What’s New with the ERA

So last night at just moments before midnight I received an email alerting me that the Equal Rights Amendment had (finally!) passed the Illinois House by a vote of 72-45, with one vote to spare (71 votes were needed so as to comply with a 3/5 supermajority for Constitutional amendments under Illinois law). For a number of years now one chamber or the other would pass it, but not both, and both have to pass it in the same session for the approval to be effective. But the Senate passed it in April and now the House yesterday. This ratification came more than 45 years after the amendment was passed by Congress! (News sources speculate that perhaps the #MeToo movement may have finally pushed it over the top.)

This notice came to me from a conservative lobbyist who was fighting against the amendment. Somehow I got on her list a few years ago, and every now and then I would get a status report on the amendment in Illinois. When I first started getting these, I wondered why we were still fighting over the ERA, as I thought it had died a long time ago. So I had to catch up a bit with what has been going on. I’ll try to sketch this out for you below:

The first version of the ERA was proposed in 1921. It had a different text than the more recent one we’re familiar with, but the substance was pretty much the same. It had a tough time getting traction, as women were split over it. Middle class women tended to support it, but working class women and labor unions tended to be opposed for fear it would do away with special protections in the workplace for women (such as working conditions and employment hours). So it languished for a long time.

Momentum increased in the 1960s as the women’s movement accelerated during that time. Congress eventually passed the amendment with broad bi-partisan support (1971 in the House and 1972 in the Senate), with a seven-year deadline (March 22, 1979) for ratification by at least 38 states (i.e., 3/4 of the states) as per Article V of the U.S. Constitution. By 1977 35 states had ratified the amendment and its passage seemed to be a fait accompli.

But then Phyllis Schlafly (who also happens to be from Illinois) led more traditional minded women (including of course many LDS women) in opposition to the amendment. She argued it was tailored for young career women and would harm middle-aged housewives with no job skills in matters such as alimony or Social Security. Many of these women defended traditional gender roles. This activism worked; the deadline came and went, and no further states ratified. In fact, four states purported to rescind their ratifications, but it’s unclear whether they could effectively do that. In 1978, Congress by joint resolution purported to extend the deadline until June 30, 1982. Whether that was effective was debated, but no further states ratified during the extension so the question appeared to become moot.

That is sort of where I thought things were, which is why I was curious about why Illinois was still trying to pass the amendment. But then I learned about the “three-state strategy.” The idea was that if three more states would adopt the amendment (to go from 35 to 38), Congress (or the Supreme Court) could waive the deadline(s). This idea of belated ratification seemed to be supported by the 27th amendment to the Constitution (the “Madison Amendment”), which had been pending before state legislatures since 1789 and was not ratified until 1992. (One problem with this theory was that there was never a ratification deadline associated with that proposed amendment.)

So anyway, Nevada ratified and now as of yesterday so has Illinois, which brings us to 37. If one more state ratifies, we’ll have a legal free-for-all, as people argue over such issues as the legality of states attempting to de-ratify, of Congress extending the deadline and of Congress (should it do so) doing away with the deadline altogether. Whether this three-state strategy might actually work remains a matter of debate among legal scholars. Today’s Chicago Tribune quotes Geoffrey Stone, a University of Chicago constitutional law scholar, as saying it’s unclear “there’s an obvious right or wrong answer.”

Note: If you’re curious about the Church’s historical opposition to the ERA, BCC posted a copy of a substantial Ensign pull-out section (based on the work of Rex E. Lee) that goes over their basic argument at the time.

 

 

 

 

Comments

  1. Is there any effort to ratify it in additional states beyond the needed + one?

  2. Kevin Barney says:

    My understanding is that advocates have been attempting to get ratifications in all non-ratifying states. There is also a “fresh start” strategy, such that if the three-state strategy doesn’t work they just start over with the whole process (which, given how much time has elapsed since the first go round was initiated, sounds utterly exhausting to me.)

  3. Kevin, I’m going to guess you were getting emails from my sister who has been a primary advocate and lobbyist here in Illinois attempting to Stop ERA. I can guess how you were added but I’m not certain. She is a Schlafly acolyte and grew in her advocacy as a result of my mother’s own efforts back in the 70’s and 80’s working against the ERA in Tennessee and Delaware as one of those SAHM who bought heavily into the policy view that Schlafly and her Eagle Forum advocated and how the Church was driving this message.

    I’m not sure what my perspective is here but I tend to agree with your comments in the previous post by John F where you stated you agreed with Rex E. Lee’s assessment that this would be better dealt with in the context of the 14th amendment. For that reason I see the ERA as the wrong means of accomplishing the goals.

  4. My rationale for opposing the ERA is that it’s unclear what it would actually do that the Equal Protection Clause of the 14th Amendment doesn’t already do, and passing an amendment with uncertain results doesn’t seem like a great idea.

  5. Kevin Barney says:

    Alain, I’m sure you’re right about your guess. I had no idea she was your sister! (I only actually met her once, at a PA meeting.) I’m not a conservative, but I was always happy to get the updates to see what was going on behind the scenes.

  6. Happy Hubby says:

    I thought this post was going to be about how major league baseball was going to change the way it computed the Earned Run Average. You can’t say that men don’t care about the ERA, it is just which one they care about. :-)
    On a more serious note, I am really glad this is happening. I remember spouting to my mom when I was in my teens in the 70’s sometime, “The ERA and immigrants are going to ruin this country.” I sit here many decades later and I have done nearly a 180 on both issues. It warms me that I have changed and I believe others can to.

  7. My understanding is that the 14th amendment should cover women, but historically that has been sketchy at best and is left up to the judgment of the courts. Personally I’m all for ratification.

  8. Kevin Barney says:

    There had been two types of scrutiny of cases under the 14th amendment: strict and rational basis. Laws burdening certain classes, such as race, have to meet very strict scrutiny to be upheld. Laws not burdening such classes are presumed constitutional as long as there is a rational basis for them. Rex’s argument was that in the decade before he wrote the Court had pioneered intermediate scrutiny for laws based on gender. That is why he didn’t think the amendment was necessary. But I don’t think intermediate scrutiny has been as protective of women’s rights as he believed it would be. So while I bought his position at the time, these days I would personally favor ratification (If anyone hasn’t seen it yet, I highly recommend the recent documentary RBG for stories of women’s issues before the Supreme Court.)

  9. That’s helpful Kevin, thanks. Could you link to the Rex E. Lee argument? I’d be interested to read it.

    I want to see that documentary – I loved the RBG episode of More Perfect (Radiolab’s Supreme Court podcast).

  10. The three-state ratification strategy seems highly suspect to me. Apparently the strategy partly rests on the assertion that only ratification is valid; retraction of ratification doesn’t count! Heads-I-win; tails-you-lose.

    I also agree with dsc that the amendment is problematically vague. If passed as legislation, it would probably be declared void for vagueness. If passed as an amendment, a more powerful judiciary would be a more certain result than greater gender equality. (Because the amendment doesn’t tell us what it means, and the judiciary has to declare what it means, they would basically get to assume legislature-like power to declare new law in this area.)

    I think a better goal would be ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), subject to reservations where prudent. The U.S. has signed but is one of only 7 countries which have not ratified the treaty.

  11. Kevin Barney says:

    Illinois has had a clause very similar to the ERA in its state constitution since 1970 and it hasn’t been a problem (but I concede there’s more potential for such issues at the federal level).

    Marian, Rex’s full argument is set forth in his book A Lawyer Looks ar the EQual Rights Amendment, which I don’t believe is available online, but he was also influential in the Church’s Ensigh insert linked in the OP.

  12. “… BCC posted a copy of a substantial Ensign pull-out section (based on the work of Rex E. Lee) that goes over their basic argument at the time.”

    “- at the time”

    Any argument that attempts to utilize the phrase “time-honored moral values” is on the express rail to the dustbin of history. Lee may have been a better-than-average SG but this document is strikingly sad & dated, a relic of 80’s faux-disco LDS patriarchy.

  13. Thanks Kevin. I’m not a lawyer or a constitutional scholar, so it is hard for me to understand argument that it is too vague. Anyone care to expand? Hard to see the downside of the following statement but I know constitutional questions can get sticky fast.

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

  14. Aussie Mormon says:

    Marian: The way I see it in regards to vagueness… rights equality of groups A and B (assuming A has more rights), can either be done by giving the extra rights to group B, removing the extra rights from group A, or a combination of the two. Is the intent of the amendment to give extra rights, or strip unequal rights?

  15. Left Field says:

    It may be worth noting that since statehood, Utah has had virtually the same wording in its constitution, to no ill effect.

  16. Aussie – if you extend that reasoning to any other two groups of people it falls apart. What if group A and B are white and black people? Or rich and poor people? If one set has “extra” rights, that automatically disadvantages the other set. Equality protects everyone.

    For example – it is wrong that men have to register for the draft and not women given that women may now serve in combat and in any branch of the service. That is an “extra” right given to women which disadvantages men (and I would argue, ultimately women as well). Is there any defensible reason why that should be the case, especially given that the military has no stomach for the draft at this point in history and that there are many ways to serve which do not require combat?

    Or take what little family leave there is in the United States – why should that not be extended to men as well? Additional physical recovery time should be provided under disability or medical leave, and both parents protected by family leave.

    Just my $0.02. I find this whole discussion fascinating.

  17. Kristine says:

    I vividly remember the Rex E. Lee Ensign thing because it sparked a huge argument between my mother and 10-year-old me, with me offering profound insights like, “But mom, we have a unisex bathroom right here in our house, and it works out just fine!”

  18. Prediction: The 38th state will not be Utah.

  19. Aussie Mormon says:

    Marian: The point I’m trying to make is one step further on than the existence of extra rights.

    What i’m trying to say using your two examples:

    Draft example, with males being forced to register for the draft, and females not.
    Option 1: Give rights: Give males the right to not have to register for the draft. (No one has to register)
    Option 2: Take rights: Take away the no-draft registration that females have, so that women have to register for the draft. (Everyone has to register)

    Family leave example:
    Option 1: Give rights: Give males the right to take family leave. (Everyone can take it)
    Option 2: Take rights: Strip the family leave rights from females. (No one can take it)

    Clearly with the family leave example the better option is to give males the right to also take family leave, since it can lead to a better outcome for the family and society, than no family leave for anyone.
    However with the draft example, if there is never going to be a draft, then there is no practical difference between both males and females being forced to register, or neither being forced to register.

    Even when it is clear to most people which is better, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” does not tell you which of the two options to implement. It gives no guidance of which to implement, or how to create/maintain equality. It does not require a net benefit to be given to a specific group, and so does not prevent the creation of equality by stripping rights.

    Summary:
    We know that there are unequal rights. How do you make the rights equal? Do you give the extra rights to the group without the rights, or do you take the extra rights from the group with them? The twenty-four words in section one of the ERA don’t specify. Which means if passed as written, it’d be up to the courts to decide, which leads back to Travis’ “more powerful judiciary”.

    Just my 2c (about 1.5US cents at the moment).

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