Today’s Washington Post has this article about a possible “revival” of the ERA:
Federal and state lawmakers have launched a new drive to pass the Equal Rights Amendment, reviving a feminist goal that faltered a quarter-century ago when the measure did not gain the approval of three-quarters of the state legislatures. Yesterday, House and Senate Democrats reintroduced the measure under a new name — the Women’s Equality Amendment — and vowed to bring it to a vote in both chambers by the end of the session.
The renewed push to pass the ERA, which passed the House and Senate overwhelmingly in 1972 and was ratified by 35 states before skidding to a halt, highlights liberals’ renewed sense of power since November’s midterm elections….The amendment consists of 52 words and has one key line: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” That sentence would subject legal claims of gender discrimination to the same strict scrutiny given by courts to allegations of racial discrimination.
Although more states are considering ratifying the ERA now than at any other time in the past 25 years, activists still face serious hurdles. Every statewide officeholder in Arkansas endorsed the amendment this year, but the bill stalled in committee last week after Eagle Forum President Phyllis Schlafly came to Little Rock to testify against the measure.
In the 1970s, Schlafly and others argued that the ERA would lead to women being drafted by the military and to public unisex bathrooms. Today, she warns lawmakers that its passage would compel courts to approve same-sex marriages and deny Social Security benefits for housewives and widows.
The WaPo article overlooks the fact that not all opposition to the ERA came from outside the feminist movement. Professor Martha Fineman, for example, objected to the ERA on the grounds that some pro-female legislation might become unconstitutional. Professor Mary Becker questioned the continued vitality of affirmative action under the ERA. (Professor Jane Mansbridge discusses these and other debates in her analysis of the ERA’s difficult history, Whatever Happened to the ERA, in Women and the United States Constitution: History, Interpretation, and Practice (Sibyl A. Scharzenbach & Patricia Smith eds., 2003)).
Feminists of the so-called “second wave” are not the only ones who disagree. In their book Manifesta, published in 2000, third-wave feminists Amy Richards and Jennifer Baumgardner included ratification of the ERA on (albeit at the end of) their 13-point social/political agenda. Richards and Baumgardner called the ERA a “constitutional foundation of righteousness and equality upon which future women’s rights conventions will stand.” Righteousness and equality have a certain fist-raising appeal, but what do they mean? Does equality mean equal treatment? Rebecca Walker, for one, seems to suggest that not only are women and men are fundamentally different, but that mothers are different from non-mothers. If feminists reach no agreement on the meaning of equality, it is unlikely that our legislators will.
-Bridget Crawford
A bit tangential …
About 15 years ago, when I was in grad school, I was TA’ing an undergraduate “Law & Society” seminar. In a class discussion about social change and legal reform, the professor brought up the example of the ERA. After several minutes of desultory student comments, it became clear to the professor and me that these undergrads had no idea that the ERA was not merely a hypothetical but had actually been passed by Congress and sent to the states for ratification. It was the first (though by no means the last) time that a student reaction made me feel old.
When my daughters talk of women’s rights and I bring up the ERA and the fact that it almost made it into the constitution, they look at me like I’m crazy! They are unaware how much of an effort it took to get it that far. BOY, do I also feel time time flowing down the tubes! Come on people, let’s “get ‘er done!”
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Of course Mansbridge also wrote an entire book on the subject: Why We Lost the ERA (Chicago: University of Chicago Press, 1986). [In MHO, she is among the elite of contemporary democratic theorists.]
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I tend to think that the importance of the ERA lies not so much in the measures it might catalyse, but in the erosion it might help to prevent.
We have already had a taste of what the reactionary Roberts Court has in store for us. Both the Gonzales and Ledbetter decisions have evinced a willingness to raise hostility to women’s rights to the level of a canon of statutory and constitutional interpretation.
It is hard, in times like this, to overlook the principal vulnerability of the Supreme Court’s 14th Amendment sex equality jurisprudence: namely, the fact that it could be wiped out by a combination of a sufficiently strict “originalist” view and a correspondingly lax respect for precedent. An explicit constitutional guarantee of women’s equality – and the US bears the rather dubious distinction of being one of the last countries without one – would, at the very least, substantially reduce the vulnerability of our existing gains.
(Though dual nationality is looking more attractive by the minute)