Just One State Stands Between Women’s Rights and the Constitution

Movements such as #MeToo and #SheShouldRun have re-energized the Equal Rights Amendment.
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It’s hard to tell how Congress would vote on amendment deadline rules, now, when or even if the final state votes to ratify. But a record number of women running for office this year, could offer a clue.

In 2016, as Hillary Clinton was accepting the first major party nomination for a woman for president of the United States, a female-run organization in North Carolina was pushing for an amendment to enshrine gender equality in the U.S. Constitution.

ERA-NC Alliance, a nonprofit with a broad coalition of partners, had begun lobbying state lawmakers that year to approve the Equal Rights Amendment in North Carolina, one of 15 states that had failed to do so before the deadline passed in 1982. To be enacted by the U.S. Congress, a constitutional amendment must be ratified by 38 states. In 2016, only three states were needed to reach that threshold, though technically it may have been too late.

“It’s been a challenge waking folks up to the fact that the ERA is ‘alive and kicking,’” says Roberta Madden, co-president of ERA-NC Alliance. “We publish op-eds and letters to the editor. We talk to friends and neighbors. I preached about women's rights in my church on Mother’s Day. It’s exhausting but exhilarating work—a true labor of love.”

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ERA crusaders in North Carolina, as well as in Nevada and Illinois, had launched a three-state strategy, working—often in obscurity—to send resolutions to their legislatures. In 1977, Indiana was the last state to approve the ERA, which says equal rights cannot be denied on the basis of gender. The deadline for ratification expired five years later.

Nevada brought the movement back into public consciousness when it approved a resolution by State Sen. Pat Spearman in March 2017. And last month, Illinois followed suit when lawmakers there passed a resolution to ratify, by a 72-45 margin.

Now two bills in the North Carolina General Assembly—one in the Senate and another in the House—could resolve that bit of unfinished business.

With only weeks to get a hearing in this shortened session, sponsors are prepared to reintroduce the measure in 2019, a full-session year. Other states with bills in the works are Arizona, Florida, Utah, and Virginia.

Madden has been in this fight for 40 years. Perseverance by people such as her and others—foot soldiers in the ongoing fight for equality—have brought energy to the movement. What’s more, political fallout from the current administration, as well as the #MeToo and #SheShouldRun movements, have created momentum and transformed a long-languishing Amendment effort into a new, pressing matter.

“North Carolina lets us examine how the ERA would impact the intersection of race and gender.”

Pop culture has helped, too. In 2016, Kamala Lopez, actress and political activist, directed a documentary about the ERA called Equal Means Equal. The film introduces a range of issues such as unequal pay, reproductive health access, sex trafficking, violence against women, and workplace discrimination, and draws the conclusion that a Constitutional amendment for equal rights connects these issues. The ERA lies at the intersection of all American lives, and directly addresses the extra impact that lack of equal rights has on lower and working-class women, and those facing racial discrimination.

“North Carolina lets us examine how the ERA would impact the intersection of race and gender,” Lopez says. “African American women who are presently at the vanguard of the movement for justice in America, will take center stage in the renewed fight for the ERA.”

While it might seem largely symbolic today, the ERA, drafted in the 1920s, reflect a time when the workforce was 85 percent male and women had to fight for the right to vote.

Its second iteration came in the 1970s, when social movements such as women’s rights and civil rights were largely isolated by identity politics. The amendment states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” U.S. Rep. Carolyn Maloney (D-New York) later added a second sentence to that reads: “Women shall have equal rights in the United States and every place subject to its jurisdiction.”

Politically, it had always been a bipartisan issue, with support from Richard Nixon, and on both sides of the aisle in the House and Senate.

The National Organization for Women (NOW) became an ERA tour de force, organizing marches, demanding hearings and fighting tirelessly for ratification.

“State laws that exclude sex and gender will be unconstitutional under the ERA.”

On the opposite side was conservative activist Phyllis Schlafly, who rallied against the measure in favor of traditional gender roles in the 1970s. The doomsday scenarios she espoused at the time did indeed come to pass, says Wendy Murphy, professor of sexual violence law, New England Law/Boston. “Many years ago, people who were opposed to the ERA said it would lead to the downfall of society with things like gay marriage, women in combat, and mixed-gender bathrooms,”  Murphy says. “All those things have come to pass—without ERA.”

When the deadline passed in 1982, supporters were three states shy of ratification. Many Americans are under the impression that equal rights under federal law grants the same protection as a constitutional amendment. While a number of states already grant equal protection under the law, and a federal law prohibits discrimination based on sex, federal laws are open to interpretation by individual states.

Title VII of the Civil Rights Act of 1964 bars all discrimination in employment, but lacks real teeth. The Equal Pay Act of 1963, which upholds equal pay for equal work, prohibits discrimination, but women must be able to prove discrimination. In fact, even with an Equal Pay Act, the wage gap between men and women still exists, and since the recession, has narrowed in part because of slow wage growth for men.

So what effect could passage of the ERA have? One specific problem passage would solve immediately is the exclusion of sex and gender from the list of hate crimes, Murphy says.

“In some states, sex and gender is a protected class category. In many states, however, sex and gender are excluded, even though violence against women is by far the most prolific form of class-based violence,” she says. “State laws that exclude sex and gender will be unconstitutional under the ERA.”

So, a hundred years after first being introduced, is a single state really all that stands in the way of an equal rights amendment to the Constitution?

Not entirely. There is also the little matter of time.

In Congress, Rep. Jackie Speier (D-CA) and Sen. Ben Cardin (D-MD) have introduced legislation to remove the ratification deadline. It would not be the first time that a Constitutional amendment was passed after a significant gap between proposal and ratification. The 27th Amendment, which affects salaries for members of Congress, took 202 years to pass after being introduced in 1789.

It’s hard to tell how Congress would vote on amendment deadline rules, now, when or even if the final state votes to ratify. But a record number of women running for office this year, could offer a clue.

And if all else fails, Senator Bob Menendez, D-N.J., has already reintroduced a fresh ERA bill. It will require ratification in 35 states to amend the Constitution–starting back at zero.

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