It would be some kind of symmetry if, 100 years after American women got the vote through the 19th Amendment, they finally acquired constitutional equality through the Equal Rights Amendment.
One week into the new year, Virginia’s newly Democratic legislature is expected to ratify the ERA -- the 38th state and final state required to make official the amendment that Congress passed in 1972.
But wait – there’s more. Congress unusually added and extended a deadline for the states to ratify, and that expired more than 30 years ago. Democrats are ready to extend the deadline to certify the amendment, and there’s buzz that Senate Republican leader Mitch McConnell (R-Ky.), with an eye to shoring up GOP support from women, may be willing to do the same.
How an amendment that looked like a slam-dunk nearly 50 years ago got lobbied almost out of existence is a story Linda Coberly knows well. She chairs the Equal Rights Amendment Coalition’s legal task force, and though much has changed to improve women’s rights and status since then, she says the ERA is still vital, both legally and symbolically.
In January, when the newly constituted legislature convenes in Virginia, it may very well become the 38th state to pass the Equal Rights Amendment to the Constitution. Then maybe all hell breaks loose. What happens then?
We really are in an unprecedented situation. The Equal Rights Amendment was passed by Congress in 1972. And when Congress passed the ERA and sent it to the states for ratification, it included in the preamble a deadline for ratification. But the deadline that Congress included on the ERA is not in the amendment itself; it’s contained only in the joint resolution of Congress that passed the amendment and sent it to the states for ratification. And as a result, it can be changed. And there are bills pending in our Congress right now that would do just that.
How different is the landscape for women’s rights and women’s legal status from what it was in 1972 when Congress passed this? Have a lot of state laws, even federal laws perhaps, undercut or obviated the need for such an amendment?
Well, yes and no. A lot of the laws that were in existence at the time of the ERA’s proposal in the ‘70s have been changed. There are fewer laws today that explicitly discriminate on the basis of sex.
So, for example, there used to be laws in some states that stated that after a divorce, the woman received support from the husband or, in a custody situation, the mom gets custody.
Some of the arguments against the Equal Rights Amendment in the ‘70s were that passing it could potentially eliminate those kinds of laws, which were, according to many people, protective of the rights of women. But those laws have been changed already.
And we now, instead of defaulting to the mother, actually look at the best interests of the child. And instead of defaulting to a husband paying alimony, we look at the relative income of the two spouses, all of which is a much better system, obviously, because it gets more directly at the thing that the law was designed to prevent or protect.
So this could arguably benefit men in instances like this?
Oh, it certainly could benefit men. What the ERA would do is really create a constitutional equality principle that would hold that we can’t have laws or government practices that discriminate on the basis of sex. And that would include laws that discriminate against men.
You asked about what has changed, and is it still necessary to have the Equal Rights Amendment after all that’s happened in the last several decades.
And I guess I have two responses to that. One is that if the ERA is mostly symbolic, as some people say it is, I don’t see that as a reason not to ratify it. I see that as a reason to ratify it. If it is symbolic, if we already embrace the principle of no discrimination on the basis of sex in our laws, then isn’t it an important symbol to put into our nation’s governing document?
But more broadly, I do think it adds something and it adds something important. All of the constitutions that have been created since World War II have a constitutional equality principle in them. And the United States has played an important role in bringing those constitutions about.
And yet the ERA is still the subject of opposition in our own country and isn’t part of the Constitution. So why not? The fact that it is opposed in some small quarters tells me why it’s still necessary. And we know now from the events of the last several years that laws that protect against discrimination on the basis of sex can be limited. They can be repealed. Rights that exist can be rolled back. And there are many areas where we don’t have statutes that protect against discrimination on the basis of sex.
We don’t have laws that people can use to challenge discrimination by the federal government in certain respects, or discrimination by law enforcement, or discrimination in how law enforcement agencies prioritize different kinds of complaints -- discrimination, for example, against women who have been raped and whose rape kits aren’t tested, or discrimination against victims of domestic violence.
Let’s talk about the opposition and what it looks like now, and what it looked like almost 50 years ago when the Equal Rights Amendment looked like a slam dunk to pass and pass quickly. You had a conservative woman named Phyllis Schlafly, who had a significant voice and scared people into saying, well, this will mean same-sex bathrooms, this will mean drafting women. What’s changed? What is effective now in the opposition to the ERA?
The opposition to the ERA today uses a lot of the same talking points as Phyllis Schlafly did. When I testified in support of the Equal Rights Amendment ratification effort in Illinois [which passed it in 2019], I got questions from opponents about same-sex bathrooms and whether passing the Equal Rights Amendment would mean that we had to eliminate any men’s and women’s bathrooms in public buildings.
I got questions about whether it would make it impossible for there to be an all-male draft -- really all the same points.
A lot of the parade of horribles that Phyllis Schlafly talked about in the 1970s has not come to pass in the states that have equal rights amendments. I think the opposition is largely the same in terms of its talking points. But it’s much, much smaller.
And you know, at one point of history, when the Equal Rights Amendment was originally sent to the states for ratification, it had very broad bipartisan support. It had overwhelming support in Congress.
It was part of both parties’ political platforms, and states fell all over themselves to be the first to ratify it. The first ratification came within hours of it passing in Congress.
It wasn’t until several years in that the opposition to the Equal Rights Amendment began to really coalesce around Phyllis Schlafly and the progress slowed. And it did, I think, capitalize on fears that men and women had at that time about some of the cultural changes that were happening in our society, including women working.
That was a big narrative of Phyllis Schlafly, that the Equal Rights Amendment would hit home to homemakers, which she thought was a really big problem because she thought women should be homemakers.
And we’re now far enough past the entry of women into the workforce in significant numbers that the issue about the fears about women working I don’t think exist anymore in the same way they did.
Now, don’t get me wrong, there are lots of issues that affect the equality of women in the workplace. But I don’t think we have the same kind of somewhat irrational fear about what will happen to our culture if women start working outside the home.
I think it’s certainly true that the Equal Rights Amendment would make it impossible to have an all-male draft.
In fact, the Pentagon recommended, didn’t it, Selective Service registration for women a couple of years ago?
It did. And [Sen.] John McCain recommended it. And in fact, there was a federal judge in Texas not long ago who held that an all-male draft would violate existing rights against sex discrimination under the 14th Amendment.
We now have women serving in all aspects of the military, including in combat. And it would seem really incongruous to have an all-male draft in 2019 when women already serve with distinction in all aspects of the military.
What about measures that have been corrective over the years? For example, if you have a program for STEM for women to bring more women into science and technology, engineering, mathematics, what would happen to programs like that were the ERA to pass?
Well, I think we would need to take a look at those programs and we can take some lessons from the way that minority set-aside programs have been evaluated in the past. And they have not gone away. They have had to evolve and change to focus more specifically on underrepresented populations or disadvantaged populations.
And I think we would see the same thing in respect to women-owned businesses. I don’t think there’s any reason to think that those would be abolished, that those kinds of protective measures would immediately be abolished, which is sometimes what you hear from the opposition.
When you’re amending the Constitution, you’re necessarily dealing with broad principles. So it is always a little bit challenging to say in very specific terms what the effect would be on a given case. And I say that not to be cute about it, but because that’s the nature of what you’re doing with the Constitution.
What impact could it have on the transgender community and protections for people there?
First of all, the Equal Rights Amendment protects against discrimination on the basis of sex, so, for example, if there was a state law or a state practice that discriminated against women, and that state law or practice had an impact on a trans woman, the trans woman would be able to sue under the Equal Rights Amendment because of being affected by discrimination on the basis of sex, meaning in that instance, discrimination against women.
There’s another question, which I suspect is what you’re getting at, which is, would the Equal Rights Amendment provide an additional protection against discrimination on the basis of trans status? There’s actually a related issue that’s pending before the Supreme Court right now. The issue arises under Title VII and Title IX, which are federal statutes that prohibit certain kinds of discrimination on the basis of sex. And the Supreme Court is going to look at whether those statutes also prohibit discrimination based on some distinction between the sex that you were born with and your expressed gender.
We’ll have to look at the reasoning of the court’s decision, whatever it is, and think about how that would impact the court’s interpretation of the Equal Rights Amendment.
Of course, there are concerns about what this would mean for abortion and reproductive rights, for pregnancy, for maternity leave.
Again, I think it is it is difficult to say with any specificity what specific kinds of restrictions on reproductive rights, for example, would fall under an Equal Rights Amendment analysis and yet would survive under the constitutional protections that exist today for abortion rights.
I have heard some opponents of the ERA, including one member of Congress during the House Judiciary Committee hearing, say essentially that passing the ERA would instantaneously invalidate all restrictions on abortion in all 50 states, making abortion available on demand for nine months.
I have no reason to think that that’s true. I think that’s fear-mongering.
Do you have any personal stake in this, a sense of why this matters to you?
I grew up in a relatively conservative community in rural Michigan and had nothing to do with the Equal Rights Amendment when I was a kid. Nor did my mother.
I got involved in this when the chairman of my law firm -- I work at Winston & Strawn -- heard a story on NPR about the Nevada ratification [in 2017]. And he summoned me to his office and said, ‘I need to talk to you about something really important that we have to get involved in. It’s the Equal Rights Amendment.’
We put together a team. We started doing research. We did work to support the ratification effort in Illinois. Illinois did ratify, which was one of the most rewarding and exciting days of my entire career.
And I see it as incredibly important for our young people today, for my daughters. It really has come home to me about how important it is that they are able to look at our nation’s founding document and see that they have a right to equal treatment under the law.