The Equal Rights Amendment: Why Now?

By Sharon Eiseman

On October 31, 2016 the Chicago Bar Association graciously hosted a two-hour live CLE program about the ERA entitled ‘The Equal Rights Amendment: Why It Still Matters and How It Will Affect Our Future. The program planning was spearheaded by the CBA-WBAI Joint Task Force on Women and Aging, founded in 1999, which was joined by co-sponsors: the CBA and its Alliance for Women and YLS Women in the Law Committee, the WBAI, the ISBA’s Women and the Law Committee and the ABA’s Commission on Women in the Profession.

On stage for this CLE event were: Illinois State Senator Heather Steans, State Representative Louis Lang, Illinois Solicitor General of the Illinois Attorney General’s Office David Franklin, Attorney Deane Brown, partner with Hughes Socol Piers Resnick Dym, Ltd. and Larry Suffredin, CBA Legislative Lobbyist and program moderator. Through individual presentations from each speaker, followed by a moderated panel discussion among the four of them, more than 100 audience members—in the room and online—were treated to a detailed explanation of the process by which the Equal Rights Amendment, like any proposed amendment, would become embodied in the U. S. Constitution; what impact the failure by the requisite number of states to ratify Congress’ 1972 passage of the ERA may have on subsequent efforts; what the effect would be on future efforts to pass the ERA of the rescinding by several states since 1982 of their earlier ratifications; and whether, when and how the U.S. Supreme Court will weigh in on the issues. To help the reader better understand the references in this article, the following information is offered as an introduction to the topic and interrelated issues.          

Text of the Equal Rights Amendment (“ERA”) as proposed by Congress in 1972

Section 1: Equality of rights under the law shall not be denied or abridged by the United States or 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 ratification.

Brief History of Recent Efforts to Pass the ERA

In 1972, more than a half century after Alice Paul and one of her colleagues first proposed an Equal Rights Amendment to the U.S. Constitution (which she drafted) to guarantee gender equality in this country, and due in part to the advocacy of the National Organization for Women (‘NOW’), our Congress took the bold step of approving the ERA which then required ratification by three-fourths—or at least 38—of the States. It is widely believed that this Congressional action was also fueled by the growing feminist movement begun in the mid to late l960s. In its passage of the ERA, Congress established a deadline of 1979 for the fifty States to vote their individual approvals, a deadline which Congress extended once–to 1982. By the time 1982 arrived, 35 of the states had met the requirement, leaving the necessary ratification number three states short. Sadly, Illinois was one of the States that failed to ratify the ERA.

Recent Actions to Promote Support and Passage of the ERA

In succeeding years, the issue, though not forgotten, fell off the radar, perhaps because of other intervening concerns and the negative reaction to the ERA in many states that continued to be fomented by anti-feminist Phyllis Schlafly who seemed able to convince many citizens that an ERA was unnecessary. Moreover, her message that housewives would lose their “protections” seemed to resonate with certain segments of the populace. In 2012, however, to mark the 40th anniversary of Congress’ passage of the ERA, Congresswoman Carolyn Maloney (D-NY) and Senator Bob Menendez (D-NJ) introduced a new version of the ERA in Congress and called for its passage by means of a “fresh start approach”. Thereafter, on July 24, 2015, Congresswoman Jackie Speier (D-CA), with Congresswoman Maloney by her side, held a press conference on the Supreme Court steps in Washington, D.C. to announce her proposal for passage of the ERA through legislation that advocates for the “three-state solution” which would eliminate the timeline by seeking ratification from three more states.

These concrete steps (figuratively and, in reality, leading to the U.S. Supreme Court!), and the attention they have attracted, along with the ‘buzz’ about the recently released documentary ‘Equal Means Equal’ (one of whose producers is screen and TV actress Patricia Arquette), and certainly including action by the Illinois General Assembly toward passage of an ERA Resolution (discussed below), have mobilized a new generation of women and men and awakened those who are older into recognizing a flaw in our Constitution. Despite many state statutes and local government laws requiring equality in various areas of our existence such as access to pay equity and employment opportunities and in sports and education, women still lag far behind men in many areas of their daily lives. To complicate matters, there is no consistency among states, or between states and the federal government, in how their respective agencies and even our courts interpret and enforce gender equality and non-discrimination laws and regulations.

Thus, TODAY the time seems ‘ripe’ for reconsidering this Amendment to our United States Constitution. For this reason, legal organizations and non-profit legal aid and advocacy groups have expressed support for reinvigorating the movement for ERA passage. As one example, in June of 2016 the Illinois State Bar Association, with the unanimous vote of its 300+ member policy-making Assembly, approved by motion the ISBA’s support of the Equal Rights Amendment. In addition, the CBA and its leadership are currently preparing to take a public stand in support of the ERA following a public comment period the Association provided for its membership to weigh in online concerning whether the Equal Rights Amendment should be passed (or ratified) and whether the CBA should advocate for its passage by the Illinois Legislature.

Recent Actions of the Illinois Legislature to Move the ERA Forward

In 2014, Sen. Heather Steans initiated a plan to reinvigorate the ERA in the Legislature with her introduction of Joint Resolution SJRCA75 into the Senate. When it was called for a vote, the Senate approved the Joint Resolution by 39-11, more than the three-fifths majority necessary for its passage, thereby sending it on to the Illinois House. Shortly thereafter, State Rep. Louis Lang furthered the plan by introducing the Resolution into the House, although it has not yet been called for a vote. Despite inaction for a few years, that Resolution stands as evidence that the ERA still matters and that its passage would positively affect the future of Americans. Moreover, Rep. Lang recently stated, at the October ERA Program, that he is ready to bring the matter to a vote—as a new resolution or by re-introducing the 2014 Joint Resolution in our House of Representatives—once some of the State’s critical budget issues are resolved and he believes he has sufficient support from his fellow representatives.

In preparation for the October 31, 2016 Equal Rights Amendment Program that was hosted by the CBA, Past CBA President Laurel Bellows was interviewed by Larry Suffredin, the CBA’s Legislative Counsel and Lobbyist, about how the ERA would benefit women in the legal profession in particular. That recorded interview is available to CBA members for viewing through the CBA website.*

What the Audience for the October 31st ERA Program Learned

The October 31st two hour CLE presentation began with an engaging mini-seminar given by Illinois Solicitor General David Franklin, who not only has been an Associate Professor at several law schools and served as a Vice-Dean at DePaul College of Law but also clerked for Justice Ruth Bader Ginsburg. Naturally, he knows how to get the attention of the audience and the lawyers present were treated to a ‘deja vu’ experience of being in their law school classrooms—and the non-attorneys among us got a crash course in the history of, and the process required for, enacting constitutional amendments that was delivered by Solicitor General Franklin with vigor, charm and humor.

Mr. Franklin outlined the specifics of the efforts in the 1970s and early 80s to pass the ERA through ratification of Congress’ proposed amendment by three-fourths of the 50 State legislatures, and the impact of the later rescissions by five states of their previous ratifications. Franklin suggested that the movement for ERA passage may have lost momentum due to the focus during that very era on expanding protections for women through other vehicles such as Title IX and Title VII amendments, the Roe v. Wade decision covering women’s reproductive rights, and the passage by some states of amendments to their own constitutions that guaranteed equality of the sexes.

The Solicitor General also offered an overview of several U.S. Supreme Court Opinions that addressed whether the creation of gender classifications for certain purposes should be subject to intermediate or strict scrutiny, pointing to the landmark case of Frontiero v. Richards, 411 U.S. 677 (1973). The journey of that case to our highest court began when a request made by Air Force Officer Sharron Frontiero for increased medical, dental and other benefits for her husband was denied by the military. The basis for denial was the administrative provisions of the U.S. Code which required him, as a male spouse, to prove he was in fact ‘dependent’ upon his wife for over one-half of his support. Conversely, wives of male service members were, for administrative convenience, considered as ‘dependent’ without the need to present any evidence.

In his Opinion for the Court, Justice Brennan noted an increase, over the past decade, in Congress’ sensitivity to “sex-based classifications”, and he cited as support certain relevant provisions of Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963 and Section 1 of the (then pending) Equal Rights Amendment passed by Congress on March 22, 1972—shortly before Frontiero was decided. (Id. at 687). Following that theme and departing from the intermediate scrutiny that had generally been used in equal protection challenges for evaluating classifications based upon sex, Justice Brennan applied strict scrutiny to the subject classifications for military benefits that treated men and women differently solely on the basis of their gender which the Court described as an ‘immutable characteristic’ determined solely by accident of birth. As a result, the Court concluded that the statutory scheme under scrutiny in Frontiero was “constitutionally invalid.” (Id. at 688) and held that, “…by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment…” (Id. at 691). Of interest, Mr. Franklin observed, was Justice Powell’s view that it was “inappropriate to decide at this time whether sex is a suspect classification” since the “Equal Rights Amendment has been submitted to the States for ratification.” (Id. at 678.)

The Solicitor General also explored the issue of pursuing further steps to ratify the ERA passed by Congress in 1972 or as approved more recently. He noted that, since the deadline imposed in the 1970s for ratification by the required 38 states was not imbedded in the text of the ERA Resolution, it can be argued that Congress has the authority to set a new deadline. Additionally, the validity of the rescissions by five states could be subject to challenge on the basis that Article V of the Constitution which provides for amending that document by means of Congressional determination that an amendment is necessary, followed by ratification of the proposed amendment by three-fourths of the State Legislatures, does not empower the States to rescind their ratifications. However, if such a challenge is raised, the issue is likely to end up once again in the U.S. Supreme Court.

Following the opening act, we heard from two Illinois legislators who are firmly committed to furthering women’s rights in general and to supporting passage of the ERA. Senator Heather Steans focused on the reasons we must, as a nation, pass the Equal Rights Amendment and she identified two significant areas where gender inequality impairs us as a country. First, women are still far behind men in their work earnings. While progress has been made from the 59 cents women averaged in the 1970s to every dollar men earned (for the same work, of course), and that number is now about 77 cents, women’s salaries have been stuck at that level for many years—and when over half of the population is disadvantaged due simply to their gender, everyone…every family, every community and every workplace suffers. Achieving pay equity would be far easier with a gender equality amendment in the U.S. Constitution. Sen. Steans also noted that the United States cannot be a leader and a global force for other countries to treat women fairly, instead of depriving them of basic human rights and abusing and torturing them, if, as a world power, we cannot manage to incorporate into our own Constitution a provision that prohibits the denial and abridging of rights based upon sex.

Finally, as Rep. Lang also noted, Sen. Steans reminded us that Florida is waiting for Illinois to ratify the ERA by passing its Joint Resolution so that they can follow that same path—and that Virginia might not be far behind. Moreover, she is determined to keep the issue alive. The Senator also noted, during the panel discussion, that she believes if Gov. Rauner can be persuaded to support the ERA Resolution, the Republican legislators would be more inclined to vote in favor of it as they would not feel they are betraying their party.

Representative Louis Lang is similarly passionate about advocating for women’s rights on the legislative front. He remarked on the various incremental ways in which women still face barriers in their dealings with landlords, financial institutions and corporations. His main point, however, concerned the need for mustering adequate support for pursuing the ERA Joint Resolution in the House. Rep. Lang would not want to reintroduce and then call for a vote if he isn’t certain the measure would achieve the requisite numerical support. While the Democrats still hold a majority in both the House and the Senate, according to Rep. Lang there are a number of Democratic legislators from the southern part of the State and the more rural areas who are skeptical of the ERA and not certain it is necessary. Those are the legislators who might be persuaded to change their views by calls from constituents urging their support of the ERA Joint Resolution and offering reasons for such support. Rep. Lang made it clear to audience members that he is always available to work with those who are eager to see the Illinois Legislature succeed in passing the Resolution this time around.

Our final speaker—before the panel discussion took place—was attorney Deane Brown who concentrates her practice in the area of employment law. Ms. Brown summarized a number of cases in which her female clients could be exemplars of the toll that gender inequity takes on women in the workplace. She also pointed out the lack of coverage in Title VII of the Civil Rights Act of 1964 for certain kinds of workers or employees such as those in public office and those who are working under contract, and for those who work for employers with less than a certain number of workers. Of even greater concern is that sex discrimination cases brought under the Equal Protection Clause are often dismissed for lack of evidence of intent on the part of the alleged perpetrator.

From the scenarios Ms. Brown described, we were reminded (of what no longer shocks us though it should) that in many businesses it is the men who are assigned the better clients and the more lucrative territories; that when men retire, their ‘book of business’ goes to the younger men in the firm, corporation or company; and that the younger men, not the accomplished women, are groomed for taking on the more desirable clients with whom they have opportunities to interact on golf outings, at sporting events and in ‘gentlemen’s clubs’. Thus, it is no surprise to hear, on a fairly regular basis, that despite the continual debunking of the myths that women are not strong or assertive enough to be leaders, there is a pitifully low percentage of women in upper management of law firms and of corporations in other sectors of the workforce. And if women do make it to that level, they often do not get the support of their partners or colleagues and so there is a built-in mechanism for failing that must be overcome.

Ms. Brown also described situations, ripe for litigation, in which the mistreated or ignored women complained of the discrimination they had experienced and quickly found themselves out of a job or demoted. Understandably, in difficult workplace environments women often won’t report discrimination or harassment due to their not irrational fear of retaliation. One of the more explicit and disturbing examples of a poisonous work environment for women that Deane Brown offered was of a video that one company showed at a work-related conference as an example of ‘teamwork’. It filmed three or four men standing side by side at urinals in a men’s bathroom, their backsides from the waist up facing the camera. Each man was helping one of the other men, or being helped by one of the other men, to light a cigarette or to consume a drink, all of them doing so presumably while urinating—which is why they needed each other’s assistance. Surely this must be one of the grossest real-life scenarios that, without words, reflects the most base of male attitudes one can imagine facing in a workplace setting—and the gasps from audience members in the room were a reflection of that sentiment. Fortunately, we were spared a viewing of the video!

During the panel discussion, Ms. Brown expressed hope that, if passed, the ERA might be construed to include members of the LGBT community. In the meantime, we should be encouraged that the EEOC has recently expanded its guidelines and procedures concerning its interpretation of sex discrimination to include misconduct directed against those who identify as belonging to one or another of the groups encompassed by that informal class designation. Thus, for the first time, they have begun investigating complaints of that nature. The Seventh Circuit Court of Appeals has recently decided that discrimination on the basis of sexual orientation is a form of discrimination because of sex prohibited under Title Vll in Kimberly Hively v. Ivy Tech Community College of Indiana.

Ms. Brown also opined that the ERA would be an additional tool to use in seeking justice for women—and men too. Having the ERA in one’s ‘toolbox’ might bring better results for pregnant women who are not afforded appropriate accommodations in the workplace (unless individual states enact laws mandating accommodations as Illinois has done) for being in a condition that affects only women. However, it should be mentioned, as an important legal issue perhaps for analysis at another seminar, that David Franklin expressed reservations as to whether the Amendment, if passed, would cover actors in the private sector. In that vein, he noted some cases in which causes of action filed against private actors were dismissed for lack of standing.

In general, the interactive panel discussion, so ably and thoughtfully moderated by Larry Suffredin, revealed not only the well-articulated views of the four speakers but also that there is serious resolve among a group of individuals from different disciplines to work for passage of the ERA and to enlighten others about the process and the benefits that can result. Moreover, each of the five men and women in this collective will do so with their unique individual abilities to positively influence how the future for gender equality can evolve. Perhaps that is why so many audience members stayed after the program concluded: to chat with our five amazing program participants and to let the sense of community and hope for achieving a common goal linger a bit longer. We just need to be willing and prepared to help them and others with similar objectives get to the finish line.

*You will find the ERA program materials at www.chicagobar.org/ERAcomment. You may access (without MCLE credit) the ERA program at https://youtu.be/Y4yHijhForU

Sharon Eiseman is the Land Acquisition Bureau Chief in the Office of the Illinois Attorney General. She is the co-chair of the WBAI / CBA Joint Task Force on Women and Aging.

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