Sur­prise! The Equal Rights Amend­ment is back

Maryland Independent - - News - By AL­BANE GUICHARD Cap­i­tal News Ser­vice

WASH­ING­TON — The Equal Rights Amend­ment, first in­tro­duced to Congress in 1923, ap­pears to have a new chance at be­com­ing part of the Con­sti­tu­tion.

After al­most 100 years of de­bate, the his­toric amend­ment would guar­an­tee gen­der equal­ity on the fed­eral level, stat­ing 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.”

With Illi­nois’ rat­i­fi­ca­tion of the ERA on May 30, it would only take one ad­di­tional state to meet the re­quire­ment that three­fourths of the states must rat­ify it.

Among the states that have not rat­i­fied the ERA yet — Alabama, Ari­zona, Arkansas, Flor­ida, Ge­or­gia, Lou­i­si­ana, Mis­sis­sippi, Mis­souri, North Carolina, Ok­la­homa, South Carolina, Utah and Vir­ginia — all bets are on Vir­ginia to make gen­der equal­ity a con­sti­tu­tional right.

To per­suade their elected of­fi­cials to rat­ify the ERA dur­ing the next leg­isla­tive ses­sion that starts in Rich­mond on Jan. 9, a group of Vir­gini­ans launched the “VA rat­ify ERA” cam­paign in late Au­gust.

Kati Hor­nung, the cam­paign or­ga­nizer, told Cap­i­tal News Ser­vice that she de­cided to push for the ERA mostly for her two daugh­ters: “One of my girls is in­censed that gen­der equal­ity has not yet been writ­ten in our Con­sti­tu­tion. Ev­ery Con­sti­tu­tion writ­ten since 1950 has in­cluded gen­der equal­ity around the world and the United States Con­sti­tu­tion needs to do that as well.”

ERA sup­port­ers in Vir­ginia are us­ing so­cial me­dia, with the hash­tag #VArat­i­fyERA, to pro­mote rat­i­fi­ca­tion among skep­ti­cal politi­cians and cit­i­zens.

“We have bi­par­ti­san sup­port and I hope that bi­par­ti­san sup­port grows be­cause this is a great cel­e­bra­tion of equal­ity and women and the Con­sti­tu­tion,” Hor­nung said.

More than just the sym­bol of hav­ing gen­der equal­ity of­fi­cially be­ing part of the Con­sti­tu­tion, rat­i­fy­ing ERA is a ne­ces­sity for court de­lib­er­a­tions on sex dis­crim­i­na­tion, she added.

“The main rea­son that we want to do that is ju­di­cial scru­tiny,” Hor­nung ex­plained. “Cur­rently, gen­der dis­crim­i­na­tion cases only re­ceive in­ter­me­di­ate scru­tiny and we want it to re­ceive the same scru­tiny as dis­crim­i­na­tion based on race, re­li­gion and coun­try of ori­gin, which is ‘strict scru­tiny.’”

Equal pro­tec­tion un­der the law is also what pushed Rep. Carolyn Maloney (D-N.Y.) to in­tro­duce the ERA no less than 11 times in past Con­gresses.

“Right now, women are not guar­an­teed equal rights by the Con­sti­tu­tion,” Maloney said. “And we know that with­out the ERA we keep see­ing at­tacks on women’s health, we haven’t yet closed the gen­der pay gap, and sex­ual ha­rass­ment and as­sault is still far too preva­lent. We’re treat­ing the symp­tom and ig­nor­ing the dis­ease. Women’s equal pro­tec­tion un­der the law needs to be ex­plic­itly stated in the Con­sti­tu­tion.”

The con­gress­woman never ob­tained a leg­isla­tive hear­ing for the ERA, which was last be­fore a com­mit­tee in 1984.

In June, Maloney or­ga­nized a shadow hear­ing in front of the U.S. Capi­tol, along with other women rights ac­tivists such as Alyssa Mi­lano, to bring at­ten­tion to the amend­ment.

“The shadow hear­ing helped to sig­nif­i­cantly raise the pro­file of the ERA and high­light the out­ra­geous lack of con­gres­sional ac­tion over the last sev­eral decades,” Maloney said. “I be­lieve that will change if Democrats re­take the ma­jor­ity in the House this fall.”

But even if Democrats win the House and Vir­ginia rat­i­fies the ERA next year, one last thing could still stop the ERA from be­ing added to the Con­sti­tu­tion: time.

When the ERA was passed in Congress in 1972, a clause was added set­ting a seven-year dead­line for the amend­ment to be rat­i­fied by the states.

Thirty-five states rat­i­fied the ERA be­fore the March 22, 1979, dead­line — three states short of what was re­quired to add the amend­ment to the Con­sti­tu­tion. Then five states re­scinded their ear­lier rat­i­fi­ca­tions (Ne­braska in 1973, Ten­nessee in 1974, Idaho in 1977, Ken­tucky in 1978 and South Dakota in 1979).

Although it is still un­clear legally if the states’ rescis­sions were valid. Congress had an­tic­i­pated de­lays. In 1978, law­mak­ers ap­proved and Pres­i­dent Jimmy Carter signed a three-year ex­ten­sion.

But by the new dead­line of June 30, 1982, no ad­di­tional state had rat­i­fied or re­scinded the ERA.

ERA op­po­nents, such as the Illi­nois-based Ea­gle Fo­rum founded by the late Phyl­lis Sch­lafly, now claim that state rat­i­fi­ca­tions voted after 1982 are not le­git­i­mate.

“Any vote for ERA to­day is null and void and would be an em­bar­rass­ment to the state,” the Ea­gle Fo­rum said on its web­site in April. The group has mul­ti­ple ob­jec­tions to the ERA, in­clud­ing that it would “over­turn all re­stric­tions on abor­tion” and give women no ad­di­tional rights.

ERA sup­port­ers in­sist that the rat­i­fi­ca­tion dead­line is a de­tail that can eas­ily be changed or re­moved by Congress.

“The dead­line never hap­pened un­til the 20th cen­tury — it is a modern day in­ven­tion,” Hor­nung said. “The 27th Amend­ment [bar­ring law­mak­ers from set­ting their own salaries with­out an in­ter­ven­ing House elec­tion] took over 200 years to be added in our Con­sti­tu­tion. I want the dead­line to be re­moved.”

Since Pres­i­dent Don­ald Trump’s elec­tion and the rise of the #MeToo move­ment, more and more peo­ple have been push­ing for states to rat­ify the ERA, re­gard­less of the dead­line.

Maloney has no­ticed how the ERA has been res­ur­rected among state leg­is­la­tures and pub­lic opin­ion has made ac­tion pos­si­ble.

“It’s no co­in­ci­dence that since Jan. 20, 2017, two states have rat­i­fied the fed­eral ERA and that there have been re­newed pushes for state-level ERAs as well,” she said. “Congress would be wise to lis­ten to their con­stituents. Ninety-four per­cent of Amer­i­cans sup­port an ERA — we need to get it done.”

Just in case the courts rule that the old dead­line is valid, Maloney is spon­sor­ing a bill to start the rat­i­fi­ca­tion process over again.

There are also sep­a­rate bills in both houses of Congress, spon­sored by Sen. Ben­jamin Cardin (D-Md.) and Rep. Jackie Speier (D-Calif.) to re­move the dead­line when­ever the ERA would be rat­i­fied by the three­fourths of the states.

“At the end of the day, what mat­ters is women’s rights be­ing part of our na­tion’s high­est le­gal doc­u­ment,” Maloney said. “We’ll get there one way or an­other. We’re cov­er­ing all our bases.”


A poster from the “VA rat­ify ERA” cam­paign. A group of Vir­gini­ans is pro­mot­ing the rat­i­fi­ca­tion of the Equal Rights Amend­ment.

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