Some Battles Continue to be Fought: The Equal Rights Amendment

By Lori G. Levin

“Equal rights under the law shall not be denied or abridged by the United States or any state on account of sex.”  This sentence, ensuring gender equality under the United States Constitution, has generated controversy since the Equal Rights Amendment (ERA) was first proposed to the United States Congress by the National Women’s Party in 1923.

To those women attorneys who lived through the 1960s and 1970s, the fight for the ERA appeared to be the litmus test for securing equal rights for women.  Although the attempt to secure its passage failed, the push to ratify the ERA has been resurrected. Illinois, a battleground during that fight, is now reconsidering ratification of this amendment.

As all students of the law know, amending the United States Constitution can be an arduous process. Congress must pass all amendments by a two-thirds majority in both houses.  Amendments must then be ratified by three-fourths of the state legislatures.

The ERA was passed by both houses of Congress in 1972.  It was then sent to the state legislatures for debate and ratification.  A deadline of March 22, 1979 was set for ratification.  Within the first year, 30 of the necessary states ratified the amendment, with an additional five joining ratification by 1977. In 1978, the ratification deadline was extended to 1982.  Although the Illinois House voted to support the ERA in 1980, the vote fell short of the necessary three-fourth requirement.  No other states voted in favor of the ratification, and five states voted to rescind their ratification.

In the 1970s, a female Illinois lawyer, Phyllis Schlafly,led the charge against the ERA.  She claimed that the passage of the ERA would eliminate alimony, sexual assault laws and same-sex bathrooms.  Per, the “Stop-ERA” movement delivered baked apple pies to Illinois legislators and hung “don’t draft me” signs on baby girls.

Although many of these “scare” tactics evidently worked thirty years ago in the Illinois legislature, that movement did not keep women from pursuing careers nor from achieving significant steps towards equality.

Congress, itself, has introduced the ERA in every session since 1982.  Proponents of the ERA claim that Congress has the ability to extend the deadline for ratification, recognize prior ratifications, and even to nullify the attempted rescissions of the ratifications.

As United States Congresswoman Carolyn B. Maloney (D-NY), who has sponsored the ERA since the 105th Congress, states in a letter to her colleagues, “Our democracy rests on the principle of ‘liberty and justice for all.’ We need the ERA to ensure that this concept applies equal to women.”

One of Representative Maloney’s most cogent legal arguments in her ERA position paper describes how the ERA would make a difference in gender discrimination litigation. She states that “the courts currently determine whether a government statute or classification is discriminatory by using a heightened standard of intermediate scrutiny test. The intermediate scrutiny test provides that the government must prove that its classification based on sex is substantially related to achieve an important government interest.  The passage of a constitutional amendment regarding sex discrimination would likely raise the standard utilized by the courts from intermediate scrutiny to strict scrutiny. The strict scrutiny test, which is currently only applied to classifications based on race, national origin, and alienage, is nearly impossible to overcome. Strict scrutiny requires that the government prove the classification is necessary to achieve a compelling government interest, with no less restrictive means to achieving that interest available.” She argues that it would be difficult under the strict scrutiny standard of review to justify government classifications based on gender.

On a local level, during the last legislative session, the Illinois Senate voted in favor of ratifying the ERA. The Illinois House did not consider the matter. Presumably, Illinois will take up this issue once again in this legislature.

“Every Constitution written since the end of World War II includes a provision that men and women are citizens of equal stature. Ours does not.”  Supreme Court Associate Justice Ruth Bader Ginsburg.

“We ask justice, we ask equality, we ask that all the civil and political rights that belong to citizens of the United States, be guaranteed to us and our daughters forever.”  Declaration of Rights for Women, July 1876.

This article original appeared in the WBAI Spring 2015 Newsletter.

levinLori G. Levin is an experienced criminal and juvenile defense attorney who practices in the Chicagoland area.