THE EQUAL RIGHTS AMENDMENT

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
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.

In all likelihood, the Equal Rights Amendment (ERA) is dead and will never be ratified to become the 28th Amendment.  However, I think there should be a Federal Amendment that would extend the ERA to include barring discrimination because of sexual orientation or identity.

THE EQUAL RIGHTS AMENDMENT

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex, gender identity, or sexual orientation.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. All laws infringing on the rights of individuals because of sex, sexual identity, or sexual orientation shall become null and void immediately upon passage of this amendment.

I think it should also be proposed that a possible Section 4 might be added that would define sex, gender identity, and sexual orientation.

Section 4.  Definitions of sex, gender identity, or sexual orientation.

Section 4.1. Sex shall be defined as a man or a woman. 

Section 4.2. Gender identity shall be defined as the gender, male or female, with which a person identifies with not their biological secondary sexual characteristics.  The gender identities one may identify as include male, female, both, somewhere in between (“third gender”), or neither.

Section 4.3. Sexual orientation describes a pattern of emotional, romantic, or sexual attraction to men, women, both genders, neither gender, or another gender. Sexual orientation is enduring and also refers to a person’s sense of “personal and social identity based on those attractions, behaviors expressing them, and membership in a community of others who share them.” This definition would also recognize that one’s sexual orientation is not a choice.

Though some might believe this fourth section is too strict or defined.  However, whenever the debate over gay marriage is brought up, the ideas of polygamy, bigamy, and bestiality are always raised in the debate by crackpots.  I think these definitions would clear up any debate about the meaning of the terms.  It would also not allow for a great deal of interpretation of the meaning of the amendment by the Supreme Court or the state ratifying legislatures.

If this amendment were to be proposed and ratified, the debates over GLBT rights would effectively be ended.  Gay marriage would be forced to be recognized.  Don’t Ask, Don’t Tell would no longer be able to exist.  School bullying would be against federal laws.  Teachers could not be fired because of their sexual orientation.  We would have definitive protection once and for all.  I realize this is a dream, but I think it is a great idea.  What do you think?  Should we all push to have this amendment proposed, passed by Congress, and ratified by the states?

Here is the history behind the original Equal Rights Amendment:

The History Behind the Equal Rights Amendment

by Roberta W. Francis,
Chair, ERA Task Force
National Council of Women’s Organizations

As supporters of the Equal Rights Amendment between 1972 and 1982 lobbied, marched, rallied, petitioned, picketed, went on hunger strikes, and committed acts of civil disobedience, it is probable that many of them were not aware of their place in the long historical continuum of women’s struggle for constitutional equality in the United States. From the very beginning, the inequality of men and women under the Constitution has been an issue for advocacy.

In 1776, Abigail Adams wrote to her husband John, “In the new code of laws, remember the ladies and do not put such unlimited power into the hands of the husbands.”¹ John Adams replied, “I cannot but laugh. Depend upon it, we know better than to repeal our masculine systems.”²

The new Constitution’s promised rights were fully enjoyed only by certain white males. Women were treated according to social tradition and English common law and were denied most legal rights. In general they could not vote, own property, keep their own wages, or even have custody of their children.

19^th-Century Women’s Rights Struggles

The first visible public demand for equality came in 1848, at the first Woman’s Rights Convention in Seneca Falls, NY. Elizabeth Cady Stanton and Lucretia Mott, who had met as abolitionists working against slavery, convened a two-day meeting of 300 women and men to call for justice for women in a society where they were systematically barred from the rights and privileges of citizens. A Declaration of Sentiments and eleven other resolutions were adopted with ease, but the proposal for woman suffrage was passed only after impassioned speeches by Stanton and former slave Frederick Douglass, who called the vote the right by which all others could be secured. However, the country was far from ready to take the issue of women’s rights seriously, and the call for justice was the object of much ridicule.

After the Civil War, Stanton, Susan B. Anthony, and Sojourner Truth fought in vain to have women included in new constitutional amendments giving rights to former slaves. The 14^th Amendment defined citizens as “all persons born or naturalized in the United States” and guaranteed equal protection of the laws – but in referring to the electorate, it introduced the word “male” into the Constitution for the first time. The 15^th Amendment declared that “the right of citizens . . . to vote shall not be denied or abridged . . . on account of race, color, or previous condition of servitude” – but women of all races were still denied the ballot.

To Susan B. Anthony, the rejection of women’s claim to the vote was unacceptable. In 1872, she went to the polls in Rochester, NY, and cast a ballot in the presidential election, citing her citizenship under the 14^th Amendment. She was arrested, tried, convicted, and fined $100, which she refused to pay. In 1875, the Supreme Court in Minor v. Happersett said that while women may be citizens, all citizens were not necessarily voters, and states were not required to allow women to vote.

Until the end of their long lives, Elizabeth Cady Stanton and Susan B. Anthony campaigned for a constitutional amendment affirming that women had the right to vote, but they died in the first decade of the 20^th century without ever casting a legal ballot.

Victory for Woman Suffrage

The new century saw a profound change in the lives of women, as they joined the workforce in increasing numbers, led the movement for progressive social reform, and finally generated enough mass power to win the vote. Carrie Chapman Catt and the National American Woman Suffrage Association were a mainstream lobbying force of millions at every level of government. Alice Paul and the National Woman’s Party were a small, radical group that not only lobbied but conducted marches, political boycotts, picketing of the White House, and civil disobedience. As a result, they were attacked, arrested, imprisoned, and force-fed. But the country’s conscience was stirred, and support for woman suffrage grew.

The 19^th Amendment affirming women’s right to vote steamrolled out of Congress in 1919, getting more than half the ratifications it needed in the first year. Then it ran into stiff opposition from states’-rights advocates, the liquor lobby, business interests against higher wages for women, and a number of women themselves, who believed claims that the amendment would threaten the family and require more of them than they felt their sex was capable of.

As the amendment approached the necessary ratification by three-quarters of the states, the threat of rescission surfaced. Finally the battle narrowed down to a six-week seesaw struggle in Tennessee. The fate of the 19^th Amendment was decided by a single vote, that of 24-year-old legislator Harry Burn, who switched from “no” to “yes” in response to a letter from his mother saying, “Hurrah, and vote for suffrage!” The Secretary of State in Washington, DC issued the 19^th Amendment’s proclamation immediately, before breakfast on August 26, 1920, in order to head off any final obstructionism.³

Thus mainstream and militant suffragists together finally won the first, and still the only, specific written guarantee of women’s equal rights in the Constitution – the 19^th Amendment, which declared, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.” It had been 72 years from Seneca Falls to victory, and ironically, the most controversial resolution had been written into law first. But many laws and practices in the workplace and in society still perpetuated men’s status as privileged and women’s status as second-class citizens.

The Equal Rights Amendment

 Freedom from legal sex discrimination, Alice Paul believed, required an Equal Rights Amendment that affirmed the equal application of the Constitution to all citizens. In 1923, in Seneca Falls for the celebration of the 75^th anniversary of the 1848 Woman’s Rights Convention, she introduced the “Lucretia Mott Amendment,” which read: “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” The amendment was introduced in every session of Congress until it passed in reworded form in 1972.

 Although the National Woman’s Party and professional women such as Amelia Earhart supported the amendment, reformers who had worked for protective labor laws that treated women differently from men were afraid that the ERA would wipe out the progress they had made.

In the early 1940s, the Republican Party and then the Democratic Party added support of the Equal Rights Amendment to their platforms. Alice Paul rewrote the ERA in 1943 to what is now called the “Alice Paul Amendment,” reflecting the 15^th and the 19^th Amendments: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” But the labor movement was still committed to protective workplace laws, and social conservatives considered equal rights for women a threat to the existing power structure.

In the 1960s, over a century after the fight to end slavery fostered the first wave of the women’s rights movement, the civil rights battles of the time provided an impetus for the second wave. Women organized to demand their birthright as citizens and persons, and the Equal Rights Amendment rather than the right to vote became the central symbol of the struggle.

Finally, organized labor and an increasingly large number of mainstream groups joined the call for the ERA, and politicians reacted to the power of organized women’s voices in a way they had not done since the battle for the vote.

The Equal Rights Amendment passed the U.S. Senate and then the House of Representatives, and on March 22, 1972, the proposed 27^th Amendment to the Constitution was sent to the states for ratification. But as it had done for every amendment since the 18^th (Prohibition), with the exception of the 19^th Amendment, Congress placed a seven-year deadline on the ratification process. This time limit was placed not in the words of the ERA itself, but in the proposing clause.

Like the 19^th Amendment before it, the ERA barreled out of Congress, getting 22 of the necessary 38 state ratifications in the first year. But the pace slowed as opposition began to organize – only eight ratifications in 1973, three in 1974, one in 1975, and none in 1976.

Arguments by ERA opponents such as Phyllis Schlafly, right-wing leader of the Eagle Forum/STOP ERA, played on the same fears that had generated female opposition to woman suffrage. Anti-ERA organizers claimed that the ERA would deny woman’s right to be supported by her husband, privacy rights would be overturned, women would be sent into combat, and abortion rights and homosexual marriages would be upheld. Opponents surfaced from other traditional sectors as well. States’-rights advocates said the ERA was a federal power grab, and business interests such as the insurance industry opposed a measure they believed would cost them money. Opposition to the ERA was also organized by fundamentalist religious groups.

Pro-ERA advocacy was led by the National Organization for Women (NOW) and ERAmerica, a coalition of nearly 80 other mainstream organizations. However, in 1977, Indiana became the 35^th and so far the last state to ratify the ERA. That year also marked the death of Alice Paul, who, like Elizabeth Cady Stanton and Susan B. Anthony before her, never saw the Constitution amended to include the equality of rights she had worked for all her life.

Hopes for victory continued to dim as other states postponed consideration or defeated ratification bills. Illinois changed its rules to require a three-fifths majority to ratify an amendment, thereby ensuring that their repeated simple majority votes in favor of the ERA did not count. Other states proposed or passed rescission bills, despite legal precedent that states do not have the power to retract a ratification.

As the 1979 deadline approached, some pro-ERA groups, like the League of Women Voters, wanted to retain the eleventh-hour pressure as a political strategy. But many ERA advocates appealed to Congress for an indefinite extension of the time limit, and in July 1978, NOW coordinated a successful march of 100,000 supporters in Washington, DC. Bowing to public pressure, Congress granted an extension until June 30, 1982.

 The political tide continued to turn more conservative. In 1980 the Republican Party removed ERA support from its platform, and Ronald Reagan was elected president. Although pro-ERA activities increased with massive lobbying, petitioning, countdown rallies, walkathons, fundraisers, and even the radical suffragist tactics of hunger strikes, White House picketing, and civil disobedience, ERA did not succeed in getting three more state ratifications before the deadline. The country was still unwilling to guarantee women constitutional rights equal to those of men.

The Equal Rights Amendment was reintroduced in Congress on July 14, 1982 and has been before every session of Congress since that time. In the 110^th Congress (2007-2008), it has been introduced as S.J.Res. 10 (lead sponsor: Sen. Edward Kennedy, MA) and H.J.Res. 40 (lead sponsor: Rep. Carolyn Maloney, NY). These bills impose no deadline on the ERA ratification process.  Success in putting the ERA into the Constitution via this process would require passage by a two-thirds in each house of Congress and ratification by 38 states.

An alternative strategy for ERA ratification has arisen from the “Madison Amendment,” concerning changes in Congressional pay, which was passed by Congress in 1789 and finally ratified in 1992 as the 27^th Amendment to the Constitution. The acceptance of an amendment after a 203-year ratification period has led some ERA supporters to propose that Congress has the power to maintain the legal viability of the ERA’s existing 35 state ratifications. The legal analysis for this strategy is outlined in “The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States,” an article by Allison Held, Sheryl Herndon, and Danielle Stager in the Spring 1997 issue of William & Mary Journal of Women and the Law. 

Under this rationale, it is likely that Congress could choose to legislatively adjust or repeal the existing time limit constraint on the ERA, determine whether or not state ratifications after the expiration of a time limit in a proposing clause are valid, and promulgate the ERA after the 38th state ratifies.

The Congressional Research Service analyzed this legal argument in 1996⁴ and concluded that acceptance of the Madison Amendment does have implications for the premise that approval of the ERA by three more states could allow Congress to declare ratification accomplished. As of 2007, ratification bills testing this three-state strategy have been introduced in one or more legislative sessions in eight states (Arizona, Arkansas, Florida, Illinois, Mississippi, Missouri, Oklahoma, and Virginia), and supporters are seeking to move such bills in all 15 of the unratified states.⁵

In her remarks as she introduced the Equal Rights Amendment in Seneca Falls in 1923, Alice Paul sounded a call that has great poignancy and significance over 80 years later: “If we keep on this way they will be celebrating the 150^th anniversary of the 1848 Convention without being much further advanced in equal rights than we are. . . . If we had not concentrated on the Federal Amendment we should be working today for suffrage. . . . We shall not be safe until the principle of equal rights is written into the framework of our government.”

NOTES

¹ Letter, March 31, 1776 (in Alice S. Rossi, The Feminist Papers: From Adams to de Beauvoir, New York: Columbia University Press, 1973).

² Letter, April 14, 1776 (ibid.)

³ Carol Lynn Yellin, “Countdown in Tennessee, 1920,” American Heritage (December 1978).

⁴ David C. Huckabee, “Equal Rights Amendment: Ratification Issues,” Memorandum, March 18, 1996 (Congressional Research Service, Library of Congress, Washington, DC).

⁵Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.