ERA: historical curiosity or needed weapon against bias today?
“If you had discrimination on the basis of sex in right in the constitution, I can guarantee you that employment law would be stronger and more strictly enforced and that we would do better in lawsuits,” says Smeal, adding that this could help close the pay gap and bolster the amount of women in leadership positions.
Roberta Francis believes that “if we had ratified the ERA and therefore women who are in the progressive arena had not had to do so much putting out fires so much working against laws that attempted to be discriminatory, they could have put their energies into moving forward instead of having to do damage control for 30 years,” she speculates. Smeal agrees: “We’re working law by law, statute by statute. I know, and anyone who has gone through this can tell you, this is the hard way to go. It is outrageous that we are not in the Constitution.”
False sense of security?
One word on the lips of both longstanding advocates of ERA and proponents newer to the cause is “rollback,” the fear that gains that have been made will be lost.
“Young women, they just don’t get it. Let’s put it this way, a lot of people call it ‘fluoride in the water.’ Because it’s always been there for them, they feel that it’s always going to be there, and why would anyone take it away? But, I want a guarantee,” says Egozcue of Virginia NOW, pointing to rollbacks that have already occurred in the area of reproductive freedom.
Patricia Schroeder, a former member of Congress, long-time feminist activist, and current chair of the Equal Rights Alliance Inc., concurs: “People got lulled into thinking that things are fine here,” she says.
Smeal adds that this sense of security may not reflect the reality of the political situation. “If anything, history has shown us, the last two decades have shown us that one of the key arguments we made [was true], that the gains…women made for equality were quite fragile and that they could be reversed.”
To those that believe that pursuing a constitutional path is not necessary in view of the progress has been made, Schroeder says: “This is like civil rights. The African-American community would not have been happy with just legislation. They liked the legislation, but they also liked being in the 14th Amendment, thank you very much.”
Public misperceptions
Advocates also point out that the ERA is enormously popular in polling. According to an Opinion Research Corporation poll commissioned in 2001 by the ERA Campaign Network of Princeton, N.J., 96 percent of Americans believe that men and women should be equal, and 88 percent believe this equality should be guaranteed in the constitution. But 72 percent believed that it’s already there. “I get it from other people, that lived in states that ratified [the ERA] and made the assumption that because their state did it, it passed. When you say to them that it didn’t, they look at you with disbelief and say, ‘You’re kidding!’” says Egozcue.
“That’s part of our challenge: people thinks that it’s not even an issue,” Francis corroborates, “It seems like a blast from the past to hear that the Virginia is voting on an ERA, but hey, it’s happening!”
Current efforts to secure an Equal Rights Amendment
When ERA did not secure ratifications from three-quarters of the states by the extended 1982 deadline, most people believed that the measure approved measure approved by Congress in 1972 was null and void.
Consistent with that view, the ERA has been reintroduced for Congressional approval in each subsequent Congressional session, most recently by Sen. Robert Menendez (D-N.J.) and Rep. Carolyn Maloney (D-N.Y.). This is the starting-from-scratch method, requiring two-thirds approval by both House and Senate, followed by new ratifications by the states.
Some have argued, however, that Congress has the authority to eliminate the 1982 deadline. The theory — which is distinctly a minority view — relies on the fact that the time limit was not part of the text of the ERA itself, but of the proposing language used by the Congress. Supporters of this tactic also point out that the 27th Amendment — which prevents a sitting Congress from raising its own salary as opposed to the salaries of future Congresses — was originally proposed in 1789 and not ratified and promulgated by Congress until 1992 (that Amendment, unlike the ERA, did not have a time limit in its proposing clause).
If the ratifications that occurred in the 1970s were still considered “viable” — and, again, many experts believe they would not be — then proponents would be much closer to the finish line. A resolution to strike the deadline was introduced this year by Rep. Tammy Baldwin (D-Wisc.).
Either way, there are “seven live states” in which legislation is regularly proposed to ratify the amendment. Pro-ERA efforts in the three states that were closest to ratifcation in 1982 — Virginia, Florida, and Illinois — are particularly active.