Jurisprudence

The ERA Is Back

The ’70s-era constitutional amendment could be the perfect remedy for the #MeToo era.

Women embark on the “Relay for ERA” from Seneca Falls, New York (site of the first women’s rights convention), to Houston (site of the National Women’s Conference) in 1977.
Women embark on the “Relay for ERA” from Seneca Falls, New York (site of the first women’s rights convention), to Houston (site of the National Women’s Conference) in 1977.
Pat Field/The National Archives

Two weeks ago, the Illinois Senate voted to ratify the Equal Rights Amendment. If it passes in the state House of Representatives, Illinois would become the 37th state to approve the ERA, just one short of the 38 needed to pass the constitutional amendment. Given that the deadline Congress established to push it through expired in 1982, and some states have since rescinded ratification, it’s unclear what would happen if it crossed the 38-state threshold. Regardless, it would be a mistake to see the ERA as a relic of a time that’s long since passed. In this era of #MeToo and nondisclosure agreements, it seems like a refreshingly modern document. Last week, the New York Times editorial board called for the ratification of the ERA as a fitting rebuke to the Trump presidency.

I recently spoke with Jen Deaderick, who is writing a history of the ERA and runs the Equal Rights Amendment page on Facebook. During the course of our conversation, which has been edited and condensed for clarity, we discussed why this is the perfect political moment for women organizers and candidates to mobilize around passage of the ERA.

Dahlia Lithwick: I know this is absurd because everyone should know this, but could you sketch out a brief history of the ERA and explain how it failed to pass in the United States?

Jen Deaderick: Passing a constitutional amendment is super complicated, on purpose, so it makes sense that people don’t know all the details. You’d be surprised how many people who were adults in the 1970s think it actually made it into the Constitution because they remember all the hoopla about it. But, no, it did not.

The ERA was first officially introduced in 1923. It was written by Alice Paul, who had been a major force in the last stretch of getting the 19th Amendment ratified, which is the one that removed sex as a barrier to voting. That had been a goal since, well, at least 1776. Paul hoped that in the giddy wake of ratification, with all these new female voters, she could remove sex as a barrier completely when it came to citizenship. The ERA called for full equality: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Unfortunately, the United States had had enough change, and the proposed amendment was mostly mothballed, though a male politician would occasionally nod to it as an appeal to female voters.

This nodding even extended to the Republican Party putting the ERA ratification in its party platform in 1940 and the Democrats doing the same in 1944, though neither party took much action on it. The GOP took it out of their platform in 1980, for reasons I will explain in a moment. The Democrats have had it in their platform this whole time—mostly. They actually removed it from their platform in 2004 when Kerry was running against Bush then put it back in 2008, in part to please disappointed Hillary Clinton supporters.

There was a glorious time when basically everyone thought the ERA was the coolest thing in the world: the early ’70s. It actually passed the House and Senate by big majorities and was signed by the noted feminist radical President Nixon. A bunch of states jockeyed to be the first to ratify, with Hawaii being the lucky one. Then the states seemed to be falling like dominos, with one ratifying after another.

Then, a rather fierce opposition rose up among right-wing evangelicals. The primary figurehead of the opposition was Phyllis Schlafly, but she had a significant organization behind her. Schlafly toured the country telling women they should be staying home and wouldn’t be allowed to if the ERA was ratified. She warned everyone about shared bathrooms and homosexual marriage and women being drafted and managed to convince enough people that she was right that the ERA began to stall.

It was the only amendment that had ever been given a deadline for ratification, which didn’t seem like it would be an obstacle when it first passed in the House and Senate, but then even with an extension it fell short by three states by the time the deadline rolled around in 1982. That’s where it’s been since then.

You founded the Facebook page devoted to re-energizing the discussion in 2008. What was happening then that moved you to mobilize?

It was a combination of watching the incredibly sexist reactions to Hillary Clinton’s candidacy in that year’s primary and the Supreme Court’s ruling in the Lilly Ledbetter case. My mom had been very active with the League of Women Voters in the early ’70s, and had been very focused on their work to pass the ERA, and those memories floated to the surface in my brain. I realized I had no idea what had become of the ERA. I did a little research, and it was pretty depressing. I had already done some other Facebook pages, and found them pretty effective at gathering communities, so when I saw there wasn’t one for the ERA already, I started one up. It was super tiny at first, but now there are more than 56,000 members, which is kind of nutty.

As a legal proposition, the ERA is treated like some dusty historical artifact, a relic of some sepia-toned photos from the ’70s. Why haven’t we been talking about the ERA as a meaningful constitutional remedy for the ongoing and systemic disparities that women still experience every day?

There has been some action. The ERA has been reintroduced in the House and Senate basically every year since the deadline passed, and there have been bills to overturn the deadline occasionally, too. A bill to allow for ratification after three more states ratified was introduced just a couple of years after I started the page. There’s also the film Equal Means Equal, and Jessica Neuwirth published her book on the ERA and started the ERA Coalition.

It still did seem like everyone was just spinning their wheels for a while. But then the Women’s March happened last year, and in its wake Nevada suddenly ratified the ERA. So, we went from needing three more states to ratify to only needing two. In recent months there’s been a lot of activity in Virginia and some in North Carolina, Florida, and Arizona. Even more exciting, the Illinois Senate just passed the ERA, which now leaves it to the Illinois House.

When I first saw all the activity happening in Illinois, I reached out to some of the groups that were working on it. Incredibly, a lot of them didn’t know about each other, so I introduced some of the players and then amplified their calls to action on the page. Sometimes, I would spend a few bucks on promoted ads targeted at women in Illinois.

Still, it was amazing when it actually passed in the state Senate. Illinois is kind of symbolic because it was the loss there that officially put the amendment in mothballs in the ’80s. In the lead-up to the vote in 1982, women chained themselves to a doorway in the statehouse and went on hunger strikes. It was a big deal.

The Illinois House is scheduled to vote on the ERA in November, but local activists tell me there’s an effort to push the vote to next month while there’s momentum.

So, what happens if the Illinois House votes to ratify?

That would just leave one more state to hit the minimum. Then the fun would start. There have been bills introduced at the national level over the years to overturn the 1982 deadline, or at least retroactively extend it. One of those would have to pass the House and Senate, and then be signed or pass by enough to override a veto. Obviously, this would be more likely to happen if the Democrats took the majority in the midterms.

There are also a few states that have rescinded their ratification. Those would have to be evaluated on a case-by-case basis, because sometimes it was done by a governor, and sometimes by the legislature itself. It’s also unclear if states are even allowed to rescind ratification in the first place—that’s something the courts would have to decide.

So, yeah, there’s a lot of work still to be done, though all of it could happen quickly if the midterms go the way I hope. The question is whether it’s worth it.

In the ’70s, the ERA was part of the second-wave agenda. Women’s advocacy groups like NOW pushed through all sorts of laws and won lots of court cases that helped even the playing field for women. There’s also been a tremendous cultural change, so it can be hard to imagine going backwards. But the thing about laws and judicial rulings is that they can be repealed and overturned. Enshrining equality for the sexes in the Constitution wouldn’t immediately solve every issue, and might not even make all that much difference initially in our laws and courts, but it would provide an important bulwark against backward movement. We can’t count on Ruth Bader Ginsburg living forever.