What About the Equal Rights Amendment?

by Bianca Rose Hernandez

The question still lingers after many generations and protests: does our Constitution still need an Equal Rights Amendment (ERA)? Easy, yes we do. However, the question is not so easy for many who struggle to recognize the amendment's importance and significance for bettering the future of American equality.

The Equal Rights Amendment concisely states:

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.[1]

Equal rights activist Alice Paul wrote the Equal Rights Amendment in 1923 to expand the rights of both men and women, ensuring their rights were guaranteed under the Constitution.[2] After years of protests, lobbying, bra burning, hunger strikes, and petitions, the ERA was passed by the House in 1971 and by the Senate in 1972.[3] The Senate gave a seven-year deadline for 38 states to ratify the ERA before it could become part of the Constitution. By 1977, 35 states ratified the amendment, but momentum slowed, and no other states ratified the amendment before the 1979 deadline. Congress extended the deadline for another three years, until 1982, but ratification again fell short.

In the past four years, however, Virginia, Illinois, and Nevada have ratified the ERA, surpassing the 38-state requirement. Lawmakers, scholars, activists, and even judges now question whether the ERA has a constitutional effect on the federal government and all other states, regardless of whether they ratified the amendment.

The ERA’s intention is to make court rulings about sex discrimination more consistent and provide a permanent constitutional defense against sex equality.[4] Despite women’s tremendous advances in American society, the Equal Rights Amendment is still necessary to enhance the Constitution’s promise of equal justice.

Those who question the need of the ERA claim the 14th Amendment’s Equal Protection Clause already provides gender protection. The Equal Protection Clause prohibits states from denying an individual their rights within the equal protection of law. The Supreme Court has used this clause to protect individuals from discrimination involving race, commerce, working conditions, and reproductive rights, but not gender. In Reed v. Reed,[5] the Court ruled that sex-based discrimination is constitutional under the 14th Amendment so long as states have a legitimate purpose for that law and the law is rationally related to fulfill that purpose.[6] But, as then-attorney Ruth Bader Ginsburg argued on behalf of the appellant, laws discriminating on the basis of sex should be reviewed under the same standard as race: strict scrutiny.

Strict scrutiny is the standard of review courts use when laws are challenged for discriminating against a protected class such as race, religion, or nationality. Courts must evaluate whether the government’s interest in the law is substantial or compelling and whether the law is the most narrowly tailored way of achieving the government’s goal. Courts almost always strike down laws under strict scrutiny. Ginsburg reasoned, “legislative discrimination grounded on sex, for purposes unrelated to any biological difference between the sexes, ranks with the legislative discrimination based on race, another congenital, unalterable trait of birth, and merits on greater judicial deference.”[7] Later, in the case U.S. v. Virginia,[8] sex discrimination was evaluated under intermediate scrutiny, leaving uncertainty on which is the appropriate level of scrutiny for future cases.

The fragility and unpredictability of the courts’ interpretations of the 14th Amendment’s Equal Protection Clause makes the amendment unstable in upholding equal protection of the sexes. The passage of the Equal Rights Amendment would allow sex-based discrimination to be reviewed under strict scrutiny which would create better constitutional protections than the 14th Amendment.

Critics of the ERA also argue that federal legislation is sufficient to protect women in the way the ERA would intend to, obviating the need for a constitutional amendment. These laws include: Title VII of the Civil Rights Act of 1964, which prevents employment discrimination on the basis of sex; Title IX of the Education Amendments of 1972, which prevents exclusion from education programs on the basis of sex; and The Lilly Ledbetter Fair Pay Act of 2009, which helps ensure equal pay for women. The problems with laws are their constant need for improvement, their origins not being formulated for sex equality, and having differing interpretations within courts and agencies. Sex discrimination issues are evolving, and legislation has combatted them over time—but inequality has persisted.

The gender pay gap is one of the biggest issues that legislation has attempted to resolve, but the laws have yet to succeed. Since the beginning of the 20th century, women have been paid less than men in the workforce. When women began regularly entering the workforce, they made only 45% of what men made, and then 54% by 1950.[9] In 1945, Congress first introduced the Equal Pay Act, promising equal wages for the same work to employers no matter their sex, but its passage failed. John F. Kennedy’s Administration in 1963 reintroduced the Equal Pay Act, which passed, and amended the Fair Labor Standard Act of 1938.[10] The Equal Pay Act “mandates that employers cannot award unequal wages or benefits to men and women working jobs that require ‘equal skill, effort, and responsibility, and which are performed under similar working conditions.’”[11] On the surface this piece of legislation gives new hope to women in resolving one category of sex discrimination. However, the Act also includes guidelines for when unequal pay is allowed, “specifically on the basis of merit, seniority, workers’ quality or quantity of production and other factors not determined by gender.”[12] This language, though part of a monumental piece of legislation, allowed unequal pay to persist and required more legislation to fully fix the wage gap.

In 1998, Lilly Ledbetter, a supervisor at Goodyear, filed a lawsuit under Title VII of the Civil Rights act of 1964 against the company after she found out that she was being paid less than some of her male colleagues. After winning at trial, Ledbetter received a $360,000 verdict, but Goodyear appealed to the Supreme Court, claiming that under a Title VII provision, discrimination complaints can only be made within 180 days of the employer's discriminatory conduct. The Supreme Court agreed, ruling that Ledbetter needed to file her claim within 180 days of the discriminatory conduct. Further, the Court did not find it significant that she received paychecks affected by the discrimination within 180 days of her making her claim.

The Obama Administration then passed the Lilly Ledbetter Fair Pay Act[13] in response to the Supreme Court’s ruling. The Act’s intent is to allow wage discrimination cases to be filed past 180 days of the most recent paycheck discrepancy. After signing the bill into law in 2009, President Obama went further, issuing an executive order requiring all companies with 100 or more employees to report to the federal government on how much employees are paid based on sex, race, and ethnicity. When Trump became president, he rescinded the order, saying “it wouldn’t have worked” to fix the gender pay gap.[14] The gap continues even today in 2021. Women now make 82 cents for every dollar a man makes, and the pennies get smaller as the shades of women’s skin get darker.[15]

Along with laws’ frequent need for improvements, they are also at times flawed from their initial intentions of not being formed for the sole purpose of improving sex equality. The Civil Rights Act of 1964, for example, was enacted to ban discrimination based on religion, race, sex, or origin.[16] The Act, however, began being enforced by the Kennedy Administration, which emphasized the Act’s intention “that no man should be denied employment commensurate with his abilities because of his race or creed or ancestry.”[17] This notably excludes the principle of sex equality. The word “sex” was not put in the law until two days before its passage, when it was proposed by Congressman Howard Smith.[18] Further, the addition of “sex,” under Title VII of the Act, was not intended to serve the notion of sex equality. Although Title VII was added to improve economic and social conditions of both minorities and women by providing equal opportunity in the workforce,[19] it was rooted in concern for white women who would be disadvantaged in comparison to black women.[20] Therefore, Title VII’s intention is to protect race first and sex equality second.

Although Title VII has successfully combated instances of sexual harassment and discrimination in the workforce, its origin weakens the entire endeavor of protecting the sexes. Because the aim of the legislation was to fix racial discrimination, principles of sex equality cannot be reflected by the law to their fullest potential. Furthermore, Title VII allows varying interpretation by federal judges, such as what remedies are available, what litigation prerequisites are necessary, and who the statute was written for.[21] More recently, Title VII has introduced problems about the meaning of “sex” and whether it goes beyond biological sex to include sexual orientation.[22] Title VII and other legislation’s importance should not be disregarded, but at the same time, Congress cannot cover all the bases of ensuring sex equality and eliminate all forms of sex discrimination through legislation. Legislation cannot always and permanently secure the rights it intends to protect. This is another reason why the Equal Rights Amendment is essential in ensuring both men and women’s equality. Existing laws cannot make fundamental rights permanent the way the ERA intends to.

Critics of the ERA fail to recognize the most consequential part of laws: their interpretation within courts and agencies. Sexual assault and harassment cases are another area where women, and at times men, are treated unequally. Title IX of the Education Amendments of 1972 is a federal civil rights law that intends to protect against discrimination based on sex within both state and local educational programs or activities that receive federal financial assistance.[23] During the Trump Administration, Secretary of Education Betsy DeVos weakened protections for victims of sexual assault and harassment under Title IX by rescinding more than 20 of the Obama Administration’s anti-discriminatory policy guidelines.[24] Furthermore, DeVos made the definition of what constitutes sexual assault more specific, therefore benefiting perpetrators and not victims.[25] As a result, college-age sexual assault and harassment survivors now have a harder time receiving justice from university disciplinary proceedings.

Other sexual assault laws, such as the Violence Against Women Act passed in 1994 to support survivors of sexual assault, have similar disparities of interpretations in courts.[26] The Supreme Court in United States v. Morrison[27] struck down the Act’s provision allowing survivors to sue their attackers in federal court for damages or other relief, ruling that it exceeded Congress’s authority to regulate interstate commerce, even though Congress studied the economic effects of violence against women.[28] Because of its broad language, the ERA would provide clear judicial and agency standards for interpreting legislation like Title IX and the Violence Against Women Act, paving the way for survivors of sexual assault and domestic violence to receive justice.

Legislation is not a permanent protector of sex discrimination given its flaws of inconsistency, broad origins, and different interpretations among courts. The ERA is formulated to ensure that the principle of sex is a permanent fundamental right that does not require improvements or multiple interpretations but conforms to the changing progressive social norms of today.

Since its initial introduction to Congress, the ERA has instilled fear in opponents over societal changes that it would bring. Phyllis Schlafly, one of the most famous opponents of the ERA and founder of the movement STOP ERA, said in the 1970s that the amendment would damage the tradition of American marriage, family, and roles of a wife.[29] During the beginning of the ERA movement in the 1970s, 50% of single women and 40% of married women were in the workforce.[30] Today about 80% of women are in the workforce,[31] and as social norms of women holding higher positions than men become normalized, the percentage is going to continue rising. The American family still stands, and these assumptions are no longer valid given the advances women have made since the 1970s. But even today, oppositions to the ERA are fueled by women’s participation in the workforce, defiance of gender norms, and the successes of the #MeToo movement.[32] The passage of the amendment is needed now more than ever to protect today’s advances and those of future generations. The ERA will not only protect these workforce advancements of women but help support the future of them reaching full equity in the future.

One of the bigger social norms that has been changing over the years is the inclusion of sexual orientation. Today’s society is now more accepting of sexual identities and understanding of individuals defying gender norms that are assigned at birth. A recent Gallup poll found that 4.5 percent of Americans identify as part of the LBGTQ+ community.[33] Furthermore, the poll found that about 16% of Generation Z identify as part of the LBGTQ+ community because “Younger people are growing up in an environment where being gay, lesbian or bisexual is not as taboo as it was in the past.”[34] Even a greater find about society’s evolution toward acceptance is the percentage of Americans who support gay marriage. In 2017 only 53% agreed with the Obergefell v. Hodges ruling legalizing gay marriage, but last year a 2020 Gallop found that that number has increased to 67%.[35] Because of the greater acceptance of sexual orientation, personal identities deserve recognition and protection. Justice Gorsuch said it best in his Bostock v. Clayton County opinion concerning Title VII, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision.”[36] Although the ERA is broad in its definition of “sex,” it is needed to protect every identity that is vulnerable to discrimination. The amendment can be updated to cover all types of identities beyond the ones given to us at birth so the courts cannot be left to interpret what constitutes “sex.” However, the language of the amendment could also remain the same and be read as part of a “living constitution” that will change with the climate of the era.

Times within society are continuing to change since the initial beginning of the ERA movement drastically. Awareness and concern for sex equality are at an all-time high with sexual assault and discrimination media headlines of injustices within multiple industries, social media movements, and protesting, bringing the issue of sex inequality to light and sparking more outrage every day. Our legislation and Constitution are behind in keeping up with social advances and protecting its citizens from such discriminations making the ERA more essential than in the 1970s and in need of ratification.

Because the most recent state ratified the ERA last January, lawmakers and activists are looking for the next steps toward greater equality. The Constitution states that amendments take effect when three-quarters of the states ratify them, creating a threshold of 38 states.[37] Because the last state needed to add the ERA to the Constitution ratified the amendment last January, lawmakers and activists are looking for the next steps toward greater equality. Now supporters are urging Congress to lift the deadline since Congress had the power to put the deadline there in the first place. Senators Cardin and Murkowski are sponsoring a bipartisan measure, Senate Joint Resolution 6, seeking to do so.[38] But, there is no precedent for waiving the deadline after the ERA’s second expiration, making the amendment a unique case in American history.

The question of the ERA’s validity is decided by the Archivist of the United States, who is in charge of the formal certification of amendments.[39] But, the archivist will not certify Virginia’s ratification of the ERA until a federal court issues an order even though the Nevada and Illinois ratifications were previously certified. In Coleman v. Miller,[40] the Court ruled that Congress is responsible for deciding if an amendment was ratified by a reasonable time because the decision is a “political question.”[41]

A federal district judge recently ruled that “the ERA expired a long time ago” and the last three states, Nevada, Illinois and Virginia, are “too late to count.”[42] However, liberal legal scholars today argue that because the deadline was not written into the amendment, the time has not run out yet. This is a key to keeping the ERA alive. The Constitution does not give Congress the power to dictate when a state is to ratify an amendment, and ratification is a “one time event” with little to no significance to when that ratification occurs.[43] The future of the ERA is arguably up to the Founders’ interpretation of adding a 29th Amendment to our Constitution.

Last year, Judge Margaret McKeown asked Ruth Bader Ginsburg for her perception of how to handle the ratification of the ERA, and her response was that the ERA’s deadline is binding.[44] She claimed that in order to get the ERA ratified we should start from the beginning again. Ginsburg said, “There’s too much controversy about latecomers. Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said ‘we’ve changed our minds?’”[45] She was referring to the states who ratified before the deadline and then withdrew after it passed: Tennessee, Idaho, Nebraska, Kentucky, and South Dakota.

The solution to ensuring sex equality in America’s courts, laws, and society is simple: the country needs to add the Equal Rights Amendment to its Constitution. The amendment will fill in the gaps of legislation and end misinterpretations of statutes. Moreover, it will strengthen the basis of litigation by providing concrete protection for sex equality. It will formulate a new path in the legal system; one where American citizens are treated with respect and not flexible interpretations of respect. The ERA’s passage would fulfill the wish of late-Justice Ruth Bader Ginsburg, whose life’s work revolved around this amendment. “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 would like them to see that that is a basic principle of our society.”[46] And, most importantly, it will represent how far America and its acceptance of sex equality have come over the course of history.


 

[1] ERA Explainer, Eǫᴜᴀʟɪᴛʏ NOW, https://www.equalitynow.org/era_explainer (last visited July 31, 2021). [2] Why We Need The Equal Rights Amendment, Eǫᴜᴀʟ Rɪɢʜᴛs Aᴍᴇɴᴅᴍᴇɴᴛ (2018), https://www.equalrightsamendment.org/why (last visited July 31, 2021). [3] Id. [4] Id. [5] Reed v. Reed, 404 U.S. 71 (1971). [6] Bridget L. Murphy, The Equal Rights Amendment Revisited, 94 Nᴏᴛʀᴇ Dᴀᴍᴇ L. Rᴇᴠ. 937 (2019). [7] Reed v. Reed, 404 U.S. 71 (No. 70-4). [8] U.S. v. Virginia, 518 U.S. 515 (1996). [9] Charlotte Alter, Equal Pay Day: Here’s the History of the Fight for Equal Pay for Women Time, Tɪᴍᴇ (2015), available at https://time.com/3774661/equal-pay-history/. [10] 29 U.S.C. § 206(d). [11] Equal Pay Act, Hɪsᴛᴏʀʏ.ᴄᴏᴍ (2017), www.history.com/topics/equal-pay-act. [12] Charlotte Alter, supra note 9. [13] See 42 U.S.C. 2000(a). [14] Suzy Khimm, Trump Halted Obama's Equal Pay Rule. What It Means for Working Women, NBCNᴇᴡs.ᴄᴏᴍ (Aug. 31, 2017) available at www.nbcnews.com/politics/white-house/trump-killed-obama-s-equal-pay-rule-what-it-means-n797941. [15] The State of The Gender Pay Gap in 2021, Pᴀʏsᴄᴀʟᴇ (2021) available at, https://www.payscale.com/data/gender-pay-gap. [16] Murphy, supra note 6, at 947. [17] Id. [18] Id. [19] See 29 CFR § 1608.1 [20] Murphy, supra note 6, at 947. [21] Id. at 954. [22] See e.g., Bostock v. Clayton County, 140 S. Ct. 1731 (2020). [23]Title IX and Sex Discrimination, U.S. Dᴇᴘᴀʀᴛᴍᴇɴᴛ ᴏғ Eᴅᴜᴄᴀᴛɪᴏɴ (2015), https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html [24] Id. [25] See id. [26] Robin Bleiweis, The Equal Rights Amendment: What You Need To Know, Cᴇɴᴛᴇʀ ᴏғ Aᴍᴇʀɪᴄᴀɴ Pʀᴏɢʀᴇss (Jan. 20, 2020), https://www.americanprogress.org/issues/women/reports/2020/01/29/479917/equal-rights-amendment-need-know/ [27] 529 U.S. 598 (2000). [28] See generally id. [29] Murphy, supra note 6, at 941–2. [30] Janet L.Yellen, The History of Women’s Work and Wages and How it Has Created Success For Us All, Bʀᴏᴏᴋɪɴɢs, (May 2020), https://www.brookings.edu/essay/the-history-of-womens-work-and-wages-and-how-it-has-created-success-for-us-all/ [31] Id. [32] See id. [33] Dan Avery, Americans are identifying as LGBTQ more than ever, poll finds, NBC Nᴇᴡs (Feb. 24, 2021), https://www.nbcnews.com/feature/nbc-out/americans-are-identifying-lgbtq-more-ever-poll-finds-n1258627 [34] Id. [35] Id. [36] Bostock v. Clayton County, 140 S.Ct. 1731, 1737 (2020). [37] U.S. Cᴏɴsᴛ. art. V. See also Alex Cohen & Wilfred U. Codrington III, The Equal Rights Amendment Explained, Bʀᴇɴɴᴀɴ Cᴇɴᴛᴇʀ ғᴏʀ Jᴜsᴛɪᴄᴇ (Jan. 23, 2020), https://www.brennancenter.org/our-work/research-reports/equal-rights-amendment-explained [38] Id. [39] Id. [40] 307 U.S. 433 (1939). [41] Id. [42] Veronica Stracqualursi, Federal judge says deadline to ratify ERA 'expired long ago' in setback to advocates' efforts, CNN (March 6, 2021), https://www.cnn.com/2021/03/06/politics/equal-rights-amendment-virginia-lawsuit/index.html. [43] Id. [44] Ian Millhiser, Ruth Bader Ginsburg probably just dealt a fatal blow to the Equal Rights Amendment, Vᴏx (Feb. 11, 2020), https://www.vox.com/2020/2/11/21133029/ruth-bader-ginsburg-equal-rights-amendment-supreme-court. [45] Id. [46] The Kalb Report: Justices Antonin Scalia & Ruth Bader Ginsburg on the First Amendment and Freedom (CSPAN television broadcast April 17, 2014), https://www.c-span.org/video/?318884-1/conversation-justices-scalia-ginsburg-2014.

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