“In Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”
This preamble to the U.S. Constitution declares the promise of America.
But for American women, the promise has been willfully delayed. The Founding Fathers granted citizens’ rights only to property-owning white males. Over the years, constitutional amendments gradually extended rights to others, including, after the Civil War, to former slaves — but excluded the female half of that population.
Having won the right to vote, women began a campaign for full equality under the law in 1923, when Alice Paul wrote the first Equal Rights Amendment. The ERA was introduced in every session of Congress until it finally passed Congress in 1972 and went to the states for ratification. However, the preamble required a seven-year deadline, which Congress later extended to 1982 — a total of only 10 years.
To put an amendment into the Constitution, three-fourths of the states (38) must ratify it. When the deadline was reached, 35 states had ratified. Fifteen states refused to do so, including North Carolina.
In 1992, a major development occurred that affects the ERA’s status: An amendment concerning congressional pay raises was incorporated into the Constitution after 203 years. As a consequence, the deadline for ERA ratification is rendered irrelevant. Furthermore, mention of the ERA deadline is in the amendment’s preamble, not its actual text. Now women have the best chance in 30 years to win constitutional equality.
Some argue that laws outlawing sex discrimination already exist. But a law is only as strong as the next General Assembly and the next Congress. A stark instance occurred in 2012, when the Wisconsin Legislature repealed that state’s equal pay law. Another is that Title IX, the federal law promising equality for women and girls in education (including school athletics) has been under siege for years. That law (and many others) banning sex discrimination can be overturned by a simple majority in lawmaking bodies.
Would anyone really want to turn back the clock on women’s advancement? Ask the members of Congress who have tried to weaken Title IX … who opposed the Violence Against Women Act … the Fair Pensions Act … and the Paycheck Fairness Act … who voted to pay for Viagra for servicemen but oppose funding for family planning and contraception.
While laws disproportionately affecting women can be challenged in court, no constitutional guarantee protects women. Bedrock constitutional protection against gender inequities is needed. Once the ERA becomes part of the Constitution, victims of sex discrimination will be able to challenge and overturn discriminatory federal, state, and local laws and their implementation.
Some people claim that women already enjoy equal rights under the 14th Amendment, but most sex discrimination cases brought before the Supreme Court on this basis have lost. Justice Antonin Scalia has made it painfully clear:“Certainly, the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”
ERA advocates are now pursuing the “three-state strategy” and are working to persuade three more states to ratify the amendment. The alternative is a start-over proposal, which has been introduced in Congress for the past 30 years and has gotten nowhere. Congress should remove the deadline and require only three more states to ratify the ERA. To clarify the issue, SJR 15 by Senators Ben Cardin (D-Md.) and Mark Kirk (R-Ill.) eliminates the deadline, which many legal scholars think does not really apply anyway. The measure already has 34 cosponsors, including Senator Kay Hagan. A companion measure in the House, HJR 43, has 104 cosponsors.
Jennifer MacLeod, a longtime women’s equality leader, passionately advocates that the ERA must become part of the Constitution because “we need to move beyond the struggle for it. We need to affirm the spirit and free the energies of women and men who have spent countless hours, years, and even lifetimes working for this basic human right of equal constitutional protection. When we can redirect that energy and those resources to work on the many other challenges we face in common, we will truly have fulfilled the vision of suffragist leader and ERA author Alice Paul.”
