Thirty-six years after the congressional deadline passed, Illinois has ratified the Equal Rights Amendment (ERA). The century-old amendment suddenly has new life but a very uncertain future. What does this all mean, and what happens next?
What is the Equal Rights Amendment?
The Equal Rights Amendment (ERA) was first proposed by Alice Paul and the National Women’s Party (NWP). The simple text read: “Men and women shall have equal rights throughout the United States and in every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation.” In 1923, U.S. Senator Charles Curtis introduced the amendment in Congress, where it met immediate and strong resistance from a broad assortment of opponents.
Conservatives opposed it. Progressives worried the amendment would undo hard-won labor protections for women. Even some feminists worried the amendment would provoke a backlash, tarring their movement as extremist. Facing that combined opposition, the ERA languished for half a century. Introduced in every Congress between 1923 and 1972, the amendment rarely made it out of committee.
Why did the ERA reemerge in the 1960s?
In brief: Feminism reemerged from its long sleep. At the 1967 meeting of the newly formed National Organization for Women (NOW), Paul and a small group of NWP members convinced NOW’s leaders to adopt the ERA as a central goal. NOW took the amendment — by then seen as a dusty relic of the suffragist era — and made it relevant for a new generation of feminists.
The political and economic context had also shifted in some important ways. Professional women and feminists had pressed the amendment into both the Republican and Democratic Party platforms by the mid-1940s. As more and more women plunged into the workforce, the lack of constitutional protection was becoming an urgent problem. Frustrated by the jungle of discriminatory laws and policies they faced, many women increasingly saw the ERA as a simple, unilateral solution.
By 1972, with support from party leaders, average women and newly formed feminist groups, the ERA finally had the broad support that had been missing in the 1920s. By 1972, it had been approved by both the House of Representatives and the U.S. Senate, and moved to the states to be ratified.
Why didn’t the ERA pass?
At first the Amendment appeared to be sailing through; by 1977, 35 of the 38 necessary states had ratified it. But a conservative counter-movement rose to block its progress. Leading the charge was Republican activist Phyllis Schlafly, who convinced the American public that its passage would mean unisex public restrooms, women on the front lines of military combat, “homosexual marriage” and the dissolution of traditional families.
ERA proponents were taken by surprise. Having faced little resistance in the first five years of the campaign, their response to conservatives’ claims was flustered and disorganized. They failed to counter or assuage concerns about bathrooms or front lines.
Conservatives helped Southern states reject the amendment, and they developed opposition in states that had yet to ratify, including Illinois. Congress established a 1979 deadline for ratification and then extended that to 1982. None of the 15 remaining states could be swayed by ERA activists.
So, why are we talking about it again?
Just as before, the ERA never really went away. The amendment has been reintroduced to Congress every year since 1982. Activists in the unratified states continue to press for the amendment. In 1997, some clever work by three graduates of University of Richmond’s T.C. Williams School of Law provided an opportunity for the ERA. The deadline, they argued, was not written into the amendment itself, meaning Congress could repeal it by a majority vote.
Activists launched the “Three State Strategy,” with the dual efforts of repealing the time limit and reinvigorating the ERA campaign in the most hospitable states. They have had some success. With bipartisan support, Sen. Tammy Baldwin (D-Wis.) introduced legislation to do away with the time limit when she was serving in the House. In 2017, exactly 45 years after Congress ratified the amendment, Nevada ratified the ERA. Two weeks ago, Illinois followed suit.
For the first time since its introduction in the 1920s, the amendment feels within reach.
What would the ERA change?
When the amendment was first ratified by Congress, this was an easier question to answer. Thanks to the continuing efforts of feminists, the world is a much different place. Most of the discriminatory statutes and policies that treated women and men differently have been whittled out of the law already, including military pay, pregnancy discrimination, Social Security benefits and jury duty, among others. The specters raised by Schlafly to scare away ERA supporters, such as married gay people and women fighting on the front lines, have materialized anyway. In this rosy light, the ERA can seem like a nice but ultimately unnecessary symbol.
But it is worth remembering that equality is not guaranteed and can literally come under assault, as the #MeToo movement has been testifying. Important social-movement victories can be undone by voters, courts, legislatures and presidents down the road. President Barack Obama’s administration gave women the opportunity to formally serve on the military’s front lines — something they had been doing in fact, albeit without the recognition — and in doing so gave them access to the promotions and veterans’ benefits that come with that service. Under President Trump, this is eroding. And even more than when Schafly was scaring the public in the 1970s, we remain awash in cultural and legal debates about equal access to public spaces such as bathrooms.
In other words, the ERA would be more than a symbol. It would cement gender equality into the Constitution, creating a higher barrier for those who would undo equal access to public life. That may matter especially because we are in a cultural moment that is sensitive to the many ways women are still treated unequally. The Republican-controlled Congress may not be inclined to repeal the ERA deadline. But if proponents can successfully ratify the amendment in just one more state, the next Congress will face far more pressure to do so.
Kelsy Kretschmer is an assistant professor of sociology in the School of Public Policy at Oregon State University.