Save the Equal Rights Amendment
This year Virginia became the crucial thirty-eighth state to ratify the ERA. Renewed efforts to quash it stand to wipe out a hundred years of women’s work as constitution-makers.
October 8, 2020
Oct 8, 2020
15 Min read time
This year Virginia became the crucial thirty-eighth state to ratify the ERA. Renewed efforts to quash it stand to wipe out a hundred years of women’s work as constitution-makers.
Less than a year after the 1920 ratification of the Nineteenth Amendment guaranteed women’s right to vote, a bold group of suffragists began drafting another amendment, the Equal Rights Amendment (ERA). While it was considered revolutionary at the time, these women had a simple idea: that the Constitution should recognize men and women’s equal rights not only as voters, but as people and citizens. Most constitutions around the world have since agreed, declaring equality between women and men, but the United States has struggled. Indeed, the revolution those women called for became an evolution, and remains unfinished.
What does it say about the United States as a nation, and the Constitution as its law, if it bars a constitutional amendment guaranteeing sex equality because of procedure?
Women have been fighting for the ERA for almost a century now. As Article V of the Constitution lays out, two-thirds of Congress has to vote to adopt a new amendment and then three-fourths of the states have to ratify it. It took Congress almost forty-nine years to adopt the ERA in 1972, and the fight for ratification in the states took another forty-eight years, culminating in 2020 when Virginia became the crucial thirty-eighth state. And yet, even with all the ratifications completed, sex equality is still not being added to the Constitution, and a cloud of uncertainty hangs over the future of the ERA.
Its opponents cite a procedural hiccup: Congress set a deadline for ratification that expired in 1982. Only thirty-five states had ratified by that deadline, but the ERA has made a surprising comeback in the past three years. In 2017 the Women’s March gave Nevada the momentum to ratify it; in 2018 the #MeToo movement moved Illinois legislators to ratify; and then, after the “Pink Wave” in 2018 got a record number of women elected to Congress and state legislatures, Virginia ratified in January 2020. The Trump administration is now rejecting the ERA; the Department of Justice’s Office of Legal Counsel published an opinion that said the amendment has expired and Congress does not have the power to remove the deadline—putting us in an unprecedented situation in U.S. constitutional history. For the first time, a congressional deadline stands in the way of a constitutional amendment that has cleared all other hurdles. Does Congress really not have the power to remove—or even eliminate—the deadline? And more profoundly, what does it say about the United States as a nation, and the Constitution as its fundamental law, if it permits a constitutional amendment guaranteeing sex equality to die because of a procedural bar?
Whether the ERA should be legitimized by accepting late ratifications depends on what you think the ERA would mean in the twenty-first century. Opponents dismiss it as unnecessary since the ERA might, in practice, operate similarly to the Equal Protection Clause of the Fourteenth Amendment. But the fact that the ERA is the only constitutional amendment created by and for women should matter. If the ERA is added to the Constitution, our Constitution will officially have founding mothers as well as founding fathers. The ERA will be the only piece of our nation’s fundamental law that was written by women after suffrage, adopted because of women’s leadership in Congress, given meaning by women lawyers and judges, and ratified by squads of twenty-first-century women lawmakers in state legislatures. Opponents’ reliance on the deadline to abort the multigenerational efforts of women is part of the problem that the ERA seeks to end: the failure to respect women’s work equally to that of men.
• • •
When the ERA was first introduced to Congress in 1923, a young Brooklyn lawyer named Emanuel Celler was serving his first term in the House of Representatives. Celler opposed the ERA at the time, and it continued to be a thorn in his side for the rest of his almost fifty-year career. Indeed, the ERA was introduced in every congressional session from 1923 to 1971, but men such as Celler—who wielded considerable power as chairman of the House Judiciary Committee in the 1950s—always prevented it from getting a debate on the floor.
The ERA would be the only piece of our nation’s fundamental law that was written by women after suffrage and adopted because of women’s leadership in Congress.
That changed as the women’s movement of the 1960s gained steam. A 1970 version of the ERA passed in the House of Representatives by 93 percent. That version, notably, did not have a deadline attached to it in honor of the Nineteenth Amendment, which is the only passed amendment since 1917 that didn’t have a deadline for ratification. (A deadline on women’s suffrage was actually proposed, but it was rejected in recognition of the decades that women had been struggling unsuccessfully to secure their right to vote.)
But when the 1970 version of the ERA moved to the Senate, a vocal minority of opponents added a provision allowing Congress to exempt women from military service—a provision which could ultimately undermine women’s opportunities for public service. Their version also included the seven-year deadline for ratification that has become typical since 1917. It passed the Senate by a slim margin, 36–33, with most ERA supporters voting against it because of the military exemption. Since it was a very different version of the ERA than what the House had passed, the minority’s tactic effectively killed the ERA for that legislative session.
The next year, when Congresswoman Martha Griffiths sponsored the ERA in the House, she made a political calculation: include the original seven-year ratification deadline as a concession in order to strenuously oppose the military draft exemption. Griffiths said she incorporated “minor technical changes” to the ERA resolution as “an effort to gain united support for the Amendment.” Besides, given its overwhelming public support, she was confident the ERA would be ratified quickly. She miscalculated.
The ERA was approved by the House of Representatives on October 12, 1971, and by the Senate on March 22 of the following year. A ratification deadline of March 22, 1979, was set, and the thorn in Representative Celler’s side quickly grew into a stake. In 1972 Liz Holtzman, a thirty-one-year-old lawyer in Brooklyn, launched a primary campaign against Celler. She had a shoestring budget and worked out of her parents’ basement, but Holtzman ran as a feminist and repeatedly attacked Celler’s opposition to the ERA. At the time, Celler was eighty-four years old and the most senior member of the House of Representatives. But despite Celler’s dismissal of Holtzman as “a toothpick trying to topple the Washington Monument,” she beat him by a mere 635 votes out of 35,000, and became the youngest woman ever elected to Congress. (Since 2018 that honor has been held by Alexandria Ocasio-Cortez, who ran a similarly successful grassroots campaign at the age of twenty-eight to upset a long-serving male incumbent.)
As a congresswoman, Holtzman played a critical role on the House Judiciary Committee that brought the articles of impeachment against Richard Nixon in 1974. But she also never took her eyes off the ERA. By 1977 the amendment was struggling. There were only thirty-five state ratifications, three states that had attempted to rescind their ratifications, a relentless STOP–ERA (“Stop Taking Our Privileges–ERA”) operation led by Phyllis Schlafly, and widespread confusion about what the ERA would do. With time running out, Holtzman and Margaret Heckler, a Republican from Massachusetts, created a bipartisan Congresswomen’s Caucus. The number of women in Congress had increased since the ERA was adopted in 1972, and Holtzman and Heckler led them in the drive to keep the ERA alive.
• • •
In advocating for the ERA, Heckler spoke from her own experience as a working mother in politics. She challenged the notion that American women “enjoy greater freedom than women of any other nation” because “many countries we consider ‘underdeveloped’ far surpass America in the quality and availability of child care available to working mothers, in enlightened attitudes about employment leave for pregnancy, and in guiding women into the professions.” In floor debates about whether the ERA would always require the same treatment of men and women, she repeatedly said she had “no desire to become one of the boys.”
The women fighting to extend the ERA's deadline knew what time constraints and imposed deadlines could mean for women.
Heckler believed that the ERA deadline should be extended because the ratification process had been flawed. In some states, there had not been an informed debate because state legislators—taking a page from Celler’s book—were holding up the ERA ratification bills in committees, preventing the ERA from getting a full and fair hearing. In states such as Virginia and Nevada, Heckler argued, procedural rules gave incumbent men discretionary power to block amendments that the public might favor. As such, another election cycle—a three-year extension of the deadline—would provide a necessary opportunity for the people to express their will.
Opponents of the deadline extension accused ERA proponents of foul play. “Three outs, and the inning is over,” Republican congressman Eldon Rudd of Arizona said. “But they want more than three strikes, and more than three outs, when the game is almost over, and the proponents of the ERA are not winning.” The sports analogy became a bit of a trope as even Erwin Griswold, the former solicitor general and dean of Harvard Law School, used it in congressional hearings: “It is a little like extending the time of a football game after fourteen minutes in the final quarter, with the score tied, and one team on the other’s one-yard line.”
But constitutional change is not a sport, as Barbara Jordan, the House’s first African American woman from the South, argued. “Change the rules in the middle of the game?” Jordan asked. “It is no ‘game’.” Jordan had made headlines as a junior congresswoman in 1974 for her televised speech supporting the impeachment of President Nixon. A constitutional amendment, she said in that speech, had made her part of “We the People”:
We, the people. It is a very eloquent beginning. But when the document was completed on the seventeenth of September 1787, I was not included in that ‘We, the people.’ I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation and court decision I have finally been included in ‘We, the people.’
The Constitution, with its ability to change and adapt, had not failed her, and as such, in regard to Nixon’s impeachment, she said, “I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.
It is not a coincidence that both Jordan and Holtzman built their reputations through their work on impeachment. They took the Constitution seriously and were troubled by what they saw happening in politics. As Jordan made clear, the Constitution was not a game of baseball or football, but the process of perfecting an imperfect political order. “We are talking about the rights of living, breathing, viable working human beings, individuals,” Jordan said. “We are talking about the Constitution of the United States, something which needs to be done to make it still more perfect. It is no game.”
Barbara Mikulski, the newly elected representative from Maryland who would later become a senator and the longest-serving woman in Congress, was perhaps more explicit in her diagnosis of the politics of the day: “I think it is time that we bring an end to the efforts of those who would manipulate democracy and extend time to those who would expand democracy.” The ERA ratification, she said, “has become bogged down in State legislatures because of horse-trading,” the same kind of politics, she noted, that “fought against abolition, fought against suffrage, fought against an end to child labor.”
The women fighting for the deadline extension were not only sick of that kind of politics, they also had a realistic perspective on what time constraints and imposed deadlines could mean for women. Patricia Wald, then an assistant attorney general in the Department of Justice, was one of only eleven women to graduate from Yale Law School in 1951. After hiding her pregnancy while working at a law firm, she then put her promising legal career on hold for ten years to stay home and raise her five children. She went on to become the first woman judge on the U.S. Court of Appeals for the District of Columbia Circuit in 1979—the court to which Ruth Bader Ginsburg was also appointed in 1980.
When Holtzman convened House Judiciary Committee hearings on extending the deadline, Wald testified on the legislative history of the seven-year deadline. The Supreme Court case Dillon v. Gloss (1921) established that Congress had the power to put a seven-year deadline in the text of the Prohibition amendment itself, and it pointed to Congress’s power over deadlines generally, unreviewable by judges. Coleman v. Miller (1939), which dealt with the Child Labor Amendment, then established that Congress had the power to not have a deadline when proposing an amendment. As Jordan reasoned, “What the Coleman case says is that we can set the time, and if we can set the time, we can change the time.” Wald testified that in order for a ratification time limit to have any legal effect, it would have to be put into the amendment text itself, not the proposing resolution.
Ruth Bader Ginsburg, then a professor, also testified as a constitutional law expert and emphasized textual differences between the ERA deadline and those imposed on earlier amendments. The Eighteenth, Twentieth, Twenty-First, and Twenty-Second Amendments, for example, contained a hard deadline in the constitutional text; the article would be “inoperative unless” ratified by the requisite number of states in seven years. As for the Twenty-Third and Twenty-Fourth Amendments, adopted 1951 and 1964, the time limit was placed in the proposing resolution rather than in the proposed constitutional amendment, but the language remained strong and consequential: the amendment would be valid “only if ratified” within seven years.
Then, for the Twenty-Fifth and Twenty-Sixth Amendments, the proposing resolution weakened the language considerably, saying that the amendment would be valid “when ratified” within seven years. For the ERA, the seven-year deadline was similarly placed in the resolution proposing the amendment to the states, rather than in the text of the amendment itself. Congress did this intentionally, Wald argued, in order to leave it open for a future Congress to change the time frame. One Congress, after all, cannot bind a future Congress.
Ruth Bader Ginsburg argued that Congress could and should revisit the ERA deadline because 'in [her] judgment, Congress miscalculated.' She framed the seven-year time limit as a moral and political problem, not a legal requirement.
Ginsburg concluded that “the time stipulation is a measure susceptible to alteration based on circumstances evolving since the submission of the amendment.” She invoked “the well-established general rule that statutes of limitations may be extended should the legislature determine its initial estimate was inadequate.” By this logic, the proposer of the amendment retained the sole authority to decide whether to accept ratifications that came in later than estimated or initially anticipated. She argued that Congress can and should revisit the ERA deadline because, “In my judgment, Congress miscalculated.”
The seven years, Ginsburg suggested, were more a prediction or aspiration rather than a threat to kill the ERA upon late delivery of ratification. Compared to previous deadlines, she argued, the weak language in the amendment resolution expressed an “initial judgment as to time”—a soft deadline. It suggested Congress’s intent to revisit its initial judgment and to recalibrate if warranted by the public interest. “Based on experience since 1972,” she concluded, “I believe Congress not only has the authority, it has the responsibility to extend the deadline.” She framed the seven-year time limit as a moral and political problem, not a legal requirement: “It would be the bitterest of ironies if the amendment were to become the first proposed amendment in this Nation’s history to die because of a procedural time bar—a bar stipulated without exacting deliberation by Congress—ran out. No amendment to date has failed for that reason.”
• • •
When the House and Senate finally voted on extending the ERA deadline in 1978, none of the twenty-one women in Congress voted against it (two did abstain). It passed by simple majorities (233–189 in the House and 60–36 in the Senate). But, at the time, the Virginia General Assembly had only 9 women out of 140. It was only after the ERA deadline lapsed in 1982 that the first African American woman was elected to either one of Virginia’s legislative chambers. In Nevada at the time, there were 8 women out of 63 in the state legislature. In Illinois, it was 21 women out of 236. The ERA was stopped in its tracks—stalled just 3 states short of the majority needed—for an entire generation.
The ERA, as generations of women have argued, is needed to make sex equality sacred in the U.S. legal and political system, but it still faces an uphill battle.
The past three years show the power of representation in this fight. When Pat Spearman, a black Army veteran and Nevada state senator, took up ERA ratification in 2017, Nevada’s state legislature was 40 percent women—one of the highest in the country. Its ratification of the ERA was bipartisan and multigenerational. Since ratification, lawmakers there have been empowered with legitimacy and confidence to respond boldly to unequal pay, the #MeToo movement, and the plight of working mothers. And their work hasn’t gone unnoticed: in the 2018 election, Nevada voters elected even more women, making Nevada the first and only state in the country with a female majority in its legislature.
These are tangible changes that resulted from Nevada’s ERA ratification, but as even Spearman argued, the symbolism is just as important. As she argued: “I would ask every person who is married or partnered to look at their left hand. There is a ring there. That, too, is a symbol. In churches, there are usually crosses. That is a symbol. Symbols are not just symbols. They are powerful because they point to what we believe in and what we hold dear.” The ERA, as generations of women have argued, is needed to make sex equality sacred in the U.S. legal and political system.
Even though the House voted 232–183 to remove the deadline in February 2020, the ERA still faces an uphill battle; Senate Majority Leader Mitch McConnell has said he’s “personally not a supporter” of the amendment, and the Trump administration says it has “expired.” The renewed efforts to stop the ERA may be nominally based on a deadline rather than open misogyny, but it should be lost on no one that these efforts are intended to wipe out a hundred years of women’s work as constitution-makers.
Editor’s Note: This is an excerpt from We the Women: The Unstoppable Mothers of the Equal Rights Amendment by Julie C. Suk, published by Skyhorse Publishing.
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October 08, 2020
15 Min read time