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Once More, with Feeling: The ERA

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In 1923, on the 75th anniversary of the 1848 Women’s Rights Convention in Seneca Falls, Alice Paul introduced the first version of the Equal Rights Amendment: “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” The National Women’s Party and professional women like Amelia Earhart, the great pilot, supported it. But other reformers, particularly in the labor movement, who had worked hard for protective labor laws for women, were afraid the ERA would wipe out their progress. (This could have been solved by mobilizing for the extension of protective labor laws to men – like not lifting items over a certain weight or doing especially hazardous labor — but it became a huge sticking point for those protectionists who exploited class divisions within the women’s movement.)

By the early 1940s, both the Democratic and Republican parties had added support of the Amendment as a plank in their political platforms, although opposition was building: social conservatives, who considered equal rights for women a threat to their existing power structure, joined with labor and with leftists fighting for protectionist workplace laws to hinder the amendment. Eleanor Roosevelt agreed with them, and the ERA stalled. Nevertheless, in 1943, after two World Wars that had seen women pouring into the labor force, the Amendment was reintroduced, this time reworded to reflect language in the 15th and 19th Amendments: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” That’s the whole of it, even today – 24 words.

Still, the left and the right remained fairly united in opposition. By the 1960s, young women active in the Civil Rights Movement and the anti-Vietnam War movement (I was one) began to examine their/our own lives politically and shake the dust of the male left off our boots. We organized as citizens, and politicians started to react to the power of women’s voices in new ways. Mainstream groups joined the call for the ERA–this time including organized labor.

Whew, you exhale. Yes! It was passed by the Senate and the House on March 22nd, 1972, and the proposed 27th Amendment to the Constitution was sent to the states to be ratified! But wait. Congress placed a seven-year deadline on the ratification process. Still, the ERA hit the ground running and got 22 of the necessary 38 state ratifications in the very first year. Yet as opposition coalesced, the pace slowed. All through the 1970s, ERA opponents like Phyllis Schlafly, right-wing leader of the Eagle Forum’s Stop ERA group, played on fears that had generated opposition back in women’s suffrage days. She and her followers claimed that women would be sent into combat, that contraception use and abortion rights would be required, that same-sex marriages would be upheld, that unisex bathrooms would be mandated, and that the ERA would destroy the family. State’s rights advocates added that the Amendment was a federal plot, and corporations — particularly the insurance industry — strongly opposed the measure, which they believed might cost them money. Not surprisingly, the ERA was also vociferously opposed by most evangelical and/or fundamentalist religious groups.

Nevertheless, The National Organization for Women (NOW) and ERA America, a coalition of almost 80 mainstream organizations, mobilized skillfully and that same year, Indiana became the 35th state to ratify the amendment. Whew again!

Oops. As the 1970s drew to a close, Illinois changed its rules to require a three-fifths majority to ratify an amendment, thereby ensuring that their previous simple majority votes in favor of the ERA “didn’t count.” Other states proposed or passed rescission bills, despite legal precedent that states lack the power to retract a ratification. All the while, the original 1979 deadline was approaching and, although some groups, like the League of Women Voters, wanted to retain 11th hour pressure as a political strategy, most ERA advocates appealed to Congress for an indefinite extension of the time limit, and NOW coordinated a successful march of 100,000 supporters in Washington DC. Congress granted an extension until June 30th, 1982.

Is that a tentative “whew” I hear? Nope. The political tide would turn much more conservative, and in 1980 (the year Ronald Reagan was elected president), the Republican Party removed their support for the ERA from its platform. Distinguished Republican feminists walked out of the convention in protest when the party took that plank out of the platform, and Betty Ford denounced the action. Meanwhile, Reagan never named Phyllis Schlafly to a promised cabinet position, after all.

So, given machinations by the states plus the sharp right political turn, and despite increases in massive pro-ERA lobbying, petitioning, walkathons, hunger strikes, fundraisers, White House pickets, and civil disobedience, on June 30th, 1982, the ERA fell three states short of the necessary 38 for full ratification. It was a significant defeat.

But you can’t keep a good woman down. Two weeks later, the Equal Rights Amendment was reintroduced in Congress, and it’s been reintroduced before every session of Congress since then. In 2017, Nevada became the 36th state to ratify, followed by Illinois and then Virginia made history to become the 38th ratifying state. Now, attention is focused on removing the deadline. There are also after-the-fact ongoing efforts in several states — North Carolina, Tennessee, Florida — to ratify. Now, gee, everyone claims they want to ratify because after all who could be against equality? Well, the opposition could! Because the deal is not yet done.

We ourselves were partly to blame in the past: we didn’t fully grasp how state legislatures work, and the importance of redistricting. Wow, were we naïve–the public, not only feminists. Also, we failed to impress sufficiently on Americans the concrete changes that the ERA would bring. Even today, some people say, Don’t women already have equality? Why is an ERA necessary? I’m indebted to Jessica Neuwirth for her excellent book Equal Means Equal: Why the Time For An Equal Rights Amendment Is Now for the clarity and concision of the following examples:

In the absence of an ERA, targeted federal legislation has been used to try to close the gaps, so we women have squeaked in, doing things piecemeal, relying on the Commerce Clause, the Equal Pay act of 1963, Title VII of the Civil Rights Act of 1964, Title IX of the 1972 Education Amendment, the 1978 Pregnancy Discrimination Act, and the Violence Against Women Act of 1994. While this has helped, these federal laws are neither comprehensive nor fully inclusive (one has been partially struck down by the Supreme Court for lack of a constitutional foundation). Most critically, none of these laws has the force of a constitutional amendment, which means they do not cover everyone and they can be rolled back at any time by a simple congressional vote. Poof! There goes every form of misogynistic attitude and act against women let loose on us–terrifying.

Moreover, The United States is one of only seven countries in the world (along with Iran, Somalia, Sudan, South Sudan, and two small Pacific Island nations, Palau and Tonga) that have not ratified the United Nations Convention On The Elimination Of All Forms Of Discrimination Against Women, otherwise known as CEDAW. It’s the international Bill of Rights for women, and it has been signed and ratified by 187 countries, virtually every nation in the world except the U.S. President Jimmy Carter did sign it in 1980 but it must be ratified by a two thirds vote of the Senate to enter into force, yet apparently the United States can’t (or won’t) ratify it since the ERA has not yet passed.

What will the ERA really do? It will enshrine in the Constitution the value judgment that sex discrimination is wrong, require the federal government and each state to review and revise all laws and official practices to eliminate discrimination based on sex, and ensure that governments do not enact future laws that discriminate on the basis of sex. It will be the basis for recognition of the principle that the homemaker’s role in marriage has economic value and that marriage is a full partnership; it will ensure that non-monetary contributions to a marriage, such as household work and childcare, must be considered when a couple’s household goods are divided as a result of divorce; it will ensure that married women can engage in business freely and dispose of separate or community property on the same basis as married men, and it will give the same rights to a woman as to a man in marital law and allow a married woman to maintain a separate domicile for voting purposes, for passports, for car registration, etc. It will ensure equality of opportunity in public schools, state colleges, and universities, employment training programs of federal, state, or local governments, and in governmental recreation programs. It will ensure equal opportunity, privileges, and benefits in all aspects of government employment. It will ensure that families of women workers receive the same benefits as families of male workers under the Social Security law, government pension plans, and workers’ compensation laws.

What will the ERA not do? Well, fortunately or unfortunately, it will not destroy the family. Neither will it mandate contraceptive use, or insist on abortions for women who don’t want to have them. Public opinion charged way ahead of Phyllis Schlafly, because women are already in combat, performing with valor. Public opinion also left Phyllis at the starting gate in approving same-sex marriage. Nor will it require coed bathrooms, although when flying 35,000 feet in the air, people willingly use unisex bathrooms, anyway. And frankly, I would wager that if you ask the average American woman if she would enjoy being discriminated against while pregnant or in case she might become pregnant, if she liked being battered by a violent partner, if she was content to sacrifice equal education, never even to aspire to equal pay, and would guffaw at the notion of equal sports access, she would get damned cranky. Even a great many American men might share that reaction. As for being informed that the United States ranked with Iran, Somalia, Sudan, South Sudan, Palau, and Tonga, sharing the humiliated status of not ratifying an international Bill of Rights for the majority of its citizens, again I’d wager that every “red blooded American” would fume with outrage.

I know. We’re tired. The last thing we need is a new cause. But you see, this is an old cause, unfinished. I know that we’re exhausted from COVID and lock-down and climate change crises, and years of Trump and the dreadful aftertaste he leaves in our mouths that still have to swallow some of his Big Lie Republican Party poison. We just want to curl up, squeeze our eyes shut, maybe suck on our thumbs, and listen to a nice fairy tale.

Well, your sunbeam sister here is telling you that the fairy tale will come when all women in this country live free, empowered, and protected by our Constitution. This is one fairy tale we can make come true. So pick up or order a copy of Jessica Neuwirth’s excellent, thorough, and easily accessible book, and brandish it during Thanksgiving dinner arguments with certain members of that family that has not yet been destroyed. Then drop an email or call your senator, to weigh in as one of what I hope will be many voices saying Now!

Look, if we don’t do it this time, you and I both know we’ll just have to do it all over again, which will really be a drag. Hell is repetition without movement. This is a chance to strike a great blow for democracy in general and for women specifically. So do it for
Alice Paul and Susan B. Anthony and the great Elizabeth Cady Stanton. Do it for all those hunger strikers and civilly disobedient girls and women who acted on their outrage. Do it for daughters and granddaughters–and sons and grandsons, too. But most of all, do it for yourselves.

Hell, yes! Put yourself in The Constitution of the Republic of the United States of America.

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