December 13 marks 100 years since the Equal Rights Amendment was first introduced in Congress. The fact that it was never added to the Constitution is a shameful travesty — and can be a game-changing weapon against the G.O.P. in 2024.
How many Americans living today have ever heard of the ill-fated Equal Rights Amendment to the U.S. Constitution? If you haven’t, you are not alone. How many women just assume that they have equal rights in America? How many are finally realizing that they don’t?
The U.S. Constitution became effective on March 4, 1789. 131 years later in 1920, the 19th Amendment to the Constitution gave women the right to vote, after a hundred years of protest. Amazingly, a vocal minority of women were against women voting, much like millions of women apparently are against women’s rights today, since they vote Republican. Note, the 19th Amendment passed Congress on June 4, 1919 with no deadline for ratification and was ratified less than 15 months later on August 18, 1920.
Outrageously, to this day, the right to vote is the Constitution’s only explicitly guaranteed equal right for women.
In 1923, Alice Paul of the National Women’s Party, feminist lawyer Crystal Eastman and several others, drafted the “Lucretia Mott Amendment” in honor of the famous abolitionist, social reformer, and women’s rights advocate (1793 – 1880). It said, “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation.”
The LMA was introduced in Congress on December 13, 1923 by Representative Daniel Anthony, Jr. (nephew of heroic early suffragette Susan B. Anthony, 1820-1906) and Senator Charles Curtis (later Vice President under Herbert Hoover), both Republicans from Kansas. Of course, it got nowhere.
Over the next 49 years, it was introduced in every new Congress until 1972, when, mirabile dictu and holy cow, it passed!
Along the way it became known as the Equal Rights Amendment. Including a rewrite of Section 1 by Alice Paul in 1943, some 1,100 amendments to it were proposed over the decades.
As finally passed, the 58-word Amendment read:
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.
The House passed it in 1971, 354 – 24, and on March 22, 1972, the Senate passed it 84 – 8. The 92nd Congress had only 54 Democratic Senators and 252 Democrats in the House that day.
The ERA was sent to the states for ratification with a March 22, 1979 deadline, which was customary but not required. It takes three-quarters of states (38) to ratify an Amendment to the Constitution. Congress thought it would be a slam dunk. They thought wrong.
Within a year, 30 states ratified the ERA, but the momentum suddenly stalled. In 1978, the House (233 – 189) and Senate (60 – 36) extended the deadline to June 30, 1982, by which time only 35 states had ratified, and five of those states “rescinded” their ratifications before the 1982 deadline.
The 12 states that never voted to ratify the ERA are Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina, and Utah. No surprise there. How many of them would ratify it today?
The five states that tried to rescind their votes to ratify are Idaho, Kentucky, Nebraska, South Dakota, and Tennessee. How many of these would ratify the E.R.A. today?
On June 30, 1982, the ERA was DOA, whether you count 35 or only 30 ratifications. This was accomplished by reactionary forces mustered by Phyllis Schlafly, a rabid anti-feminist and staunch Republican, with her “grassroots” movement STOP-ERA (Stop Taking Our Privileges) launched in 1972 for the purpose. She argued that women would lose privileges like not being required to register for the draft, separate restrooms for men and women, the “dependent wife benefits” under Social Security and other government benefits, and alimony.
Schlafly said, "What I am defending is the real rights of women. A woman should have the right to be in the home as a wife and mother." Other concerns were that the ERA would result in abortion-on-demand, gay marriage, and complete degeneration of American morals.
Then, amazingly, 35, 36, and 38 years after the deadline, Nevada (2017), Illinois (2018) and Virginia (2020) ratified the ERA, making the required 38, if you ignore the five recissions and the deadline.
Normally, upon ratification of an Amendment, states send documents to the National Archives and Records Administration, which records and tallies them. When three-fourths states ratify, the Amendment is certified and published by the National Archivist as part of the Constitution with no further action by anyone. There are numerous examples of states attempting to rescind their ratifications of previous Amendments, but not one case where the Archivists through history have paid any heed to them, always counting those states as having ratified the Amendment.
The Archivist recorded the ratifications by Nevada (2017) and Illinois (2018) but was instructed in a memo from the Office of Legal Counsel of the (Trump) DOJ in 2020 not to record Virginia’s.
In 2020, Virginia, Nevada, and Illinois sued the National Archivist to “carry out his statutory duty” to publish and certify the ERA as the 28th Amendment to the Constitution. A federal District Court judge in D.C. ruled in 2021 that it was too late, based on the fact that Congress had imposed the 1982 deadline. He did not rule on the validity of recissions.
Also in 2021, in attempt to assert its relevance, North Dakota passed a resolution that it just remembered that its 1975 ratification had expired 42 years previously, in 1979.
Illinois and Nevada appealed the 2021 ruling to the U.S. Court of Appeals in the D.C. Circuit. Virginia’s new Republican Attorney General did not join the appeal. On February 28, 2023, the Court ruled that “the States have not clearly and indisputably shown that the Archivist had a duty to certify and publish the ERA or that Congress lacked the authority to place a time limit in the proposing clause of the ERA.”
About 20 states have some kind of Equal Rights Amendment in their state constitutions. For example, in 1972 Texas (an early ratifier of the ERA) amended Article One Section Three of their constitution by adding these words: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.” How’s that working out for women in Texas? Oh, wait, Texas men aren’t allowed to get abortions, either, so there’s your equality, gals.
Since 1982 there were continuous efforts to resuscitate the ERA by Joint Resolutions in Congress (declaring the ERA as ratified and now the 28th Amendment). The latest, filed in August, 2023 by Sens. Kaine and Gillibrand and Rep. Cory Bush, all Dems, will likely fail also. Even if it passed, lawsuits would fly before the toner dries. Article Five of the Constitution (Amendment process) does not mention deadlines or recissions. The best we could hope for is years of delay before the matter finally gets to the Supreme Court for the coup de grâce. And why bother?
I agree with plenty of experts that the best legal course for the ERA is to start over by passing it in Congress and sending it to the states for ratification. It’s just one page, 58 words. And here’s why Dems should file it in the House and Senate immediately: it would deal a coup de grâce to the G.O.P. in 2024 and beyond.
If we keep the “new” ERA in the spotlight from day one, it can be a major weapon against Republicans even if —especially if — it doesn’t pass. In fact, assuming even all Dems would vote for it, it’s certain that Republicans wouldn’t get us to the two-thirds majorities we need to pass it.
Whether it gets stuck in a committee, or fails to get a vote, or is defeated by Republicans, we can hang that dead chicken around Red dog necks every day of 2024, and every year beyond.
Every Dem candidate would just add “I will vote for the ERA” to their campaign. “Republicans have blocked the Equal Rights Amendment for 50 years” is a simple enough message. “Republicans don’t want women to have equal rights.” The headlines — and memes — write themselves. “Any woman who votes Republican is as stupid as they think she is.” And so on.
This could be our best hope to get a House and Senate where two thirds of members are reasonable, with far more benefits than just passing the ERA — and to end the G.O.P.
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