No amendment has been introduced in Congress more frequently than the ERA. Since 1923, the amendment has been sponsored several hundred times. Ninety five years later, it has yet to be ratified by all the states.
Nuts and Bolts
The Equal Rights Amendment proposed by Congress has three sections. Its heart is Section 1, which provides simply that “equality of rights under the Law shall not be denied or abridged by the United States or by any State on account of sex.” The second section gives Congress enforcement power, and the third provides for a transitional period of two years after its ratification. Alice Paul, the original sponsor of the Equal Rights Amendment, worded the second section of the amendment to share enforcement power between the states and federal government. A number of versions of the amendment were introduced before Congress finally settled on one. The first time the amendment was actually voted on by Congress was in 1946, when it garnered a 38–35 vote in the Senate.
Concerns and OppositionDifferences in wording and proposed alterations illustrate some of the tensions that surrounded the Equal Rights Amendment debate. When it was initially proposed, the National Woman’s Party, a militant wing of the forces that had pushed for the Nineteenth Amendment, was one of the few organizations that actively supported the amendment. More moderate organizations such as the League of Women Voters opposed it. They had been working for such protective legislation as minimum wage and maximum hour legislation for women and feared that an equal rights amendment might be used to undermine such gains. Over time, many more groups joined the cause, but differences in emphasis remained, as did ambiguity about precisely what results the amendment would have.
In 1972, the House again adopted the amendment, this time by a 354–24 vote, and the Senate followed suit by a vote of 84–8. With a two-thirds majority in both houses of Congress, the ERA was finally sent to the states for consideration. Once proposed, the ERA was initially received quite positively: 21 of 32 legislatures in session ratified with hardly any delays. In time, 35 of the needed 38 states would ratify, but by then, the anti-ERA forces had effectively mobilized, and some states that had given their approval attempted to rescind their ratifications. Conservative Phyllis Schlafly, founder of the Eagle Forum, appears to have been particularly successful with her Committee to Stop ERA.
Scholars still debate why the ERA failed. In part, its failure may have stemmed from disputes about what the amendment would do. Some thought it would require women to be included in a military draft. Others thought that it would affect family law and possibly invalidate statutory rape laws. Still others charged that it might mandate unisex bathroom facilities or same-sex marriages. Although the recognition of a right to privacy made these latter possibilities fairly remote, opponents did not have to prove their position but only raise sufficient doubts to block the amendment in 13 or more states.
Role of the U.S. Supreme Court
Ironically, progressive judicial decisions on behalf of women’s rights may have served to undercut support for the ERA. In the 19th century, the U.S. Supreme Court had been unsympathetic to the issue. Thus, in Bradwell v. Illinois (1873), it upheld an Illinois law barring women from the practice of law, and in Minor v. Happersett (1875), it upheld women’s exclusion from the ballot. As late as Goesaert v. Cleary (1948), the Supreme Court upheld paternalistic laws restricting women.
At just about the time that Congress proposed the ERA, however, the Court began to use the equal protection clause of the Fourteenth Amendment to liberalize women’s rights. In Reed v. Reed (1971), for example, a unanimous Court held that a state could not select the administrator of an estate on the basis that one candidate was a man and the other a woman. Similarly, in Frontiero v. Richardson (1973), the Court struck down a military law that presumed that soldiers’ wives depended on their husbands, who were thus automatically entitled to extra monetary allowances, but made enlisted women prove that their husbands were dependent on them. In the same year as Frontiero, the Court declared in Roe v. Wade (1973) that the right of privacy gave fairly broad leeway to women in obtaining abortions.
The decisions on behalf of women’s rights enabled opponents of the amendment to argue that it was no longer needed. At the same time, the abortion decision enabled them to raise fears that the courts might expand interpretations of the amendment in unforeseen directions that might bring about greater changes in social relationships. It has been argued that a key reason the ERA failed to muster the required congressional majorities in 1983 stemmed from fears that it might require states to fund abortions. For their part, ERA supporters may have played into the hands of such critics by suggesting, in their attempts to get the ERA adopted, that the amendment would bring about greater changes than it actually would have.
Ongoing ControversyAs finally approved by Congress, the Equal Rights Amendment contained a seven-year deadline in its authorizing resolution. As the seven-year state ratification deadline approached, proponents asked for more time, and in 1978, Congress extended the deadline for another three years.
Lower courts have addressed ERA issues in two cases that challenged the idea that issues concerning the amending process were “political questions” inappropriate for judicial resolution. In Dyer v. Blair (1975), Judge John Paul Stevens ruled that the Illinois state legislature had the power to decide that a three-fifths vote was required for ratification of the amendment. In Idaho v. Freeman (1981), Judge Marion Callister decided that Idaho had a right to rescind ratification of the ERA, that Congress had no power to extend the ERA deadline, and that, in any case, such a vote would have required a two-thirds majority.
Although it was appealed to the Supreme Court, this case became irrelevant when the ERA failed to be ratified within the extension that Congress had granted. In 1995, perhaps heartened by the belated ratification of the Twenty-seventh Amendment, a number of representatives introduced a resolution requiring that the House of Representatives verify ratification of the Equal Rights Amendment if and when it received an additional three ratifications from the states.
Given the division that the fight over the ERA created, its current prospects appear dim. A number of states have added such amendments to their own constitutions, however, and many still actively question whether the enormous gains women have made in the last few decades in all aspects of American society really make such an amendment necessary.
From Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–2015 by John R. Vile (ABC-CLIO, 2015)
About the Author:
John R. Vile, PhD, is a professor of political science and dean of the University Honors College at Middle Tennessee State University. He has written and edited more than 25 books; his recent publications include Essential Supreme Court Decisions: Summaries of Leading Cases in U.S. Constitutional Law (Rowman & Littlefield, 2014); Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, fourth edition (ABC-CLIO, 2015); A Companion to the United States Constitution and Its Amendments, sixth edition (Praeger, 2015); Founding Documents of America: Documents Decoded (ABC-CLIO, 2015); and The United States Constitution: One Document, Many Choices (Palgrave Macmillan, 2015). Vile is a member of the American Mock Trial Association and was named to the American Mock Trial Association’s Hall of Fame. MTSU awarded Vile its Outstanding Career Achievement Award in 2011.
Vile, John R. “Equal Rights Amendment.” American History, ABC-CLIO, 2018, americanhistory.abc-clio.com/Search/Display/262162.