FAQs on the Equal Rights Amendment
What is the ERA?
The Equal Rights Amendment to the U.S. Constitution is a basic human rights reform, which guarantees that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Passed by a bipartisan supermajority of Congress in 1972 and now ratified by three-quarters of state legislatures, it has met all the constitutional requirements of an amendment.
Why do people of faith support the ERA?
The U.S. Constitution is the highest statement of our nation’s principles and values. To affirm gender equality within this revered document is to affirm and respect the deeper truth of equal human dignity and worth of all people. This reform is a necessary and vital step toward correcting for the wrongful subjugation, oppression, and degradation of women and other minorities.
We understand through the sacred text of Genesis that humankind is made in the divine image irrespective of gender (“in the image of God he created them; male and female he created them”), and that women, like men, possess sacred and equal human dignity and worth. (Gen. 1:27). This is the foundation for all natural human rights. As stated in the Interfaith Statement in Support of the ERA: “all people are equally valuable in the sight of their Creator, and thus deserve equal regard in human laws and legal systems.”
How does the ERA reflect human rights?
Human rights, by definition, are universal. They are those basic liberties and privileges to which all people are entitled. This means they must be available on a basis of equality and non-discrimination to people of every race, color, sex, gender, nationality, and religion.
The United States has made numerous, legally binding commitments to respect these foundational human rights principles. The U.S. Senate has approved international treaty agreements on ending racism and torture, and on protecting civil and political rights, promising in each case to ensure equality and non-discrimination on the basis of sex.
Despite these commitments, the United States is among only 15% of nations that fail to explicitly protect women’s rights or prohibit gender discrimination in their national constitutions. The lack of an Equal Rights Amendment undercuts U.S. credibility on women’s rights globally, and prevents us from leading by example.
What is the ERA’s status today? Why is the ERA before Congress again?
Although the ERA has met all the constitutional requirements for ratification under Article V of the Constitution, it has not yet been published as the 28th Amendment. Justice Revival and the #Faith4ERA campaign believe that it should be. So do the attorneys general of Nevada, Illinois, and Virginia, who have sued in federal court to ensure the ERA is finalized. You can read more about our support for these states’ position here and here.
Although some claim that it is too late for the ERA to be finalized, Congress has the power to remove an arbitrary, non-binding ratification deadline that was imposed by an earlier Congress in 1972 and extended once before. This deadline was not part of the text of the amendment ratified by the 38 states. The U.S. House passed legislation to remove this deadline in March 2021 with bipartisan support. A bipartisan Senate bill has been proposed, which would have the same effect. Justice Revival and the #Faith4ERA campaign actively support S.J. Res. 1 to remove this deadline and demonstrate that there should be no time limit on the struggle for equality.
Don’t women already have equal rights under the U.S. Constitution?
No. Women were originally excluded from the Constitution and have only gradually, over the last 50 years, won some measure of equal protection–but it is not the same equal protection others enjoy. The ERA is necessary to ensure women fully equal citizenship status. It will mean sex discrimination is evaluated with the same judicial scrutiny as racial or religious discrimination.
Despite incremental gains over the last five decades, the Equal Protection Clause of the 14th Amendment currently fails to provide women the same level of protection as other groups. The Supreme Court evaluates gender-based classifications under “intermediate scrutiny,” a muddled legal standard prone to an array of judicial interpretations, inconsistent application, and less rigorous judicial review than “strict scrutiny,” which is applied to racial and religious classifications. By applying a lesser standard to sex discrimination, the Court sends a signal that it is less serious than other types of discrimination.
How would the ERA help women?
The ERA will empower Congress to pass more effective laws to address prevalent abuses women suffer every day in this country–including sexual and domestic violence, pregnancy and pay discrimination, female genital mutilation, child marriage, high maternal mortality, and other injustices.
Currently, Congress is constrained in responding to these problems by the limited constitutional bases for legislation, or thwarted by judicial rulings that strike down or limit helpful legislation. For example, the civil remedy enabling survivors to sue their abusers under the Violence Against Women Act (VAWA), and the 1996 statute criminalizing female genital mutilation–both of which were struck down due to lack of constitutional foundation–would have been supported by the ERA.
Didn’t some states “rescind” (or undo) their ratification of the ERA?
Although five states tried to rescind their ratification of the ERA, there is no legal precedent that allows for a state that has ratified a constitutional amendment to later “un-ratify” it. Article V of the Constitution governs the amendment process, and does not provide for this.
Following the Civil War and the abolition of slavery, Congress ratified the 14th and 15th amendments to extend previously denied citizenship rights to formerly enslaved persons. The 14th amendment guaranteed equal citizenship and equal protection under the law to African Americans, including all who were formerly enslaved. The 15th amendment prohibited states from disenfranchising voters based on race.
When Ohio and New Jersey attempted to rescind their ratifications of the 14th Amendment, Congress refused to recognize that attempt. Congress counted them among the ratifying states. Two years later Congress refused to acknowledge New York’s attempt to rescind its ratification of the 15th amendment.
In the same way, all 38 states that have ratified the ERA can be counted. In fact, in a 2012 letter the Archivist of the United States listed the states that officially ratified the ERA, and included the five states that had tried to rescind.
Opponents claim the ERA would hurt women by taking away legal advantages they enjoy. Is this true?
Most legal benefits–like spousal support and social security–are already afforded to women and men on a gender neutral basis, so there is no risk women would lose special privileges.
Laws could still distinguish based on sex if they pass “strict scrutiny”–meaning they have an excellent justification and are not overly broad. For example, a state would still be able to create a women’s shelter for survivors of intimate partner violence, which is limited to women in order to protect against trauma.
The ERA would not endanger private spaces like women’s restrooms and locker rooms, which are protected under clear Supreme Court precedent. Many states have had sex equality provisions in their state constitutions for years, and those states all still have single-sex prisons, locker rooms, and bathrooms.
Does establishing equal rights ignore biological differences between men and women?
Having equal rights before the law does not erase or diminish individuality or gender diversity; those are gifts God gave us, which cannot be taken away. Equal rights can and will prohibit the government from using these differences to disadvantage women and other minorities.
Would the ERA require women to be part of a military draft?
Women have served honorably throughout our armed forces, in combat roles since 2015. Our military leadership values and relies on their service and contribution. Even without an ERA, there is no legal provision right now that prevents the draft from being extended to women, if it were to be reinstated.
If women can be drafted to defend their country, then certainly they should be afforded basic equality and inclusion in our constitution. Women have the full duties of citizenship; they are entitled to the full rights, as well.
Does the ERA ensure protection for LGBTQ+ persons, as well as women?
We hope so. In a 2020 decision interpreting Title VII of the Civil Rights Act of 1964, the Supreme Court found that employment discrimination based on “sex” includes discrimination on the basis of sexual orientation. This suggests the ERA could be given a similarly inclusive interpretation, to encompass LGBTQ+ rights.
We hope the ERA is interpreted to protect all people in America from harmful, hurtful discrimination–whether based on biological sex, gender expression or identity, or sexual orientation. Our faith calls us to draw everyone into the community, not to shut anyone out. We want all people to have fair access to the things everyone needs–safe housing, secure employment, the liberty to build families, the dignity and security of not being turned away from a restaurant or a grocery store.
Human rights, by definition, are universal. Equality before the law is a basic human right to which all people are entitled. This is an important safeguard for marginalized communities, including the LGBTQ+ community, which suffers poverty, homelessness, hate crimes, and attempted suicide at higher rates than the general population.
What does the ERA mean for religious freedom?
We care deeply about religious freedom; speaking out about the moral imperatives of our faith is what we do, day in and day out. It’s what we’re doing right now. In fact, the biblical call to seek justice for the widow is what inspires our advocacy for women’s rights.
Protections for religious liberty are robust and long-standing under our Constitution, and the First Amendment is not going anywhere. We expect the Supreme Court to continue to preserve an expansive sphere of religious liberty and to protect free exercise vigorously.
The Roberts Court has strengthened protections for free exercise of religion, ruling in favor of religious organizations far more frequently than its predecessors—over 81% of the time, compared to about 50% for all previous eras since 1953. (Epstein & Posner)
Religious communities will continue to have broad discretion to choose and remove their own ministers, according to their own criteria, free from government interference. Currently, the “ministerial exception” that grants this broad authority exempts religious organizations from employment anti-discrimination laws in choosing their ministers.