Column: It was no accident women were left out of the Constitution. It’s past time to right that wrong
It’s not really your fault if the initials “ERA” makes you think of baseball and earned run averages. Because it’s been close to 50 years since the Equal Rights Amendment made it through Congress and out to the state legislatures that needed to ratify it. But something happened on the ERA’s way to making women explicitly equal under the U.S. Constitution. Something about its 24 plain words — “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” — brought out the opposition. And so the ERA stalled, three states short of ratification.
Then last year, Nevada’s Legislature voted for it, and this May, so did the Illinois Legislature. Which leaves one more state to make the needed 38. Now, the deadline for ratification expired long ago, although legally, it’s possible that that doesn’t matter.
But those votes, along with the #MeToo movement, the Women’s March, the Trump presidency and a shout-out at the Oscars, have put new life in the ERA movement.
And with a possible victory this close ... one state away … in spite of the legal thicket that lies ahead, Jessica Neuwirth, the co-president of the ERA Coalition, thinks that the ERA could be the 28th Amendment to the Constitution, even before 2020, when Americans mark the 100-year anniversary of the 19th Amendment, the one that gave women the vote in the first place.
So, what's been going on for 40-some years?
I think what we're seeing is a resurgence of interest in the ERA and the awareness of the ERA, and a kind of determination to push it across the finish line. The truth is it hasn't ever gone away entirely. When the deadline expired for the ERA in 1982, after 10 years of lobbying for ratification, which came very, very close, I think it went off the radar screen a little bit.
But there have always been people working on it, and in particular Congresswoman Carolyn Maloney [D-N.Y.] has introduced the ERA in each one of the last 11 sessions of Congress.
There’s been a steady progression of interest. When Patricia Arquette, for example, mentioned the ERA at the Academy Awards, there was a big reaction, right there. That was a big help.
And then last year Nevada voted. This was a bit of a surprise to some of us: just out of the blue, it seems, Nevada voted to ratify the ERA, and now Illinois, which brings it to 37.
What has changed in the political or cultural landscape to make you more hopeful that the ERA could pass?
I think some of our most recent political change dates back to the Women's March following the election in 2016, and that march, which was the biggest in history, really brought women together not only in the country, across the country, but across the world. And ever since then, we've just seen an incredible renewal of activist energy. People are feeling like we're just not going to sit back, silent and watch violations against women continue.
And then other issues as well: Certainly the gun violence issue. You see this general spirit of activism that in my lifetime I've never witnessed, and it has a lot of power.
There’s also a lot of power in the legislatures that have not ratified the ERA. Most of them are in the Old South, a couple — Arizona and Utah — in the Rocky Mountain West. What is your strategy?
There are several different strategies. But in terms of ratification for the 38 states, there are several that have been working on it. Virginia has had votes, has passed it in one of the two houses there several times [before]. There's a bill pending in North Carolina, and we're hoping that might go through.
And then there's legislation pending in Congress to bring the ERA back in a new and stronger form, sponsored by Carolyn Maloney. So all of this is going to, in one way or another, finally get women in the Constitution.
Remember when the Constitution was written, it was no accident that women were left out. It was very intentional.
And then there's a bill sponsored by Rep. Jackie Speier [D-Calif.] and Ben Cardin [D-Md.] in the Senate that would remove the deadline. That combination of removing the deadline and having the 38 states ratify is another way to try to kick this across the finish line.
The deadline expired in 1982 as you said. But some people have looked to 1992, when Congress voted for a James Madison amendment that had been around since 1789 about changes in congressional pay. What is the legal thinking about whether the NRA is still viable?
The Madison amendment gave people the idea that even after 200 years, you could pass an amendment. In the 1700s, when the Madison amendment was first proposed, it had no deadline. No amendments had any deadline, and no deadline is required for an amendment.
But starting with Prohibition, where the deadline was put in for very political reasons, most amendments have had a deadline. So the question is, can you remove [the deadline] altogether because it's not required? It’s a legal question; it might go to the courts in the end. But there’s a strong argument that if Congress has the power to vote to remove the deadline, because the deadline is not required by the Constitution.
We want this in the Constitution, and one way or another, if we have to start all over, we start all over and we'll make it even stronger. Maloney, in her bill, has added a sentence that says women shall have equal rights in addition to the other sentence in the amendment, because she wants to see the word “women” in the Constitution.
The word “women” doesn't appear in the Constitution — does it even appear in the 19th Amendment giving women the vote, or does it just say “sex”?
No, it says “sex.” Remember when the Constitution was written, it was no accident that women were left out. It was very intentional. Abigail Adams wrote to her husband, “Please remember the ladies.” They clearly intended to leave pretty much everyone except white men who owned property out of the Constitution.
A lot has changed since then, and we need to update our Constitution. It's not that complicated, really.
What was the nature of the ERA’s opposition 40-some years ago, and how has the opposition changed?
When you look back at the campaign, there was a lot of cultural upheaval. For example, one of the big arguments against the ERA in the ‘70s was the idea that women would have to serve in military combat. And, of course, what we've seen since then is a big struggle for women in the military for the right to serve in military combat, because they saw that as equal opportunity and important to their career advancement and realization of their goals to serve their country.
Now they have that right, which they had to get through an executive order in the end. But there should be a constitutional right for women to do whatever job they want.
Another big argument was the fear of gay marriage. That was like the specter of doom. And now we have a constitutional right to marriage equality.
So those are not really issues that stand in the way of or create fear for people any more.
I don’t think there is opposition. It's really just a question of getting people more aware of what the ERA even is. Most people who know what is think we already have it — 80%, according to our poll of Americans, think we already have constitutional equality, which we don't. And once they realize that we don't have it, according to our poll, 94% of all Americans think we should have it. It’s really mostly an information gap.
One of the reasons for opposition was abortion, and to this day there are legislators who have called this the abortion-on-demand amendment. That issue as a cultural divider has not gone away.
Right. But I think it's a real myth to say that this amendment is really being proposed for the purpose of legalizing abortion. That's simply not true. We have a right to abortion choice, to choose abortion under Roe vs. Wade. That’s actually a different area of the Constitution; It's the right to privacy, and that's the battleground for abortion. And there are actually a number of very strong anti-choice — they call themselves pro-life — advocates who are strongly supportive of the ERA. I think it’s a red herring.
In these 40-some years since, a lot of laws have been passed to make women and men equal in the public stage, in access to all sorts of jobs. In California an equal pay law was passed a year or so ago. So what is left in that gap between what is actually law now and what the Equal Rights Amendment would do?
While there may be less of a gap in a state like California, that has passed a lot of state protections, the ERA would protect all women, and men, in the United States, across the country, whatever state they live in.
Not every state has those protections, and in many cases, when you look at legislative protections, there are a number of loopholes or limitations. I think that there is a patchwork quilt, as I call it, of protections in place. But they're constantly being eroded by court interpretation.
The #MeToo movement has raised consciousness, to use an old feminist phrase. It’s empowered a lot of women. But there is still a president in the White House who doesn't lose support from many of his backers after saying of women, grab ‘em by the genitalia.
It's not an accident that all of that immediately predates the #MeToo movement. It just shows you the power of speaking out. And what the ERA does now is give a legal framework to some of that.
[Actress and activist] Alyssa Milano was a witness in the congressional hearing [recently convened by Rep. Maloney], and she certainly made that link, that the ERA is a really concrete fix to the big problems that we're having, and that having left women out of the Constitution 200 years ago has helped to create a culture of second-class citizenship in which women are treated in certain ways with complete impunity. And the ERA could play a tremendous role in helping to change that more quickly.
The original ERA was written by a Republican, and the Republican Party was first to approve it in the ’40s and ’50s.
I think it was part of the party platform until Ronald Reagan, in 1980.
Ronald Reagan took it out of the party platform; it had been in there and it was the first party to put it in the platform. And sadly, the Republicans took it out under Reagan, but before that, there had been a lot of Republican support.
There was [former First Lady] Betty Ford, and there were at least three Republican presidents who actively supported it including Ford, Eisenhower, and Nixon.
It’s almost 100 years since the passage of the 19th Amendment, which gave women the vote. Are you going to key your campaign around that centennial?
We hope to see it in the Constitution before that. It’s really an outrage that we've waited so long for this basic right. When women got the right to vote in 1920, pretty much immediately all the women in the suffrage movement turned around and put the ERA into Congress in 1923. So it’s been pending one way or another; it almost got through in the ’70s.
But I just don’t think we should be waiting another day, another year, let alone 100 years.
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