50 years ago sex equality seemed destined for the Constitution. What happened?

Elizabeth Blair

March 22, 2022 / 12:25 pm

Fifty years ago today, the U.S. Senate passed the Equal Rights Amendment, following the lead of the House of Representatives and paving the way for it to become the 28th Amendment to the U.S. Constitution.

Yet the ERA was never added to the Constitution - because Congress also set a deadline. It said 38, or 3/4 of the states, had to ratify the proposed amendment by 1979. It later extended the deadline to 1982. So when in 2020 Virginia became the final state needed to ratify the ERA, it was almost 40 years too late.

Or was it?

High school Rosie Couture didn't think so. When she learned about the ERA a few years ago, she couldn't believe it wasn't already in the Constitution.

"At first I was just shocked, and then I was really angry," she said. Couture co-founded Generation Ratify, a youth-led organization to advance gender equality legislation. She believes Generation Ratify's advocacy work made a difference in Virginia. "We were protesting outside of the Capitol, delivering letters, spamming voicemails," she said.

Even with the Virginia vote two years ago, victory may be a long way off. Five states have tried to rescind their ratification, though it's not clear from the Constitution if this is possible. There are people suing to push the ERA through, and those pushing to have it blocked. The Trump Justice Department advised that because the deadline had passed, Congress needed to go back to the drawing board. But last year, the House passed a joint resolution to remove the deadline, which President Joe Biden says he supports.

As written, the proposed Equal Rights Amendment is a pretty simple idea. Alice Paul, an American Quaker suffragist, first introduced the ERA to Congress in 1923. She rewrote the text in 1943 and the language remains to this day: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex."

But discrimination continued. Until 1974, banks made it tough for women to get credit cards. Until 1978, being pregnant could get you fired.

"You may not believe this, but women were not allowed in the front door of the Harvard Faculty Club," said Jane Mansbridge, remembering her days as a graduate student. She's now a professor at the Harvard Kennedy School of Government and the author of Why We Lost The ERA. "You had to come in the back door and you had to be escorted by a man, even if you were a professor."

ERA proponents like Mansbridge were optimistic as they watched the amendment sail through state legislatures, she said. But then it got to the southern states, "and Phyllis Schlafly came into the picture."

Poised and politically savvy, Schlafly opposed the ERA. "Since the women are the ones who bear the babies and there's nothing we can do about that, our laws and customs then make it the financial obligation of the husband to provide the support," Schlafly said in 1973. "This is exactly and precisely what we will lose if the Equal Rights Amendment is passed."

That wasn't all that would change, according to Schlafly and other ERA opponents. Reporting on the fight against ratification in 1979, NPR's Cokie Roberts explained, "They worry about losing financial support, women in combat, co-ed bathrooms, homosexual marriage, and a host of other weird and threatening changes in the society."

Today, most of those "weird" changes are legal, says Ting Ting Cheng, director of the ERA Project at Columbia Law School's Center for Gender and Sexuality Law. "Women in the military, gender neutral bathrooms, marriage equality, all of those things that [Schlafly] said would happen in order to instill fear in people to oppose the ERA did come to pass even without an ERA, and this country, I think, is better for it," said Cheng.

If that's the case, why is an ERA still necessary? Mansbridge has an answer: "It's the principle of having it in the Constitution, like other principles that are foundational to what we are as a people."

Principles with good intentions can backfire

Kim Forde-Mazrui, director of the Center for the Study of Race and Law at the University of Virginia, takes a different view. He said that the Supreme Court's use of strict scrutiny, based on its reading of the Equal Protection Clause of the 14th Amendment, leads to a kind of "color-blindness" that ignores historic and systemic racism.

"The Supreme Court's rule that race should generally be ignored has actually prevented policies that could help to reduce the racial gap," he said.

He added that the ERA, as currently written, could cause the Supreme Court to treat sex the same way, with a kind of "sex-blindness," he said, "prohibiting policies that are intentionally designed to open up opportunities for women."

'The dynamic of deafness'

Many experts agree that the ERA would have had a stronger effect if it had been ratified by the Congressional deadline, before so many other gender discrimination laws were passed. Mansbridge, at Harvard, said one reason it wasn't ratified more quickly is because the pro-ERA lobby was unwilling to compromise. She said her late friend and legal scholar Lani Guinier called it "the dynamic of deafness."

"Social movements are made up of people who are willing to give a lot of time to a cause, and they need to know that they're working for the good, the true and the beautiful," said Mansbridge. "And they don't want to hear anything to the contrary. So they're not really likely to listen seriously to what the other side is saying."

Young activist Couture admitted that the arguments against the ERA are difficult for her to accept.

"I struggle with the idea of making concessions or compromises for the Equal Rights Amendment," she said. Still, she's determined to rally her peers around the cause.

"It's really important to have our voices in the movement to help light a fire and bring to light issues that are important to young people that get left out of the conversation sometimes," she said.