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ERA Failure & Relevance

Historical Context and Initial Proposal of the ERA

Alice Paul drafted the original Equal Rights Amendment in 1923, just three years after women secured the right to vote through the Nineteenth Amendment. Her goal was to ensure gender equality in all areas of American law. Paul had experience with the British women's suffrage movement and brought fierce tactics to her efforts in America.

Paul formed the National Women's Party with other activists to promote the ERA, which stated that men and women should have equal legal rights under federal law. However, the amendment faced opposition from various groups, including some feminists who feared it would eliminate protective labor laws for women.

The early 20th-century backdrop of industrialization and shifting demographics intensified debates around labor rights and traditional gender roles. The ERA sparked a national discussion about the meaning of equality and whether removing gender-based legal barriers would benefit or harm women in the workforce.

The 1972 Passage and Initial State Ratifications

The ERA resurfaced in the early 1970s, fueled by the second-wave feminist movement and a growing public sentiment that gender equality was essential to the nation's socio-economic fabric. Congresswoman Martha Griffiths played a key role in the amendment's passage, and President Nixon endorsed it, reflecting bipartisan support.

On March 22, 1972, the U.S. Senate ratified the ERA by an overwhelming majority. Within one year, thirty states had approved the amendment, indicating widespread agreement on gender equality in legal rights. Women's organizations nationwide advocated for the ERA, arguing that it would eliminate discriminatory laws and practices at both the federal and state levels.

However, the rapid initial success of the ERA belied the emerging conservative opposition that would intensify in the latter part of the decade. The early phase of the ERA's journey highlighted the evolving consensus on gender equality while foreshadowing the upcoming struggles inherent in American politics and society.

Photograph of women's rights activists in the 1970s celebrating the passage of the Equal Rights Amendment in Congress, with signs showing the number of states that have ratified the amendment.

Opposition and Decline

Phyllis Schlafly emerged as a formidable opponent of the ERA, organizing a national campaign called "STOP ERA" (Stop Taking Our Privileges, Equal Rights Amendment). She argued that the amendment would eliminate legal protections favoring women, such as:

  • Dependency benefits under Social Security
  • Labor laws prioritizing women's health

Schlafly also claimed that equal treatment under the law would subject women to the military draft and undermine their traditional roles as mothers and caregivers.

Schlafly's strategy involved appealing to the anxieties and uncertainties of those who cherished traditional gender roles. She framed the ERA as a threat to the American family structure and a force that would push women into the workforce against their will. Her arguments resonated with segments of the population who saw traditional gender roles as honored choices deserving protection.

The potency of Schlafly's campaign lay in its emotional appeal and its alignment with the resurgence of conservative political forces in the 1970s. Her efforts effectively polarized the debate and catalyzed a slow but significant retraction of support among previously ratified states.

Despite the intensive battles waged over the ERA, Schlafly's personal career accomplishments seemed to embody the very principles of equality and opportunity she contested. However, she argued that her success highlighted the importance of choice rather than mandate in women's roles.

The opposition mounted by Schlafly and her supporters had lasting implications, rendering the ERA's fate uncertain and influencing broader dialogues about rights, identities, and empowerment in America.

Legal and Constitutional Challenges

The ERA faced legal and constitutional challenges, particularly regarding the deadline for ratification imposed by Congress. When the amendment was passed in 1972, a seven-year deadline was set for states to ratify it, which was later extended to 1982. The concept of a ratification deadline is not dictated by the Constitution but is a legislative tool employed at Congress's discretion.1

Another legal issue arose when five states—Nebraska, Tennessee, Idaho, Kentucky, and South Dakota—voted to rescind their ratification of the ERA. The Constitution does not explicitly address whether a state can retract its ratification of a federal constitutional amendment, leading to uncertainty about the validity of such actions.

After the 1982 deadline passed, questions emerged about the feasibility of reviving the ERA without starting anew. In recent years, Nevada, Illinois, and Virginia ratified the amendment, asserting its continued viability. These actions sparked renewed discussion about whether Congress could extend or remove the deadline.

The Supreme Court's Coleman v. Miller decision in 1939 implied that issues such as the timeliness of state ratifications are potentially political questions to be resolved by Congress rather than the judiciary.2 Supporters of the ERA hope to see it formally adopted into the Constitution, either through a legal challenge to the existing deadline or congressional action to adjust or omit it.

The ongoing struggle for the ERA raises fundamental questions about democratic processes, statutory interpretations, and the quest for equal justice under law. Efforts surrounding the amendment reflect ongoing social movements and foster critical examination of legislative and constitutional constructs within the contemporary political landscape.

Modern Revival and Current Status

Amidst a social climate increasingly attuned to issues of gender equality and justice, the sustained interest in the Equal Rights Amendment has resurfaced in public discourse and legislative agendas. This revival finds its roots in recent sociopolitical movements and broader shifts toward gender inclusivity. These prevailing winds have reignited conversations about the ERA's importance and purpose: embedding gender equality into the legal code of the United States.

In this renewed phase of activism, notable progress was marked by three states—Nevada in 2017, Illinois in 2018, and Virginia in 2020—which ratified the ERA, decades after the original congressional deadline had passed.1 This sequence of events has added renewed vigor to the push for the ERA and posed legal questions regarding statutory deadlines and the amendment process. Advocates argue that the fight for equality is not constrained by arbitrary timelines, fostering a growing consensus that constitutional protection against sex discrimination is necessary and overdue.

Legislative and legal avenues have been active in response to these ratifications. Congress has observed hearings to discuss removing or extending the deadline attached to the ERA's ratification process. Legal challenges have emerged, demanding clarity on the validity of rescinded ratifications by certain states and the legality of enforcing a modern ratification irrespective of past deadlines.

At the focal point of the legislative response has been a pursuit to amend or negate the ERA ratification deadline. Such efforts aim to affirm the actions of states like Nevada, Illinois, and Virginia, asserting that these ratifications are constitutionally sound and should amend the nation's founding document. These discussions have demonstrated Congress's ability to situate equality at the forefront of constitutional amendments by addressing procedural discrepancies that have hindered the ERA's adoption.

The judicial landscape similarly grapples with these complex questions. Courts are being asked to adjudicate on the nature of these issues:

  • Do time constraints on constitutional amendments undermine democratic impulses?
  • Is the pursuit of equality temporal or timeless?

These legal contemplations continue to weave through various levels of the judiciary, reflecting the divided nature of political ideology spanning America's sociopolitical contour.

The ERA's journey settles amidst a broader narrative about America's evolving commitment to justice and equality. Its path encapsulates a fundamental debate about the nature of our constitutional commitments, reflecting a societal quest for dignity, recognition, and equal standing under law.

This emphasis on institutionalizing gender equality explores the core of America's identity, aspiring to reflect its democratic ideals by acknowledging and responding to the evolving understanding of fundamental rights. As this constitutional saga unfolds, each stride towards ratifying the ERA reaffirms its relevance in contemporary American socio-political life.

Photograph of a diverse group of activists, including women and men of various ages and ethnicities, rallying in support of the Equal Rights Amendment, with signs highlighting recent state ratifications and calling for the amendment's final adoption.