Introduction

The Equal Rights Amendment (ERA) is a proposed amendment to the United States Constitution designed to guarantee equal legal rights for all American citizens regardless of sex. It seeks to end the legal distinctions between men and women in terms of divorce, property, employment, and other matters. The ERA was originally written by Alice Paul and Crystal Eastman, and was first introduced in Congress in December 1923.

In the early history of the Equal Rights Amendment, middle-class women were largely supportive, while those speaking for the working class were often opposed, pointing out that employed women needed special protections regarding working conditions and employment hours. With the rise of the women's movement in the United States during the 1960s, the ERA garnered increasing support, and, after being reintroduced by Representative Martha Griffiths in 1971, it was approved by the U.S. House of Representatives on October 12, 1971 and by the U.S. Senate on March 22, 1972, thus submitting the ERA to the state legislatures for ratification, as provided for in Article V of the U.S. Constitution.

Congress had originally set a ratification deadline of March 22, 1979, for the state legislatures to consider the ERA. Through 1977, the amendment received 35 of the necessary 38 state ratifications.[note 1] With wide, bipartisan support (including that of both major political parties, both houses of Congress, and Presidents Nixon, Ford, and Carter) the ERA seemed destined for ratification until Phyllis Schlafly mobilized conservative women in opposition. These women argued that the ERA would disadvantage housewives, cause women to be drafted into the military and to lose protections such as alimony, and eliminate the tendency for mothers to obtain custody over their children in divorce cases. Many labor feminists also opposed the ERA on the basis that it would eliminate protections for women in labor law, though over time more and more unions and labor feminist leaders turned toward supporting it.

Five state legislatures (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) voted to revoke their ERA ratifications. Four claim to have rescinded their ratifications before the original March 22, 1979, ratification deadline, while the South Dakota legislature did so by voting to sunset its ratification as of that original deadline. However, it remains an unresolved legal question as to whether a state can revoke its ratification of a federal constitutional amendment.

In 1978, Congress passed (by simple majorities in each house), and President Carter signed, a joint resolution with the intent of extending the ratification deadline to June 30, 1982. Because no additional state legislatures ratified the ERA between March 22, 1979, and June 30, 1982, the validity of that disputed extension was rendered academic. Since 1978, attempts have been made in Congress to extend or remove the deadline.

In the 2010s, due, in part, to fourth-wave feminism and the Me Too movement, interest in getting the ERA adopted was revived. In 2017, Nevada became the first state to ratify the ERA after the expiration of both deadlines, and Illinois followed in 2018. After the 2019 elections in Virginia gave the Democratic Party majority control of both houses of the Virginia legislature, the incoming leaders expressed their intent to hold a vote on ratification, which if passed would make Virginia the 38th state to ratify the ERA (counting the five that have voted to rescind their ratifications). However, experts and advocates have acknowledged legal uncertainty about the consequences of Virginia's potential ratification, due to the expired deadlines and the five states' purported revocations.

Background

On September 25, 1921, the National Woman's Party announced its plans to campaign for an amendment to the U.S. Constitution to guarantee women equal rights with men. The text of the proposed amendment read:

Section 1. No political, civil, or legal disabilities or inequalities on account of sex or on account of marriage, unless applying equally to both sexes, shall exist within the United States or any territory subject to the jurisdiction thereof.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Alice Paul, the head of the National Women's Party, believed that the Nineteenth Amendment would not be enough to ensure that men and women were treated equally regardless of sex. In 1923, she revised the proposed amendment to read:

Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation.

Paul named this version the Lucretia Mott Amendment, after a female abolitionist who fought for women's rights and attended the First Women's Rights Convention.

In 1943, Alice Paul further revised the amendment to reflect the wording of the Fifteenth and Nineteenth Amendments. This text became Section 1 of the version passed by Congress in 1972.

As a result, in the 1940s, ERA opponents proposed an alternative, which provided that "no distinctions on the basis of sex shall be made except such as are reasonably justified by differences in physical structure, biological differences, or social function." It was quickly turned down by both pro and anti-ERA coalitions.

Feminists Split

Since the 1920s, the Equal Rights Amendment has been accompanied by discussion among feminists about the meaning of women's equality. Alice Paul and her National Woman's Party asserted that women should be on equal terms with men in all regards, even if that means sacrificing benefits given to women through protective legislation, such as shorter work hours and no night work or heavy lifting. Opponents of the amendment, such as the Women's Joint Congressional Committee, believed that the loss of these benefits to women would not be worth the supposed gain to them in equality. Although it now appears courts would indeed consider physical distinctions when applying the amendment, and determine whether a compelling government interest was met by sex-based government classifications, those discussing the amendment at the time had not yet seen the thoughtful Constitutional interpretations relating to civil rights and sex-based classifications that occurred years later. In 1924, The Forum hosted a debate between Doris Stevens and Alice Hamilton concerning the two perspectives on the proposed amendment. Their debate reflected the wider tension in the developing feminist movement of the early 20th century between two approaches toward gender equality. One approach emphasized the common humanity of women and men, while the other stressed women's unique experiences and how they were different from men, seeking recognition for specific needs. The opposition to the ERA was led by Mary Anderson and the Women's Bureau beginning in 1923. These feminists argued that legislation including mandated minimum wages, safety regulations, restricted daily and weekly hours, lunch breaks, and maternity provisions would be more beneficial to the majority of women who were forced to work out of economic necessity, not personal fulfillment. The debate also drew from struggles between working class and professional women. Alice Hamilton, in her speech "Protection for Women Workers," said that the ERA would strip working women of the small protections they had achieved, leaving them powerless to further improve their condition in the future, or to attain necessary protections in the present.

The National Woman's Party already had tested its approach in Wisconsin, where it won passage of the Wisconsin Equal Rights Law in 1921. The party then took the ERA to Congress, where U.S. senator Charles Curtis, a future vice president of the United States, introduced it for the first time in October 1921. Although the ERA was introduced in every congressional session between 1921 and 1972, it almost never reached the floor of either the Senate or the House for a vote. Instead, it was usually blocked in committee; except in 1946, when it was defeated in the Senate by a vote of 38 to 35 — not receiving the required two-thirds supermajority.

Ratifications

On March 22, 1972, the ERA was placed before the state legislatures, with a seven-year deadline to acquire ratification by three-fourths (38) of the state legislatures. A majority of states ratified the proposed constitutional amendment within a year. Hawaii became the first state to ratify the ERA, which it did on the same day the amendment was approved by Congress: The U.S. Senate's vote on H.J.Res. 208 took place in the mid-to-late afternoon in Washington D.C., when it was still midday in Hawaii. The Hawaii Senate and House of Representatives voted their approval shortly after noon Hawaii Standard Time.

During 1972, a total of 22 state legislatures ratified the amendment and eight more joined in early 1973. Between 1974 and 1977, only five states approved the ERA, and advocates became worried about the approaching March 22, 1979, deadline. At the same time, the legislatures of four states which had ratified the ERA then adopted legislation purporting to rescind those ratifications. If, indeed, a state legislature has the ability to rescind, then the ERA actually had ratifications by only 31 states — not 35 — when March 22, 1979, arrived.

The ERA has been ratified by the following states:

1. Hawaii (March 22, 1972)
2. New Hampshire (March 23, 1972)
3. Delaware (March 23, 1972)
4. Iowa (March 24, 1972)
5. Idaho (March 24, 1972)
6. Kansas (March 28, 1972)
7. Nebraska (March 29, 1972)
8. Texas (March 30, 1972)
9. Tennessee (April 4, 1972)
10. Alaska (April 5, 1972)
11. Rhode Island (April 14, 1972)
12. New Jersey (April 17, 1972)
13. Colorado (April 21, 1972)
14. West Virginia (April 22, 1972)
15. Wisconsin (April 26, 1972)
16. New York (May 18, 1972)
17. Michigan (May 22, 1972)
18. Maryland (May 26, 1972)
19. Massachusetts (June 21, 1972)
20. Kentucky (June 27, 1972)
21. Pennsylvania (September 27, 1972)
22. California (November 13, 1972)
23. Wyoming (January 26, 1973)
24. South Dakota (February 5, 1973)
25. Oregon (February 8, 1973)
26. Minnesota (February 8, 1973)
27. New Mexico (February 28, 1973)
28. Vermont (March 1, 1973)
29. Connecticut (March 15, 1973)
30. Washington (March 22, 1973)
31. Maine (January 18, 1974)
32. Montana (January 25, 1974)
33. Ohio (February 7, 1974)
34. North Dakota (February 3, 1975)
35. Indiana (January 18, 1977)
36. Nevada (March 22, 2017)
37. Illinois (May 30, 2018)

Ratifications rescinded

Although Article V is silent as to whether a state may rescind a previous ratification of a proposed—but not yet ratified—amendment to the U.S. Constitution,[59] legislators in the following four states nevertheless voted to retract their earlier ratification of the ERA:

1. Nebraska (March 15, 1973: Legislative Resolution No. 9)
2. Tennessee (April 23, 1974: Senate Joint Resolution No. 29)
3. Idaho (February 8, 1977: House Concurrent Resolution No. 10)
4. Kentucky (March 17, 1978: House (Joint) Resolution No. 20)

State Equal Rights Amendments

Twenty-five states have adopted constitutions or constitutional amendments providing that equal rights under the law shall not be denied because of sex. Most of these provisions mirror the broad language of the ERA, while the wording in others resembles the Equal Protection Clause of the Fourteenth Amendment.[53] The 1879 Constitution of California contains the earliest state equal rights provision on record. Narrowly written, it limits the equal rights conferred to "entering or pursuing a business, profession, vocation, or employment". Near the end of the 19th century two more states, Wyoming (1890) and Utah (1896), included equal rights provisions in their constitutions. These provisions were broadly written to ensure political and civil equality between women and men. Several states crafted and adopted their own equal rights amendments during the 1970s and 1980s, while the ERA was before the states, or afterward.

Some equal rights amendments and original constitutional equal rights provisions are:

Alaska: No person is to be denied the enjoyment of any civil or political right because of race, color, creed, sex or national origin. The legislature shall implement this section. Alaska Constitution, Article I, §3 (1972)

California: A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin. California Constitution, Article I, §8 (1879)

Colorado: Equality of rights under the law shall not be denied or abridged by the state of Colorado or any of its political subdivisions because of sex. Colorado Constitution, Article II, §29 (1973)

Connecticut: No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability. Connecticut Constitution, Article I, §20 (1984)

Delaware: Equality of rights under the law shall not be denied or abridged on account of sex. Delaware Constitution, Article I, §21 (2019)

Illinois: The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts. Illinois Constitution, Article I, §18 (1970)

Iowa: All men and women are, by nature, free and equal and have certain inalienable rights — among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness. Iowa Constitution, Article I, §1 (1998)

Maryland: Equality of rights under the law shall not be abridged or denied because of sex. Maryland Constitution, Declaration of Rights, Article 46 (1972)

Massachusetts: All people are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin. Massachusetts Constitution, Part 1, Article 1 as amended by Article CVI by vote of the People, (1976)

Montana: Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas. Montana Constitution, Article II, §4 (1973)

Oregon: Equality of rights under the law shall not be denied or abridged by the state of Oregon or by any political subdivision in this state on account of sex. Oregon Constitution, Article I, §46 (2014)

Utah: The rights of citizens of the State of Utah to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy all civil, political and religious rights and privileges. Utah Constitution, Article IV, §1 (1896)

Virginia: That no person shall be deprived of his life, liberty, or property without due process of law; that the General Assembly shall not pass any law impairing the obligation of contracts; and that the right to be free from any governmental discrimination upon the basis of religious conviction, race, color, sex, or national origin shall not be abridged, except that the mere separation of the sexes shall not be considered discrimination.

Wyoming: In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal. Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than the individual incompetency or unworthiness duly ascertained by a court of competent jurisdiction. The rights of citizens of the state of Wyoming to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this state shall equally enjoy all civil, political and religious rights and privileges. Wyoming Constitution, Articles I and VI (1890)

Opposition to the ERA

Opponents of the ERA focused on traditional gender roles, such as how men do the fighting in wartime. They argued that the amendment would guarantee the possibility that women would be subject to conscription and be required to have military combat roles in future wars if it were passed. Defense of traditional gender roles proved to be a useful tactic. In Illinois, supporters of Phyllis Schlafly, a conservative Republican activist from that state, used traditional symbols of the American housewife. They took homemade bread, jams, and apple pies to the state legislators, with the slogans, "Preserve us from a congressional jam; Vote against the ERA sham" and "I am for Mom and apple pie." They appealed to married women by stressing that the amendment would invalidate protective laws such as alimony and eliminate the tendency for mothers to obtain custody over their children in divorce cases.[100] It was suggested that single-sex bathrooms would be eliminated and same-sex couples would be able to get married if the amendment were passed.[6] Women who supported traditional gender roles started to oppose the ERA. Schlafly said the ERA was designed for the benefit of young career women and warned that if men and women had to be treated identically it would threaten the security of middle-aged housewives with no job skills. They could no longer count on alimony or Social Security. Opponents also argued that men and women were already equal enough with the passage of the Equal Pay Act of 1963 and the Civil Rights Act of 1964, and that women's colleges would have to admit men. Schlafly's argument that protective laws would be lost resonated with working-class women.

Phyllis Schlafly, a conservative activist, organized opposition to the ERA and argued that it "would lead to women being drafted by the military and to public unisex bathrooms" At the 1980 Republican National Convention, the Republican Party platform was amended to end its support for the ERA.[105] The most prominent opponent of the ERA was Schlafly. Leading the Stop ERA campaign, Schlafly defended traditional gender roles and would often attempt to incite feminists by opening her speeches with lines such as, "I'd like to thank my husband for letting me be here tonight — I always like to say that, because it makes the libs so mad."[106] When Schlafly began her campaign in 1972, public polls showed support for the amendment was widely popular and thirty states had ratified the amendment by 1973. After 1973, the number of ratifying states slowed to a trickle. Support in the states that had not ratified fell below 50%. Critchlow and Stachecki noted that public opinion in key states shifted against the ERA as opponents, operating on the local and state levels, won over the public. The state legislators in battleground states followed public opinion in rejecting the ERA.

Experts[weasel words] agree that Phyllis Schlafly was a key player in the defeat. Political scientist Jane Mansbridge in her history of the ERA argues that the draft issue was the single most powerful argument used by Schlafly and the other opponents to defeat ERA. Mansbridge concluded, "Many people who followed the struggle over the ERA believed — rightly in my view — that the Amendment would have been ratified by 1975 or 1976 had it not been for Phyllis Schlafly's early and effective effort to organize potential opponents." Legal scholar Joan C. Williams maintained, "ERA was defeated when Schlafly turned it into a war among women over gender roles." Historian Judith Glazer-Raymo asserted:

As moderates, we thought we represented the forces of reason and goodwill but failed to take seriously the power of the family values argument and the single-mindedness of Schlafly and her followers. The ERA's defeat seriously damaged the women's movement, destroying its momentum and its potential to foment social change…. Eventually, this resulted in feminist dissatisfaction with the Republican Party, giving the Democrats a new source of strength that when combined with overwhelming minority support, helped elect Bill Clinton to the presidency in 1992 and again in 1996.

Many ERA supporters blamed their defeat on special interest forces, especially the insurance industry and conservative organizations, suggesting that they had funded an opposition that subverted the democratic process and the will of the pro-ERA majority. Such supporters argued that while the public face of the anti-ERA movement was Phyllis Schlafly and her STOP ERA organization, there were other important groups in the opposition as well, such as the powerful National Council of Catholic Women, labor feminists[verification needed] and (until 1973) the AFL–CIO. Opposition to the amendment was particularly high among religious conservatives, who argued that the amendment would guarantee universal abortion rights and the right for homosexual couples to marry. Critchlow and Stachecki say the anti-ERA movement was based on strong backing among Southern whites, Evangelical Christians, members of the Church of Jesus Christ of Latter-day Saints, Orthodox Jews, and Roman Catholics, including both men and women. Sonia Johnson, a traditionally-raised Mormon housewife whose eventual feminist advocacy for the ERA's passage led to her excommunication by the LDS church, subsequently wrote about her experiences in the memoir From Housewife to Heretic. Johnson and others led a hunger strike/fast at the Illinois State Senate chamber in an unsuccessful effort to push the Illinois General Assembly toward ERA ratification before the 1982 revised deadline.

The ERA has long been opposed by pro-life groups who believe it would be interpreted to allow legal abortion without limits and taxpayer funding for abortion.

Support for the ERA

Supporters of the ERA point to the lack of a specific guarantee in the Constitution for equal rights protections on the basis of sex. In 1973, future Supreme Court justice Ruth Bader Ginsburg summarized a supporting argument for the ERA in the American Bar Association Journal:

The equal rights amendment, in sum, would dedicate the nation to a new view of the rights and responsibilities of men and women. It firmly rejects sharp legislative lines between the sexes as constitutionally tolerable. Instead, it looks toward a legal system in which each person will be judged on the basis of individual merit and not on the basis of an unalterable trait of birth that bears no necessary relationship to need or ability.

In the early 1940s both the Democratic and Republican parties added support for the ERA to their platforms.

The National Organization for Women (NOW) and ERAmerica, a coalition of almost 80 organizations, led the pro-ERA efforts. Between 1972 and 1982, ERA supporters held rallies, petitioned, picketed, went on hunger strikes, and performed acts of civil disobedience. On July 9, 1978, NOW and other organizations hosted a national march in Washington D.C., which garnered over 100,000 supporters, and was followed by a Lobby Day on July 10. On June 6, 1982, NOW sponsored marches in states that had not passed the ERA including Florida, Illinois, North Carolina, and Oklahoma. Key feminists of the time, such as Gloria Steinem, spoke out in favor of the ERA, arguing that ERA opposition was based on gender myths that overemphasized difference and ignored evidence of unequal treatment between men and women.