This Might Be the Moment for the Equal Rights Amendment

“I would like in my lifetime to see women get fired up about the Equal Rights Amendment.” – Ruth Bader Ginsburg, Supreme Court Justice

Here’s a flashback to a more groovy time: the Equal Rights Amendment is back. Technically, it never really left—it has been reintroduced into every session of Congress since 1982. But now, activists are hoping the momentum and energy of the Women’s March will actually move the ratification process forward.

But first, let’s back up a bit, because 72% of Americans think that the Equal Rights Amendment (ERA) passed, and 96% think that men and women are already guaranteed equal rights under the Constitution. A whole generation of young feminists may have never heard about the ERA and its history at all.

The Equal Rights Amendment is a proposed amendment to the U.S. Constitution that clocks in at a concise 24 words: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” In 1923, the 75th anniversary of the Seneca Falls Convention, women’s suffrage warrior Alice Paul announced she would write a new Constitutional amendment meant to ensure equality between the sexes was guaranteed under the law, and the amendment was introduced in every session of Congress from 1923 forward.

Finally, on March 22, 1972, the Equal Rights Amendment was passed in Congress, after feminist groups disrupted hearings on what became the 26th Amendment, went on strike, and boycotted ABC News’ advertisers over the network’s negative coverage of the movement. By the end of 1972, 22 states had ratified the amendment.

But conservative opposition to the ERA quickly began to set in. Phyllis Schlafly became the figurehead of the anti-ERA movement, and her efforts through the Eagle Forum were assisted by other traditional institutions, including states’ rights advocates, business interests such as the insurance industry, and religious organizations such as the LDS Church.

The opposition was effective. When Congress passed the Equal Rights Amendment in 1972, they also passed a seven-year time limit for ratification. By 1979, the pace of ratification had slowed to a trickle in the face of opposition: 35 states had ratified, with the last being Indiana in 1977, and five states had passed (Constitutionally-dubious) rescission bills. Congress granted another three-year extension after 100,000 women marched on Washington, DC, but the pushback from conservative institutions made the ERA poisonous. Reagan was in office, the culture wars were in full swing, and no other states would ratify the ERA. On June 30, 1982, the ratification deadline passed, and the ERA was still three states short.

It was a devastating blow to a generation of feminists. The divisions created over the Equal Rights Amendment echo through our dialogue today, from debates over women serving in the military, to legislation over access to bathrooms, to even whether it is controversial to identify as a feminist. Even though the United States works to encourage equal rights amendments in the constitutions of other countries—including Iraq and Afghanistan—in U.S politics, equal rights became a partisan issue.

“One State, One Judge, One Executive Order Away”

“We’ve been fighting for different individual rights for a long time,” said Chelsea Shields, Director at Utah Women Unite. “What we’ve learned over the past 90 years is that we have to fight for each individual right.”

Without an Equal Rights Amendment, this patchwork approach to women’s rights has been the only strategy left. Marital rape was not fully outlawed in the U.S. until 1993, and yet there are still 321,500 victims of rape and sexual assault each year in the U.S. Women are still only paid 77 cents on average to a man’s dollar (and even less for women of color), despite Equal Pay laws on the books. More than 85% of counties in the United States have no access to an abortion provider, and even though abortion is legal, access and funding are constantly under threat. Two-thirds of the workforce employed at minimum wage levels are women, and women are also 70% of those living at the poverty line.

At this rate, reaching full equality by fighting individual right by right will take 815 years. And even then, it can all be overturned with the stroke of a pen.

“Sexual discrimination is allowed in this country. It’s one state, one judge, one executive order away,” Shields says.

The late Supreme Court Justice Antonin Scalia agreed. In September 2011, in an appearance at UC Hastings College of Law, he addressed a question as to whether the 14th Amendment’s Equal Protection Clause applied to sex discrimination: “Clearly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”

Corporations are people too, and in cases from Wal-Mart Stores, Inc v. Dukes, to Citizens United v. FEC, to Burwell v. Hobby Lobby Stores, Inc, the Supreme Court has ruled time after time that they have more rights than women.

According to the ERA Task Force, “the only right that the Constitutions specifically affirms to be equal for women and men is the right to vote (19th Amendment, 1920). The 14th Amendment’s Equal Protection Clause has never been interpreted to protect against sex discrimination to the same extent that an ERA would.”

Part of the problem is how the court approaches discrimination cases in general. The most severe approach is “strict scrutiny,” which is applied to actions that affect groups that fall under “suspect classification.” This currently includes factors such as race, national origin, and religion. The next level below strict scrutiny is “intermediate scrutiny,” which includes factors such as gun rights, free speech, sexual orientation, and sex-based classifications. This means that cases involving sexism, homophobia, and transphobia are treated with less scrutiny than those cases involving racism or religious discrimination.

“What’s been happening in the last four decades is women’s rights have not been progressing,” Shields said in a video shared by Utah State Senator Jim Dabakis. “We’ve been fighting to keep [the status quo], and we’ve been losing.”

The Strategy

“When I hear from women engineers who leave their fields after 5 years because of a hostile work environment, we still have work to do,” said Utah State Rep. Rebecca Chavez-Houck (D-Salt Lake City) at a press conference at the Utah State Capitol in February.

The momentum and energy behind the Women’s March and the satellite marches that took place around the world are giving organizers hope that this might be the moment to push for ratifying the ERA again.

[Read next: Crawling Out of the Cyberswamp: It’s Time for a Cyberfeminism 2.0]

One of the first things that must happen is education; remember, 72% of Americans already think the ERA is part of the Constitution. Part of this effort is an op-ed writing campaign, where women seeking to put pressure on local politicians and bring attention to the issue in their communities have written for newspapers from Nevada to Kansas to Minnesota. The trouble is, however, those three states just listed have already ratified the ERA, so something that reaches a lot more people needs to be done.

That is part of the goal behind a documentary directed by Kamala Lopez released last fall in the months before the election. Equal Means Equal is a statistic-heavy look at the status of women in modern America, and it can be overwhelming to take in one devastating vignette after another. The goal of Lopez, together with Patricia Arquette and the ERA Coalition, is to leverage 21st century tools—social media, especially video—to build a social movement in support of the ERA. It would turn out that the movement might come faster than they expected.

Shortly before the Women’s March on Washington that broke records for turnout, the organizers of the march released a “guiding vision” document that specifically calls for passing the Equal Rights Amendment. Local groups have taken this as a signal that a national movement is building. In several states, women used the Day Without a Woman strike to protest at their state capitols in favor of the ERA.

In Utah, Utah Women Unite put ratifying the ERA in the state at the center of their post-march advocacy. The strategy is that if Utah—a state where the LDS Church’s campaign against the ERA as a “moral issue” became the blueprint for later battles such as Prop 8—ratified the ERA, LDS communities in Arizona and Nevada would relent as well, garnering the necessary 3 states. The hope was that the Salt Lake City Women’s March, in which 10,000 protestors swarmed the Capitol Building on the first day of the legislative session in the largest protest turnout the state has ever seen would put enough pressure on lawmakers to make 2017 the ERA’s year.

During the 2017 Utah State legislative session, Senator Jim Dabakis (D-Salt Lake City) introduced a resolution that, if passed, would have ratified the ERA in the Beehive State. The bill went before the Senate Rules Committee, which includes 7 Republican and 2 Democratic members. The Committee met 5 times during the 2017 session, hosting hearings on issues such as whether big game trophies could be displayed in the Senate Lounge, but the bill to ratify the Equal Rights Amendment never saw the light of day. On March 9th, the day after International Women’s Day, the bill died without so much as a hearing when the legislative session ended for the year.

Bills introduced in Arizona, Missouri, Virginia, Florida, and North Carolina have seen similar fates.

But from Nevada came a glimmer of hope. On March 22, 2017—45 years to the day after the ERA was passed by Congress and sent to the states—the state became the first to ratify the Equal Rights Amendment in 40 years. The state saw a Democratic wave in the state legislature in 2016, bucking a trend nationwide that kept national levers of power firmly in Republican hands.

And now, with only two states left, the ERA could become a rallying cry for the 2018 elections.

To fully ratify the ERA, it’s apparent that a Democratic majority in Congress will be necessary. Because the time limit on ratification has expired, Congress must vote to extend it or to remove it entirely. There is legal precedence for this: of course, Congress previously voted to extend the ERA’s ratification timeline. Furthermore, in 1992, the 27th Amendment was ratified after it was first proposed 203 years earlier by James Madison along with other amendments that became the Bill of Rights.

Further complicating the issue is that since the last state voted to ratify the ERA in 1977, five states have voted to rescind their ratification. This is untested legal ground with little precedent.

In this area, the ERA Task Force points to the legal argument in “The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States”, a 1997 paper published in the William & Mary Journal of Women and the Law by Allison L. Held, Sheryl L. Herndon, and Danielle M. Stager: “Although Article V gives Congress the power to propose an amendment and to determine the mode of ratification, it is silent as to Congress’ power to impose time limits and Congress’ role after ratification by three-fourths of the states. In Dillon v. Gloss, a unanimous Supreme Court recognized Congress’ Article V power to fix a definite time limit for ratification and pointed out that Article V states that an amendment becomes part of the Constitution once it is ratified by three-fourths of the states. […]

“Article V of the Constitution addresses only the positive terms of ratification of a proposed amendment, thus giving the states the power to ratify proposed amendments, but not the power to reject proposed amendments. Under a literal interpretation of Article V, a state that has rejected an amendment is still free to reconsider and ratify it. However, a state that has ratified an amendment may not rescind that ratification. […] Permitting the rescission of state ratifications of constitutional amendments would confuse the amending process’ orderly functioning.”

In other words, to pass the Equal Rights Amendment, first, two more states must ratify it; then, Congress must pass legislation to promulgate the Amendment. Following that, we can expect the Supreme Court will likely have to answer the rescission question (unless, of course, 7 of the remaining 15 states ratify instead of just 2).

It will take a movement to finally ratify the Equal Rights Amendment. The good news is we may be closer than ever before.