For a while, recently, I was in the habit of asking feminists what would happen if the Equal Rights Ammendment failed to win enactment. Usually, they would make a face at the prospect, think for a moment and then concede that right off nothing much would change. This was my way of proving that win or lose, the ERA didn't much matter. The women's movement had already won.
I will tell you right off that I have since changed my mind, but it was not, for the most part, the feminists who turned me around -- nor the real threat to the ERA posed by the decision in Idaho. It was instead that old devil, Clarence Darrow. I discovered him when I was a boy in a book by Irving Stone called "Clarence Darrow for the Defense," and I return to him from time to time just to sort of keep in touch.
I took out the book recently to reread Darrow's cross-examination of William Jennings Bryan at the famous Scopes Monkey Trial. I was thinking about writing something about creationism and I came across the section in the book where Darrow, having demolished Bryan on the witness stand, leaves the courtroom to the cheers of the crowd.
Stone does some mind-reading here, but that is okay. Darrow, he wrote, "felt neither triumphant nor happy." He knew the crowd could turn against him as it had many times in the past and as it would, of course, in the future. An approving crowd did not make him right, anymore than a hostile one made him wrong.
At this moment, for instance, the crowd wants equal rights for women. Indeed, when it comes to the ERA itself, 35 states have approved it and even if it fails to get the 38 needed for enactment, this could in no way be seen as a popular rebuff of the women's movement. It would be nothing more than a veto cast by a minority.
For that reason, it might seem as if the ERA is not needed. And indeed, in the eight years since the amendment was submitted to the states, the women's movement has advanced so much that the ERA seems like icing on the cake. Not only have numerous legal decisions affirmed over and over again that discrimination on the basis of sex is unlawful, but the women's movement has shown itself to be deeply rooted in economic and social forces -- not just legislation. It is history that propels the women's movement, not laws or legal decisions.
For instance, you can argue that so mundane a development as the birth control pill has done more to liberate women than any laws. It has allowed them to plan their lives -- to choose when and if to have children. This has made women the sexual equal of men and it has enabled women to have careers more or less on the same basis as men. Nothing encourages equality like the reality of it.
The birth control pill is not about to go away and neither are the social and economic changes it produced. Families that have become accustomed to living on two incomes are not about to return to one and women who have been raised and educated to have their own careers are not about to abandon it all for the simple joys of homemaking. The women's movement is established, and the defeat or enactment of an amendment is probably not going to change that. Recision of the 13th Amendment, for instance, would not result in the return of slavery.
But the social and/or economic factors that produced the women's movement could either change or fade or be offset by others -- a severe recession or depression, for instance. Already, there has been some retreat. Jimmy Carter's commitment to women's rights has faded into Ronald Reagan's indifference or hostility. The president supports, tacitly or otherwise, a whole range of bills that would restrict the rights of women -- especially their right to choose when and under what circumstances to have children.
Nothing can change as fast as the sentiment of the crowd. What matters is the law. This, after all, was the lesson of the Scopes trial. Darrow demolished Bryan and the crowd cheered him. But the crowd went home, the law stayed and it continued to be illegal to teach evolution in Tennessee. The same thing could happen to women's rights. This is why it is so important to have the equal rights amendment enacted. As Darrow knew years ago, once you have the law, you don't need the crowd.