by Emily Ruhm
2017 brought about the #MeToo movement that has captivated the media, politics, social media, and Hollywood. With the explosion of this movement, the push for the Equal Rights Amendment (ERA) has reappeared (as seen in recent quotes from social activists and politicians). However, the average citizen has likely never heard of the ERA and has questions about it, including what it entails, where did it come from, and do we need it? Here are some answers to those questions that only begin to skim the surface.
In its entirety, the ERA 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.
History and Current Standing
Talk of the ERA dates to the 1920s with the women’s suffrage movement; however, it was not ratified by Congress until 1972. The amendment was then sent to the states for ratification. Originally, Congress set a seven-year deadline, but only 35 states of the necessary 38 had ratified the ERA by that deadline.
However, there are multiple Constitutional questions about the ratification process for the ERA looking forward. There is nothing in the Constitution on deadlines for ratification; however, it has been ruled constitutional for Congress to set deadlines. Because of this, it is unclear what it necessarily means for the amendment moving forward since the seven-year deadline passed long ago. Additionally, four states have rescinded their ratification. There is nothing in the Constitution on rescinded ratification nor is there a legal precedent for rescinding, which leaves uncertainty in whether these four states count towards the 38 needed to ratify ERA.
Need for the Amendment
Beyond the legality questions surrounding the amendment, the most important question to consider is: do we need the ERA? There has been significant progress for women since 1972 in terms of addressing sex discrimination. Multiple states have amended their constitutions to explicitly ban sex discrimination. There have been several federal statutes that have banned various forms of sex discrimination in education, healthcare, violence, and the workplace. Some federal statutes include Title IX (1972), Pregnancy Discrimination Act (1978), Violence Against Women Act (1994), and Affordable Care Act (2010).
However, there remains progress to be made in sex discrimination, which can be seen throughout the massive press coverage of the issue throughout 2017 and the #MeToo movement. There is additionally the growing concern of addressing gender versus sex discrimination. These examples begin to highlight that sex discrimination is still a relevant issue. There is work to still be done, and the ERA would be a step in the right direction. To showcase its potential impact, I will breakdown the arguments against the ERA and highlight why it is still important, if not necessary.
Argument 1: The ERA is unnecessary because of the Equal Protection Clause (14th Amendment).
Sex discrimination is not an inherent part of the Equal Protection Clause. The Clause was not used in reference to sex until the 1970s. This interpretation of the clause does not hold up to the same level of scrutiny as racial discrimination in court cases. If the ERA was ratified, then sex discrimination cases would receive strict scrutiny in the application of Constitutional law. Additionally, the Equal Protection Clause is only applied to state and local statutes, not federal. The ERA would be the law of the land through the Supremacy Clause and apply to all levels of government.
Argument 2: The ERA was not ratified by the deadline, and there are reasons why it was not.
The reasons argued in the 1970s are no longer applicable today, such as women in the military. Women are now in the line of combat because of recent Congressional legislation. Other arguments included the passage of same-sex marriage and legislation regulating bathrooms. Both of which have been debated and resolved within recent history in the courts and legislatures. These arguments played on gender stereotypes of the time. They additionally were a part of the special versus equal debate in equality. The US traditionally has based its legal proceedings and legislation on the idea of equal treatment, which the amendment would solidify in the Constitution. Additionally, in terms of the deadline, as previously mentioned, there is no reference to deadlines in the Constitution nor a precedent. It has been discussed that the deadline be removed by politicians.
Argument 3: There exist several federal statutes that protect against sex discrimination.
All of these federal statutes are area-specific, however. Most of them apply specifically to employment and education rather than broad-based sex discrimination. Additionally, these statutes can be reversed with a simple majority vote in Congress. Parts of these statutes have been removed because of the question of their constitutionality. There is no guarantee in the Constitution about sex discrimination. The closest is the 19th Amendment; however, that only covers the issue of voting. A Constitutional amendment would ensure the elimination of sex discrimination at all levels of government. This is especially important because of the Supremacy Clause. The Constitution is the law of the land above all else. ERA could never be removed without passing an additional Constitutional amendment.
Argument 4: Many states have an equal rights provision in their state constitutions.
However, this is not true for all states. Additionally, none of these would be applicable in the federal courts or legislation. It is incredibly limiting in the broad elimination of sex discrimination across the country.
Passing the ERA would address these needs that are currently not fulfilled, such as broad-based sex discrimination law, level of scrutiny in Constitutional law, application at all levels of government, and permanence of legislation. However, whether ratification of the ERA is possible is incredibly controversial. It has raised major concerns about the Constitutional ratification process with deadlines and rescinded ratifications. For now though, the future of the ERA will remain a question mark.