It’s been 100 years since the Equal Rights Amendment (ERA) was first introduced as the 28th Amendment to the US Constitution, but recently renewed interest has caused it to inch much closer to ratification. Why? One reason is that policymakers are becoming more aware that by adding specific protections against sex discrimination to the Constitution, it would prohibit the current and future Supreme Court from interpreting the Constitution in a way that weakens or eliminates constitutional sex equality protections.
To help ensure that it does, a new project bringing cutting-edge research, strategy and legal resources to the fight for gender-based equality was instituted at Columbia Law School’s Center for Gender and Sexuality Law (CGSL) just last month. The Equal Rights Amendment (ERA) Project, a law and policy think tank which will develop rigorous academic research, policy papers, expert guidance, and strategic leadership to support the ERA to the U.S. Constitution, along with the broader project of advancing gender-based justice, is the brainchild of former ERA Coalition board members Marcy Syms, Wade Leak and Liz Young. “After the ERA Coalition succeeded in getting Virginia to become the 38th state to ratify the ERA in January 2020, we realized that there is no law school currently deliberating about how the original language in the ERA would be interpreted,” says Marcy Syms, who previously chaired the ERA Coalition and The Fund for Women’s Equality. “It needs its own think tank under the auspices of a recognized law school to study what the ERA would mean to the law.”
Syms, Leak and Young therefore approached Prof. Katherine Franke, who founded the CGSL in 2004, with their proposal. She quickly agreed, as did the Dean of Columbia Law School, Gillian Lester. “It is important to include academic expertise encompassing a range of disciplines to effectively convey what the ERA should and would do,” Dr. Franke says. A total of six former ERA Coalition board members have since joined the project. “And it is growing with twelve distinguished law professors from law schools all over the country on our faculty advisory board,” Syms added. These professors represent such major law schools as UC Berkeley School of Law, Duke School of Law, the University of Pennsylvania, Yale Law School and Yeshiva University’s Cardozo School of Law to advise the Project on the meaning and scope of the ERA.
Given that Columbia Law School is well known as the preeminent law school for the study of and specialization in the law of gender and sexuality, it is an even more appropriate location since “the late U.S. Supreme Court Justice Ruth Bader Ginsburg ’59 had strong ties to Columbia Law School as both an alumna and former professor” Prof. Franke adds. “We are therefore honored to create the first and only academic home for ERA-related work at Columbia Law School.”
Yet it is not only women who would benefit from the amendment’s ratification. The ERA would prohibit discrimination on the basis of sex in multiple forms including discrimination against men, sexual orientation, gender identity, sex or gender stereotyping (such as discrimination against a person because they are a masculine woman or a feminine man), as well as discrimination in access to health care, including reproductive health care. Essentially, the ERA would make sex-based equality explicit in the US Constitution for the very first time, and benefit everyone. “It is not a women’s rights amendment, it is a sex equality amendment,” Prof. Franke adds.
Brief History of the ERA
In 1873 the Supreme Court held in Bradwell v. Illinois that an Illinois law that barred women from being licensed to practice law did not violate the US Constitution. Three of the justices explained the ruling: “[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life… The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.” 83 U. S. 130, 142 (1873).
In 1971, in Reed v. Reed, the Supreme Court found for the first time that the Equal Protection clause of the 14th Amendment (no state shall “deny to any person within its jurisdiction the equal protection of the laws”) did indeed prohibit sex discrimination. The Reed case involved a challenge to an Idaho law requiring that “males must be preferred to females” in appointing administrators of estates. The Court ruled that Idaho’s law specifically making a distinction based on sex “establishes a classification subject to scrutiny under the Equal Protection Clause.” However, the Court applied the lowest level of scrutiny to the sex-based classification, known as rational basis review, inquiring “whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective”?
In 1976, in Craig v. Boren, the Supreme Court ruled that sex discrimination cases brought under the Equal Protection clause of the 14th Amendment must be subject to a higher level of scrutiny than that adopted in Reed v. Reed. In Craig v. Boren the Court applied intermediate scrutiny to an Oklahoma law that imposed a lower alcohol drinking age for women than for men (the law prohibited the sale of “nonintoxicating” 3.2% beer to males under the age of 21 but allowed it to be purchased by females over the age of 18).
In 1996, in one of Justice Ruth Bader Ginsburg’s most important decisions while sitting on the Supreme Court, in U.S. v. Virginia, Justice Ginsburg ruled that “sex based classifications may not be used, as they once were to create or perpetuate the legal, social, and economic inferiority of women.” Rejecting the Commonwealth of Virginia’s justifications for an all-male military academy, Justice Ginsburg analogized the case to racially segregated colleges and universities that also failed the constitution’s requirement of equal protection of the laws based on race. She concluded with “the Commonwealth has shown no ‘exceedingly persuasive justification’ for withholding from women qualified for the experience premier training of the kind VMI affords …” Many have referred to U.S. v. Virginia as creating a de facto ERA.
The ERA Today
When Virginia became the 38th state to ratify the ERA just one year ago, which completed the requirement under the U.S. Constitution (Article V) that 3/4 of the states ratify an amendment, it has allowed the amendment to inch closer to approval, although several additional steps remain in order for it to be officially added to the US Constitution as the 28th Amendment. Still, proponents of the ERA, like the ERA Project, are already considering that if it is passed, what has to happen next,
While the ERA Project will not engage in lobbying, it will develop academic, legal, and policy expertise to support efforts to expand protections for gender-based equality and justice. “There were previously no academic resources to answer questions like, ‘Why do we need it?’ and ‘What would it do?’”, Dr. Franke continues. “It is important to bring in academic expertise with a range of disciplines to provide a broad and comprehensive framework of what the ERA should and would do.”
To inspire equality in all areas, the ERA Project’s board includes leaders in a variety of fields, from law to business, and from politics to social justice:
Susan Bevan retired from a career as legal counsel for a Wall Street firm and has since served as an advocate for women in a variety of endeavors. As co-chair of the Republican Majority for Choice, she worked to protect reproductive health rights for all Americans. Formerly a board member of Alpha Phi International Fraternity and Foundation, her focus remains on developing leadership opportunities for collegiate women. Susan has co-produced two independent films with strong female protagonists, Equity and An Acceptable Loss.
Nia J.C. Castelly is a graduate of Spelman College and Columbia Law School ‘00, and currently serves as senior counsel at Google where she leads a team focused on user privacy rights. Nia participates in and supports the efforts of a number of employee resource groups, including the Civil Rights Group, Black Googlers Network and Women@. Throughout her career, Nia has both founded and led initiatives that help ensure women and minorities not only have access to the law but also can thrive in the practice of law.
Wade Leak is a graduate of Columbia Law School ‘89 and Deputy General Counsel at Sony Music Entertainment. He is the vice president of the Columbia Law School Alumni Association and credits the school with awakening his commitment to pursuing equality for all. He supports many organizations that promote social justice and equal rights.
Marianne Stack is a former Communications Director for the ERA Coalition. She is a political activist who has helped elect women candidates running for national, state, and local office. Marianne previously worked for ABC News for 16 years where she won two national news Emmy awards and produced many stories on women’s issues.
Candy Straight is a political activist, retired investment banker, and film financier. Candy co- produced Ain’t I A Woman, a documentary on the ERA premiering later this year, and executive produced Equity, a film about women on Wall Street which premiered at the Sundance Film Festival in 2016. Equity was purchased by Sony Pictures Classic.
Marcy Syms grew Syms Corp, becoming the youngest woman president of a NYSE company. She is founding trustee and president of the Sy Syms Foundation and is often involved with philanthropic startups. She has chaired the ERA Coalition and The Fund for Women’s Equality. She is an author and independent board member and has been recognized for her work in the area of women’s rights with honors of distinction.
Liz Young As a board member at Donor Direct Action, she took advantage of her business background to help create funds for front line women’s rights activists around the world. Liz is a former EVP and global head of Communications at Bertelsmann and Sony.
“Getting the ERA over the finish line will be just the beginning,” Prof. Franke continues, “Rather than packing up and declaring victory the day the archivist adds it to the Constitution, it is our job of dreaming, imagining and framing it as a national conversation.”