The Founding Fathers left women out of the United States Constitution. #TimesUp; a fix for this is long past due.
When the United States Constitution was written, women were treated according to English common law and social tradition; women were denied most legal rights. Updates to include women in our Constitution never happened…except for the right to vote. This is the only right where it is prohibited to discriminate based on one’s sex.
The Equal Rights Amendment (ERA) is a proposed amendment to the United States constitution prohibiting sex discrimination in our country. It consists of three sections. The essence of the amendment in the first section: “Equality of rights of the law shall not be abridged or denied by the United States or by any state on account of sex.” The following two sections state that Congress can enforce the amendment, and the amendment will take effect two years after ratification.
Although the concept of the ERA came long before 1923, 1923 was the first year it was introduced to the United States Congress. The ERA did not gain much traction at that time, but it was introduced to every session of the US Congress until 1972. In 1972, US Congress passed the ERA by two-thirds vote. As a reminder, proposed amendments become part of the US Constitution by two-thirds vote by US Congress, followed by three-fourths of the states ratifying the amendment. In the case of the ERA, Congress sent the proposed amendment to the states with an arbitrary seven-year deadline written in the preamble of the bill. In 1972, states immediately began ratifying the ERA. However, at the same time, an anti-equality force developed from a skillfully organized, well-funded campaign with the message that the ERA would destroy families and morality. Progress halted. Only 35 states ratified the ERA by 1977. In 1979, US Congress extended the arbitrary deadline by 3 more years. Still, no more states ratified, and many thought that the ERA was dead.
In 1992, the Madison Amendment became the 27th amendment to our Constitution. Although this amendment does not pertain to equality (it concerns congressional pay), it is noteworthy because three-fourths of the states ratified it over 202 years after the US Congress passed it. Knowing this, the ERA time frame seems short to allow for ratification.
And, the need for the ERA is still relevant. We need it to protect the progress made for equality and secure the ability to advance further. Although there has been progress with laws like the Equal Pay Act, Title IX of the Education Amendment, Pregnancy Discrimination Act, and Lily Ledbetter Fair Pay Restoration Act, they address specific problems instead of tackling the issue at its core, which the ERA would do. Moreover, elected officials can easily modify or eliminate these laws much easier than an amendment.
We also need the ERA because of the way in which courts view discrimination cases. Courts use the concept of judicial scrutiny for when there is an allegation of a violation of one’s constitutional right. It is used to determine which has more weight: a citizen’s constitutional right or a government law or regulation that might discriminate between groups of people. The higher the level of scrutiny, the more favorable weight is placed on the citizen’s right. With discrimination cases that involve national origin, ethnicity, religion, or alienation, strict judicial scrutiny is used. With this, the government law or regulation must be:
1. justified by a compelling governmental interest,
2. narrowly tailored to achieve that interest, and
3. the least restrictive means for achieve that interest.
With cases involving sex discrimination, intermediate judicial scrutiny, a lower level of scrutiny, is used. With intermediate judicial scrutiny, the government law or regulation must:
1. serve an important governmental interest and
2. be substantially related to serving that interest.
Intermediate scrutiny has led courts to rule with varied and often unpredictable outcomes. In addition, the outcomes are less favorable for (mostly) women than if strict scrutiny were applied. The ERA would raise the level of scrutiny and invalidate more discriminatory legislation.
In 2017, Nevada became the 36th state to ratify the ERA, and in May 2018 Illinois became the 37th state to ratify the ERA. One more state is needed to ratify the ERA. The 13 states that have not yet ratified the ERA are:
Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.
This year, most of the13 unratified states introduced resolutions to their state legislatures for ratification.
After almost 100 years of this amendment lingering in our legislative system, I’m still optimistic.
Watch Dr. Kent’s FIX18 talk below!