Getting to YES—on the ERA

Many Americans mistakenly believe that men and women are guaranteed equal rights in the Constitution, which isn’t the case. Has the ERA’s time finally come?

By Sue Tomchin

I recently pulled out this picture from the JWI archives, dating from 1978. The women are clad mostly in white, in homage to the suffrage movement, and sport round “ERA Yes” stickers. The occasion they are taking part in was a massive gathering of nearly 100,000 who marched in Washington on July 9, 1978, to express their support for the Equal Rights Amendment.

B’nai B’rith Women, as JWI was then known, was among the first Jewish organizations to come out in favor of the ERA and its members worked diligently across the country, both independently and in coalitions, for its passage.

At the center of the photo, holding up the B’nai B’rith Women banner, is the late Betty Shapiro who served as international president of BBW Women from 1968-1971. She was a dynamo who spurred the creation of the organization’s women’s advocacy agenda, still going strong all these years later.  She personally met with members of the House and Senate to encourage the ERA amendment’s passage, prior to its referral to the states.  Also holding up the banner is Ida G. Ruben, whose career in public service included a 20-year stint in the Maryland State Senate (1987-2007), and serving in the Maryland House of Delegates from 1975-1987. She also was a long-time BBW leader and served as its international vice president.

The amendment reads as follows: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Essentially it would provide a consistent national framework to protect girls and women from discrimination on the basis of sex, something that JWI vigorously stands behind. This principle motivates JWI’s advocacy work in such areas as sexual assault and domestic abuse prevention, pay equity, reproductive health, and paid family leave.

To become part of the Constitution it needs to be ratified by three-quarters of the states—38 in total. Ratification stalled at 35 states in 1977, in large part because of the Stop ERA campaign led by Conservative anti-feminist Phyllis Schlafly. Yet nearly 30 years later, when the ERA Coalition/Fund for Women’s Equality commissioned a poll in 2006 asking whether the United States Constitution should be amended to include protections for women, 80% of those polled mistakenly believed that men and women were already guaranteed equal rights in the document.

The poll further showed that 94% of those polled said they supported an amendment guaranteeing equal rights for both men and women. This included 90% of men, and 96% of women polled, as well as 97% of Democrats, 90% percent of Republicans and 92% of Independents.

Whether these numbers will translate into the amendment’s ratification remains to be seen, though the #MeToo movement and the current president’s attitudes toward women have reignited activism about the need for an amendment that would protect women. As Bettina Hager, DC director of the ERA Coalition, told reporter Olivia Exstrum for a March 5, 2018 article in Mother Jones, “It has helped lift that veil and led people to ask and question why our society is still this way,” Hager said. “That’s one of the reasons we’re seeing more energy.”

One step forward occurred last year when, on March 22, Nevada became the 36th state to ratify the ERA. On April 11, 2018, the Illinois Senate voted 43-12 on a resolution to add the Equal Rights Amendment to the U.S. Constitution. A vote in the Illinois House of Representatives may occur as early as May 16. An attempt by activists to urge Virginia to take action on the amendment failed in February 2018 in the GOP-controlled legislature. 

Should the amendment reach its necessary 38 states, a struggle in itself, another fight will ensue: whether the length of time it has taken to achieve the needed states invalidates the ratification. Pro-ERA forces have a strong case why it should still go forward. As ERA Coalition in Illinois points out in its fact sheet for legislators, “though the deadline to pass the ERA has technically passed, a Supreme Court ruling, and the historical precedent of the 27th (aka “Madison Amendment”) shows that the deadline is discretionary.” The Madison Amendment, regarding congressional pay raises, was passed by Congress in 1789 but wasn’t ratified until 1992!

The ERA would provide a “constitutional basis for claims of gender-based violence” and “would require the Supreme Court to use the higher standard of ‘strict scrutiny’ rather than ‘intermediate scrutiny’ in sex discrimination cases, similar to the standard used in racial and religious discrimination cases.” [These are two of 10 ways that the ERA could make a difference compiled by the ERA Coalition Fund for Women’s Equality.] It could also help prevent the erosion of protections in such areas as employment, equal pay, and education due to changes in state and federal laws.

Having a constitutional amendment in place would create a consistent basis for legal protection for women against discrimination in every state. As Supreme Court Justice Ruth Bader Ginsburg told a National Press Club audience in 2014: “Legislation can be repealed, it can be altered. So 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’d like them to see that is a basic principle of our society.”