The Twenty-Eighth Amendment is Here
by Tamar Alexanian
Associate Editor, Vol. 25
In January, Virginia became the thirty-eighth state to ratify the Equal Rights Amendment (ERA). But the history of the ERA spans nearly a century, and the fight isn’t over yet.
What does the ERA say?
The original text of the ERA was written in 1923 by Alice Paul, the founder of the National Woman’s Party (NWP).[1] The amendment was also known as the Lucretia Mott Amendment.[2]
Martha Griffiths, Member of Congress and “Mother of the ERA.”
Passed by Congress in 1972, the Amendment 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.[3]
The history of the ERA
(White) women in America won the right to vote in 1920, with the passage of the Nineteenth Amendment.[4] After this accomplishment, the NWP – which started in 1916 to work for (white) women’s suffrage – turned its attention to women’s equality and, therefore, the Equal Rights Amendment.[5]
The women’s rights movement in the 1920s was fractured along class and race lines. Working women feared that the ERA would interfere with the laws that regulated factory safety and conditions while non-working women saw the ERA as the next frontier.[6] This schism divided the women’s movement and delayed legislative progress for the ERA.
The fight for legalizing equal rights through legislation was picked up again by Michigan Congresswoman Martha Griffiths in the 1950s.[7] Griffiths, known as the “Mother of the ERA,” introduced the amendment on the House floor annually but wasn’t successful until 1970.[8] The bill finally passed both houses in 1972.[9]
According to the Constitution’s ratification process, three-fourths of the states (or 38 states) had to ratify the ERA. At the time, Congress set a seven-year deadline for ratification.[10] And initially, ratification seemed inevitable: 22 of the necessary 38 states ratified the amendment in the first year.[11] But then, with the mobilization of anti-feminists like Phyllis Schlafly[12], the initial numbers began to slow down and then, eventually, stopped completely. When Congress’s 1979 deadline arrived, the ratification period was extended to 1982.[13] Then, when the 1982 deadline came, only 35 states had ratified the ERA.[14] At her celebration party the day after the ratification window passed, Phyllis Schlafly played “Ding Dong the Witch is Dead.”[15]
What’s the latest, then?
Even though the ERA was declared “killed” in 1982, advocacy groups have started renewing public interest in the Amendment.[16] In the past three years, three more states ratified the Amendment – Nevada in March of 2017, Illinois in May 2018, and Virginia in January of 2020 – bringing the total to the necessary thirty-eight states.[17] Additionally, there are ratification efforts in several other states, including Tennessee, North Carolina, and Florida.[18]
Two major legal issues remain. First, constitutional amendments do not always have ratification deadlines.[19] For example, the 27th Amendment (about the salary of members of Congress) was ratified more than two centuries after Congress initially passed it.[20] With this logic, the 1982 deadline was unimportant, and Virginia’s ratification makes the ERA official. However, earlier this month, the Justice Department released an opinion concluding that Virginia’s ratification efforts could not be legally binding, considering the 1982 deadline.[21] Although the Justice Department’s opinion is not binding, the statement demonstrates the forthcoming debate.
Second, legal scholars are also debating the validity of five ratification rescissions that occurred during the ratification window. Five states – Nebraska, Tennessee, Idaho, Kentucky, and South Dakota – had ratified the ERA during the original window and, later, rescinded after anti-ERA arguments gained momentum.[22] There is, however, historical precedent that ratification is binding. For example, Ohio and New Jersey attempted to rescind ratification of the 14th Amendment in 1868.[23] Still, both states are listed as ratifying states in official documentation.[24]
Now, the fate of the ERA will have to be decided by the courts.[25]
Aren’t women already equal?
In 2019, the World Economic Forum found that it would take another 208 years for the United States to reach gender equality.[26] Today, women make up 51 percent of the United States population but only hold 24 percent of congressional seats.[27] Additionally, women make up 63 percent of workers making federal minimum wage and only 5 percent of CEOs at Fortune 500 companies.[28] White women make 79 percent of what white men earn; black women earn 67 percent and Hispanic women earn 58 percent.[29] The United States is the only industrialized country where maternal mortality rates are worsening; the risks are even higher for women of color, who are three to four times more likely to die during or after childbirth than white women.[30] The United States is also the only advanced economy in the world that does not mandate paid maternity leave at a national level.[31]
In short, women are not already equal.
What about race?
The women’s movement has a long history of ignoring or belittling race as well as other intersectional issues like sexuality and ability. It’s important to acknowledge that the Equal Rights Amendment has largely been reinvigorated by lawmakers and organizers from black, Latinx, and LGBTQ+ communities.[32] For example, 35 years after the 1982 deadline, Nevada passed the ERA in 2017. Senator Pat Spearman, a black man and the first openly gay member of the Nevada legislature, was one of the main reasons that the ERA was passed in the state.[33] In Virginia, Representative Jennifer Carroll Foy, a black woman and Democratic member of Virginia’s House of Delegates, was especially involved in ensuring the ERA’s passage in the state last month.[34] In North Carolina, Representative Carla Cunningham, a black woman, is the state’s chief sponsor of the ERA.[35] Further, Carol Jenkins, a black woman, is the co-president as well as the CEO of the ERA Coalition and Fund for Women’s Equality, one of the key advocacy groups in the fight.[36]
Representative Jennifer Carroll Foy also highlights that the ERA has the potential to have an even larger impact on women of color: while all women will benefit from the ERA’s impact on equal-pay laws, women of color will particularly benefit since their waves are the most unfair and unequal.[37]
While it’s fair to say that Phyllis Schlafly playing “Dig Dong the Witch is Dead” was more than a little premature, we still have a fight ahead of us.
[1] Tara Law, Virginia Just Became the 38th State to Pass the Equal Rights Amendment. Here’s What to Know About the History of the ERA, Time Magazine (January 15, 2020), https://time.com/5657997/equal-rights-amendment-history/.
[2] Our Story, National Woman’s Party, https://www.nationalwomansparty.org/our-story (last visited February 9, 2020).
Lucretia Mott was an early feminist activist who spoke out against slavery and sexism in the nineteenth century.
See more about her here: https://www.womenshistory.org/education-resources/biographies/lucretia-mott
[3] Law, supra note 1.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Lila Thulin, The 97-Year-History of the Equal Rights Amendment, Smithsonian Magazine (November 13, 2019), https://www.smithsonianmag.com/history/equal-rights-amendment-96-years-old-and-still-not-part-constitution-heres-why-180973548/.
[9] Law, supra note 1.
[10] Id.
[11] History of the Equal Rights Amendment, Equal Rights Amendment, https://www.equalrightsamendment.org/the-equal-rights-amendment (last visited February 9, 2020).
[12] Phyllis Schlafly created an organization called STOP ERA, an acronym for Stop Taking Our Privileges. She believed the ERA would take away the “special status” that women received and would harm the “traditional American family.” https://time.com/5657997/equal-rights-amendment-history/
[13] Timothy Williams, Virginia Approves the E.R.A., Becoming the 38th State to Back It, New York Times (January 15, 2020), https://www.nytimes.com/2020/01/15/us/era-virginia-vote.html.
[14] Id.
[15] Thulin, supra note 8.
[16] Law, supra note 1.
[17] Williams, supra note 13.
[18] History of the Equal Rights Amendment, supra note 11.
[19] Williams, supra note 13.
[20] Id.
[21] Id.
[22] Thulin, supra note 8.
[23] Id.
[24] Id.
[25] Veronica Stracqualursi, Virginia’s Long Path to Ratifying the ERA, CNN (February 1, 2020), https://edition.cnn.com/2020/02/01/politics/equal-rights-amendment-virginia-history-trnd/index.html.
[26] Melinda Gates, Melinda Gates: Let’s Not Take 208 Years to Achieve Equality for Women in America, USA Today (June 21, 2019), https://www.usatoday.com/story/opinion/2019/06/21/equality-for-women-cant-wait-208-years-melinda-gates-column/1511613001/.
[27] Id.
[28] Economic Inequality Across Gender Diversity, Inequality.org, https://inequality.org/gender-inequality/ (last visited February 9, 2020).
[29] Sonam Sheth et al., Seven Charts that Show the Glaring Gap Between Men and Women’s Salaries in the US, Business Insider (August 26, 2019), https://www.businessinsider.com/gender-wage-pay-gap-charts-2017-3?IR=T#overall-black-and-hispanic-women-face-the-biggest-pay-gap-when-compared-to-white-men-3.
[30] Gates, supra note 26.
[31] Danielle Kurtzleben, Lots of Other Countries Mandate Paid Leave. Why Not the U.S.?, NPR (July 15, 2015), https://www.npr.org/sections/itsallpolitics/2015/07/15/422957640/lots-of-other-countries-mandate-paid-leave-why-not-the-us.
[32] Fabiola Cineas, The Equal Rights Amendment May Have Found Its Moment, The New Republic (January 16, 2020), https://newrepublic.com/article/156238/equal-rights-amendment-may-found-moment.
[33] Id.
[34] Mel Leonor & Justin Mattingly, ‘It’s Our Time’: Virginia Legislature Passes Equal Rights Amendment As Courts Debate Deadline, The Daily Progress (January 15, 2020), https://www.dailyprogress.com/news/politics/it-s-our-time-virginia-legislature-passes-equal-rights-amendment/article_b25a4b3c-9cb6-5438-9753-f279eef918f3.html.
[35] Cineas, supra note 32.
[36] Id.
[37] Meera Jagannathan, The Equal Rights Amendment Mandates Equality Between the Sexes – So Why Are Some Women Against It?, Market Watch (January 28, 2020), https://www.marketwatch.com/story/the-equal-rights-amendment-mandates-equality-between-the-sexes-so-why-are-some-women-against-it-2020-01-22.
