The ERA Died Decades Ago (So Why Are the Losers Still Fighting?)

COMMENTARY: For nearly 50 years, the Equal Rights Amendment has been scrutinized and firmly rejected for one simple reason: It’s not about equal rights for women — and pretending otherwise will never make it so.

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In a peculiar twist of events, the Equal Rights Amendment (ERA) to the U.S. Constitution, which was soundly defeated in 1982, has now resurfaced.

Under the U.S. Constitution, an amendment becomes law when it’s ratified by at least three-fourths (38) of the 50 state legislatures. At its peak, 35 states had ratified the ERA, but five states later withdrew their approval. So, on June 30, 1982, the ERA died, with the final count being 30 out of the 38 states needed.

Now, ERA supporters have renewed their push to ratify the amendment, even though the congressional deadline for approval expired decades ago. Last month, both houses of the Virginia state Legislature ratified the ERA, claiming to be the 38th state to do so.

Some are hailing the Virginia vote as a belated victory for women’s equality. But, in fact (contrary to the popular narrative), it wasn’t a bunch of “patriarchal old men” who defeated the ERA in the 1970s. Rather, it was powerful, interconnected groups of smart, liberated women who put the kibosh on the ERA. A recap of feminist history may help put this intensely polarizing issue in perspective.

First proposed by the National Women’s Party in 1923, the ERA was written by feminists Crystal Eastman (a co-founder of the American Civil Liberties Union) and Alice Paul, the pro-life Quaker who spearheaded the campaign leading to the passage of the 19th Amendment, which gave women the right to vote. The ERA, as Alice Paul revised it in 1923, 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.”

But the version of the ERA adopted by Congress in 1972 read that “equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.”

Notice the shift in wording. In the 1972 version, the ERA was no longer about equality between men and women but about sex. And were it ever to be passed by three-fourths of the states with this wording, it would be left up to the courts to define what “sex” means. The transgender movement wasn’t even on America’s radar in 1972 when Congress approved the ERA. So what might the honorable judges of our land decide that little word — “sex” — means in our world today? 

According to Feminists for Life of America President Serrin Foster, “The ERA, as it was rewritten and reinterpreted by both sides as an implicit right to abortion in 1972, denies the right to life of the next generation. It does nothing to advance the unmet needs of women at highest risk of seeking an abortion, including the poorest among us, women of color, women working to achieve their post-secondary degrees, and working women.”

Further, she added, “The ERA can threaten many efforts that Feminists for Life of America has uniquely worked on in coalition with other women’s groups, such as the Violence Against Women Act, and other special protections for women, including older women. This should be a concern for everyone.”

Shea Garrison, vice president of international affairs at Concerned Women for America (CWA), observed, “The idea of an ‘equal rights’ amendment sounds great for women who want equality and ‘empowerment.’ However, the ERA, as it is written, does not secure equal rights for women. Rather, it puts us at risk to lose the gains we’ve made in the past 50 years. Here’s why: It says ‘equality of rights … shall not be denied … on account of sex.’ So, it is true that restricting access to abortion could be seen as discrimination against women since abortion is only applicable to women. But it also could work the other way — a man could say any law or special policies on child care, marriage, alimony, etc., put in place to specifically protect women is discrimination against him. Private women-only spaces like sex-segregated bathrooms, locker rooms, or domestic violence shelters could also be seen as a form of sex discrimination or violation of this amendment.”

“The bottom line,” Garrison explained, “is that this is bad policy that will hurt women, not give us equal rights. Women are already equal citizens under the law of the United States, and we will continue to use established law such as Amendment 14, Title IX, or the Equal Opportunity Act of 1963, etc., to wipe out any inequalities that we still may face.”

Calling the ERA “a war on women,” Concerned Women for America adds that this misguided amendment — if it were ever to be revived and passed — would:

  • Wipe out all ability to use any laws using “sex” as a defining characteristic, therefore overturning workplace and family laws that protect women.
  • Overturn privacy laws that define who may use men’s and women’s bathrooms and locker rooms.
  • Attack religious-freedom laws in situations where faith-based groups recognize distinctions between the sexes, such as in women-only domestic violence shelters run by faith-based organizations.
  • Be used to write abortion rights into our U.S. Constitution with the rationale that restricting access to abortion is a form of gender discrimination (since it singles out women for a physical trait unique to them).
  • Affect Social Security, Medicare benefits, health-insurance benefits and more.
  • Additional CWA talking points on the ERA are available here.

Despite all this, there’s hopeful news. With so many hard-working, well-organized pro-life feminists fired up over this issue, the chance the ERA cadaver will soon rise from the dead and become part of our U.S. Constitution appears to be slim.    

When asked to clarify the legal status of the ERA, Assistant U.S. Attorney General Steven Engel recently wrote that “the ERA Resolution has expired and is no longer pending before the states. Even if one or more state legislatures were to ratify the 1972 proposal, that action would not complete the ratification of the amendment, and the ERA’s adoption could not be certified.” He added that should Congress now decide that adding an ERA to the Constitution is necessary, the only way for that to happen “would be for two-thirds of both Houses (or a convention sought by two-thirds of the state legislatures) to propose the amendment once more and restart the ratification process among the states” all over again.

Last month, even Supreme Court Justice Ruth Bader Ginsburg, a strong ERA supporter, indicated the amendment is dead and if supporters want to add an ERA to the Constitution, they would need to restart the process.

Equal rights for women sounds noble in the abstract. Who could be against such an honorable cause? Well, of course, no one is against it. That’s the point. We all believe women should be able to attend law or medical school, run for Congress or president, and be given equal pay for equal work. Only criminals think a woman should be sexually harassed, battered or raped.

For nearly 50 years, smart pro-life feminists have scrutinized and firmly rejected the ERA for only one simple reason: because it’s not about equal rights for women — and pretending otherwise will never make it so.

Sue Ellen Browder’s new book is Sex and the Catholic Feminist,

co-published by Ignatius Press and the Augustine Institute.

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