ERA: FREQUENTLY ASKED QUESTIONS
What is the ERA?
The Equal Rights Amendment (ERA) is a proposed amendment to the United States Constitution that would provide a fundamental legal remedy against sex discrimination for both women and men. It would guarantee that the rights affirmed by the U.S. Constitution are held equally by all without regard to their sex. The ERA would clarify the legal status of sex discrimination for the courts, where decisions still deal inconsistently with such claims. Under the ERA in court, sex would be considered a suspect classification, as race currently is and would have to meet the highest level of justification – a necessary relation to compelling state interest to be upheld as constitutional. To those who would write, enforce, or adjudicate laws inequitably, the ERA would send a strong preemptive warning: the Constitution has no tolerance for sex discrimination under the law
Why is an Equal Rights Amendment to the U.S. Constitution necessary?
There have been and continue to be countless laws and policies in government and the private sector that are sex discriminatory. At one time, women were prohibited from obtaining bank loans without having a husband’s signature, from having their own checking accounts or credit cards, owning property, serving on juries, holding certain positions in the military, having jobs that required physical exertion, and many other discriminatory restrictions. Laws prohibiting sex-based discrimination can always be weakened or repealed or improperly interpreted in court.
What is the background of the ERA?
In 1921, the National Woman’s Party (NWP) announced their intention to campaign for an amendment to the U.S. Constitution to guarantee women equal rights with men and proposed a brief text. Alice Paul, the famed suffragist and leader of the NWP, proposed a different text for the amendment in 1923 known as the Lucretia Mott Amendment, but in 1943 revised this to reflect the text of the Nineteenth Amendment. And it is this text that appears in the ERA that was passed by Congress in 1972. The general objective of the amendment was to end legal distinctions between men and women as related to divorce, property, employment and other matters where government law and policy is involved.
Aren’t women already guaranteed equal rights – why is the ERA necessary?
Many people are under the mistaken impression that the Constitution already prohibits sex-based discrimination. Sadly, this is not true, but the good news is that the ERA in recent polling enjoys 94 percent public support and we are nearing full ratification of the Equal Rights Amendment. The ERA will help prevent rollbacks of the gains that have been made for women’s equality in new laws and policies.
The ERA would provide a fundamental legal remedy against sex discrimination for both women and men. It would guarantee the rights affirmed by the U.S. Constitution are held equally by all people without regard to their sex. For the first time, sex would be considered suspect classification, as race currently is. Governmental actions that treat males or females differently as a class would be subject to strict judicial scrutiny and would have to meet the highest level of justification – a necessary and compelling state interest – to be upheld as constitutional.
Would the ERA protect women’s access to reproductive health care?
In federal courts (including the Supreme Court), a number of restrictive laws dealing with contraception and abortion have been invalidated based on an ‘undue burden” principle and a right to privacy as expressed in the 1st, 9th and 14th Amendments The principles of equal protection or equal rights have not yet been applied to such cases at the federal level. However, recent Supreme Court decisions on reproductive rights (e.g., Burwell v. Hobby Lobby Stores, Inc., 2014) have raised concerns about the vulnerability of women’s choices regarding contraception as well as abortion. The existence of an Equal Rights Amendment in the Constitution could influence such deliberations in the future.
Hasn’t the deadline for passing the ERA already expired?
On March 22, 1972, the Equal Rights Amendment was passed in Congress by the required two-thirds majority and was sent to the states for ratification. An original seven-year deadline was later extended by Congress to June 30, 1982. When this deadline expired, only 35 of the necessary 38 states (the constitutionally required three-fourths) had ratified the amendment. But in 2017 the Nevada legislature approved ratification of the ERA and in the following year, Illinois ratified, leaving just one more state to ratify.
While an extended deadline was placed on ratification for the ERA decades ago, it was not in the text of the Amendment, but appears only in preface and can be revised or deleted. Article V of the Constitution confers the right of Congress to manage the ratification process. The U.S. Supreme Court said in 1939 that this means Congress, and Congress alone, has the power to decide the viability of a constitutional amendment. Furthermore, Congress has routinely revised its own deadlines retroactively over the years.
What is the current state of the ERA?
As of January 2020 Virginia is poised to become the 38th and final state needed for ratification. Article V of the Constitution states that once three-fourths of the states have ratified, the amendment becomes part of the Constitution.
In November, the U.S. House Committee on the Judiciary held a mark-up on H.J.Res.79, to remove a ratification deadline of seven years from the 1972 ERA and the measure was favorably reported of committee. We are waiting for a full House vote and since the legislation has 224 co-sponsors, passage is assured. While this deadline removal is not required, supporters are pushing it as “backup” insurance. Action is needed in the Senate as well for S.J.Res.6: A joint resolution removing the deadline for the ratification of the equal rights amendment, sponsored by Maryland Sen. Ben Cardin (D), and 33 bipartisan co-sponsors, this bill will need both Republican and Democratic supporters to pass the Republican-controlled Senate .
What impact will the ERA have?
A constitutional guarantee of equal legal rights for all persons regardless of sex will have tremendous impact for women in many facets of daily life.The ERA will help to ensure equality in pay, job opportunities and education for women and girls and it will help to address sexual assault and harassment at the national and local levels. Issues from employment discrimination to sexual harassment and equal pay are at their core, about equality. As long as gender equality is not the law of the land, inequality will be allowed to persist, manifesting itself as the violence, oppression, cruelty and abuse that many women face every day. This is especially relevant for marginalized and vulnerable populations, such as immigrant women, women working in low-wage jobs, women of color, women with disabilities and LGBTQIA+ persons.