The Fight Ain't Over

by Debra Baker

ABA Journal, August 1999

Copyright © American Bar Association, 1999.  

When Congress sent the equal rights amendment to the states for ratification in 1972, ERA opponents warned of dire consequences: co-ed bathrooms, women drafted into the military, the repeal of spousal support laws.

The ERA failed, but the consequences happened anyway. Unisex bathrooms are in college dorms around the country. Women are joining the armed forces -- by choice. And modern alimony laws look at sex-neutral factors, such as need and contribution, when determining who should receive support.

In fact, about the only thing that hasn't happened is adoption of the equal rights amendment itself.

With more women holding political office, sitting on judicial benches and running corporate board meetings, the ERA might seem a relic. Yet, last year at least five states took up equal rights initiatives.

For the first time since the defeat of the federal ERA in 1982, two states -- Iowa and Florida -- passed amendments to include women in their state constitutions. In Missouri, the general assembly debated passage of the federal ERA. And legislation calling for the ratification of the federal ERA was introduced in Illinois and Virginia, although no action was taken in either state.

Backers of a federal ERA hope that renewed interest can help them revive the long dormant amendment. Supporters of the state initiatives and of the federal ERA both say that despite social and economic gains during the last 20 years, women will never truly be treated as equals under the law without an equal rights amendment.

"Passage of the ERA is the only way to guarantee women won't be subjected to inferior treatment," says U.S. Rep. Carolyn Maloney, D-N.Y., who has introduced legislation calling for an equal rights amendment in each of the last two sessions of Congress. "To say you don't need it is like saying you don't need the First Amendment."
 
Battle of the Sexes

Back in the days when Billie Jean King was trouncing Bobby Riggs on the tennis court, the campaign to ratify the equal rights amendment boosted the feminist movement and gave women with diverse interests a common cause to rally around.

The wording was simple: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." Who could disagree? Indeed, within five years after Congress passed the amendment 35 states had approved it, only three short of the number needed for ratification.

But as the decade wound down, so did the amendment's momentum. ERA supporters had to ask Congress for a three-year extension of the ratification deadline, which was to expire in 1979.

Then came the 1980s. The Cosby Show replaced The Brady Bunch, and America's television moms were filing legal briefs instead of their fingernails. Despite the changing image of women, a new age of conservatism had begun. Ronald Reagan was elected president and the Republican Party dropped equal rights from its platform. The "Stop ERA" campaign led by conservative Phyllis Schlafly was in full force. On June 30, 1982, failing to meet its deadline for ratification, the ERA expired.

Meanwhile, women had developed new strategies to address inequality. Working through the courts, women made strides in areas such as employment opportunity, school funding and addressing sexual harassment. They helped influence the passage of state and federal laws providing family leave, stronger child support enforcement, and protection against domestic and other acts of violence against women.

Women's political action committees like Emily's List helped elect more women to office. Female representation in state legislatures has grown from 2 percent in 1971 to 28 percent today. The number of women in Congress has increased from 16 in 1974 to 65 today.

But favorable court rulings and legislative gains do not go far enough, ERA advocates say. Maloney praises legislative efforts to address inequalities in areas such as salaries, employment opportunities and education. But, she says, without an equal rights amendment there is no way to assure the laws will be enforced.

As an example, Maloney cites the Pay Equity Act, which was passed in 1964, when women earned 59 cents for every dollar men made. Today women make 79 cents for every dollar men make. "We got a raise, but we're still not there," Maloney says.

Congress also has failed to address inequalities in health care and insurance, says Marcia Greenberger, executive director of the Washington, D.C.-based National Women's Law Center.

"The equal rights amendment is important because there is no absolute protection against governmentsponsored discrimination under the Constitution," she says.
 
The Argument for Equality

During the original debate over the ERA, Ruth Bader Ginsburg, then a Columbia law professor, made the case for the amendment by arguing that, without it, there would be no incentive to overhaul laws that discriminate on the basis of sex.

In an article published in the September 1973 ABA Journal, Ginsburg wrote that while Congress had already passed the Pay Equity Act, Title VII of the Civil Rights Act and Title IX of the Education Act, hundreds of federal laws, as well as many state laws, still contained sex-based references.

In court, Ginsburg argued cases that later led Congress and the states to rethink laws that discriminated on the basis of sex. In Reed v. Reed (1971) and Frontiero v. Richardson (1973), the U.S. Supreme Court ruled that under the equal protection clause of the 14th Amendment, there must be a rational basis for laws that contained sex-based classifications.

Later, in Craig v. Boren (1976), the Court raised the standard by requiring a showing that the classification was substantially related to the achievement of an important governmental interest -- the intermediate scrutiny standard.

As a Supreme Court justice and author of the Court's opinion in Virginia v. U.S. (1996), Ginsburg heightened the intermediate scrutiny standard, holding that sex-based classifications require an "exceedingly persuasive justification." The decision led to the inclusion of women into the formerly all-male Virginia Military Institute.

But even after the VMI case, the level of scrutiny required to overturn sex-based classifications is still lower than the standard used for laws discriminating on the basis of race and ethnicity. "The 14th Amendment helped, but there is still only intermediate, not strict, scrutiny," Greenberger says. Strict scrutiny, she notes, would at least force lawmakers to articulate a compelling governmental interest for discriminating on the basis of sex.

Kim Gandy, executive vice president of the National Organization for Women, says she has only to look at history to understand why an equal rights amendment is needed. During the 1970s, recalls Gandy, ERA proponents argued that without a constitutional amendment guaranteeing the equality of women, favorable laws could be amended or repealed, and court decisions could be overturned.

"I said those things, but in my heart of hearts, I didn't believe it could happen. You don't believe you could go backward," says Gandy.

She changed her mind in the 1980s, when the U.S. Supreme Court issued its ruling in Grove City College v. Bell (1984). The case curtailed Title IX, holding that it applied only to discrimination in admissions or in federally funded programs.

It was a struggle to restore the force of the legislation, Gandy says. Congress clarified that Title IX was to apply to all programs within a school that receives federal funding.

Later, the 1st U.S. Circuit Court of Appeals at Boston interpreted the provision in Brown University v. Cohen (1996) to mean that the number of female athletes must "substantially mirror" the number of women in the overall student body. The Supreme Court denied certiorari, prompting an unsuccessful effort in the conservative 104th Congress to undo Brown by passing legislation to exclude athletics from the act.

Witnessing what happened with Title IX made Gandy realize that the warnings of ERA proponents in the 1970s were realistic.

"No matter how much legislation is in place, we are only one president or one Congress or one Supreme Court away from losing what we've gained," Gandy says. "We need a guarantee of equality as much now as we did then."

But the position of ERA opponents has changed little since the debate began nearly three decades ago.

"This was an idea that had a 10-year debate. It was rejected," says Schlafly, president of the Eagle Forum, a conservative public interest group in Alton, Ill. "Concerns about the draft may have faded," she admits, "but abortion rights and gay marriage continue to be real concerns."

Schlafly argues that state equal rights amendments have led to courts upholding gay marriages, as in Hawaii, and striking down a Medicaid rule in New Mexico that prohibited coverage of abortions unless it was necessary to save the life of the mother, to end a pregnancy that resulted from rape or incest, or for other specific reasons. (The court held that the rule should have used the standard of "medical necessity" as it does with other procedures.)

Other conservative women's groups also have voiced opposition to the ERA. In an article titled "How We Got the ERA," published in the Spring 1997 Women's Quarterly, Anita Blair, general counsel of the Washington, D.C.-based Independent Women's Forum, argued that despite rejection of the ERA by the states, the U.S. Supreme Court -- through Reed, Frontiero, Boren and the VMI cases -- steamrollered a de facto ERA into the Constitution.

Blair even quoted Ginsburg herself, who, shortly after the VMI decision, told graduates of the University of Virginia law school, "There is no practical difference between what has evolved and the ERA."

Yet ERA advocates remain steadfast. While issues such as gay marriage and abortion rights continue to be divisive, they question the impact of a federal ERA on that debate.

They note that Pennsylvania, which has a state equal rights amendment similar to the federal ERA, does not recognize same-sex marriage and has one of the most restrictive abortion laws in the country.

In fact, the states are proving to be laboratories in developing alternate strategies to amend their constitutions. In Florida and Iowa, women's rights advocates, noting the continuing controversy, were forced to avoid using the language of the federal ERA. In Iowa, knowing efforts to pass an amendment that paralleled the federal ERA had failed in 1972 and 1980, legislators proposed merely adding the phrase "and women" to the section of the constitution that formerly guaranteed men equal and certain inalienable rights. Similarly, in Florida, the constitution includes the clause "female and male alike" to the statement that "all natural persons are equal before the law."

Florida's Constitutional Revision Commission initially wanted an amendment using the language of the federal ERA. The group was forced to compromise after opponents vowed to vote it down. Even after the compromise, opponents refused to support it, charging that it still opened the door to allowing gay marriages and topless beaches. In the end, what passed in Florida was considered weaker than a true equal rights amendment.
 
Florida's Efforts Lauded

Martha Barnett, ABA president-elect nominee and a member of the Florida Constitutional Revision Commission, says that even though the change to Florida's constitution did not go as far as many would have liked, it was still important, both symbolically and legally.

"A lot of us remembered our state's failure to ratify the [federal] ERA. We wanted to make it clear women had the same rights as men," Barnett says. The compromise language "did take some of the steam out of it, but the good thing is that in interpreting the [Florida] constitution, the courts are going to have to look at the language as meaning something different than what was there before."

As for the federal ERA, proponents have two tactics: One is to initiate a new amendment, like Maloney's, and start the ratification process all over again.

The other is to convince three more states to ratify the 1972 amendment. Proponents say Congress could extend or void the existing ratification deadline, based on the precedent of the 27th Amendment, regarding congressional pay raises, which was ratified in 1992 -- 203 years after it was proposed.

That strategy provided the impetus for last year's debate in Missouri, although it was largely a symbolic gesture to honor the proposal's original sponsor, state Sen. Sue Shear, who was retiring and who died of cancer shortly afterward. In the end, no vote was taken.

Nevertheless, the choice is significant because courts are often guided by legislative history to gauge congressional intent. If the 1972 amendment were to be revived, the original legislative history would remain intact.

If a new ERA were to be passed, such as the one Maloney introduced, a new legislative history would be created, leaving it up to Congress to decide what issues the equal rights amendment would embrace.

NOW's Gandy notes that during debate over the 1972 ERA, proponents were careful to exclude such emotional issues as abortion and gay marriage from the congressional debate, focusing instead on issues of economic equality.

Maloney, who believes the most direct route to passing an ERA is through new legislation, says the intent of a new equal rights amendment should parallel that of the old. Trying to broaden the scope of the amendment to include abortion and gay marriage, she says, "is an absolute guarantee that it won't get passed. If you want to win, you have to stick to the fundamental, clarion principle. Bringing in other issues will just complicate it."

But NOW, which didn't push to include abortion and gay rights the first time around, would do so if a new ERA passed, Gandy says. She says those issues would not affect the outcome if the ERA were revived. "People who oppose equal rights for women are going to believe those things are covered anyway," Gandy says. "We may as well have the issues in there and gain the support of a broader coalition."

NOW does not blame conservatives like Schlafly -- or their concerns over abortion and gay rights -- for the defeat of the federal ERA in 1982. Instead, it has maintained for years that a silent lobby of insurance and big business interests, concerned about underwriting costs, used their influence to kill the ERA in states such as Florida and Illinois, where insurance plays an influential role in local economies.

NOW, which has been focusing its efforts on increasing the number of women in elected office who support equal rights, believes the key to getting the ERA passed lies in making sure state legislatures have a strong coalition of women who support equal rights.

"Our position is pretty simple," Gandy says. "We went through a few rounds of begging for our rights. We decided we would not seek state-by-state ratification until the number of women [in state legislatures] changes. We have pursued getting women elected so we will not have to beg. Constitutional equality should not be debatable."

Even with those issues hammered out -- and despite the fact that a 1995 Harris poll commissioned by the Feminist Majority Foundation showed 86 percent of adults favor the ERA -- an equal rights amendment faces other obstacles.

It would have to fight its way to the top of a women's agenda already packed with competing issues such as child care, Social Security, sex discrimination, educational opportunities and health care.

But Maloney says the revival of the ERA has to do with more than law. It would make a social statement, she says. "We talk philosophically about equal rights. Everyone agrees we are equal, but culturally it is not happening," she says. "The ERA would go a long way toward changing that culture."

Equally important is the impact some believe reviving the equal rights amendment could have on a women's movement whose interests have diversified during the 17 years since ratification failed.
 
Unfocused Direction

Diane Bystrom, executive director of the Mary Catt Chapman Center for Women and Politics at Iowa State University, says many of her students believe the women's movement lacks focus. As a result, they are unsure whether they have a place or a role to play in the modern movement.

"The ERA was a rallying point for feminism," Bystrom says. "Some people suggest women's groups need a unifying theme. Maybe this is the issue."

The Long Haul
1923	1942	1946	1963
Equal Rights	Women begin	First ERA Senate	Congress passes
Amendment first	high-paying jobs	floor vote wins	Pay Equity Act.
introduced in	opened by World War	simple majority
Congress.	II.	but not the needed
		two-thirds.
1964	1967-68	1971	1972

Congress bars	More than 140 ERA	U.S. Supreme Court	ERA passed by
private job bias by	bills submitted in	first cites 14th	Congress and sent
race and sex with	Congress. No	Amendment to	to states. Six
Title VII. EEOC	action taken.	overturn	states say OK
created.		sex-biased law.	within week.
1972	1973	1981	1982
Title IX prohibits	Roe v. Wade	Sandra Day	ERA falls three
bias in school	establishes right	O'Connor first	states short of
program or activity	to abortion.	woman named to	ratification.
receiving federal		U.S. Supreme	Poll: 63 percent

funds.		Court.	of people want it.
1986	1996	1998	1999
U.S. Supreme Court	U.S. Supreme Court	Iowa and Florida	Elizabeth Dole
says workplace	says men-only rule	amend	makes first strong
sexual harassment	at state school	constitutions to	presidential bid
is illegal.	unconstitutional.	include mentions	by woman in major
		of women.	party.

 

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