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Equal Rights Amendment

Constitutional Equality and Justice for All?

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Ellie Smeal at 2012 Rally for 40th Anniversary of Congressional Passage of the ERA

Ellie Smeal at 2012 Rally for 40th Anniversary of Congressional Passage of the ERA

Chip Somodeville / Getty Images

The Equal Rights Amendment (ERA) is a proposed amendment to the U.S. Constitution that would guarantee equality under the law for women. It was introduced in 1923. During the 1970s, the ERA was passed by Congress and sent to the states for ratification, but ultimately fell three states short of becoming part of the Constitution.

What the ERA Says

The text of the Equal Rights Amendment is:

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.

History of the ERA: 19th Century

In the wake of the Civil War, the 13th Amendment eliminated slavery, the 14th Amendment declared that no state could abridge the privileges and immunities of U.S citizens, and the 15th Amendment guaranteed the right to vote regardless of race. Feminists of the 1800s fought to have these amendments protect the rights of all citizens, but the 14th Amendment includes the word "male" and together they explicitly protect only men's rights.

History of the ERA: 20th Century

In 1919, Congress passed the 19th Amendment, ratified in 1920, giving women the right to vote. Unlike the 14th Amendment, which says no privileges or immunities will be denied to male citizens regardless of race, the 19th Amendment protects only the voting privilege for women.

In 1923, Alice Paul wrote the "Lucretia Mott Amendment," which said, "Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction." It was introduced annually in Congress for many years. In the 1940s, she rewrote the amendment. Now called the "Alice Paul Amendment," it required "equality of rights under the law" regardless of sex.

The 1970s Struggle to Pass the ERA

The ERA finally passed the U.S. Senate and House of Representatives in 1972. Congress included a seven-year deadline for ratification by three-fourths of the states, meaning that 38 of the 50 states had to ratify by 1979. Twenty-two states ratified in the first year, but the pace slowed to either a few states per year or none. In 1977, Indiana became the 35th state to ratify the ERA. Amendment author Alice Paul died the same year.

Congress extended the deadline to 1982, to no avail. In 1980, the Republican Party removed support for the ERA from its platform. Despite increased civil disobedience, including demonstrations, marches, and hunger strikes, advocates were unable to get an additional three states to ratify.

Arguments and Opposition

The National Organization for Women (NOW) led the struggle to pass the ERA. As the deadline neared, NOW encouraged an economic boycott of states that had not ratified. Dozens of organizations supported the ERA and the boycott, including the League of Women Voters, the YWCA of the U.S., the Unitarian Universalist Association, the United Auto Workers (UAW), the National Education Association (NEA), and the Democratic National Committee (DNC).

The opposition included states' rights advocates, some religious groups, and business and insurance interests. Among the arguments against the ERA were that it would prevent husbands from supporting their wives, it would invade privacy, and it would lead to rampant abortion, homosexual marriage, women in combat, and unisex bathrooms.

When U.S. courts determine whether a law is discriminatory, the law must pass a test of strict scrutiny if it affects a fundamental Constitutional right or a "suspect classification" of people. Courts apply a lower standard, intermediate scrutiny, to questions of sex discrimination, although strict scrutiny is applied to claims of racial discrimination. If the ERA becomes part of the Constitution, any law discriminating on the basis of sex will have to meet the strict scrutiny test. This would mean a law that distinguishes between men and women must be "narrowly tailored" to achieve a "compelling government interest" by the "least restrictive means" possible.

The 1980s and Beyond

After the deadlines passed, the ERA was reintroduced in 1982 and annually in subsequent legislative sessions, but it languished in committee, as it had for much of the time between 1923 and 1972. There is some question as to what will happen if Congress passes the ERA again. A new amendment would require the two-thirds vote of Congress and ratification by three-fourths of the state legislatures. However, there is a legal argument that the original thirty-five ratifications are still valid, which would mean only three more states are needed. This "three-state strategy" is based on the fact that the original deadline was not part of the amendment's text, but only the Congressional instructions.

How the States Voted or Failed to Vote

The thirty-five states that ratified the amendment are: Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Vermont, Washington, West Virginia, Wisconsin, and Wyoming.

Five of those states rescinded their ratifications for various reasons. There is some question as to the legitimacy of the rescissions. This is partly due to the question of whether the states were only rescinding incorrectly worded procedural resolutions but still ratifying the amendment, and partly due to the issue of whether ERA questions are moot because the deadline has passed. The five states that rescinded their ratifications are: Idaho, Kentucky, Nebraska, Tennessee, and South Dakota.

The states that have not ratified the ERA are: Alabama, Arkansas, Arizona, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.

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