The Exhumation of the Equal Rights Amendment

Some readers may have noticed the campaign in some states to “ratify” a constitutional amendment proposal that people thought had died almost forty years ago. Remember the Equal Rights Amendment, which was a major feminist rallying point in the 1970s? Proposed by Congress in 1972, after the idea had been kicked around for fifty years, it quickly sailed through state legislatures and seemed destined for an easy ratification. In fact, Senator Birch Bayh, who helped spearhead the proposal through Congress in 1972, predicted that it would be ratified in two years. It almost was, as the amendment “sounded like a good idea” and generated limited debate and critical analysis. After all, how could anyone dispute 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,” as the amendment stated? Then, as the decade wore on, there were no more state ratifications and a few legislatures even voted to rescind their previous ratification. There was no deadline for ratification written into the text of the amendment, as has been the case with most proposed amendments of the past hundred years, although a seven-year deadline had been specified in the preamble to the joint congressional resolution proposing it.

When the seven years elapsed, Congress enacted a controversial three-year extension. This still didn’t help the amendment meet the constitutional threshold of ratification by three-quarters of the states and it was understood that it died in 1982. Even its most ardent advocates did not dispute its expiration. The defeat of the ERA, by the way, was an example of how one person can sometimes make a world of difference in politics. Most observers agree that if the late faithful Catholic Phyllis Schlafly, who headed the Eagle Forum and Stop ERA organizations, had not been on the scene there is little doubt that the ERA would have become part of the Constitution.

But lo and behold, feminists and their allies—mostly in the Democratic Party—have now rediscovered the ERA and claim that there was no deadline for ratification and are pushing to supposedly finish the job. They also reject the validity of the previous rescissions. The new push started in 2017, when Nevada “ratified”—even though there was no longer an amendment to be voted on since the deadline passed decades ago. Then Illinois ratified in 2018 after failing to ratify during the 1972-1982 period despite massive pro-ERA efforts. Most recently, the push has been on in Arizona and Virginia to try to “put it over the top”—with the assumption that the previously stated congressional deadline and the rescissions are irrelevant.

The evidence is entirely against these new ERA proponents and yet the media continues to report the false claim that only one more state ratification is needed for the amendment to succeed. The validity of the original 1979 deadline was understood by Congress—and especially its pro-ERA members—at the time. This was why, when the amendment couldn’t secure enough state ratifications by then, they moved to extend the deadline. It was also understood by the fact that the Supreme Court affirmed a lower federal district court decision that upheld the rescissions and rejected Congress’s authority to extend the deadline. Indeed, the ERA’s supporters acknowledged it was dead in 1982. The fact that the deadline did not appear in the text of the proposed ERA was consistent with changed congressional practice. The new practice included them in the resolutions proposing the amendments. Given that the ERA deadline was indeed there, Congress clearly intended the ratification process to end on a specific date.

Until the current strategy pretending that the lapsed amendment is still alive, ERA advocates in Congress since 1982 behaved as if they understood that the old proposal was dead. However, they have repeatedly introduced new versions of it. Tammy Baldwin, the avowed lesbian Democratic senator from Wisconsin, introduced legislation in 2011 when she was still in the House of Representatives to remove the 1982 deadline—implicitly acknowledging, of course, the deadline’s validity. What was constitutionally questionable was whether it would have made any difference had her initiative succeeded. If the deadline had ran out, the ERA proposal would have been dead and Congress would, by a vote of two-thirds of each house, have to vote on a new ERA proposal and the ratification process would have had to start anew. Even if Baldwin’s effort was playing fast and loose with the realities of constitutional amendment ratification deadlines, this current effort to just pick up where things had left off, as if there had been no deadline and no rescissions, is a greater violation of the rules. It allows favorable ratification requirements to be made up at a moment’s notice to ensure that their political agenda is unencumbered.

One might wonder why feminists and their political allies have resumed their push for the ERA. Given the substantial number of both federal and state laws that provide equal treatment guarantees for women, what could possibly be lacking? Abortion is probably a major motivation. A number of national pro-life and pro-family leaders recently sent a letter to the Virginia legislature when it took up the supposed ratification vote on the ERA. They said the amendment will create “a constitutional foothold for abortion” that will likely—given how some state courts have already ruled—mandate taxpayer funding for abortion. One wonders, too, if the left’s renewed push for the ERA is not precipitated by the fear that a changing composition of the Supreme Court might restrict, if not overturn, the 1973 Roe v. Wade and Doe v. Bolton decisions which legalized abortion on demand.

Another reason may be the “Me Too” movement with its claim of a national crisis of sexual harassment and abuse—even though, as I have said in previous columns, it doesn’t define itself, seems indifferent to the problem of false allegations against men, and embraces the very sexual libertinism that gave rise to it. The irony is that it has long been accepted that one of the legal effects of the ERA would be to preclude special protective legislation of virtually any kind for women. That is, in some sense, the very thing that the “Me Tooers” are seeking.

Finally, one might ask, what is so bad about the ERA? That could be a lengthy article on its own. Besides its pro-abortion implications, we can list just some of the many very likely serious legal consequences (some probably unimagined by the left when the ERA was proposed by Congress in 1972): subjecting women to the draft just as men are if it is reinstituted at any time; full integration of men and women in military training; no exclusion of women from combat in spite of all the harm that would result; girls and women on the same public school and college sports teams; prohibiting virtually any single-sex educational endeavors, activities, clubs (including fraternities and sororities), or even dormitories in public schools or higher education institutions (private schools and colleges would be pressured to follow suit); abolishing any remaining legal presumptions that the husband has support obligations toward his wife; making it more difficult for women to receive child support in the case of a legal dissolution of marriage; eliminating any remaining protective labor legislation for women (it is not clear that even pregnancy leave for women in public institutions or pregnancy coverage under those institutions’ health insurance or pregnancy coverage under Medicaid could fend off constitutional challenge).

Other effects may include: the enshrining of same-sex “marriage” into the Constitution as well as the entire homosexualist agenda, and the constitutional embracing of the transgender agenda, including access to public restrooms and school locker rooms by people claiming to be the sex they “identify” with. Some of this would be influenced by the now standard view of the left that one’s sex is a mere socio-cultural construct. We could go on and on about consequences. Any serious consideration of what the left and self-proclaimed civil libertarians now seek makes clear that this list is in no way an example of “crying wolf.”

It’s time for Americans who are concerned about any further poisoning of the relations between the sexes and respect for the very integrity of the provisions of the Constitution to take notice of the current bald-faced attempt to secure the ERA by stealth and constitutional manipulation and speak up against it. Hopefully, the exhumation of the ERA will be followed by its reburial—for good.