Nearly 100 years after it was first floated before Congress, the Equal Rights Amendment (ERA) has been given new life. That's because on May 30, 2018, the state of Illinois provided the ERA its latest hand-up when it became the 37th state to ratify the proposed amendment to the U.S. Constitution.
A constitutional amendment becomes the law of the land only after passage buy three-quarters of the states. Rounded up, that'd be 38 states. The ERA has one more state to go. Does that mean something officially, constitutionally could come of the ERA?
Final approval wouldn't be quite that easy, of course. Not after all this time. Hurdles lay ahead. Ignorance and opposition will have to be overcome. Some legal and procedural challenges certainly remain.
But for something that's been fighting for its life since suffragettes gained the right to vote, for an amendment that finally was approved by Congress and turned over to the states for passage coming up on 50 years ago — Congress overwhelmingly OK'd the ERA on March 22, 1972 — these are some heady times. Energized by the #MeToo and Time's Up movements, women are closer than ever to getting equal rights recognized in no less of a venue than the founding document of the country.
"What we're seeing is the message ... is now resonating very strongly," Carol Robles-Román, the co-founder and CEO of the ERA Coalition, said the day after a "shadow" hearing on Capitol addressed the ERA Hill. (The hearing was held by Congresspeople but not officially recognized by the body.) "This is the logical next step: Constitutional equality — and that culture shift that will come from getting that in the U.S. Constitution — is critical."
What the ERA Says and Can Do
The wording of the ERA is simple and straightforward. In its entirety:
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 language may be short and sweet. But the ramifications of securing equal protection for women under the law — not spelled out now in the Constitution — will be far-reaching, activists like Alyssa Milano say.
Milano, who spoke at the shadow hearing on June 6, 2018, is perhaps best known for her work as an actress, but she is also widely credited with reigniting the #MeToo movement, founded in 2006 by Tarana Burke to help survivors of sexual violence. Their efforts, and those of thousands of others, have put the ERA back into play after years of dormancy.
"We're a lean, mean, gender-justice machine," Robles-Román says.
When the ERA was first getting kicked around by the states after Congress passed it in 1972, conservative activists like Phyllis Schlafly worried publicly that guaranteeing equal rights to women would lead to all sorts of problems. Women would be forced to fight in wars. Use the same bathrooms as men. Work, unwillingly, outside the home.
"Since the women are the ones who bear the babies and there's nothing we can do about that, our laws and customs then make it the financial obligation of the husband to provide the support," she said in 1973, as NPR reported upon her death in 2016. "It is his obligation and his sole obligation. And this is exactly and precisely what we will lose if the Equal Rights Amendment is passed."
Objections like that have been largely quelled over the decades. The idea of an amendment to the U.S. Constitution that would protect women from sex discrimination, that would provide a legal basis for guaranteeing equal pay for equal work, evidently has caught on.
According to the ERA Coalition, which represents some 76 organizations in matters concerning the ERA and its passage, polling shows that Americans overwhelmingly support a constitutional amendment that provides equal protection for women. Some 96 percent of women are for it, the polls show, and 90 percent of men. It's also backed across party lines, with more than 90 percent of Democrats, Republicans and independents in favor of an amendment.
Could It Really Pass?
One persnickety detail could derail passage of the ERA. When the resolution passed through Congress in 1972, it had an expiration date attached. Three-quarters of states (38) had to pass it within seven years or the amendment would not be added to the Constitution.
When only 35 states voted for it in that time, Congress tacked on a few more years to allow three other states to sign on. None did. In fact, five rescinded their approval, though that faces a legal challenge if it's ever needed.
Opponents of the ERA — there are still many — say that the blown deadline put an end to any possibilities of the ERA's survival. But proponents say that Congress still can extend or eliminate the deadline. Some say the government was wrong to impose a deadline in the first place, something it famously did not do for the 27th Amendment. Again, when it comes time, lawyers may well be involved in settling that.
Another nagging problem backers have is that most people — 80 percent according to polling — believe that women already have equal protection under federal law. Essentially, many see no need for the ERA.
"That's something I hear over and over again. It's apathy. It's complacency. I call it a 'cultural complacency,'" Robles-Román says. "'Why now? What's the big deal? We've learned to live with it.' Well, it is a big deal. That's the thing that we have to combat."
Maybe the most immediate challenge to get the Equal Rights Amendment into the Constitution is the most obvious one: The ERA still needs, at minimum, one more state.
The Next Step
Most all the states yet to ratify the amendment are in South and lean conservative so it seems unlikely they will ratify the ERA any time soon. Though in May, North Carolina introduced bills in the State House and Senate to adopt the Equal Rights Amendment. The bill is currently in the rules committee. The two states with possible chances — Virginia and Delaware — are next up in the 50-year race to ratify the ERA. The Delaware General Assembly, in early June 2018, passed an Equal Rights Amendment for its state constitution, though that has to go through another legislative session in 2019. Virginia lawmakers shot down a proposal to pass the ERA in February 2018, saying the deadline had passed and the ERA already had "failed."
Still, if one of those states (or another) eventually passes the federal ERA, the next step is a legislative push to remove the deadline written into the original proposal. Two joint resolutions (H.J. Resolution 44 and S.J. Resolution 5) already have been introduced that would do that. Legal challenges are to be expected.
But the ERA is on a roll like it hasn't been since it first passed through Congress 46 years ago.
"I see this happening within two or three years. I see an Equal Rights Amendment. I see constitutional equality in our future," Robles-Román says. "I see a culture shift taking place. And I see the 'culture of complacency' being a thing of the past."