ERA: historical curiosity or needed weapon against bias today?
Nov. 16, 2011 — “Equality of rights shall not be denied or abridged by the United States or by any state on account of sex.” That’s section one of the Equal Rights Amendment.
“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” That’s section two.
An article about the ERA? IN 2011?
Well, the United States Constitution in 2011 still does not include an amendment specifically targeted to preventing the denial of the equal protection of the law because of gender. And it is not as though the gender-based inequities that might be tackled by an Equal Rights Amendment have disappeared.
Among those who actually know that there isn’t an Equal Rights Amendment to the Constitution, there is a strong consensus that passing one is not something that is currently politically feasible. And, some believe, advances in women’s rights since Congress approved the ERA in 1972 and sent it to the states for ratification have rendered an ERA unnecessary.
But well over 100 million of today’s Americans weren’t even born when the (extended) deadline for ERA ratification expired in 1982, and most have little or no idea that the ERA’s ratification was once seen as inevitable.
In this article, we examine — primarily through the perspective of several ERA advocates — why so many people thought that it was essential to enshrine the principle of equal rights for women in the Constitution via an ERA, and why some people still think that the promise of equal rights cannot be fulfilled without one.
We hope our original reporting here will also serve to provide leads for our colleagues, especially on questions related to the ways in which an ERA could change the existing legal status quo.
143 years after the ratification of the 14th Amendment (which had as its primary object preventing newly-freed slaves from being deprived of equal protection, due process, and the privileges and immunities of United States citizenship), and 81 years after women’s right to vote was secured by ratification of the 19th Amendment, ERA is still not on the books, and it is difficult to find very many people today who are optimistic about the short-term prospects for ratification. Those who do continue to fight for ratification say that they continuously come up against critique that the ERA is either dead or no longer relevant.
But talking to women’s rights advocates who were already active and engaged in the 1970s and 1980s tells a different story about the sense of what was — and still may be — possible and necessary. Indeed, back then it was the ratification of ERA — not its demise — that seemed nearly inevitable.
A Time of Overwhelming Support for ERA
The Constitution only permits Congress to propose amendments to the states when two-thirds of both the House and Senate agree to do so. That means a minimum of 290 votes in the House and 67 votes in the Senate if all members were voting.
In 1972, the ERA had widespread public and organizational support, and both House and Senate approved it with by overwhelming margins: 354 members of the House and 84 members of the Senate voted for it. Then-President Richard Nixon endorsed the proposed amendment.
Zoe Nicholson, longtime women’s and LGBT rights activist, currently founder of ERA Once and For All, explains that there was a sense that the amendment could not fail to be ratified. “There was an expectation in 1972 that the 38 states were going to fall like dominoes; that this was a no brainer.”
Why they fought
Many advocates, like Roberta Francis, director of the NOW ERA Task Force and active member of the League of Women Voters during the time that the ERA was before the states, were inspired by the gains made in the Civil Rights movement. They shared the view that the ERA would right a fundamental wrong and continue the tide of progress.
Sandy Oestreich, long-time ERA advocate and founder and president of the Florida Equal Rights Alliance, a group currently working for ERA ratification, says that despite having two jobs, she threw herself into ERA activism in 1972 because of this basic sense of injustice. “This wasn’t the America that I had been told about,” she remembers, “[the Constitution] is important. This is the cornerstone of America. The bottom line is that there is nothing as potent to protect against sex discrimination than the United States Constitution.”
Others, such as Eleanor Smeal — president of the National Organization for Women (NOW) from 1977 to 1982 and from 1985 to 1987 and current president and founder of the Feminist Majority Foundation — fought for more concrete reasons. “Why did I go after the ERA so hard?” Smeal reflected in the course of a conversation with Remapping Debate. “Because I saw how many cases we’ve lost and how hard it is to win.”
“I was very active in NOW and we were doing a lot of employment cases and education cases at the time and realizing that the laws were weak and that we were losing too many and that there [were] too many loopholes,” Smeal said.
Mary Francis Berry was assistant secretary for education in the U.S. Department of Health, Education, and Welfare from 1977 to 1980 and was a member of the United States Civil Rights Commission from 1980 to 1993 and thereafter its chair until 2004. She is the author of Why ERA Failed, and is currently a professor of history and American social thought at the University of Pennsylvania. She recalls, “When I was head of the Civil Rights Commission, we used to do studies on the ERA. I supported the people at NOW… because, at the time, I thought that equal rights for women, based on my own experience in the workplace, were something that was very much needed to open up opportunity. I also thought that women themselves would see that they need a constitutional basis for equality.”