The need for an Equal Rights Amendment hasn’t diminished with the years and, in fact, has intensified with today’s political climate of dissent and disrespect. Supporters rightfully worry that setbacks in equal rights could occur.
U.S. Supreme Court justices on both sides of the ideological spectrum have commented on the Constitution’s lack of explicit protection against discrimination on the basis of sex. In different ways, the late Justice Antonin Scalia and Justice Ruth Bader Ginsburg shared the knowledge that American women haven’t truly achieved equal rights. Scalia, with blunt comments, showed the need for women’s rights protection; Ginsburg has said she would like her granddaughters to enjoy gender equality.
{mosads}Now, with President Trump’s nomination of Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy, on the heels of the president’s first appointment, Justice Neil Gorsuch, gender equality advocates are worried — and they should be. Two more seats on the court will be conservative.
The Equal Rights Amendment dates from nearly 100 years ago, having been introduced soon after the 19th Amendment was ratified to guarantee women’s equal right to vote. It was nearly ratified after being passed out of Congress in 1972, but fell three states short of the 38 needed to ratify an amendment to the Constitution by the 1982 deadline.
As a result, the Supreme Court continues to interpret the Equal Protection Clause of the 14th Amendment as providing a standard of review for sex discrimination known as “intermediate scrutiny,” rather than the higher standard of review known as “strict scrutiny” that is applied to cases of discrimination on the basis of race, religion or national origin.
It was not until the 2016 election results, when Hillary Clinton lost the presidential race, that I understood the mournful feeling many women must have experienced when the ERA wasn’t ratified. Having been born after the 1982 deadline expired, for most of my youth I really didn’t know there was an attempt to ratify the ERA — or that there needed to be.
Recent polling commissioned by the ERA Coalition shows this is not uncommon. Although 94 percent of respondents would support the amendment, 80 percent think it already exists. If these numbers seem surprising; they really shouldn’t be. Despite continued efforts by dedicated activists and legislators over the past few decades, the ERA just hasn’t been a thing.
But in March 2017, 45 years after Congress passed the ERA, Nevada became the 36th state — and first state in 40 years — to ratify the ERA. Illinois soon followed, in May 2018. Supporters believe this puts the ERA just one state away from the number needed to finally ratify the amendment, though others argue that five states have voted to rescind their ratification and there likely will be legal challenges to whether the deadline originally placed on the amendment can be removed.
Congresswoman Carolyn Maloney (D-N.Y.) recently hosted an ad hoc hearing on the Equal Rights Amendment, after not receiving a reply to her formal hearing request from the House Judiciary Committee. This first congressional hearing on the ERA in 33 years was titled, “A New Era for the ERA.”
Why now? There’s an urgency as Americans search for a way to truly change the state of gender equality in this country. Women have made great gains through the legislative process, but it would be naïve to think that they are comprehensive. And the rights women have gained could be rolled back.
The ERA “elevator pitch” has always included the message that it is necessary to have constitutional equality to protect the rights that women already hold. This suddenly resonates, because people now believe setbacks in women’s equal rights could actually happen. It has become glaringly obvious that legislative advances to further women’s rights have not been mirrored by society.
Law and society must both progress for true change to happen. This infrequently occurs simultaneously, but more often a change in one elicits a response in the other. For example, the #MeToo social movement amplifies the call for an Equal Rights Amendment to change the highest legal document in the country, the U.S. Constitution.
However, before #MeToo, Catharine MacKinnon created a legal framework for sexual harassment cases. Women had discussed this near universal experience for decades but her 1979 book, “Sexual Harassment of Working Women,” gave it a name. In 1986, the Supreme Court unanimously held in Meritor Savings Bank v. Vinson that sexual harassment violates the Civil Rights Act of 1964.
The #MeToo movement did what the law couldn’t do: it changed society’s acceptance of this behavior. In a recent lecture, MacKinnon marveled that she watched sexual harassment transform from a privilege to a legal argument and now, finally, a disgrace.
Perhaps we’ll look back to this time and tell a younger generation how disgraceful it was that, once, our Constitution didn’t guarantee equal rights on the basis of sex. It is past time for law to catch up with society’s progression. Today in America, more than ever, the argument for the Equal Rights Amendment is strong.
Bettina Hager is the Washington director and chief operating officer of the ERA Coalition, a grassroots organizer and advocate for gender equality. Follower her on Twitter @BettinaHager.