Can We Ratify the Equal Rights Amendment?

The longest serving member of the South Carolina House of Representatives has vowed to seek ratification of the Equal Rights Amendment (ERA) when next year’s legislative session begins.  Rep. Gilda Cobb-Hunter, Democratic minority leader of the SC House, apparently knows the odds are against her in gaining approval to add the guarantee of women’s rights to the US Constitution.

It was on December 10, 1923, that the first attempt was officially made to enshrine such protection. Two Kansas Republicans, Senator Charles Curtis and Rep. Daniel R. Anthony, Jr., introduced an ERA proposal to Congress that day, ninety-five years ago.  It went nowhere.  By the way, Anthony was the nephew of Susan B. Anthony.

Not until the 1970s did the ERA make any significant progress.  In 1971 the US House of Representatives approved the amendment by a vote of 354-24.  A year later the US Senate followed, voting 84-8 in favor.  However, two Democrats, NC Senator Sam Erwin and NY Rep. Emanuel Celler, two old white guys, succeeded in attaching a seven-year ratification time limit, a seldom used caveat.  Therein lies the challenge Cobb-Hunter must address.

Initially, the time limit did not appear an obstacle. With Hawaii leading off, 22 states ratified the ERA by the end of 1972.  Another eight gave support in 1973 and three more followed in 1974.  At this point the ratification process began to stall and only two additional states, North Dakota (1975) and Indiana (1977) voted for the amendment before time ran out. Indiana was the 35^th state to ratify.  Thirty-eight are necessary.

In general, opposition to the ERA has not been straightforward---women do not deserve equal rights.  That would be easily rejected by most Americans.  Instead, arguments have been more deflective, perhaps not maliciously so, but still diverting attention from the true purpose and effect of the amendment which is simple in language but comprehensive in intent:

Sec.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. Sec.2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Sec.3. This amendment shall take effect two years after the date of ratification.

Antifeminist icon Phyllis Schlafly epitomized early naysayers arguing the ERA would eliminate gender-specific privileges for women, such as dependent wife Social Security benefits, separate restrooms and exemption from the draft.  She called her campaign STOP ERA, STOP an acronym for “Stop Taking Our Privileges.” More reasonable opponents, including some labor organizations, expressed misgivings about the ERA’s impact on protections for employed women regarding working conditions and employment hours.  

I must admit my initial attitude towards the amendment was wary. I was not opposed to “equal rights for women,” but it seemed they already existed and did not need reinforcement by constitutional amendment. But during the latter stages of the ratification campaign a student in my American National Government class at USC Spartanburg wrote a position paper on the ERA.  She laid out the case that protections women enjoyed were legislatively granted and were not only limited in scope and application but could be withdrawn by congressional whim or narrowly interpreted by judges.  Her arguments were so cogent, I became a supporter.

Events in recent years have reinforced the vulnerability to discrimination women face in today’s US economy.  The Equal Pay Act passed in 1963 purportedly abolished wage disparity based on sex, but in a 2007 decision, Ledbetter v. Goodyear, the US Supreme Court denied the plaintiff relief because she failed to file her grievance within six months of the first discriminatory salary decision even though Lilly Ledbetter had no way of knowing about the ongoing disparity until years later. 

In January 2009, President Obama signed the Lilly Ledbetter Fair Pay Act overturning the decision but doing nothing for the former Goodyear employee.  Nor did it discourage the US Supreme Court from ruling in 2011 against 1.6 million women employees of Wal-Mart who were alleging gender discrimination in pay and promotion policies and practices. In Wal-Mart v. Dukes the court claimed the plaintiffs did not have enough in common to constitute a “class.” 

There has been progress in reducing bias against women. Women participate in the military, they are increasingly found in leadership positions throughout society and their numbers in the US Congress just got a considerable bump up. Ratification of the ERA would reinforce these advancements.  

As for the ratification time limit, the 1992 decision of the US Congress to adopt the 27^th Amendment, which had been pending before state legislatures since 1789, is sufficient precedent for removing the ERA’s deadline.  Two states recently ratified the amendment in anticipation of possible congressional action; Nevada in March 2017 and Illinois in April 2018.

For twenty years South Carolina has been among the ten worse states for domestic violence; four times the worst.  In 2016, the last year for which there are statistics, SC ranked sixth.  How delightful it would be if SC were the state to push the Equal Rights Amendment over the top.