(WOMENSENEWS)–Ainsley Hayes, a young Republican attorney, tossed her long blond hair on a recent episode of “West Wing,” as she denounced efforts to pass an Equal Rights Amendment to the U.S. Constitution.
Women do not need any special constitutional protection, she says in her best assertive manner. They are already protected by the 14th Amendment, an 1868 post-Civil War addition to the constitution that is the basis of many civil rights claims and legislation.
“Well, then I guess you just love that wage gap,” retorted Sam Seaborn, a deputy White House press secretary, referring to the fact that women earn an average of 73 cents to every dollar a man earns. “We believe in the ERA,” he said. “How can you have an objection?”
“Because it’s humiliating,” Hayes countered. “I do not have to have my rights handed down to me by a bunch of old white men. The same Fourteenth Amendment that protects you protects me. And I went to law school just to make sure.”
Seaborn and Hayes are fictional characters on NBC TV’s topical Wednesday night program watched by millions nationwide. But they articulate the arguments that have attended nearly a century-long effort to amend the U.S. Constitution to prohibit discrimination on the basis of gender.
Rep. Carolyn Maloney, D-N.Y., and Senator Edward M. Kennedy, D-Mass., last month introduced the proposed ERA into both houses to begin again a campaign for its congressional approval.
It sounds simple: “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.”
A two-thirds vote of both houses of Congress is required for passage of a proposed amendment; then three-fourths of the state legislatures must ratify it before the amendment becomes law.
The ERA was approved by Congress in 1972, but with an unusual provision limiting the number of years supporters had to gain the necessary state approvals. When the time had elapsed in 1982, the amendment was still three states short of the necessary 38.
Most Nations Give Constitutional Guarantees of Equal Rights, U.S. Has Separate Laws
The United States is one of a handful of democratic nations that do not provide constitutional protection of equal rights to women. Since the 1993 Vienna Declaration, which called for “eradication of all forms of discrimination on grounds of sex,” more and more nations have integrated gender equality into their constitutions, from Lithuania and Greece to South Africa’s pioneering prohibition of all discrimination including sexual orientation.
The European Community also builds women’s equality into its constitution, presenting a spur to older nations such as France and Britain, who have, like the United States, relied on a patchwork of specific laws, but lack constitutional guarantees.
Advocates argue that although existing laws prohibit certain inequities, they may be overturned, ignored, enforced indifferently or enforced vigorously. Only a constitutional guarantee can ensure that equal rights across the board are inalienable for both women and men, they say.
“It is a glaring gap in our body of laws not to have the full force of constitutional backing, not to have an ERA,” Maloney said when she introduced the amendment on March 22. “Gender must have the same level of judicial review as the other protections that combat the many forms of discrimination.”
The ERA is essential to protect against efforts to restrict or overturn abortion rights and end affirmative action, both in the 107th Congress and the state legislatures. The Supreme Court also is increasingly reluctant to extend federal guarantees of civil rights, preferring instead to leave the matters to the states, where protections are often weaker, ERA advocates say.
Maloney also cites inequality in pensions. “The pension gap is bigger than the wage gap,” she said. “As a society we don’t support families, so most of the burden falls on women–their careers are affected and so are their pensions.” Maloney said the ERA would render pay and pension gaps unacceptable.”
While some have given up the fight, and a new generation embraced it at an ERA Summit in 1993, others question its relevance 20 years after the first, and last, bitter ratification struggle.
In 1923, ERA First Proposed at Seneca Falls Women’s Rights Convention
In 1923, Alice Paul first introduced the ERA language at the Women’s Rights Convention in Seneca Falls, N.Y. That year, her allies in Congress attempted passage for the first time. It has been introduced in every session of Congress since then.
While awaiting its passage, a series of laws were passed over the years and these now compose a ragged patchwork quilt of protections for women, including Title IX, guaranteeing equal funding in public education and publicly financed sports, and the Pregnancy Protection Act, proscribing employment discrimination on the basis of pregnancy.
Yet it remains uncertain how the laws will withstand possible congressional attacks or aggressive constitutional litigation. The current Supreme Court has consistently indicated its preference to narrow, rather than expand, federal civil rights protection for women and others.
Maloney’s bill, its text identical to the simple words introduced nearly 80 years ago, has 162 original sponsors in both houses. Senators Kennedy and Republican Olympia Snowe of Maine gave it a bipartisan launch in the Senate, while Maloney was joined by California Republican Steve Horn and a handful of other House Republicans, including Benjamin Gilman of New York and Connie Morella of Maryland.
Conservative Christian and other groups, led by longtime ERA opponent Phyllis Schlafly, “have already started blasting me,” said Maloney.
“Normal women don’t want it and don’t need it,” said Anita Blair, executive vice president and general counsel of the Independent Women’s Forum, a Republican women’s organization founded in 1992 to support the confirmation of Supreme Court Justice Clarence Thomas. “Wage inequity is and has been illegal for 30 years. Meanwhile, many things have been done in the name of anti-discrimination that people don’t like: Look at divorce law,” she said, referring to the end of preference for mothers in custody disputes and the virtual elimination of alimony.
For most of its years, the ERA was locked in committees. It passed both houses for the first time in 1950, but only with a rider that nullified its equal protection aspects.
In 1971, Rep. Stewart McKinney, R-Conn., expressed opponents’ sentiments:
“Use the draft for an excuse if you like. Use women’s work rules for an excuse if you like. Use homesteading. Use child care. Use anything else. But what we are simply doing is in our own little way trying to maintain to ourselves the right to declare a difference between human beings.”
Critics Called ERA ‘Anti-Family,’ Warned of Military Draft, Same-Sex Restrooms
In 1970, members of the newly formed National Organization for Women stormed a meeting of the Senate Subcommittee on Constitutional Amendments and demanded they be heard by the full Senate. In 1972, the ERA was approved by the full Congress, but with an amendment that set a very short seven-year deadline for ratification. The deadline was extended, but the amendment still failed. Constitutional amendments traditionally require many years to be ratified by the states. An amendment on congressional pay raises, for example, was ratified in 1992, 203 years after its introduction.
Immediately after passage, conservative radio journalist Schlafly formed Stop ERA, the forerunner to her current Eagle Forum. Under her leadership, conservative legislators and organizers in all 50 states fought what they called “anti-family” legislation, claiming, among other things, that it would subject women to a military draft and mandate same-sex public restrooms.
The following states did not ratify the ERA: Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North and South Carolina, Nevada, Oklahoma, Utah and Virginia resisting to the end.
In addition to efforts in Congress, organizers across the country have been pursuing ratifications in at least three of the states that opposed the ERA last time.
“The reason we lost it last time is that there were not enough women in state legislatures and it just wasn’t a priority for men,” said Martha Burk, chair of the National Council of Women’s Organizations, an umbrella group representing over 100 groups with 6 million members among them.
Burk also questioned the constitutionality of the previous congressional deadline for ratification, saying the ERA itself, like other proposed amendments, contains no time deadline. Today she is more hopeful because there are more women in state legislatures and more women in the political pipeline. In 1982, when the political clock ran out on the ERA, there were only 991 women in state legislatures; this year, 1,663 hold seats.
Anti-Bias Laws, Yes, But ERA Would Provide Constitutional Foundation
The road has been long and difficult, the battles poisonous and the cost enormous, and some women’s advocates themselves question why an ERA is needed. Since 1972, the laws have evolved dramatically to protect women.
“The ERA would work best against laws that blatantly discriminate, but we’ve been successful in eliminating many of those,” said Julie Goldscheid, general counsel of Safe Horizons, an advocacy organization for battered women.
Goldscheid argued before the Supreme Court in the landmark U.S. v. Morrison case in 2000, in which the court invalidated the civil rights provisions of the 1994 Violence Against Women Act. If the ERA had been in force when the case went to the court, Goldscheid said, “It might have provided an additional argument for support of the civil rights remedy, but any such law would comply with certain requirements the court has set forth.” These include a fairly stringent standard for proving intentional discrimination on the basis of gender.
Roberta Francis of the ERA Summit, a national coalition formed in 1993 to renew the effort, emphasized the long, arduous struggles of legal minds and the difficulty in connecting women’s issues with the 14th Amendment or the 1964 Civil Rights Act.
Because of the 14th Amendment, she said, which gave citizenship rights to black males “race has a higher level of scrutiny than gender.” She cites the 1990 Virginia Military Institute controversy in which a private military institution that accepts state funding was told by the Supreme Court that it had to accept women cadets. “It took many, many people–including Julie Goldscheid–countless days and hours to get that victory,” Francis said. “The ERA would have made it self-evident.”
In 1923, when Alice Paul first introduced the amendment, she noted that only women’s activism had gained them the right to vote–and only political organizing could secure constitutional protections.
“If we keep on this way they will be celebrating the 150th anniversary of the 1848 Convention without being much further advanced in equal rights than we are. … We shall not be safe until the principle of equal rights is written into the framework of our government.”
Chris Lombardi is a free-lance writer in New York, covering politics, international affairs and human rights.