Show pageOld revisionsBacklinksBack to top This page is read only. You can view the source, but not change it. Ask your administrator if you think this is wrong. ====== The Equal Rights Amendment (ERA): The Ultimate Guide to the Fight for Gender Equality ====== **LEGAL DISCLAIMER:** This article provides general, informational content for educational purposes only. It is not a substitute for professional legal advice from a qualified attorney. Always consult with a lawyer for guidance on your specific legal situation. ===== What is the Equal Rights Amendment? A 30-Second Summary ===== Imagine the U.S. Constitution is the foundational rulebook for our country. It has strong rules against discrimination based on race and religion. But what if you found out that this core rulebook doesn't contain a clear, explicit, and undeniable rule stating that the government cannot discriminate against people based on their sex? It might seem shocking, but that's the reality. While other laws and court interpretations have created protections over the years, they are like houses built on a foundation that can be changed by future laws or court decisions. The Equal Rights Amendment (ERA) is a proposal to fix the foundation itself. It's a simple, powerful sentence designed to be etched into the Constitution, making gender equality a core, unshakable principle of American law. It aims to ensure that no one's legal rights are determined by their sex, providing the strongest possible legal defense against gender discrimination. * **Key Takeaways At-a-Glance:** * **Core Principle:** The **Equal Rights Amendment** is a proposed amendment to the [[u_s_constitution]] designed to explicitly guarantee equal legal rights for all American citizens regardless of sex. * **Practical Impact:** If certified, the **Equal Rights Amendment** would require courts to evaluate laws that create distinctions based on sex under "[[strict_scrutiny]]", the highest level of judicial review, making it much harder for such laws to survive. * **Critical Controversy:** The primary obstacle to the **Equal Rights Amendment** becoming law is a decades-old dispute over whether the ratification deadline set by Congress in the 1970s has expired, even though the required 38 states have now voted to ratify it. ===== Part 1: The Legal Foundations of the Equal Rights Amendment ===== ==== The Story of the ERA: A Century-Long Journey ==== The story of the Equal Rights Amendment is one of incredible persistence, a marathon relay race for justice passed down through generations. Its origins don't begin in the 1970s wave of feminism, but much earlier, in the immediate aftermath of the women's suffrage movement. After women won the right to vote with the [[nineteenth_amendment]] in 1920, suffragist leader **Alice Paul** recognized that the ballot was just one tool. True equality required a deeper, more fundamental change. She and other activists at the National Woman's Party saw that a patchwork of state and federal laws still treated men and women differently, affecting property rights, employment, divorce, and more. In 1923, on the 75th anniversary of the Seneca Falls Convention, Paul drafted the first version of the ERA, then called the "Lucretia Mott Amendment." Her goal was simple and revolutionary: to enshrine the principle of gender equality directly into the nation's supreme legal document. For nearly 50 years, the ERA was introduced in every session of Congress. It was a slow burn, gaining supporters but never quite reaching the critical mass needed for a vote. That all changed with the rise of the second-wave feminist movement in the 1960s and 70s. Groups like the National Organization for Women (NOW) made the ERA their top legislative priority. The social and political climate was finally ready. In **1972**, Congress passed the Equal Rights Amendment by overwhelming bipartisan margins and sent it to the states for ratification, setting an initial seven-year deadline. Ratification seemed imminent. Within the first year, 30 of the necessary 38 states had approved it. But a powerful and organized opposition movement emerged, led by conservative activist **Phyllis Schlafly**. Her "STOP ERA" campaign argued that the amendment would lead to undesirable outcomes, such as women being drafted into the military, the erosion of protections for housewives, and the end of single-sex bathrooms. This campaign successfully sowed fear and doubt, and the pace of ratification ground to a halt. Recognizing the stalled momentum, Congress voted in 1978 to extend the ratification deadline to June 30, 1982. Despite the extension, no additional states ratified, and the deadline passed with the ERA three states short of the required 38. For decades, the amendment was widely considered to be a historical relic. However, a new wave of activism in the 21st century revived the fight. Proponents developed the "three-state strategy," arguing that Congress's deadline was not binding and that the amendment could be revived if three more states ratified it. Their persistence paid off: **Nevada** ratified the ERA in 2017, followed by **Illinois** in 2018. Then, in a historic vote in **January 2020**, **Virginia** became the 38th and final state needed for ratification. This milestone reignited the national debate and pushed the legal and political controversy over the deadline to the forefront, where it remains today. ==== The Law on the Books: The Text of the ERA and Article V ==== The power of the Equal Rights Amendment lies in its simplicity and breadth. The complete text, as passed by Congress in 1972, is as follows: * **Section 1:** Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. * **Section 2:** The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. * **Section 3:** This amendment shall take effect two years after the date of ratification. The legal fight over the ERA is rooted in the U.S. Constitution's own process for amendments, found in [[article_v]]. This article lays out two paths for amending the Constitution, but the only one ever used is this: 1. **Proposal:** An amendment is proposed by a two-thirds vote of both the House of Representatives and the Senate. 2. **Ratification:** The proposed amendment is then sent to the states. It becomes part of the Constitution when it is ratified by the legislatures of three-fourths of the states (currently 38 out of 50). The key point of contention is that [[article_v]] says nothing about deadlines. ERA proponents argue that because the deadline was placed in the proposing clause (the introduction to the amendment), not the actual text of the amendment itself, Congress has the power to ignore or retroactively remove it. Opponents argue the deadline was a firm condition of the proposal and the amendment is now expired. ==== A Nation Divided: The ERA Ratification Map ==== As of today, the constitutional threshold of 38 states has been met. However, the political and legal status remains unresolved. The map of ratification reveals a country with deep regional and cultural divisions on the issue. ^ **ERA Ratification Status by State** ^ | **Jurisdiction** | **Status** | **What This Means for You** | | The 38 Ratified States | Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Idaho*, Illinois, Indiana*, Iowa, Kansas, Kentucky*, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska*, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota*, Tennessee*, Texas, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming | Residents in these states have state legislatures that have formally approved the ERA. While this doesn't change current law, it represents a formal endorsement of gender equality in the Constitution and adds weight to the argument for national certification. | | The 12 Unratified States | Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah, Arizona (Arizona ratified in 1972 but is sometimes listed by opponents as unratified due to legal challenges) | Residents in these states live under legislatures that have not approved the amendment. State-level protections against sex discrimination may exist but lack the force of a federal constitutional mandate. | | States That Ratified, Then Voted to Rescind* | Idaho, Kentucky, Nebraska, South Dakota, Tennessee | These five states voted to ratify the ERA but later passed resolutions to rescind, or withdraw, their ratification. The legal validity of these rescissions is highly questionable, as [[article_v]] of the Constitution only provides a process for ratification, not for un-ratifying. The precedent set with the [[fourteenth_amendment]] suggests that once a state ratifies, it cannot take it back. | ===== Part 2: Deconstructing the Core Elements of the ERA ===== ==== The Anatomy of the ERA: Its Three Sections Explained ==== The ERA is short, but every word carries significant legal weight. Understanding its three sections is key to grasping its potential power. === Section 1: The Core Guarantee === > "**Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.**" This is the heart of the amendment. Let's break it down: * **"Equality of rights under the law"**: This is a broad command for legal equality. It doesn't mean all men and women must be treated identically in every situation (e.g., in private life), but that the **law itself** cannot create advantages or disadvantages for a person. * **"shall not be denied or abridged"**: This is an absolute prohibition. "Denied" means a right is withheld entirely. "Abridged" means a right is diminished or limited. * **"by the United States or by any State"**: This clause applies the ERA's protections to government action at both the federal and state levels. It covers laws passed by Congress, state legislatures, and regulations enacted by government agencies. It does not apply to purely private actions between individuals or businesses, though laws passed under Section 2 could. * **"on account of sex"**: This is the crucial phrase. The only reason for the differential treatment that is forbidden is a person's sex. The most significant legal effect of this section would be to force courts to review laws that discriminate based on sex using **[[strict_scrutiny]]**. This is the highest level of judicial review, currently reserved for discrimination based on race, religion, and national origin. To pass strict scrutiny, a law must be proven to be **narrowly tailored** to achieve a **compelling government interest**, which is an extremely difficult standard to meet. Currently, sex discrimination cases are typically judged under a lower standard called **[[intermediate_scrutiny]]**, which is easier for the government to satisfy. The ERA would elevate sex discrimination to the same level of constitutional seriousness as race discrimination. === Section 2: The Enforcement Power === > "**The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.**" This section is not just a formality; it's an engine for action. It grants Congress the clear, explicit authority to pass new federal laws to proactively combat sex discrimination. While Congress already passes such laws (like [[title_ix]] or the Pregnancy Discrimination Act) using its power to regulate interstate commerce, that power has limits. Section 2 would provide a more direct and solid constitutional foundation for such legislation. It would empower Congress to address persistent issues like the gender pay gap, domestic violence, and workplace harassment with stronger and more comprehensive federal laws. === Section 3: The Effective Date === > "**This amendment shall take effect two years after the date of ratification.**" This section provides a two-year implementation period. The purpose is to give federal and state governments time to review their existing laws, statutes, and regulations to identify and revise any that would violate the ERA. This ensures an orderly transition rather than an abrupt and chaotic legal shift the moment the amendment is certified. ==== The Players on the Field: Who's Who in the ERA Fight ==== The battle over the ERA involves several key actors with distinct roles and motivations. * **Congress:** Holds the primary power. Congress passed the ERA in 1972 and has the potential authority to address the deadline issue through legislation. Bills have been introduced in both the House and Senate to remove the deadline retroactively. * **State Legislatures:** The entities responsible for ratification. The actions of the legislatures in Nevada, Illinois, and Virginia from 2017-2020 are what brought the ERA back from the brink. * **The Archivist of the United States:** The head of the National Archives and Records Administration ([[nara]]). The Archivist has the ministerial duty to review ratification documents and, once the [[article_v]] requirements are met, officially certify and publish an amendment, making it part of the Constitution. The current Archivist is deferring action pending a court order or Congressional resolution on the validity of the deadline. * **The Federal Courts:** The ultimate arbiters of the deadline controversy. Lawsuits have been filed to compel the Archivist to certify the ERA. The judiciary, potentially all the way up to the [[supreme_court_of_the_united_states]], will likely have the final say on whether the deadline was constitutional and if the ERA can be added to the Constitution. * **Advocacy Groups (Pro-ERA):** Organizations like the ERA Coalition, the Brennan Center for Justice, and the National Organization for Women lead the charge for certification. They organize, lobby Congress, file lawsuits, and educate the public. * **Advocacy Groups (Anti-ERA):** Groups like Concerned Women for America and the Eagle Forum (founded by Phyllis Schlafly) continue to oppose the ERA. They argue the deadline has long expired and that the amendment would have negative societal consequences, particularly regarding abortion rights and traditional gender roles. ===== Part 3: The ERA's Practical Playbook: Potential Impacts and Arguments ===== Since the ERA isn't a law you can be charged with violating, its "playbook" is about understanding its potential real-world consequences and the arguments surrounding it. ==== What the ERA Could Change for You and Your Family ==== If the ERA were certified, it wouldn't be an abstract legal theory. It would have tangible effects on issues that touch millions of American lives. Here are some of the key areas where it could make a difference: * **Pay Equity:** While the [[equal_pay_act_of_1963]] exists, the gender pay gap persists. The ERA would provide a stronger constitutional basis for lawsuits challenging discriminatory pay practices and could empower Congress to pass more robust equal pay legislation. * **Pregnancy and Caregiver Discrimination:** The ERA would make it much harder for employers to discriminate against workers based on pregnancy or for taking on caregiving roles, which disproportionately affect women. Laws that fail to provide reasonable accommodations for pregnant workers could be struck down as a form of sex discrimination. * **Domestic Violence and Sexual Assault:** It would strengthen legal protections for survivors. For example, it could provide a clearer basis for federal laws that support survivors and ensure that law enforcement and courts respond to these crimes with the seriousness they deserve, regardless of the victim's gender. The Supreme Court case `[[united_states_v_morrison]]` struck down a key provision of the [[violence_against_women_act]] because the Court said it exceeded Congress's commerce power; the ERA's Section 2 could provide the constitutional authority Congress was missing. * **Insurance Discrimination:** It could end the practice of "gender rating," where insurance companies charge women higher premiums than men for the same health, auto, or disability coverage. * **LGBTQ+ Rights:** The Supreme Court's ruling in `[[bostock_v_clayton_county]]` determined that discrimination against someone for being gay or transgender is inherently a form of sex discrimination under [[title_vii_of_the_civil_rights_act_of_1964]]. The ERA would elevate this principle to a constitutional level, providing a powerful shield against discrimination based on sexual orientation and gender identity in all areas of law. ==== Understanding the Debate: A Table of Arguments ==== The debate over the ERA is intense. Understanding the core arguments on both sides is essential for any informed citizen. ^ **The Equal Rights Amendment: Core Arguments For and Against** ^ | **Arguments FOR the ERA (Proponents)** | **Arguments AGAINST the ERA (Opponents)** | | --- | --- | | **Symbolic & Foundational Importance:** The Constitution is the nation's most important document. Explicitly including sex equality would affirm it as a fundamental American value, completing the Constitution's promise of liberty for all. | **Redundancy:** Opponents argue the ERA is unnecessary. The [[fourteenth_amendment]]'s [[equal_protection_clause]], along with numerous federal laws like [[title_ix]] and the [[equal_pay_act]], already provide robust protections against sex discrimination. | | **Raising the Standard of Review:** The ERA would mandate [[strict_scrutiny]] for sex-based discrimination cases, making it much more difficult for discriminatory laws to be upheld by courts. This is a significant upgrade from the current [[intermediate_scrutiny]] standard. | **Expired Deadline:** The core legal argument is that the 1982 deadline was final. They contend that the 38-state threshold was not met in time, making the recent ratifications by NV, IL, and VA legally void. The amendment process must be restarted from scratch. | | **Durability of Protections:** Protections created by statutes (like [[title_ix]]) can be weakened or repealed by a simple majority in Congress. A constitutional amendment is permanent and cannot be easily changed, providing a durable backstop against political shifts. | **Impact on Abortion:** A major concern for opponents is that the ERA would be interpreted by courts to require government funding for abortions and strike down all restrictions on abortion, framing them as a form of sex discrimination. | | **Ending the "Patchwork" System:** Current protections are a complex web of federal and state laws that can be inconsistent and confusing. The ERA would create a single, clear, national standard for gender equality. | **Unintended Consequences:** Opponents raise concerns about the erosion of traditional gender roles, the elimination of single-sex spaces (bathrooms, prisons, sports), and the possibility of women being required to register for the military draft. | | **U.S. Global Leadership:** The vast majority of modern democratic constitutions around the world contain a provision guaranteeing equality between men and women. The U.S. is an outlier, and proponents argue the ERA is needed to align our founding document with international human rights norms. | **Judicial Activism:** Opponents fear the ERA's broad language would give federal judges too much power to legislate from the bench, creating new rights and mandates that were never intended by the amendment's authors or the public. | ===== Part 4: Landmark Cases That Shaped the Fight for Equality ===== Because the ERA is not yet part of the Constitution, there are no cases that interpret it. However, a series of landmark Supreme Court cases on sex discrimination under the Fourteenth Amendment highlight why ERA proponents believe a stronger, more explicit guarantee is necessary. ==== Case Study: Reed v. Reed (1971) ==== * **The Backstory:** An Idaho law specified that when two people were equally entitled to administer a deceased person's estate, the "male must be preferred to the female." Sally and Cecil Reed, a separated couple, both sought to be the administrator of their deceased teenage son's estate. In accordance with the Idaho law, Cecil was appointed. Sally Reed sued. * **The Legal Question:** Did the Idaho law, which gave an automatic preference to men over women simply on the basis of gender, violate the [[equal_protection_clause]] of the [[fourteenth_amendment]]? * **The Court's Holding:** In a unanimous decision, the Supreme Court struck down the Idaho law. This was the **very first time** the Court had ever applied the Equal Protection Clause to a law that discriminated on the basis of sex. The Court found the law's arbitrary preference for men to be "the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause." * **Impact on You Today:** `[[reed_v_reed]]` was a watershed moment. It opened the courthouse doors to challenges against sex-based discrimination. However, it used a very low level of scrutiny. It established that sex discrimination *could* be unconstitutional, paving the way for future, more robust legal challenges. ==== Case Study: Craig v. Boren (1976) ==== * **The Backstory:** An Oklahoma law allowed women to buy "nonintoxicating" 3.2% beer at age 18, but men had to wait until they were 21. The state argued this was a traffic safety measure, presenting statistics that showed men aged 18-20 were more likely to be arrested for drunk driving. * **The Legal Question:** Did the gender-based distinction in the Oklahoma beer law violate the Equal Protection Clause? * **The Court's Holding:** The Supreme Court struck down the law. More importantly, it established a new standard of review for sex discrimination cases: **[[intermediate_scrutiny]]**. This standard requires that a law must be "substantially related" to an "important" government objective. The Court found Oklahoma's statistics too flimsy to justify the broad gender-based rule. * **Impact on You Today:** `[[craig_v_boren]]` created the legal standard that governs most sex discrimination cases today. While stronger than the standard used in *Reed*, it is still weaker than the [[strict_scrutiny]] applied to race. ERA supporters argue that sex-based discrimination should be treated as seriously as race-based discrimination and subjected to the highest level of judicial review. ==== Case Study: United States v. Virginia (1996) ==== * **The Backstory:** The Virginia Military Institute (VMI), a prestigious state-funded military college, had an explicit policy of only admitting men. The U.S. government sued Virginia and VMI, arguing this policy violated the Equal Protection Clause. * **The Legal Question:** Does a state's policy of excluding women from a state-funded unique educational opportunity violate the Equal Protection Clause? * **The Court's Holding:** In a powerful opinion written by Justice Ruth Bader Ginsburg, the Court ruled that VMI's male-only admissions policy was unconstitutional. The Court said that Virginia had failed to provide an "exceedingly persuasive justification" for the policy. * **Impact on You Today:** This case is the high-water mark for protections against sex discrimination under the Fourteenth Amendment. It effectively ended male-only admissions at public institutions. However, Justice Ginsburg herself was a lifelong advocate for the ERA. She argued that while judges could use the Fourteenth Amendment to advance gender equality, a constitutional amendment like the ERA would provide a clearer, more powerful, and more permanent foundation for these principles, ensuring they couldn't be easily reversed by future courts. ===== Part 5: The Future of the Equal Rights Amendment ===== ==== Today's Battlegrounds: The Deadline Controversy ==== The entire future of the ERA hinges on a single, complex legal question: **Is the deadline for ratification constitutional and enforceable?** * **The Argument for Ignoring the Deadline:** Proponents argue that [[article_v]] of the Constitution, which outlines the amendment process, makes no mention of deadlines. They contend that the deadline was placed in the proposing clause of the 1972 resolution, not in the text of the amendment itself, and therefore is not part of the legal instrument the states were ratifying. They point to the [[twenty_seventh_amendment]] (regarding congressional pay raises), which took over 202 years to be ratified, as a precedent for an amendment having no time limit. From this perspective, Virginia's 2020 vote completed the constitutional process, and the ERA is legally part of the Constitution; the Archivist simply needs to perform the ministerial act of publishing it. * **The Argument for Enforcing the Deadline:** Opponents argue that the deadline was a legitimate condition set by Congress as part of the "package deal" sent to the states. They argue that ratifications must be roughly contemporaneous to reflect a consensus of the country at a single time. Allowing ratifications to trickle in over a century, they claim, defeats this purpose. They also point out that five states voted to rescind their ratifications, arguing that if recent ratifications are counted, so too should recent rescissions. From this view, the ERA failed in 1982 and the entire process must begin again in Congress. This legal battle is currently playing out in federal court and in the halls of Congress, where legislation to affirm the ERA's validity has been introduced. The ultimate resolution will likely require a definitive ruling from the Supreme Court or an act of Congress that clarifies the ERA's status once and for all. ==== On the Horizon: The ERA in the 21st Century ==== If the ERA is ultimately certified, it will enter a legal and social landscape vastly different from that of the 1970s. Its application would intersect with some of today's most pressing issues: * **Reproductive Rights:** In the wake of the Supreme Court's decision in `[[dobbs_v_jackson_womens_health_organization]]`, which overturned `[[roe_v_wade]]`, the ERA could become a central legal tool for abortion rights advocates. They would argue that restricting access to reproductive healthcare is a form of sex discrimination, as it has a disparate impact on people who can become pregnant. * **Transgender Rights:** The ERA's prohibition of discrimination "on account of sex" would likely be interpreted by courts to include discrimination based on gender identity and sexual orientation, providing a powerful constitutional basis for protecting the rights of transgender and non-binary individuals against discriminatory laws. * **Artificial Intelligence and Bias:** As AI makes more decisions in hiring, lending, and even criminal justice, the ERA could provide a new legal framework to challenge algorithmic bias that disproportionately disadvantages women. The fight for the Equal Rights Amendment, now a century old, is a testament to the idea that the work of perfecting our democracy is never truly finished. Whether it becomes the 28th Amendment or not, its long journey reflects America's ongoing, complex, and vital struggle to live up to its founding ideal of equality for all. ===== Glossary of Related Terms ===== * **[[article_v]]:** The section of the U.S. Constitution that details the process for amending the document. * **[[bostock_v_clayton_county]]:** The 2020 Supreme Court case ruling that employment discrimination based on sexual orientation or gender identity is a form of sex discrimination prohibited by Title VII. * **[[constitutional_amendment]]:** A formal change or addition to the text of the [[u_s_constitution]]. * **[[equal_pay_act_of_1963]]:** A federal law aimed at abolishing wage disparity based on sex. * **[[equal_protection_clause]]:** The part of the [[fourteenth_amendment]] that provides that no state shall deny to any person within its jurisdiction "the equal protection of the laws." * **[[fourteenth_amendment]]:** A post-Civil War amendment that includes the Due Process and Equal Protection clauses, which have been central to civil rights litigation. * **[[intermediate_scrutiny]]:** The standard of judicial review used in sex discrimination cases; a law must be substantially related to an important government objective to be upheld. * **[[nineteenth_amendment]]:** The 1920 amendment to the U.S. Constitution that granted women the right to vote. * **[[ratification]]:** The process of formally approving a proposed law or constitutional amendment. * **[[strict_scrutiny]]:** The highest standard of judicial review; a law must be narrowly tailored to achieve a compelling government interest to be upheld. * **[[supreme_court_of_the_united_states]]:** The highest federal court in the United States, which has the final say on interpreting the Constitution. * **[[title_vii_of_the_civil_rights_act_of_1964]]:** A federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. * **[[title_ix]]:** A federal civil rights law passed in 1972 that prohibits sex-based discrimination in any school or other education program that receives federal money. * **[[violence_against_women_act]]:** A 1994 federal law that provided funding and legal tools to combat domestic violence, sexual assault, and other gender-based crimes. ===== See Also ===== * [[fourteenth_amendment]] * [[nineteenth_amendment]] * [[u_s_constitution]] * [[sex_discrimination]] * [[civil_rights_act_of_1964]] * [[judicial_review]] * [[supreme_court_of_the_united_states]]