Equal Rights Amendment
The equal rights amendment (ERA) is best known as a proposed amendment to the U.S. Constitution, almost ratified in the 1970s, that would have specifically barred government-sanctioned discrimination on the basis of gender. However, the 1970s ERA was the second version of this amendment. An earlier, potentially broader version had been proposed by suffragists shortly after women were granted the right to vote in 1920. Further, many states have incorporated their own versions of an ERA into their state constitutions. These state-level ERAs provide a window into the impact that a federal ERA might have had on women’s legal status in the United States.
The Legal and Historic Context of the ERA
The original U.S. Constitution was written at a time when only white men were deemed to be public citizens with the right to vote, hold property, and hold office. Because of this common understanding, there was little need to specifically address gender in a public, political document such as the Constitution. Except for the generic use of male pronouns, the language of the Constitution is gender-neutral, and might be taken to apply to both men and women. But there is virtually nothing in the historical record to indicate that the founders of the Republic considered, or intended to address, women’s status.
Instead, for much of U.S. history, the Constitution was deemed to apply to men alone. Upper-middleclass women began to mobilize for greater legal equality in the early nineteenth century. In 1848, Abolitionists Lucretia Mott and Elizabeth Cady Stanton convened a women’s convention in Seneca Falls, New York. The 1848 Declaration of Sentiments adopted by the convention was one of the first public demands for women’s legal equality. Deliberately paraphrasing the Declaration of Independence, the Declaration of Sentiments’ second paragraph begins: ‘‘We hold these truths to be self-evident: that all men and women are created equal.’’ After the Civil War, leading women’s rights activists Susan B. Anthony and Sojourner Truth fought in vain to have women included in the new constitutional amendments giving rights to former slaves. Instead, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution is a model of terse drafting, providing simply that a state shall not ‘‘deny to any person within its jurisdiction the equal protection of the laws.’’ Without independent personhood, women, white or black, were not protected by this clause. Similarly, the Fifteenth Amendment, ratified in 1870, granted freed male slaves—but not women, white or black—the right to vote.
Decades of marches, litigation, civil disobedience, and activism followed, and women finally gained the right to vote—and constitutional recognition—with the passage of the Nineteenth Amendment in 1920. By that time, suffragists were already planning the next phase of their campaign for women’s legal equality. Voting aside, many laws and informal practices perpetuated men’s privileged status and relegated women to second-class Citizenship. In 1923, while in Seneca Falls for the seventy-fifth anniversary of the 1848 Women’s Rights Convention, Alice Paul, the head of the National Women’s Party and a leading suffragist, introduced a new constitutional ERA. The proposed ERA read in its entirety: ‘‘Men and women shall have equal rights throughout the United States and in every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation.’’
Alice Paul and other activists in the National Women’s Party worked tirelessly in support of the amendment, but progress was slow. Among other things, labor leaders were concerned that women’s equality would eliminate protective labor laws that treated men and women differently. Significant women’s groups, such as the League of Women Voters, the Consumers’ League, and the YWCA, also opposed the amendment strategy, believing that preserving special treatment for women was preferable to blanket equality. Many other women’s groups remained on the sidelines. Despite the efforts by the National Women’s Party, the amendment campaign made little progress through the 1920s and 1930s. By 1937, the only major women’s group to endorse the ERA was the National Federation of Business and Professional Women’s Clubs. Hoping to breathe new life into the campaign by narrowing its scope and focusing more directly on governmental (as opposed to private) discrimination, in 1943, Paul rewrote the ERA to track the language of the post–Civil War constitutional amendments. The substantive provision stated: ‘‘Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.’’
Although the ERA was introduced in every subsequent session of Congress, there was still no favorable congressional action. In 1946, it was passed out of committee and narrowly defeated by the full Senate; in 1950 and 1953, the Senate passed the ERA, but with a rider that nullified important aspects of the amendment. Finally, in the 1960s, the newly reenergized women’s rights movement, led by the National Organization for Women, broke the logjam. Women’s equality became politically acceptable. Organized labor groups like the National Education Association and the United Auto Workers called for the ERA’s ratification. The League of Women Voters reversed their longstanding position and endorsed the amendment. The 1943 version of the ERA passed the U.S. Senate and the House of Representatives by the requisite two-thirds majority, and on March 22, 1972, it was sent to the states for ratification. At the time, Congress placed a seven-year time limit on the ratification process.
In the first year, the ERA received twenty-two of the thirty-eight state ratifications needed. But as ERA opposition forces rallied, the pace of ratification slowed. Twelve more states had ratified the amendment by 1976. In 1977, Indiana became the thirty-fifth and final state to ratify the ERA. As the 1979 ratification deadline approached, at the behest of women’s rights leaders, Congress granted an extension until June 30, 1982.
However, political momentum was turning against the ERA. Phyllis Schlafly, founder of the National Committee to Stop ERA, became a prominent spokesperson against ratification. Schlafly and other ERA opponents tailored their messages to women who might be persuaded to oppose equal rights. They argued that that the ERA would eliminate women’s privacy rights, requiring co-ed bathrooms and physical education classes, and that women would be sent into combat alongside men. Further, they claimed, a federal ERA would create a constitutional right to abortion. In 1980, the Republican Party removed support of the ERA from its platform and Ronald Reagan, an active opponent of the ERA, was elected president. Despite massive mobilization by pro-ERA activists, there were no more ratification votes, and the effort to amend the Constitution by the 1982 deadline fell three states short.
The ERA has been reintroduced in every session of Congress since that time. Passage of the reintroduced ERA would again require a vote of two-thirds of each house of Congress and ratification by thirty-eight states. Under an alternative strategy advanced by some activists, Congress could repeal the 1982 time limit on ERA ratification, opening up the possibility of final ratification sometime in the future if three additional states approve.
The ERA’s Impact
Because the ERA was never ratified, the U.S. Supreme Court has not been directly called upon to construe it. However, the Supreme Court’s decisions in the area of women’s equality have played a role in the ERA debate. In particular, because the Court has construed women’s equal protection rights in areas that would have been addressed by the ERA, some argue that regardless of whether the ERA was legally significant in an earlier time, it is now no longer necessary. On the other hand, because existing Supreme Court jurisprudence on women’s equality has developed on a case-by-case basis, it leaves gaps that would arguably be filled by a more comprehensive constitutional amendment.
Until 1971, the U.S. Supreme Court had never struck down a state or federal law on the basis of its discrimination against women. This fact gave considerable impetus to the ERA movement, since it appeared that existing constitutional doctrine might not be capable of addressing women’s equality. However, in 1971, the Court in Reed v. Reed struck down an Idaho law that barred women from administering estates in probate court. And in 1973, in Frontiero v. Richardson, the Court struck down the federal law providing gender-based benefits to military dependents. The federal ERA specifically figured in the latter case. The Court’s opinion, written by Justice William Brennan, held that the statutory scheme was unconstitutional and applied the highest level of skepticism, that is, strict scrutiny, in evaluating the genderbased classifications. Strict scrutiny had previously been reserved for race-based classifications. However, only four justices joined that opinion. A fifth justice concluded that the statute was illegal even without any special scrutiny. And three other justices, led by Justice Lewis Powell, concluded that while the statute was illegal, it was inappropriate to decide the particular level of scrutiny to be applied to sex-based classifications while the ERA—then before the states—was pending ratification.
Although ERA ratification remained open until 1982, the standard of scrutiny to be applied to sexbased classifications was settled earlier, in 1976. In Craig v. Boren, a case concerning sex-based laws regulating underage drinking, the Court finally adopted an intermediate scrutiny standard, lower than that applied in cases of Race Discrimination. Under the intermediate standard, a sex-based classification must be substantially related to an important governmental purpose.
In subsequent cases, the Supreme Court has found that a number of sex-based laws can meet this intermediate standard, including selective service laws, and laws delineating rights of mothers and fathers of outof- wedlock children. Many other laws and practices, however, have been struck down as unconstitutional, including unequal single-sex schools, sex-based peremptory challenges to jurors, and sex-based allocation of government benefits. These decisions of the Supreme Court and lower courts have done much to undermine the perceived urgency of ratifying the ERA. Similarly, statutes like Title IX of the Education Amendments of 1972 have provided redress for much of the educational discrimination that once faced women and girls. In short, the purposes that the ERA was intended to address when it was introduced in 1943 have been to some extent superseded by developments dictated by the courts and Congress.
The legislative history of the ERA, however, suggests that a constitutional ERA would have required more than the spotty intermediate scrutiny standard developed by the courts. An authoritative source for this interpretation is a 1970 Yale Law Journal article that comprehensively reviews the potential applications of the ERA. The article, which is cited in the Congressional Record on the ERA debate, interprets the ERA to require the highest level of scrutiny, and surveys labor legislation, domestic relations law, Criminal Law, and equality in the military. Under its analysis, the ERA would not have permitted separate but equal facilities for women except in those areas where privacy involving personal bodily functions dictated separation of the sexes. Further, the Yale authors conclude that the ERA would have required a restructuring of the military to involve women equally in the draft and in all aspects of military activity.
Although the federal ERA ultimately failed, a number of state constitutions contain their own separate ERAs. Some of these equality provisions, like those in Wyoming and Utah, were part of the original state constitutions. Others, like those in Massachusetts and Illinois, were enacted at the time the federal ERA effort was at its height. In all, eighteen state constitutions have some version of a constitutional sex-based equality provision. State courts cases construing these provisions provide instructive examples of the national impact that might have been felt from a federal ERA had it been tested and applied in the courts.
First, while the 1943 version of the federal ERA, tracking earlier constitutional amendments, has been construed to apply only to governmental action, some state ERAs have been applied more broadly. For example, some Pennsylvania state courts have indicated that the state’s ERA is not limited to governmental activities but extends protections from sex discrimination to every sphere of state life.
Second, as predicted by the Yale authors, many of these state ERAs have been construed to include exceptions for personal privacy and biological functions unique to one sex. Thus, an ERA state may still provide single-sex bathrooms in its government buildings, and may extend pregnancy-related benefits (as opposed to parental benefits) only to women. However, some states have taken a broad view of what is biologically ‘‘unique’’ about the sexes. For example, under one Texas court’s construction, a state may have a law criminalizing women’s exposure of their chests while not imposing such requirements on men.
Third, some state ERAs have been construed to permit Affirmative Action and to go beyond preferences to uphold rigid, sex-based quotas. For example, a Washington State rule that required parity on political committees was upheld under that state’s ERA.
Fourth, in several states, abortion funding restrictions have been struck down as violating state ERAs. New Mexico is an example. Applying the state’s ERA, the New Mexico Supreme Court examined whether any similar funding restrictions had been imposed on men needing medical procedures. Finding none, the court concluded that the policy singling out a procedure needed only by women reflected a gender bias that was illegal under the ERA.
Finally, it is important to note that not all state ERAs have been construed so aggressively. The state ERA of Virginia, for example, has been held to require no more than the scrutiny accorded under the federal constitution, that is, intermediate scrutiny. Because of this, the Virginia ERA has little independent force.
Times have changed since 1943. The constitutional backdrop for the ERA debate is considerably more complex. In the intervening years, social movements have strengthened and waned. National politics have shifted to the right. Many women’s rights activists are working to promote U.S. participation in global women’s rights efforts, including urging the federal government to ratify the International Convention on the Elimination of All Forms of Discrimination Against Women. But despite these developments, many members of the women’s movement, particularly organizations such as the National Organization for Women and the Feminist Majority Foundation, continue to work to promote a constitutional equality amendment for women. Toward that goal, in 1995, the National NOW Conference adopted a working draft of a new constitutional equality amendment.
Reflecting the influence of more contemporary approaches to constitutional drafting, the proposed amendment is significantly longer and more detailed than prior ERA proposals. For example, it specifically addresses the standard of scrutiny to be applied (‘‘the highest’’), rather than leave that issue to be resolved by the courts. Further, the amendment goes beyond sex discrimination to provide for equal rights without regard to ‘‘sex, race, sexual orientation, marital status, ethnicity, national origin, color or indigence.’’ It also specifically permits Affirmative Action. Interestingly, however, NOW’s proposed constitutional equality amendment comes full circle, rejecting a focus on governmental action and returning in its opening paragraph to the broad, original language proposed by Alice Paul in 1923: ‘‘Women and men shall have equal rights throughout the United States and in every place subject to its jurisdiction.’’
MARTHA F. DAVIS
References and Further Reading
- Archer v. Mayes, 213 Va. 633 (1973).
- Berry, Mary Frances. Why ERA Failed. Bloomington: Indiana University Press, 1986.
- Brown, Barbara, Thomas I. Emerson, Gail Falk, and Ann E. Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights of Women, Yale Law Journal 80 (1971): 5:871–985.
- Friesen, Jennifer. State Constitutional Law: Litigating Individual Rights, Claims and Defenses. Charlottesville, VA: Lexis Publishing, 2000.
- Mansbridge, Jane J. Why We Lost the ERA. Chicago: University of Chicago Press, 1986.
- Marchioro v. Chaney, 585 P.2d. 487 (Wash.), aff’d on other grounds, 442 U.S. 191 (1979).
- McBride-Stetson, Dorothy. Women’s Rights in the U.S.A: Policy Debates and Gender Roles. 3rd ed. New York: Routledge, 2004.
- MJR’s Fare of Dallas v. City of Dallas, 792 S.W.2d 569 (Tex. Ct. App. 1990).
- National Organization for Women. NOW and Economic Equity. https://www.now.org/issues/economic/cea.html.
- New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (Becker, N.M. 1998).
- Susan D. The Origins of the Equal Rights Amendment: American Feminism Between the Wars. Westport, CT: Greenwood Press, 1981.
Cases and Statutes Cited
- Convention on the Elimination of All Forms of Discrimination Against Women, adopted December 18, 1979, art. 6, 1249 U.N.T.S. 13, 17
- Craig v. Boren, 429 U.S. 190 (1976)
- Frontiero v. Richardson, 411 U.S. 677 (1973)
- Reed v. Reed, 404 U.S. 71 (1971)
- Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e, et seq
- Title IX of the Education Amendments of 1972, 20 U.S.C. sec. 1681–1688
See also Anthony, Susan B.; Equal Protection of Law (XIV); Ginsburg, Ruth Bader; National Organization for Women; Schlafly, Phyllis Stewart; Stanton, Elizabeth Cady; State Constitutional Distinctions