Document 38: "Plank 11: Equal Rights Amendment," from National Commission on the Observance of International Women's Year, The Spirit of Houston: The First National Women's Conference (Washington, D.C.: U.S. Government Printing Office, 1978), pp. 49-52.
p. 49
PLANK 11
EQUAL RIGHTS AMENDMENT
The Equal Rights Amendment should be ratified.
Background:
"Women have waited more than 200 years for the equality
promised by the Declaration of Independence to all men."
Women will not have equality in the United States unless it is guaranteed by the Constitution. In 1978, more than 200 years after the founding of this Nation, American women, 51.3 percent of the population, still are not the equals of men before the law. The rights they have are unclear and incomplete and are at the mercy of conflicting State laws and inconsistent court decisions. There is no clear standard to guide legislators in writing laws about women or to guide judges in interpreting them.
The Equal Rights Amendment has been ratified by 35 States, in which three-fourths of the U.S. population live. Approval by only three more States is needed to make the ERA part of the Constitution. Under the preamble to the amendment approved by Congress, ratification must be completed by March 22, 1979, unless Congress votes to extend that date.
Although a majority of Americans favor equal rights for women, ratification in the remaining States has been blocked by a well-organized, well-financed minority that relies on many of the same false arguments that were used to prevent women from getting the vote, namely, that ERA would destroy the family and morality. In some States, ratification has been held up by the negative votes of as few as two or three male legislators.
The Equal Rights Amendment itself is short and simple:
"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."
Why an amendment is needed The Declaration of Independence, signed in 1776, stated that "all men are created equal" and that governments derive their powers "from the consent of the governed." Women were not included in either concept. The original American Constitution of 1787 was founded on English common law, which did not recognize women as citizens or as individuals with legal rights. A woman was expected to obey her husband or nearest male kin, and if she was married, her person and her property were owned by her husband. The power of the ballot was denied to her by the States, which also denied it to Indians, slaves, the mentally unfit, and criminals.
It has been argued that the ERA is not necessary because the 14th amendment, passed after the Civil War. guarantees that no State shall deny to "any person within its jurisdiction the equal protection of the laws."
Early court decisions made clear, however, that women were not necessarily persons under the 14th amendment. In a famous lower court ruling in 1872, the judge in the trial of Susan B. Anthony, who was charged with committing a Federal offense because she voted in the 1872 Presidential election, stated flatly: "I have decided as a question of law…that under the 14th amendment, which Miss Anthony claims protects her, she was not protected in a right to vote." The judge prevented Anthony from appealing to the U.S. Supreme Court, but in the same year the high court approved an Illinois law prohibiting women from being licensed to practice law. Bradwell v. State, 83 U.S. 916, Wall. 130(1872).
Since then, the Supreme Court has struck down some gender discrimination laws but has allowed others to stand, and no majority opinion has articulated sex as a "suspect" classification, like race, under the 14th amendment. See also Goesart v. Cleary, 335 U.S. 464 (1948) and Hoyt v. Florida, 368 U.S. 57 (1961). Indeed, the first time sex classification were struck down by the Supreme Court was as recently as 1971. Reed v Reed. 404 U.S. 71 (1971).
If the courts had interpreted sex classifications by the same strict scrutiny standard as race classifications under the 14th amendment, the need for a constitutional amendment would have been less compelling. When the court does consider a particular basis of classification—such as race—to be suspect, it triggers a "compelling State interest" standard of judicial review which, as a practical matter, the State can rarely, if ever, satisfy. Thus, under constitutional challenges, race-based classifications are often struck down as unconstitutional.
Just as women were not included under the 14th amendment, they were also omitted from the 15th amendment, which enfranchised former slaves, but males only. This exclusion from coverage resulted in a century long struggle that ended with approval of the 19th amendment guaranteeing women the right to vote.
Aside from the fact that women have been subjected to varying, inconsistent, and often unfavorable
decisions under the 14th amendment, the Equal Rights Amendment is a more immediate and effective remedy to
sex discrimination in Federal and State laws than a case-by-case interpretation under the 14th
p. 50
What the ERA will do In interpreting the ERA, the courts can be expected to rely on the legislative history as expressed in the majority report of the Senate Judiciary Committee and in the congressional debates on passage of the amendment. That the courts will interpret the ERA responsibly and with an understanding of the underlying legislative intent is evident from the existing decisions interpreting equal rights amendments in those 16 States which have such amendments in their constitutions.
Based on this record, it is fair to say that:
ERA will enshrine in the Constitution the value judgment that sex discrimination is wrong.
ERA will require the Federal Government and each State to review and revise all laws and official practices to eliminate discrimination based on sex.
ERA will insure that governments do not enact future laws that discriminate on the basis of sex. Many State and Federal laws have been revised and new laws enacted to eliminate sex discrimination as a result of the debates on ERA. But these laws could be changed by new Congresses and new State legislatures, and failure to ratify the ERA may result in some losses of recent gains. A constitutional amendment provides permanent basis for progress.
p. 51
ERA will be the basis for recognition of the principle (ignored in most family law) that the homemaker's role in marriage has economic value and that marriage is a full partnership. Under Pennsylvania's ERA. for example, the State supreme court ruled in 1975 that non-monetary contributions to a marriage, such as household work and child care, must be considered when a couple's household goods are divided as a result of divorce.
ERA will insure equality of opportunity in public schools, state colleges and universities, employment training programs of Federal, State, or local governments, and in governmental recreation programs.
ERA will insure equal opportunity, privileges, and benefits in all aspects of Government employment.
ERA will insure that families of women workers receive the same benefits as families of men workers under the social security law, Government pension plans, and workers' compensation laws.
ERA will insure that married women can engage in business freely and dispose of separate or community property on the same basis as married men.
ERA will give the same rights to a woman as to a man in marital law and allow a married woman to maintain a separate domicile for voting purposes, for passports, for car registration, etc. (A husband may be in the military service and maintain his legal domicile "back home," but his wife may want to vote for the local school board where the kids go to school, for example.)
What ERA will not do ERA will NOT change or weaken family structure. Courts do not interfere in the private relationship of an ongoing marriage, and ERA will strengthen families by implicitly giving value to each spouse's contribution to and support of the other.
ERA will NOT require the States to permit homosexual marriage. The amendment is concerned with discrimination based on gender and has nothing to do with sexual behavior or with relationships between people of the same sex. After the State of Washington has passed an Equal Rights Amendment to its own constitution, the State supreme court held that a State law prohibiting homosexual marriage was not invalidated.
ERA will NOT have any impact on abortion laws. The U.S. Supreme Court decisions on abortion were made under present constitutional provisions addressed to privacy issues based on the 1st, 9th, and 14th amendments.
ERA will NOT require co-ed bathrooms. The legislative history to which the courts would refer makes it clear that "the amendment would not require that dormitories or bathrooms be shared by men and women." Sexual equality will not be obtained at the expense of the constitutionally guaranteed right to privacy.
ERA will NOT require that there be as many women as men in combat roles in the military service, but it will give women equal access to the skills, training, education, and other benefits that military services provide. There is no draft now, but if a national emergency requires one in the future or if it is reinstated for any reason, women would be subject to the draft just as men would be, under a system that would undoubtedly provide for exemptions for specific categories, e.g., parents of dependent children, persons with physical, mental, or emotional illness, conscientious objectors, and others.
The military services would have the same right to assign women as they have to assign men, but this does not mean that women would be automatically assigned to combat, unless they volunteered for such duties. As a matter of fact, in modern warfare a very small percentage of men in the armed services actually serve in combat, and the decision as to who is best equipped for combat is up to the commanders. Meanwhile, to deny women the opportunity to freely enter the military services today is to deny them equal expression of patriotism as well as career, educational, and job opportunities.
ERA will NOT be a "gigantic power grab by the Federal bureaucracy" to take over jurisdiction that
now belongs to the States, as is frequently charged. Once ERA is ratified, States and the Federal
Government have two years within which to bring their laws into conformity. If this is not done, the
courts may declare invalid or extend to both sexes State or Federal laws or practices that are contrary to
the ERA. The State will still be able to enact a new law or regulation that is in conformity. The first 10
amendments to the Constitution—the Bill of Rights—guarantee that the States will not pass laws
infringing on freedom of speech, freedom of religion, freedom of the press, freedom from unreasonable
search and seizure, the right to trial by jury, etc. None of these amendments denies States the right to
enact laws
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ERA opponents cite, as the basis for some of their claims about the effects of the amendment, testimony by Professors of Law Paul Freund and Philip Kurland and interpretations of former Senator Sam Ervin. However, they fail to quote these law professors on the importance of legislative history in interpreting the ERA. Both Freund and Kurland testified in Congress before the committee reports on ERA were issued and before the debates in the House and Senate that established the legislative history of the ERA and the intent of Congress in approving the amendment.
Senator Ervin based his interpretation on his belief that the language of the amendment is so clear that the courts will have no choice but to interpret it his way and that, therefore, they will not look to legislative history. However, all the other members of the Senate Judiciary Committee and large majorities of both the House and Senate interpreted the language differently from Senator Ervin.
Where it stands now The Equal Rights Amendment, the 27th amendment, was passed by a vote of 354 to 23 in the U.S. House of Representatives on October 12, 1971. The U.S. Senate approved it March 22, 1972 by a vote of 84 to 8 after decisively rejecting, one by one, nine different proposals to alter and defeat it. It will become part of the U.S. Constitution when three-fourths of the States (38) have ratified it, and it will go into effect two years after the ratification date.
As of March 1978, ERA has been ratified by 35 States: Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Vermont, Washington, West Virginia, Wisconsin, and Wyoming.
Three States—Idaho, Nebraska, and Tennessee—later voted to rescind ratification, a move of doubtful legality. An opinion issued by Assistant Attorney General John Harmon declares the States do not have the power under the Constitution to rescind. Congressional precedents and the 14th and 15th amendment provide the underpinning for this view.
Fifteen States have not ratified: Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.
Who supports ERA ERA has been endorsed by the last six Presidents of the United States, passed by the Congress, ratified by 35 States, approved by the Democratic and Republican national committees, and supported by more than 200 organizations, including: American Association of University Women; American Baptist Women; American Bar Association; the AFL-CIO and 26 affiliated unions; American Home Economics Association; American Jewish Congress; American Veterans Committee; B'nai B'rith Women; Board of Church Society, United Methodist Church; Catholic Women for the ERA; Child Welfare League of America; Christian Church (Disciplines of Christ); Coalition of Labor Union Women; Common Cause; General Federation of Women's Clubs; Girl Scouts of the U.S.A.; League of Women Voters; Lutheran Church; NAACP; National Catholic Coalition for the ERA; National Coalition of American Nuns; National Council of Churches (of Christ); National Council of Jewish Women; National Council of Negro Women; National Federation of Business and Professional Women's Clubs; National Organization for Women; National Secretaries Association; National Woman's Party; National Women's Political Caucus; United Auto Workers; United Presbyterian Church, U.S.A.; and Young Women's Christian Association.
The outlook Under a seven-year limitation set by Congress, ERA must be ratified by March 22, 1979. If it is not ratified by then, the amendment would have to be reintroduced in Congress and go through the entire ratification process again. However, in the opinion of the Department of Justice, Congress may vote to change the date by which ratification must be completed. A bill has been introduced by Congresswoman Elizabeth Holtzman to extend that deadline to 1986.
ERAmerican, a coalition of major organizations set up to fight for ratification, NOW, the League of Women Voters, the American Association of University Women, the Business and Professional Women, other groups, and an overwhelming majority of the delegates to the National Women's Conference are making final ratification of ERA a priority.
The ratification battle has narrowed down to a few States where some legislators, despite public commitments to support ERA, have succumbed to last-minute political pressures and voted against it. Pro-ERA forces are conducting national education campaigns on the issue and are lobbying, fundraising, and organizing support and campaigning for defeat of anti-ERA legislators. More than 80 major national organizations are boycotting nonratified States and are cancelling meetings that were scheduled to be held there. An important factor in the National Commission's decision to hold its National Women's Conference in Houston was that Texas has ratified the ERA.
Women have waited more than 200 years for the equality promised by the Declaration of Independence to all men. Two years after the United States of America celebrated its Bicentennial, it is time to extend democracy to all American citizens and to put women into the Constitution at last.
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