioning further legal precedent.
*”The Walrus and the Carpenter” Lewis Carroll––a narrative poem from chapter four of “Through the Looking Glass,” 1871.