The History Behind the Equal Rights Amendment by Roberta W. Francis, Chair, era task Force, National Council of Women's Organizations



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The Equal Rights Amendment

Freedom from legal sex discrimination, Alice Paul believed, required an Equal Rights Amendment that affirmed the equal application of the Constitution to all citizens. In 1923, in Seneca Falls for the celebration of the 75th anniversary of the 1848 Woman’s Rights Convention, she introduced the "Lucretia Mott Amendment," which read: "Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction." The amendment was introduced in every session of Congress until it passed in 1972.

Although the National Woman’s Party and professional women such as Amelia Earhart supported the amendment, reformers who had worked for protective labor laws that treated women differently from men were afraid that the ERA would wipe out their progress.

In the early 1940s, the Republican Party and then the Democratic Party added support of the Equal Rights Amendment to their platforms. Alice Paul rewrote the ERA in 1943 to what is now called the "Alice Paul Amendment," reflecting the 15th and the 19th Amendments: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." But the labor movement was still committed to protective workplace laws, and social conservatives considered equal rights for women a threat to the existing power structure.

In the 1960s, over a century after the fight to end slavery fostered the first wave of the women’s rights movement, the civil rights battles of the decade provided an impetus for the second wave. Women organized to demand their birthright as citizens and persons, and the Equal Rights Amendment rather than the right to vote became the central symbol of the struggle.

Finally, organized labor and an increasingly large number of mainstream groups joined the call for the ERA, and politicians reacted to the power of organized women’s voices in a way they had not done since the battle for the vote.

The Equal Rights Amendment passed the U.S. Senate and then the House of Representatives, and on March 22, 1972, the proposed 27th Amendment to the Constitution was sent to the states for ratification. But as it had done for every amendment since Prohibition (with the exception of the 19th Amendment), Congress placed a seven-year deadline on the ratification process. This time limit was placed not in the words of the ERA itself, but in the proposing clause.

Like the 19th Amendment before it, the ERA barreled out of Congress, getting 22 of the necessary 38 state ratifications in the first year. But the pace slowed as opposition began to organize – only eight ratifications in 1973, three in 1974, one in 1975, and none in 1976.

Arguments by ERA opponents such as Phyllis Schlafly, right-wing leader of the Eagle Forum/STOP ERA, played on the same fears that had generated female opposition to woman suffrage. Anti-ERA organizers claimed that the ERA would deny woman’s right to be supported by her husband, privacy rights would be overturned, women would be sent into combat, and abortion rights and homosexual marriages would be upheld. Opponents surfaced from other traditional sectors as well. States’-rights advocates said the ERA was a federal power grab, and business interests such as the insurance industry opposed a measure they believed would cost them money. Opposition to the ERA was also organized by fundamentalist religious groups.

Pro-ERA advocacy was led by the National Organization for Women (NOW) and ERAmerica, a coalition of nearly 80 other mainstream organizations. However, in 1977, Indiana became the 35th and so far the last state to ratify the ERA. That year also marked the death of Alice Paul, who, like Elizabeth Cady Stanton and Susan B. Anthony before her, never saw the Constitution amended to include the equality of rights she had worked for all her life.

Hopes for victory continued to dim as other states postponed consideration or defeated ratification bills. Illinois changed its rules to require a three-fifths majority to ratify an amendment, thereby ensuring that their repeated simple majority votes in favor of the ERA did not count. Other states proposed or passed rescission bills, despite legal precedent that states do not have the power to retract a ratification.

As the 1979 deadline approached, some pro-ERA groups, like the League of Women Voters, wanted to retain the eleventh-hour pressure as a political strategy. But many ERA advocates appealed to Congress for an indefinite extension of the time limit, and in July 1978, NOW coordinated a successful march of 100,000 supporters in Washington, DC. Bowing to public pressure, Congress granted an extension until June 30, 1982.

The political tide continued to turn more conservative. In 1980 the Republican Party removed ERA support from its platform, and Ronald Reagan was elected president. Although pro-ERA activities increased with massive lobbying, petitioning, countdown rallies, walkathons, fundraisers, and even the radical suffragist tactics of hunger strikes, White House picketing, and civil disobedience, ERA did not succeed in getting three more state ratifications before the deadline. The country was once more unwilling to guarantee women constitutional rights equal to those of men.

The Equal Rights Amendment was reintroduced in Congress on July 14, 1982 and has been before every session of Congress since that time. In the 107th Congress (2001 - 2002), it has been introduced as S.J.Res. 10 (chief sponsor: Sen. Edward Kennedy, MA) and H.J.Res. 40 (chief sponsor: Rep. Carolyn Maloney, NY). These bills impose no deadline on the ERA ratification process. Success in putting the ERA into the Constitution via this process would require passage by a two-thirds in each house of Congress and ratification by 38 states.

An alternative strategy for ERA ratification has arisen from the "Madison Amendment," concerning changes in Congressional pay, which was passed by Congress in 1789 and finally ratified in 1992 as the 27th Amendment to the Constitution. The acceptance of an amendment after a 203-year ratification period has led some ERA supporters to propose that Congress has the power to maintain the legal viability of the ERA’s existing 35 state ratifications. The legal analysis for this strategy is outlined in "The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States," an article by Allison Held, Sheryl Herndon, and Danielle Stager in the Spring 1997 issue of William & Mary Journal of Women and the Law.

Under this rationale, it is likely that Congress could choose to legislatively adjust or repeal the existing time limit constraint on the ERA, determine whether or not state ratifications after the expiration of a time limit in a proposing clause are valid, and promulgate the ERA after the 38th state ratifies. H.Res. 98 (chief sponsor: Rep. Robert Andrews, NJ) in the 107th Congress promotes this strategy by stipulating that the House of Representatives shall take any necessary legislative action to verify the ERA’s ratification when an additional three states ratify.

The Congressional Research Service analyzed this legal argument in 19964 and concluded that acceptance of the Madison Amendment does have implications for the premise that ratification of the ERA by three more states could allow Congress to declare ratification accomplished. As of 2002, ratification bills testing this three-state strategy have been introduced in one or more legislative sessions in five states (Illinois, Mississippi, Missouri, Oklahoma, and Virginia), and supporters are seeking to move such bills in all 15 of the unratified states.5

In her remarks as she introduced the Equal Rights Amendment in Seneca Falls in 1923, Alice Paul sounded a call that has great poignancy and significance over 75 years later: "If we keep on this way they will be celebrating the 150th anniversary of the 1848 Convention without being much further advanced in equal rights than we are. . . . If we had not concentrated on the Federal Amendment we should be working today for suffrage. . . . We shall not be safe until the principle of equal rights is written into the framework of our government."

NOTES

1 Letter, March 31, 1776 (in Alice S. Rossi, The Feminist Papers: From Adams to de Beauvoir, New York: Columbia University Press, 1973).

2 Letter, April 14, 1776 (ibid.)

3 Carol Lynn Yellin, "Countdown in Tennessee, 1920," American Heritage (December 1978).

4 David C. Huckabee, "Equal Rights Amendment: Ratification Issues," Memorandum, March 18, 1996 (Congressional Research Service, Library of Congress, Washington, DC).

5Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.


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