In a beautiful act of bipartisanship, two Georgia state senators, Democrat Nan Orrock and Republican Renee Unterman, filed companion legislation earlier this year to ratify the Equal Rights Amendment (ERA). “Women come as members of all parties, of all political stripes and all professions,” Orrock said in regard to the resolution. “There’s a broad consensus across this country that women’s rights should be enshrined in the highest laws and the [commanding] documents of our democracy.”
Several days later, however, Republican state senator Matt Brass, who’d initially signed on to the resolution, requested that his name be removed. Why the buzzkill? Because Brass claimed his constituents told him the ERA—which simply declares: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex”—would lead to an increase in abortions.
“Many believe this legislation could be used to remove the protections for the unborn,” Brass said. “I don’t know if any of that’s true. But I’m not willing to risk any living breathing humans’ lives to find out.”
“Hey, Wait a Second …”
As you try to wrap your mind around how equal rights could be considered a gateway drug to abortion, you may abruptly stop, asking yourself: “The ERA? Didn’t that pass decades ago?”
Younger people don’t even have a clue what the ERA is.
And you’d be right! The ERA did pass both houses of Congress in 1972, but for a constitutional amendment to become law, ratification by three-fourths of states is required—and as of a 1982 deadline, the ERA was three states shy of the necessary 38. Yet 80 percent of respondents to a recent poll by ERA Coalition/Fund for Women’s Equality said they believe men and women are already guaranteed equal rights by the U.S. Constitution.
“The awareness problem is critical,” says Kamala Lopez, executive director of Equal Means Equal and director of a documentary of the same name that focuses on the treatment of women in the United States today, and the inadequacy of present laws that purport to protect us. “Most people over 50 think the ERA was ratified in the 70s, and younger people don’t even have a clue what the ERA is. Sex discrimination is systemic and institutional—it’s in the air we breathe—and though it put most of us behind the eight ball economically and in multiple other ways, we’ve just always worked around it.”
The Ratification Roller Coaster
Currently, Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah, and Virginia are yet to ratify the ERA. But Nevada got on board in 2017, and last May, Illinois followed suit, which leaves American women just one state short of winning a fight begun by our grandmothers. Suffragist Alice Paul of the National Woman’s Party proposed the first incarnation of the ERA in 1923—three years after the 19th Amendment gave women the vote. Unfortunately, disagreeing factions within the fledgling women’s movement caused it to lose steam.
Feminists took up the cause almost 50 years later, with their activism persuading both houses of Congress to pass the amendment. Thirty-four states quickly rallied to ratify, but conservatives managed to convince representatives in the others that the amendment would, among other unfounded notions, lead to decriminalized rape and permit men to bail on supporting their families. Once again, the ERA floundered, and a 1982 ratification deadline came and went—a deadline considered by many to be arbitrary, since other amendments did not have time restrictions.
The 14th Amendment does not protect women against sexual discrimination.
As the campaign for ratification rose from the ashes, opposition sought to make a case that Supreme Court interpretations of the 14th Amendment, which granted equal civil and legal rights to African Americans and emancipated slaves in 1868, sorta-kinda extended to women, making the ERA unnecessary. Yeah, right. Last we checked, the 14th Amendment didn’t mention sex—as in sexual discrimination, sexual assault, and sexual harassment.
“Both the late Supreme Court Justice Antonin Scalia and the presently great Supreme Court Justice Ruth Bader Ginsburg agreed that the 14th Amendment does not protect women against sexual discrimination, nor does it include them in the Constitution,” Lopez points out.
Yes, Virginia …
“There is a difference between the level of protection that we have with discrimination on account of sex versus discrimination on account of other protected groups,” said Michelle Kallen, deputy solicitor general of the Virginia Attorney General’s office, arguing last week that the 14th Amendment places classes of race and national origin above classes of sex and gender with regard to scrutiny under the law.
Right now, we need all eyes on Virginia for ratification.
Kallen is pushing for Virginia to become the 38th state—and she’s hardly alone. While many Americans may be riveted on its scandal-plagued governor and lieutenant governor, activists are organizing a Valentine’s Day “Lead Virginia Forward, One State to 38” rally at the capitol in Richmond.
“The Virginia depicted in the news today is not the Virginia we want to be,” said Kati Hornung, campaign coordinator for VAratifyERA. “It is time for all loyal Virginians to come together and build a bridge forward out of the chaos. We need to move forward, toward equality. Ratifying the Equal Rights Amendment would send a strong message to the nation about what Virginia stands for today.”
“Right now, we need all eyes on Virginia,” Lopez urges. “We need to pressure [House of Delegates Speaker] Kirk Cox to put ERA legislation on the floor for a vote immediately.” (Virginians, give him a call: 804-698-1066!)
An ETA for the ERA?
It’s a historically incredible time for those with XX chromosomes. At press time, an unprecedented six women have declared their run for president. Nearly 24 percent of the U.S. Congress is now female—a new record. There are also some 2,110 women in the 50 state legislatures as of 2019—that’s 28.5 percent of all state legislators nationwide, a significant increase from the 2018.
Will it happen in our lifetimes? Do your part!
And yet … empowered as we are, there’s nothing in the Constitution—the supreme law of the United States—acknowledging our equal rights.
Upon receiving the necessary number of state ratifications, it is the duty of the Archivist of the United States to issue a certificate proclaiming a particular amendment duly ratified and part of the Constitution, and organizations devoted to the ERA are ready to do battle if there’s any guff. “Equal Means Equal is prepared to file appropriate lawsuits to resolve any uncertainty about the ERA’s validity,” Lopez says. “We will take all necessary steps in the courts to ensure the ERA is properly enforced.”
Will it happen by the 2020 election? In our lifetimes? In our sons’ and daughters’? The following organizations can help you do your part to make equal rights for women a reality.
A native Brooklynite, Nina Malkin has written for everyone from hoity-toity fashion magazines to trashy tabloids to The New York Times. She’s the author of six books, including the paranormal romance novel Swoon and the memoir An Unlikely Cat Lady: Feral Adventures in the Backyard Jungle.