Why We're Still Fighting Over the Equal Rights Amendment in 2019

The amendment was originally defeated in the late 1970s, and today's reignited movement to ratify it has much in common with the earlier fight.
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Anti-feminist activist Phyllis Schlafly demonstrates with other women against the Equal Rights Amendment in front of the White House in Washington, D.C., on February 4th, 1977.

Anti-feminist activist Phyllis Schlafly demonstrates with other women against the Equal Rights Amendment in front of the White House in Washington, D.C., on February 4th, 1977.

The amendment is brief—a mere 52 words—and its core sentiment appears utterly innocuous: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." But the Equal Rights Amendment has been anything but anodyne since its original defeat in the late 1970s. Today's reignited movement has much in common with the earlier fight—including the vehement and powerful opposition of the religious right.

Amid the Women's March and #MeToo movements, the presidency of Donald Trump and the wave of women elected to public office, the ERA has become a renewed rallying cry for 21st century feminism. Celebrities such as Alyssa Milano and America Ferrera, the National Organization for Women, the Feminist Majority Foundation, Democratic politicians across the country, and a plethora of pro-ERA groups at the state and federal levels have taken up the cause, with special enthusiasm from media brands serving Millennial women (Cosmopolitan, Teen Vogue, and Refinery29).

A number of key legislatures are fielding ratification efforts—in Georgia, Florida, and Arizona (a bill recently failed in Virginia). These states are among the 15 holdouts that never passed the ERA during the major push in the 1970s. After Nevada's surprise ratification in 2017 and Illinois' in 2018, ERA activists now believe they need just one more state to reach the needed 38-state threshold. (Opponents argue the math is off, given that five states that originally passed the amendment subsequently rescinded, and even ERA supporters admit the road to ratification is winding, including the need for Congress to vote to override an original series of deadlines, something that would undoubtedly require Democratic control of both houses.) Many say they believe 2019 will bring a long-awaited victory, and while a single state may seem like a laughably low bar, it's not. Those left on the map remain under Republican control, making the proposition challenging at a minimum.

That hasn't deterred activists like Arizona's Dianne Post. "Nothing is dead until the session adjourns," she says. Like in other states, GOP lawmakers there have been stalling ERA bills in committees, refusing to allow a vote on the state's senate or house floor. If they did, she says, it would pass, thanks to the support of a handful of Republicans, "and they know that."

"If these people think we're going to give up—'Well let's just not hear [the bill] and they'll go home, and bake cookies'—well, no we won't," Post says. "Because we're never going to give up, and we're going to make your lives miserable as long as you continue to make our lives miserable."

"I started fighting for the ERA at 20, when we tried to get Congress to pass it, and I am 72 years old and sick to death of it," she adds.

ERA opponents during the early years of Post's activism argued it would upend gender norms and family life, put women in the military, enshrine gay rights, and lead to unfettered abortion access. Since then, opposition to women's equal participation in society—including the military—has dramatically waned, leaving both sides keen to argue that the other has little left to gain or lose. (In recent interviews, Supreme Court Justice Ruth Bader Ginsburg said the ERA would not have a monumental impact on current law, but that she'd "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.")

But an argument the anti-feminist firebrand Phyllis Schlafly—the woman who shaped the modern GOP—articulated on Good Morning America in 1976 has endured: Equality is actually bad for women. "When you make the laws apply equally to men and women, you end up taking away many of the rights that women now have," Schlafly said.

Modern ERA opponents agree. Kristi Hamrick, a spokesperson and media strategist for the pro-life group Students for Life, says many of the ERA's goals—largely protection from discrimination on the basis of sex—have been achieved by other means. "Women do need protection from unique harms," she adds, and the ERA could undo some of those protections (a view rejected by ERA supporters who argue it could have an especially broad impact on women's employment and access to birth control). But that's not the reason Hamrick's organization is getting into the fight.

"It would create an actual foothold for abortion in the Constitution," she says. "The sense that Roe v. Wade could be reversed is part of the impetus for [the] ERA coming back right now. This really is a Trojan horse for abortion."

Anti-abortion groups have swung into high gear against the amendment. The National Right to Life Committee is fighting the ERA in every state (including via a recent letter sent to Florida lawmakers). Phyllis Schlafly's descendant organizations—Phyllis Schlafly Eagles and the Eagle Forum—are warning of codifying government-funded abortions in the Constitution and furthering the "interests of the abortion industry." Last year, a lawyer with Americans United for Life, a powerful architect of state-level anti-abortion laws, said the ERA was "anti-woman." When a Georgia Republican pulled his support of the ERA last month, he said it was because "many believe this legislation could be used to remove the protections for the unborn," and he's "not willing to risk any living breathing humans' lives to find out."

Whether or not the ERA would de facto enshrine abortion rights (some ERA activists argue that it remains unclear and other have argued it would, in part based on a New Mexico Supreme Court decision), Marjorie J. Spruill sees something perhaps even more fundamental than abortion at the heart of it: the very foundation of hyper-partisan politics. As Spruill, a history professor at the University of South Carolina, documents in her book Divided We Stand: The Battle Over Women's Rights and Family Values That Polarized American Politics, the 1970s ERA was a casualty of the right-wing religious women's movement that arose to fight what its supporters saw as feminism's destruction of traditional gender roles—and polarized the nation's politics in the process. Under the influence of women like Schlafly, the GOP went from broadly supporting the ERA under a series of presidencies to handing it a chain of crushing defeats.

"The opposition to the ERA is left over from the period in which the right wing of the Republican Party took over the party, in which the religious right emerged as a massive factor in the GOP, and in which the establishment said, 'Well OK, we need your votes to become a majority party, so as long as you give us your votes we'll let you write party policy on social issues,'" Spruill says. Today's battle "is just the continuing of this polarized culture in which conservatives see the ERA as one of the things they're supposed to oppose."

The views of today's Republican voters remain harder to parse. A 2018 USA Today poll found that about 75 percent of Americans would be more likely to vote for a candidate who supported the ERA, but didn't distinguish between party leanings. In 2016, an online survey sponsored by a pro-ERA group found 90 percent of Republicans "would support an amendment to the U.S. Constitution that guarantees equal rights for both men and women."

Post believes the 38th state ratification of the ERA is just a matter of time, regardless of the power of the pro-life movement. Maybe it won't pass this year in Arizona—or Florida, or Georgia, or Louisiana, for that matter (not that she's giving up). But as long as more women keep getting elected, particularly more Democratic women, it's inevitable, she says: "What happened in Nevada is going to happen here. Nevada turned from red to blue, and they passed it in six weeks."

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