Time to bring back bell-bottom jeans and Disco Inferno: the Equal Rights Amendment, which passed Congress in 1972 and became a feminist cause celébre in the 1970s and 1980s, has just been ratified by 38 states, making it part of the Constitution.
Maybe.
On Wednesday, the Commonwealth of Virginia ratified the ERA as both houses of the state legislature approved the amendment by comfortable margins. Democratic Governor Ralph Northam also backs the measure. The ERA states, simply, that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
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But that ratification may not be valid, and, as a consequence, Republicans and Democrats will spend years fighting it out in Congress and the courts.
This, ultimately, will be good for Democrats, because Republicans seem determined to die on a hill fighting against it. That may have played well in the 1970s and 1980s, but it’s just not a good look in the post-#MeToo 2020s.
To begin, it’s not clear that the ERA is still open to being ratified at all. Congress placed time limits on ratification in both 1972 and 1977, and the latter one expired in 1982. Women’s rights advocates argue that because the time limit was in the amendment’s preamble, rather than its text, it doesn’t count.
But there’s no precedent for that position, and it’s hard to see the current Supreme Court, in particular, invalidating a clear deadline set by Congress simply because it was set in one paragraph and not another.
Advocates also are asking Congress to formally remove the deadline, but it’s hard to see Mitch McConnell’s Senate doing any such thing. It’s also not clear that Congress can remove a deadline 38 years after it expired.
For its part, the Trump administration’s Office of Legal Counsel (OLC) issued an opinion on January 6 holding that the ratification period has expired and the deadline cannot be removed now.
Although not formally binding, that opinion will almost certainly become the position of the government as a whole, including the National Archives and Records Administration, which formally has the responsibility for certifying the amendment or not.
For now, anyway, the ERA is not part of the Constitution.
But Democrats are ready to fight. Virginia Attorney General Mark Herring said last week that “I am going to do everything in my power to make sure that the will of Virginians is carried out and the ERA is added to our Constitution, as it should be.”
Why? A combination of principle and politics.
While the battles over the ERA are a relic of the last days of disco – or, if you like, the Jazz Age, given that the ERA was first proposed back in 1923 – the general principle that men and women should be treated equally under law is as valid in 2020 as it was in 1977. “American women need the ERA now more than ever,” Virginia Kase, CEO of the League of Women Voters of the United States, said in a statement following the amendment’s ratification.
Legally speaking, it’s not clear that that’s the case.
In the absence of the ERA, the Supreme Court has already read sex (and gender) into the Equal Protection Clause of the constitution. Believe it or not, the only legal effect of the ERA may be to change the Court’s standard of review in sex discrimination cases. That is rather thin sauce.
Some advocates have suggested that the ERA could provide a basis for protecting abortion rights. As Stephanie Russell-Kraft wrote in these pages, “Women’s equality necessarily requires reproductive and bodily autonomy, and without control over our bodies, women cannot participate as full and equal citizens in this country.”
That is a compelling argument in principle, but it’s hard to see a literal-minded Supreme Court reading it into a constitutional amendment that doesn’t mention abortion at all. After all, if Congress wanted to protect abortion, it could have done so in the text of the ERA, which was passed shortly before Roe v. Wade was decided. In terms of text and intent, the argument seems tenuous at best.
So if the ERA won’t have much practical impact, why fight so hard for it?
Easy: it’s a symbol, and symbols matter.
As Herring said on NPR last month, “the fact that it's almost 2020 and there are still states that are trying to block women's equality from being a part of the U.S. Constitution is repugnant.”
That’s true regardless of what the ERA would or wouldn’t do. Now as in the 1970s, the fight is about whether women’s equality is enshrined in the text of the Constitution, along with the right to freedom of speech, freedom of religion, and other rights that our country regards as fundamental.
Moreover, this is a fight that Democrats will win.
In the 1970s, fights over the ERA, together with those over desegregation, religion, and abortion, helped create the modern Christian Right. Phyllis Schlafly and other conservative firebrands made it the context for fighting against changing gender roles and social mores. Egads, Schlafly exclaimed, if the ERA passes, women may not be entitled to their own single-gender restrooms!
How far the Christian Right has come. Just last year, as three states sought to rescind their earlier ratification of the ERA, conservatives argued that it could force schools to let transgender people use gender-appropriate bathrooms. What is it about conservatives and bathrooms, anyway?
Factually speaking, restroom scaremongering is, and was, poppycock. Women’s restrooms don’t violate the ERA, and transgender women aren’t male sexual predators. Anyway, the text of the ERA mentions sex, not gender.
But Schlafly’s larger point – that social mores about sex and gender are changing – was accurate, then and now. What drove thousands of conservative women to clutch their pocketbooks in protest wasn’t some arcane claim about bathrooms. It was their fear that traditional gender roles were shifting.
Well, guess what: they have shifted.
The glass ceiling, the gender pay gap, and sexual harassment are still very much facts of life. But as #MeToo has shown, clear majorities of Americans do not think the kind of workplace behavior commonplace in Schlafly’s day is acceptable anymore. Republican as well as Democratic women have run for president.
Republicans are deeply misguided if they think they can fight 1980’s battles today. The notion that women should not have equal legal rights as men is about as contemporary as a Boomer’s old pair of bell-bottoms.
