About 40 years ago, the Equal Rights Amendment failed to become ratified, falling short of the 38 states needed to make it an official amendment to the U.S. Constitution. However, after Nevada (2017), Illinois (2018) and most recently Virginia (Jan. 15) all ratified the measure, the ERA is back on the discussion table.
To clarify, I’d be surprised if the ERA was actually amended to the Constitution since, for all intents and purposes, the amendment failed to become approved prior to its original deadline, which was decades ago. Still, the writing and purpose of the ERA has lived on long enough that support of it is still relevant to us in 2020.
For a bit of background, the ERA was first proposed in 1923 and eventually gained a large following in the 1960s. Its purpose was to end discrimination in employment, marriage, divorce and property ownership. The amendment had bipartisan support. Many states ratified the amendment, but the movement began to lose steam because of efforts such as those of Phyllis Schlafly, a staunch far-right religious conservative woman who fought against it.
Officially, the proposed 1972 Equal Rights Amendment died in 1982 when the deadline for it passed, after being extended from its original deadline of 1979. The deadline itself for amendments isn’t part of the Constitution. It’s simply a practice that began with the 18th Amendment.
Although it may seem like this practice should be followed, we also have the 27th Amendment (which prohibits increases or decreases in the salaries of Congress members from taking place until the start of representatives’ subsequent term). The 27th Amendment was pending for 202 years before it was officially ratified in 1992. So, it’s not unheard of for an amendment to be ratified despite deadlines.
Furthermore, a bill could be presented in Congress to remove the deadline entirely, solidifying the standing of the amendment. The question then becomes: Why should Americans ratify the Equal Rights Amendment?
The strongest standing argument for ratification is the lack of a federal law that prohibits discrimination based on gender. The ERA would prohibit such discrimination. People arguing against the ERA claim that the 14th Amendment already prohibits discrimination based on gender.
That claim is dubious at best. While the 14th Amendment, ratified in 1868, does say that no person under its jurisdiction (U.S. citizens) can be denied equal protection under the law, this was not how it was interpreted initially. Myra Bradwell, a woman who passed the Illinois bar exam in the 1800s, was denied admission to practice law in her state by the Supreme Court of Illinois, which did not interpret the 14th Amendment to protect her in this circumstance. (After Illinois made a change to state law, her original application was finally approved some 20 years later, in 1890.)
Any law in this country is subject to interpretation, and many amendments and clauses from 100 to 200 years ago are broad in their interpretation. Defining these terms much more deliberately so that no loophole can exist to discriminate against anyone just seems like an obvious practice to me. In today’s society, we should not look back at a law from a completely different century and culture to hold up to our standards. Our democracy is a perpetual work in progress that we must all improve if we are to flourish.