The 14th Amendment of the Constitution of the United States of America (“U.S. Constitution”) defined citizens as “all persons born or naturalized in the United States” and guaranteed equal protection of the laws, but when Susan B. Anthony went to the polls in 1872 and cast a ballot in the presidential election, she was arrested, and eventually fined $100 for voting illegally (a fine she never paid). Women were imprisoned in the following years for trying to vote.
More than 40 years later, in 1920, women finally won the right to vote, but this right is not enough to guarantee equality, nor are any of the subsequent laws that have been enacted since 1920. We also need the Equal Rights Amendment (“ERA”) to make sure that women’s rights are incorporated in and protected by the Constitution so they cannot be rolled back, rescinded, or otherwise taken away. If women are not protected in the Constitution, rights can always be taken away.
In discussing the ERA in 2014, U.S. Supreme Court Justice Ruth Bader Ginsburg noted, “I think we have achieved that through legislation, but legislation can be repealed, it can be altered,” Ginsburg continued, “So I would like my granddaughters, when they pick up the Constitution, to see that notion – that women and men are persons of equal stature – I’d like them to see that is a basic principle of our society.”
In 2011, U.S. Supreme Court Justice Antonin Scalia acknowledged that discrimination on the basis of sex is not prohibited, “You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that’s what it meant. Nobody ever voted for that.”
In 2017, Ruth Bader Ginsburg also stated,
[T]he equality principle…is not in the original Constitution.… The equal-protection clause shows up in the Fourteenth Amendment, which is a restriction on what states can do . . . The Court incorporated an equality principle into the due-process clause of the Fifth Amendment . . . But I suppose the best reason is, if you look at any Constitution that has been written since 1950, you will find in it a statement that men and women are equal before the law. So, I have three granddaughters. I would like to be able to take out my pocket Constitution and say that the equal-citizenship stature of men and women is a fundamental tenet of our society—like free speech. The woman’s equal right to do whatever her talent and hard work enable her to do, and I’d like that to be in the constitution.
For these reasons, I adopt Justice Ginsburg’s position and I support the ratification of the Equal Rights Amendment. Because we cannot take for granted the progress that has been made to secure women’s rights. We still need the guarantee 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.
-Kelly Thames Bennett
Kelly Thames Bennett is the Vice Chair of the Illinois State Bar Association’s Standing Committee on Women and the Law and a partner at Law Office’s of J. Jeltes, Ltd, where she represents clients in family life transitions, ranging from divorce, parentage, minor and adult guardianship, prenuptial agreements, adoption, and decedent’s administration.