Equal rights, are we there yet?

What happens if a 38th state ratifies the Equal Rights Amendment?

Alice Paul, second from the right, introduced the Equal Rights Amendment into the national debate about the rights of women in 1923.
Alice Paul, second from the right, introduced the Equal Rights Amendment into the national debate about the rights of women in 1923.

The Equal Rights Amendment, or the ERA, is nearing a hundred years since its inception into U.S. political thinking. It has not been amended to the Constitution and remains a vigorous debate on the national stage with more speculation than certainty fueling arguments for and against it.

The Tucson City Council recently passed a resolution in support of the ERA, promoting its ratification at the State Capitol. Arizona could become the 38th state to ratify the amendment, but it’s not likely this legislative session.

However, no one really knows if, or when, a 38th state ratifies the amendment whether it would in fact become law because of uncertainty surrounding a deadline set by Congresses in its 1972 bill that sent the amendment to the states for ratification. The deadline, originally set for 1979, was extended in 1978 by Congress through a simple majority vote but expired in 1982.

Two main arguments about the ERA are whether it would be viable if a 38th state ratified and whether we in fact need it given progress through legislation in certain areas of equal rights and anti-discrimination protections.

The contours of the ERA debate have changed over the past 90 plus years since Alice Paul first drafted the amendment.

Proponents argue that but for an amendment to the Constitution there is little certainty that equal rights protections achieved through the legislative process will remain. And they argue future Congresses can change or repeal laws currently providing anti-discriminatory protections but cannot do the same with an amendment to the Constitution.

Some opponents continue to argue that women have all the protections in place that they need, that the ERA would be used to expand abortion rights, that it would require conscription of women, that it would be the end of gender-divided restrooms, and that it is overly broad and would place legislative prerogatives at the mercy of unelected judges.

Arguing in favor, Senator Victoria Steele said in a recent interview, “It’s ultimately going to strengthen and reinvigorate the existing sex discrimination laws that have a whole lot of holes in them. Look at the VAWA, Violence Against Women Act…one white man held that up last time. And now we don’t know that it will be funded again, that’s really sad.”

Senator Victoria Steele introduced a bill into the 2019 legislature that has subsequently stalled in its efforts to make Arizona the 38th state to ratify the Equal Rights Amendment.

Senator Steele, a Democrat representing Arizona’s 9th district, introduced SCR1009, a bill  to ratify the ERA, in January with four Republican co-sponsors, but it has not made progress through the legislative process.

“The bill was assigned to the judiciary committee and the chair of that committee refused to hear it…four Republican senators signed on as co-sponsors but when it came down to force the rules to bring it to a vote on the floor, they refused to stand up,” Senator Steele said.

Steele said Center for Arizona Policy president, Cathi Herrod, is likely to blame for the bills stalling.

Cathi Herrod, president of Center for Arizona Policy.

“Cathi Herrod is the lobbyist fighting the ERA at the Capitol and she is the modern-day Phyllis Schlafly. She’s trotted out the same worn-out, outdated fears and fallacies. “Even though things have changed dramatically she has come up with no new arguments.

“They’re still saying, ‘It’s all about abortion,’ and you’ll see her in the gallery texting madly whenever the subject of the ERA comes up on the floor, and so you’ll have the Republicans saying the same things… the exact same phrases…she’s putting the words in their mouths and it’s just weird…they’re making it all about abortion…but, I mean have you read it? It doesn’t say abortion in it,” Steele said.

“The reason activists are pushing for such an unnecessary bill now is because state ERAs in Connecticut and New Mexico have been successfully used to rollback commonsense restrictions on abortion and force taxpayers to pay for abortions. Pro-abortion activists know the same will likely happen on a federal level, enshrining abortion into the U.S. Constitution. NARAL and NOW have admitted as much. NARAL has been fundraising on this very point,” Cindy Dahlgren, communications director for Center for Arizona Policy, said.

Steele contends, “Abortion is already a right and this has nothing to do with it. That fight around the abortion issue will go on for years. We have people that support the ERA that are not supportive of choice.”

However, Dahlgren is convinced that the 5th and 14th Amendments already provide legal pathways for combating sex discrimination, and she is concerned the ERA would remove issues involving sex-based distinctions from the political process and put them into the hands of the judiciary.

Cindy Dahlgren, communications director for Center for Arizona Policy.

“Due to the way courts have been interpreting ‘sex,’ the ERA conflates equality with sameness, erasing any distinction between men and women.

“In doing so, it would transfer extensive new powers to the federal government. Where states traditionally regulate areas like marriage, property laws, divorce and alimony, child custody, adoptions, abortion, sex crimes, private and public schools, prison regulations, insurance and more, this power now would be transferred to the federal government,” Dahlgren said.

“Eddie Farnsworth told me flat out, the 14th Amendment gives you all the protections you need,” Steeled said. Farnsworth represents the 12th district in the Arizona Senate.

Steele asked, “If we needed the 19th Amendment to vote…then maybe he’s wrong. Why did we need the 19th Amendment if the 14th gave us all our rights?”

Three-State Strategy

The three-state strategy emerged in Washington D.C. following the ratification of the 27th Amendment, known as the Madison Amendment, in 1992. The Madison Amendment had been introduced by James Madison in 1789 and nearly forgotten for 200 years.

In 1982, an undergraduate student, Greg Watson, discovered the Madison Amendment language didn’t include an expiration date so he started a campaign to complete its ratification. Only six states had ratified the amendment as of 1792.

By 1992 ratification was complete and the amendment was added to the Constitution.

In the same year, a volunteer coalition participating in an ERA summit concluded the ERA was still legally viable even though the 1972 bill included an expiration date. With 35 states already having ratified the amendment, these proponents determined only three more states were needed and the three-state strategy took flight.

A 1997 article published by Allison L. Held, Sheryl L. Herndon, and Danielle M. Stager in William and Mary Journal of Race, Gender, and Social Justice, laid out legal justification for the continued viability of the ERA ratification process initiated in 1972.

The article speculates on the ERA’s continued viability based on two Supreme Court cases from 1921 and 1939, Dillon v. Gloss and Coleman v. Miller, respectively, and the language of Article V. This article lined out substantive considerations regarding the ERA that resonate to this day.

The authors argued Article V of the Constitution, which governs the constitutional amendment process, is silent on the issue of amendment time limits. And, the Dillon Court, “asserted that the amendment process is complete when the last state ratifies.”

Further, they argue the Supreme Court in Coleman recognized Congress’ power to determine, even after ratification, whether or not to promulgate an amendment, regardless of whether it included a deadline or not.

Congress’ passage of the Madison Amendment 203 years after its introduction, coupled with the fact that the ERA’s time limit was only part of the proposing language, and not included in the language of the actual amendment, leaves proponents of the three-state strategy convinced there is still daylight left for the 1972 ERA’s passage.

Twenty years after the 1997 article was published, the three-state strategy gained momentum in 2017 when Nevada ratified the ERA and Illinois followed suit in 2018.

With one state left to go to meet the 38-state requirement the national debate on the ERA, in the era of #MeToo, #TimesUp, and the conservative push toward restricting abortions, is intensifying.

The House Judiciary Committee Subcommittee on the Constitution, Civil Rights and Civil Liberties held the first Congressional hearing on the ERA in nearly 36 years on April 30.

Congresswoman Jackie Speier, a Democrat representing California’s 14th District, testified in support of a bill she introduced, House Joint Resolution 38, that would remove the deadline altogether.

“It (the bill) recognizes that the deadline in the original Constitutional Amendment was arbitrary, reflecting Congress’ view at a specific time, and that Congress is fully within its rights to adopt a new deadline, as it has in the past, or to remove it altogether…the original deadline was not part of the text states voted on when they ratified the ERA,” Speier testified.

Kathleen Sullivan, partner at Quinn Emanuel Urquhart & Sullivan, LLP, agreed that Congress has the power to clear any impediment the 1972 deadline is thought to impose.

“The framers split the atom of sovereignty in two, the States have independent powers, Article V gives the states the powers to ratify, and consistent with the structural principle of federalism, Congress should view itself lacking the constitutional authority to fetter the ratification process of the States and certainly having the authority to lift its own self-imposed deadlines,” Sullivan said.

Elizabeth Foley, professor at Florida International University College of Law, did not share the same viewpoint as Sullivan.

“If Congress imposes a ratification deadline, that ratification deadline is a part of the mode of the ratification and it must be passed pursuant to Article V by two-thirds supermajorities and not simple majorities as is ordinary legislation,” Foley argued in front of the subcommittee.

She said in her written statement, “In 1978, sensing that the ERA was about to fail, the 95th Congress purported to “extend” the ERA’s ratification deadline by approximately three years (to June 30, 1982), by passing a joint resolution by simple majorities, signed by then-President Carter.”

Foley said she is not an opponent of the ERA, rather, she is simply observing that should a 38th state ratify, the whole process is on shaky ground and liable to be held unconstitutional in any subsequent court challenge.

Foley recommended redoing the entire Article V amendment process as was done in 1972, “If broad consensus exists for the ERA, why not start fresh and then there can be no doubt,”

We Already Have Equality

Opponents of the ERA insist sufficient gains have already been made in rooting out sex discrimination through the courts and government action. They point to the 5th and 14th Amendments, and other federal laws, as providing constitutional protection against sex discrimination and see no reason to add another amendment to the Constitution.

But, it is questionable whether this argument holds merit and legal scholars have pointed to the length of time it took the Supreme Court to recognize a sex-based constitutional right through the 5th and 14th Amendments, and inconsistencies in the Court’s interpretation of the amendments in race versus sex-based discrimination, to call the claim into question.

“In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination…Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that,” Justice Antonin Scalia famously said.

It took about 100 years for the Supreme Court to recognize a cause of action under the 14th Amendment for gender or sex-based discrimination, and in Reed v. Reed the 1971 Court applied the lowest level of scrutiny, rational basis review. Ruth Bader Ginsburg, a lawyer at the time, penned the appellant’s brief in Reed and argued for the same level of scrutiny that race-based claims received, strict scrutiny, but the Court did not agree.

In the 1980s the Supreme Court raised the level of scrutiny to intermediate scrutiny and in 1996, now Justice Ginsburg, in U.S. v. Virginia, raised it a notch higher, but not to the level of strict scrutiny, by calling for an “exceedingly persuasive justification” when government discriminates based on sex or gender.

Proponents of the ERA anticipate the Supreme Court would level-up their review standard to strict scrutiny if sex equality is enshrined in the Constitution. But there is no guarantee that would occur, according to a number of legal scholars, because it would ultimately depend on the makeup and whim of the Court at the time a case is heard.

Discrimination takes place in both the public and private sectors and holding the government to a certain standard does not mean private organizations would be held to the same. Congress has the power to regulate private employers and has done so, however, it remains questionable how effective federal laws are when it comes to private causes of action.

“We have the Equal Pay Act, the Civil Rights Act, the Lilly Ledbetter Fair Pay Act and more. Female professors at U of A are currently using these very laws to sue for alleged unequal pay. The system is clearly working,” Dahlgren said.

A 2018 Washington Post article perhaps puts Dahlgren’s claim that the system is working to the benefit of those discriminated against into question. In 2007, Lilly Ledbetter was unsuccessful in her sex discrimination claim against Goodyear Tire Co. because she did not file suit within 180 days of a pay violation, then a provision in Title VII, or the Equal Pay Act.

Then Senator Barack Obama introduced the Lilly Ledbetter Fair Pay Act into Congress after the Supreme Court handed Ledbetter a defeat on technical grounds and signed it into law after becoming president. The act removed the 180-day time limitation but, ultimately, did nothing for Ledbetter. And it is questionable how effective the amendment is, or will be, in addressing the gender pay gap because lawsuit outcomes are wholly dependent on court interpretations of statutory language.

A 2017 study found some courts are narrowly reading the Ledbetter Act provisions by limiting causes of action to those that are pay-based and mostly denying failure-to-promote claims when brought under the statute. The Supreme Court has yet to hear a Ledbetter Act claim.

It is not clear what effect the ERA, if passed, would have on existing legislation but section two of the amendment would grant Congress a whole new power to legislate sex-equity.

“So, for example the Violence Against Women Act, some of which was held unconstitutional, that’s a type of legislation that could be adopted by Congress using the power the third clause of the ERA would provide, whereas currently Congress does a lot of its legislation including employment discrimination and so forth by relying on its Commerce Clause power, this would give Congress another source of power that would enable it to enact legislation that would protect the rights of women under state and federal law,” Kathleen Sullivan testified before Congress in April.

What is clear is it’s anyone’s guess, at this point, how the ERA might affect women’s struggles for equality in this country, one of the only industrialized nations lacking a constitutional guarantee that women and men are equal.