The Equal Rights Amendment, Redux

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True or false: As part of the United States Constitution, the Equal Rights Amendment extends protection under the laws to women.

If you answered “true,” you’d have plenty of company. According to a poll conducted by the Equal Rights Coalition in 2016, nearly 80 percent of Americans believe that equal rights for men and women are already guaranteed under the Constitution.

But you’d be wrong.

The reality is that the amendment, which states that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” never garnered enough support in the states to make its way into the Constitution.

Though the origins of an equal rights amendment date back to the 1920s, Congress first passed and then sent the ERA to the states in 1972, with a seven year deadline that was extended to ten years.

By the expiration of the deadline in 1982, 35 states had ratified the amendment, just three states short of the 38 states needed to put the ERA in the Constitution. (Five other states rescinded their ratifications, but there is debate about whether they had the power to do so – an issue that might end up in the courts.)

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Since then, the ERA has been reintroduced in Congress every session, but has never been put up for a vote.

In this highly charged political atmosphere though, with the onset of the women’s marches and the growing #MeToo movement, interest in pushing the amendment over the ratification line is increasing.

Nevada adopted the amendment last year, and all signs are pointing to a similar result in Illinois this month. There’s also been notable pro-ERA activity in Virginia, North Carolina, Florida and Arizona.

What would an equal rights amendment enshrined in the Constitution do for women?

In its absence the courts have resorted to the Equal Protection Clause of the 14th Amendment when deciding sex discrimination cases, “creating a body of case law that’s functioned as a sort of de facto ERA,” the New York Times editorial board points out in this op-ed.  Given that, some say the amendment is no longer needed.

But we’ve learned painfully this past year just how strongly the political winds of change can blow through established case law. With the Trump administration and the GOP-controlled Congress pushing far-right and conservative judicial candidates into the federal judiciary at a record pace, deference to existing constitutional protections cannot be assured.

Per the Times:

The court decisions that make up the “de facto ERA” can be undone in a way a constitutional amendment cannot. The ERA would add an extra layer of legal protection for women — and men — against discrimination. This could become especially important if Mr. Trump gets to pick additional conservative Supreme Court justices.

And then there’s the symbolic element.

The United States is one of only a few counties around the world with a constitution lacking express protections for women’s rights under the law.

As Supreme Court Justice Ruth Bader Ginsburg told US News & World Report in 2014:

“I would like my granddaughters, when they pick up the Constitution, to see that notion – that women and men are persons of equal stature – I’d like them to see that is a basic principle of our society.” 

(The ERA would empower Congress to enact needed legislation in several key areas and would provide courts an express constitutional basis for evaluating discrimination claims. For more, see this resource from the ERA Coalition.)