ERA: historical curiosity or needed weapon against bias today?

Original Reporting | By Abby Ferla |

Counter-revolution and response

The optimism among ERA supporters, a sense that ERA could not fail, seemed well placed in the beginning: 22 states ratified in the first year. “It was like bowling, they fell so easily,” Nicholson recalls. But the pace of ratification slowed, and, when Indiana ratified in 1977 — the last state to do so — ERA supporters could count only 35 states in the ratification column. That was three shy of the requisite 38 states needed to achieve the constitutionally mandated approval from three-quarters of the states.

During those five years, opponents of equal rights for women had been waging a fierce campaign to derail ratification. In the face of that campaign, ERA proponents lost the offensive, instead spending significant time denying that ratification would have an impact, for example, on reproductive freedom rights or the rights of gays and lesbians.

In 1982, while seven ERA supporters engaged in a hunger strike for 37 days elsewhere in the building, these ERA advocates chained themselves to the door of the Illinois State Senate to demand ratification.

Beyond the fact that opponents had the advantage of needing only to prevent 13 states, most of which were solidly anti-ERA, from ratifying, they had another advantage: the ERA, like many modern amendments to the Constitution, was proposed to the states with a seven-year ratification deadline.

As the 1979 deadline neared and ERA supporters saw that they were not going to secure ratification in the three additional states needed, supporters pushed for a three-year extension. In Jul. 1978, a pro-extension rally in Washington attracted 100,000 ERA supporters.

“What [young] people like yourself don’t understand,” Sandy Oestreich told Remapping Debate, was that “the United States was on fire for the ERA.”

“Just picture every major newspaper emblazoned with ERA news everyday,” Oestreich added.

In Oct. 1978, Congress — by simple majority vote of 233-189, not the two-thirds margin needed for approving an amendment in the first place — extended the deadline for ratification to 1982.

ERA advocates focused their hopes for ratification on three states: Illinois, Virginia, and Florida. As the 1982 deadline approached, recalls Nicholson, activists marched on the streets of Chicago, picketed the White House (President Ronald Reagan opposed the ERA), and chained themselves to the doors of the Illinois State Senate. Nicholson herself was one of seven women in Illinois who went on hunger strike to show their support for ratification. Nicholson said she remained optimistic during that time.

“Every moment, we believed it was going to change the tide,” she says. “You cannot go without food, you cannot live on water for 37 days without believing that what you’re going to do will be successful.”

The hunger strikers stopped fasting after 37 days when the ERA failed by four votes to achieve in the Illinois state senate the 60 percent supermajority required by the state’s constitution.

Ratification efforts also fell short by a handful of votes in both Florida and Illinois, and ERA had been defeated.

“Once the ERA failed to pass, a lot of people lost interest, including me.  I just stopped following it closely. It’s not that we lost interest in the principle — the principle is still very important — but when it didn’t seem that there was going to be much likelihood [of ratification], everyone thought that was kind of it,” says Mansbridge, Harvard professor and author of Why We Lost the ERA.


Does it matter?

Remapping Debate spoke with Serena Mayeri, a law professor at the University of Pennsylvania who studies American legal history with a focus on the history of feminism and civil rights. She has written extensively on the history of the ERA, and, in particular, has taken a close look at the history of the 1983 reintroduction of the ERA. That effort generated extensive Congressional hearings and culminated in the measure, when brought to a straight up-or-down vote in the House, falling six votes shy of receiving the required two-thirds majority.

Mayeri has written that it was widely agreed among ERA advocates that significant progress had been made in the years from 1972 to 1983 to outlaw some of the grossest forms of intentional gender inequity both through legislative efforts and through litigation efforts relying on the equal protection clause of the 14th Amendment.

Prohibiting discriminatory conduct by private entities

Most modern-era civil rights laws were been passed pursuant to the authority of Congress to regulate interstate commerce (the “Commerce Clause”).

But what about section five of the 14th Amendment whereby Congress is given the authority to pass legislation to enforce the equal protection and other protections of that Amendment?

In 1883, in what are known as “the Civil Rights Cases,” a Supreme Court profoundly hostile to civil rights held that Congress did not have authority under the 14th Amendment to prohibit the discriminatory practices of various providers of public accommodations (like private operators of transit systems and theaters). The Court held that the 14th Amendment was designed to deal only with state and local governmental action.

In 2000, the Supreme Court, still relying on the 19th century Civil Rights cases, overturned the portion of the Violence Against Women Act that had given victims of such violence the right to sue their attackers in federal court. The Court held that the provision in question did not seek to address discriminatory conduct by states, nor was it applicable only in those states where the problem identified in the legislation had existed.

Would the result have been different had the ERA been part of the Constitution? After all, the “state action” restriction of the 14th Amendment would not have necessarily and automatically applied to the ERA. Historically, ERA proponents — put on the defensive by their opponents — shied away from articulating an interpretation of the ERA that would allow Congress to most broadly regulate the conduct of private actors.


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