Is it Finally Time for the Equal Rights Amendment?

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official-blogger-2My latest post is up at InPowerWomen.com, but I’m pretty excited about how it turned out, so I’m going to add it here in its entirety. I’ve been posting over there about women, politics and media and was asked to contribute something for Women’s History Month. I hate to be the downer on the site, but considering how often Women’s History Month articles and events are very much about the successes of women, I thought it’d be beneficial to take a look at a time where things didn’t go so well.

Would love to hear your feedback, either here or on the InPower Women site.

The first Women’s History Week was observed in March of 1982. Just a few months later, one of the biggest disappointments of the women’s movement occurred as the Equal Rights Amendment expired when the ratification deadline came and went at the end of June. This Women’s History Month, after an election year where women’s issues were in the forefront and after the Violence Against Women Act finally passed after a long and hard fought battle, it seems appropriate to ask, do we still need an Equal Rights Amendment in the Constitution?

FROM AN IDEA, TO A MOVEMENT

The ERA was originated by the National Woman’s Party in 1923 to complement the 19th Amendment, which gave women the right to vote in 1920. The ERA was introduced in Congress officially in 1923 as the following:

Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.

The amendment was re-introduced and failed in every Congress until a reworded version finally passed both chambers in 1972. The final text reads:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.

It was then turned over to states for ratification with a seven year deadline. After passage in Congress, the ERA needed to be ratified in 38 states. It only passed in 35. The deadline was extended until June 30, 1982, but ultimately failed to be ratified.

THE QUEST FOR EQUALITY

The ERA was supposed to fill the gap left by the so-called Equal Protection Clause of the 14th Amendment. Though the 14th protected “all persons born or naturalized in the United States,” it was adopted following the Civil War with racial discrimination in mind. And while numerous cases came before the Supreme Court seeking equal protection for women, women routinely lost up through the 1960s.

Women were told they had no constitutional right to practice law (Bradwell v. Illinois in 1873), vote (Minor v. Happersett in 1874), act as a bartender without her husband or father owning the establishment (Goesaert v. Cleary in 1948) or face a jury of her peers (Hoyt v. Florida in 1961), among others. Most of these decisions were rationalized that women were the “fairer or weaker sex” that needed protecting, as Ruth Bader Ginsburg wrote in 1979.

In 1971, things started to turn around. In Reed v. Reed, the court held unanimously that an Idaho law giving preferential treatment to men over women in estate administration appointments was unconstitutional under the Equal Protection Clause. Other cases began to follow suit.

IS THE ERA STILL NECESSARY?

Whenever discussions about the need for the Equal Rights Amendment come up, my mind immediately goes to this clip from “The West Wing” of Republican Ainsley Hayes discussing her opposition. And Ainsley makes some good points about being protected by the 14th Amendment. There are also plenty of laws on the books like the Equal Pay Act of 1963 and the Civil Rights Act of 1964, both of which banned discrimination on the basis of sex. Most recently, the ban against women in combat roles, which the ERA would have ended, has been lifted by the military. There’s still more work to be done, but given all the steps in the right direction, do we still need an Equal Rights Amendment?

In my opinion, sort of. In our current climate, I find it’s more imperative than ever to make it clear that women are entitled to the same protection as men under the United States Constitution, for two very specific reasons. First, we hear about new laws on a regular basis seeking to place limits on the right to privacy granted to women under the Equal Protection Clause in the landmark decision Roe v. Wade. That right to privacy is being chiseled away in states that now require an invasive trans-vaginal ultrasounds in order to obtain a legally protected abortion. If this right can be taken away, should women be worried about all their other rights as well?

But more importantly, we need to make clear that the Constitution applies to us all because there are justices on the current Supreme Court who believe in interpreting the Constitution based on the original intent of the framers. And the original intent of the 14th Amendment was not to protect women. In an interview in 2011, Justice Antonin Scalia said this about equal protection in the Constitution:

“You do not need the Constitution to reflect the wishes of the current society. 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.”

Scalia suggests that legislation is sufficient to outlaw sexual discrimination. But with justices like him on the court, what are the chances a law like that would be upheld as constitutional? I don’t like those odds.

So, why do I say sort of? Well, because women aren’t the only group out there in need of constitutional protection. The current session of the Supreme Court will be hearing challenges to the Defense of Marriage Act and California’s Prop 8. Does the Constitution grant equal protection on the basis of sexual orientation? It certainly wasn’t what the original drafters of the 14th Amendment had in mind. And yet, the same 14th Amendment that may not cover women or homosexuals, does cover corporations, according to numerous cases decided by the court. So, where exactly is the line drawn?

Instead of fighting for an Equal Right Amendment just for women, let’s close all the loopholes. Let’s establish once and for all that if you’re a human being born or naturalized in this country, you’re a citizen. And that citizenship comes with all the rights and privileges outlined in the Constitution.

What about you? Do you think there’s still a need for the Equal Rights Amendment?

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