Carolyn Maloney (D-NY) says the time to ratify the Equal Rights Amendment (ERA) is now. However, some critics disagree, arguing women don’t need the ERA because they have other protections, either legislated or judicially created.
In any case, it passed Congress but was only ratified by 35 states when 38 were needed. Now there is renewed interest in getting the amendment passed, though the odds it will happen are unlikely.
Don’t remember what isn’t being ratified? Here’s a refresher:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by 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 the date of ratification.
There are protections for women outside the ERA, which tend to be laws that are very specific to a particular social issue. The Civil Rights Act of 1964, for instance, specifies the social conditions in which discrimination is illegal (voting, employment, the application of funding by a federal agency, for example) but leaves other domains open.
One way to be sure women would be entitled to equal treatment is to make the ERA a part of the Constitution and have all other laws reflect this commitment. However, there is some distaste for the potential social change that could result, for instance, a fear that this would legalize gay rights and abortion for abortion’s sake.
There are some who continue to argue that ratifying the ERA would be ineffective and would take away some protections for women. Examples of these “protections” are exemptions from being drafted, the ability to get lower insurance rates, and to go to single sex schools. Essentially, the protection means that America has decided that men are born with the “right” to be drafted into, possibly killed in war, and are to be considered unilaterally dangerous. Women are protected from being equally responsible for our country’s service, however there are also states-rights groups which oppose Section 2 – Congress’ right to enforce it.
Some states, including ones that have failed to ratify the Equal Rights Amendment, have equality of sex clauses in their constitutions. The United States does not have a Constitutional protection for sex, meaning that it can be changed at the whim of Congress (see current legislative battles) and the Supreme Court. Having an amendment makes sexual equality a key focus of the United States and would make legislation that disproportionately affects women preemptively illegal.
The problem with using legal rulings to procure civil rights is that it relies on a the judicial system. Laws and lawyers speak their own language, and the law reflects the rules of law, not some absolute reality. (Critical Legal Theorists say the law is reified – that it is treated as a natural force when it is socially constructed). The outcome is that we see Roe versus Wade as a privacy decision, not a legal mandate on women’s right to choose. We have legislation that is done through judicial slights of hand, and they are subject to being reinterpreted.
The procedure for getting the ERA ratified is a fuzzy, difficult one. In addition to getting three more states to ratify the law, Congress would need to declare that the time has not yet expired. Congress is not exactly making “working together” a key goal. Could you imagine our current speaker of the house being in support of this bill?
RED: ratified YELLOW: ratified then rescinded GREEN: ratified in 1 house of legislature BLUE: not ratified
One could write an endless list of ways to show that women are still unequal members of society. How about the wage gap? How about the disproportionate number of women in poverty (and with women, children too). How about the fight over whether hormonal contraceptives (used to treat medical conditions like ovarian cysts) should be covered by insurance? The Family Medical Leave Act only applies to businesses that hire more than 50 people. These are a few of the ways that women’s experiences are treated as second class, or in the case of pay in our capitalist economy, as less valued.
The United Nations has a treaty similarly to the ERA, the Convention on Elimination of all forms of Discrimination Against Women, a bill of rights for women. Who is the only industrialized nation that has failed to adopt it? That’s right, the United States. Probably because we are afraid that we would be “legally bound to put its provisions into practice”. We are Americans, we wouldn’t want equal rights now, would we?
