This year, which marks the centennial anniversary of the Equal Rights Amendment, has seen monumental steps towards its recognition. Both grassroots activism and Congressional movement reflect major strides – we now have an ERA Caucus carrying momentum in the House of Representatives! And importantly, on February 28th, the ERA received its first hearing in the Senate in over forty years. We celebrate this massive leap forward in the cause for equality and anticipate the next steps to come.
“Most Americans Already Believe This is in Our Constitution”
February’s hearing in the Senate Judiciary Committee showcased renewed, bipartisan support for the ERA. Although the House has passed two resolutions lifting an arbitrary deadline on ERA ratification – one in 2020 and the other in 2021, both with some Republican support – the Senate has not voted or held a hearing on the ERA since 1984. Now, with the aid of cosponsors Lisa Murkowski (R-AK) and Ben Cardin (D-MD), that resolution has re-entered both chambers and an official vote is impending. This is perhaps the greatest step towards the ERA’s official recognition since the state of Virginia became the 38th (and most recent) state to ratify it in 2020.
But as multiple people in the hearing testified, such a basic guarantee as equality of rights across genders should not be sparking an intense legal fight. In the words of Sen. Cardin, “most Americans already believe this is in our Constitution.” Indeed, over 70% of voters mistakenly believe that this crucial text is part of our founding document, and over 85% support the Amendment’s inclusion. However, the ERA still faces concentrated opposition on both procedural and substantive issues – a conflict which came to a head in the recent hearing.
Redundant… or Required?
Despite a mass of progress in the fight for equality since the ERA’s initial passage by Congress in 1972, witnesses testified that the reality of their experiences continues to be fundamentally unequal – a problem that the ERA would address. Said Thursday Williams, a student at Trinity College and board member of the ERA Coalition:
“Here I am defending a Constitution that at one point considered me three-fifths of a person, a Constitution that doesn’t explicitly recognize women in it, a Constitution that in 2023 still doesn’t explicitly state that I’m equal to a man. For the first time, it was clear to me that this document was not written for me.”
The personal weight of not being recognized as equal under the Constitution is disheartening and disempowering. Women and girls deserve to know that the basic principle of equality is upheld in the fabric of our country. But in addition, the ERA is necessary to solve real gender gaps that persist in every sphere. The powers it grants Congress and the courts, as detailed in our policy brief, will create sharper and more numerous tools to fight the many problems women and girls uniquely face. This action is necessary now more than ever: as Illinois Lt. Gov. Julianna Stratton testified, “The recovery [from the COVID-19 pandemic] for jobs traditionally held by women have lagged woefully behind the jobs often worked by men.” Personally, politically, and economically, the impetus remains to recognize the ERA.
Opponents of the ERA who testified at the hearing also affirm that equality is important – but they claim it has already been achieved to their satisfaction. Since the ERA’s original passage, monumental steps have been achieved for women, like the recognition of some measure of gender equality under the 14th Amendment by the Supreme Court. But this precedent, which applies “intermediate scrutiny” only against sex-discriminatory practices, is inconsistent and leaves wiggle room that is not given to other protected classes. Not to mention, precedent isn’t permanent. The ERA provides an authoritative, permanent basis for equality – which can endure through changing laws, administrations, and Justices on the Supreme Court.
Opponents also argued that the ERA would mean the end of special protections and spaces for women, like gender-specific bathrooms, abuse shelters, and even sports teams. But this fearful imagery, laced with transphobia, is patently false. Twenty-six states have their own versions of the ERA, and all of them have gendered bathrooms, women’s shelters, and even separate sports teams. What the ERA does create is a Constitutional basis to eliminate harmful inequalities – the power to enact a more just society.
A Semantic Struggle
Much of the three-hour hearing in the Senate was spent not discussing the principle of equality, but rather the procedural hurdles the ERA allegedly must face. Although 38 states (the required number) have ratified it, congress attached an arbitrary deadline to the preamble of the original resolution passed in 1972 which some argue is binding. In addition, five states have attempted to rescind their ratifications, a move unsupported by legal precedent – there were also failed attempts to rescind from the 14th Amendment, which Congress did not recognize.
Justice Revival and fellow advocates, following a litany of leading Constitutional scholars, maintains that (as panelist Kathleen Sullivan succinctly put it), “The ERA is thus eligible to be added to the Constitution as the Twenty-Eighth Amendment without further action on the part of Congress or the States.” Congress may choose to remove the deadline by simple majority of both Houses, as the resolution in question would do, or it can choose to ignore the deadline entirely and certify that the ERA is indeed law.
The unfortunate reality of this hearing, which operated largely along partisan lines, is that it focused largely on procedural issues and doomsday speculation rather than the fundamental principle that the United States should treat men and women equally. But there is good news. Momentum only continues to grow for the Equal Rights Amendment, which reflects an overwhelming consensus across the American public. In the words of Lisa Murkowski, “Equality for all people? Certainly there should be nothing partisan about that.”
Across party lines, and despite some concentrated opposition, we believe equality will prevail.