Welcome to the wayback machine: The Equal Rights Amendment is on the table

Supporters of the Equal Rights Amendment marched down Pennsylvania Avenue in Washington in August 1977.


Supporters of the Equal Rights Amendment marched down Pennsylvania Avenue in Washington in August 1977.

Lena Dunham hadn’t even been born when the Equal Rights Amendment movement sputtered and died. Today, she’s among the activists and celebrities trying to revive it, mugging for a social media campaign in a T-shirt bearing an iconic photo of feminist activists Gloria Steinem and Dorothy Pitman Hughes.

Elise Bouc has long prepared for such a campaign. Four decades after watching the ERA debate as a teenager, she is the spokeswoman for the effort to stop it, using some of the same arguments as her predecessor, the late Phyllis Schlafly .


“I feel a little bit like a time traveler sometimes,” said Bouc, chairwoman of Stop ERA Illinois and spokeswoman on the ERA for the conservative Eagle Forum.

This is where women find themselves in 2017: revisiting a movement that predated disco. At least a half-dozen states have fielded new proposals to ratify a constitutional amendment on equal rights for women. In March, Nevada became the 36th state to ratify it, 35 years after missing the deadline.

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The throwback movement picked up speed even before Donald Trump’s inauguration prompted massive protest marches and feelings of vulnerability among women. Activists believe women are now starting to appreciate that the policy gains of the past four decades could be wiped away without explicit constitutional protections. Moreover, women still don’t enjoy the equality promised from hard-fought victories: more than a half century after the Equal Pay Act was passed in 1963, women still make less money than men.

“I’m just tired of fighting all the time on things that should be moving forward,” said Jessica Neuwirth, president of the ERA Coalition. “What we really need is this constitutional amendment so it can’t be rolled back.”

The ERA would expressly prohibit discrimination based on gender, enshrining equal rights in the Constitution and providing a sturdier foundation for legal challenges, advocates say. “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” the amendment says.


Many young women, groomed to be soccer stars and scientists, may be surprised to discover their rights aren’t already constitutionally protected. A poll conducted by the ERA Coalition last year found that 80 percent of people believe they are.

But as activists point out, unlike other groups that have historically been discriminated against — based on race, religion, or national origin, for instance — courts have not found that women are specifically protected.

“Certainly the Constitution does not require discrimination on the basis of sex,” the late Supreme Court Justice Antonin Scalia once said. “The only issue is whether it prohibits it. It doesn’t.”

That means women do not get the same “strict scrutiny” standard of judicial review that those groups receive before the Supreme Court.

Moreover, many assume that women have constitutional rights under the 14th Amendment that was adopted in the wake of the Civil War to provide equal protection to former slaves. But that clause has been applied inconsistently to sex discrimination cases.

In other words: Women often lose.

That’s the case laid out in Neuwirth’s 2015 book, “Equal Means Equal,” and a 2016 film by the same name, directed by actress Kamala Lopez, that helped spur some of the celebrity interest in a social media campaign for the ERA.

‘I feel a little bit like a time traveler.’

Elise Bouc, Equal Rights Amendment opponent 
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Whether a Hollywood message is helpful in the current cultural climate, though, is another question.

Joan C. Williams, founding director of the Center for WorkLife Law at the University of California Hastings College of the Law, argued the ERA failed in the 1970s because of class conflicts — and would fail again today.

That’s because attitudes toward gender roles differ substantially by class, and the ERA tends to appeal to those on the higher end of the economic spectrum.

“Non-elite women tend to look back with nostalgia and longing on the homemaker role because that’s really still one of our hidden cultural ideals,” said Williams, author of “White Working Class: Overcoming Class Cluelessness in America.’’

Women who opposed the ERA in the 1970s framed it as “an attack on homemakers” whose personal choices would be threatened, Williams added. “There’s little doubt in my mind that they would do that again. And that this would be another example of sort of coastal elites attacking the American family.”

Though it’s closely associated with the cultural tumult of the 1970s, the ERA dates to 1923, when suffragist Alice Paul introduced it as the logical next step toward equality, three years after women won the right to vote.

Nearly five decades later, the ERA passed Congress in March 1972 and was sent to the states for ratification. It picked up support from 22 states within the first year but failed to garner the required three-quarters of states, even after Congress extended the deadline to 1982. The measure expired with only 35 states on board, three fewer than needed.

Some activists think that, after Nevada’s recent approval, they only need ratification from two more states to make the ERA a reality. However that would likely require another extension from Congress and also face legal challenges, in part because some states later rescinded support. The 15 states that have not ratified it are largely clustered in the South and lower Midwest.

The divisive debate of the 1970s nearly turned “equal rights” into dirty words. Schlafly led the opposition through her conservative Eagle Forum and warned the ERA would lead to taxpayer-funded abortion; force women into combat; give gay couples rights; and allow anyone into any public bathroom.

Opponents are still employing some of those same arguments today.

Though women can now serve in military combat, Bouc raises concerns about the draft.

“While the military draft has not been used since Vietnam, it’s always a real possibility,” Bouc said. “Right now, we are in the situation women from the ’70s wanted: Women now can choose whether or not they want to place themselves in that vulnerable position of being in combat.”

She also warned that an amendment intended to help women would end up hurting them, by invalidating gender-specific benefits that already exist, such as workplace accommodations for pregnant women; alimony; and federal funding of nutrition and health initiatives. Housewives would lose their claim to half their husbands’ Social Security benefits, Bouc said. Gender-specific bathrooms and women’s shelters could be rendered obsolete.

“In essence, it will turn us into an androgynous society where even when it makes sense to make a distinction based on our gender, we will not be allowed to,” she said.

ERA advocates dispute those points and say the current laws don’t sufficiently protect women. They point to the nation’s largest-ever sex discrimination case, which the Supreme Court threw out in 2011. Despite evidence of disparities in female Walmart employees’ pay and promotions, the court found the women had provided “no convincing proof of a companywide discriminatory pay and promotion policy.”

Neuwirth noted that the Equal Pay Act was practically negated by the Supreme Court, which found that a woman had to file suit within 180 days of being hired. (The Obama administration subsequently eased that time constraint.)

“There are laws that protect women in theory, but in practice they don’t work,” said Neuwirth. “What this would do effectively is give women more adequate remedy.”

Still, the remedies would depend on the cases, said Williams.

“ERA is a bit of a cipher,” Williams said. “Equal means equal to somebody, and it’s unclear to whom. It would all be decided in the courts.”

Stephanie Ebbert can be reached at Follow her on Twitter @StephanieEbbert.
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