Opinion: Why we Need – Yes, Still! — The ERA
A recent poll found that 80% of people think women in America already enjoy full legal equality, but the truth is women have never enjoyed legal equality because they were intentionally left out of the Fourteenth Amendment when it was adopted in 1868. The Fourteenth Amendment is what guarantees Americans “equal protection” of the law. Women have been fighting for equality for more than a century.
It should come as no surprise then that women suffer far more discrimination, abuse, and maltreatment because they are female than does any other class of people suffer harm because of who they are in society. An average of five women per day in the United States are killed by men. A woman is sexually assaulted every 90 seconds. Studies show that women’s inequality is the primary cause of the violence they endure.
And women earn only 80 cents on the dollar compared to men, which makes sense considering that women are only 8/10ths of a person under the law.
The Equal Rights Amendment (ERA) to the U.S. Constitution was proposed in 1923 to establish women’s equality. It states “equality of rights shall not be denied or abridged … on account of sex.” It was passed by Congress in 1972 and sent to the States for ratification. Three-fourths (38) of the states must ratify an amendment in order for it to become part of the Constitution.
A purported ratification deadline expired in 1982. By that time, only 35 states had ratified. Many believed the fight for ERA was over and that Congress had to start the process again with a new ERA.
But others argued the ERA deadline was meaningless because it was placed in a preamble rather than the text of the ERA itself. As preambles are only introductory provisions, not enforceable laws, the deadline has no legal value.
Moreover, some believe Congress lacks authority to impose deadlines at all, whether in a preamble or text, because other constitutional amendments have been ratified an exceedingly long time long after their proposal by Congress. For example, Virginia lawmakers ratified the Voting Rights Act more than 100 years after it was proposed by Congress, and in 1992, Congress validated the Twenty-Seventh Amendment (congressional pay raises) some 203 years after it was proposed by Congress in 1789! Women were furious that a congressional pay raise law had centuries of time to become ratified while a far more important constitutional value, basic human equality for women, got only ten years. This incentivized women to fight for ERA’s ratification by three more states, rather than starting over.
In 2017, Nevada became the 36th state to ratify, followed by Illinois in 2018, and Virginia in 2020. After Virginia ratified, the Archivist of the United States, whose job it is to publish new amendments once they become ratified by three-fourths of the states, refused to publish the ERA. So a lawsuit was filed (by me) in Massachusetts federal court to force the Archivist to publish the ERA, and to validate the ERA as the 28th Amendment.
Naysayers complain the ERA is not necessary, yet most states do not protect women as a class under their hate crime laws. Without the ERA, this is perfectly legal. With the ERA, all hate crime laws would have to protect women.
Another benefit of ERA is that laws that purport to provide equality would have to be interpreted by courts as requiring actual equality. For example, when a legislature passes an equal pay statute, it might appear to require equal pay, but when a woman goes to court to enforce the law, the judge can say “equal pay does not mean actually equal pay because women are not yet entitled to fully equal protection of law under the Constitution. So long as the Constitution does not require equal protection, equal enforcement is not required and I am free to construe the legislative promise of equal pay to mean less than fully equal pay.”
Women need and deserve equal pay, and they deserve to live violence free lives. Thus, the ERA is not merely necessary, it is vitally important to ensure women’s full and safe participation in American society.
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