Why Have We Forgotten About the ERA?

Yun Joo Park
COL ’18

In June 2015, actress Meryl Streep sent 535 letters, one to each member of Congress, urging them to consider backing the Equal Rights Amendment. [1] But this isn’t the first time Congress has been asked to consider the ERA. The National Woman’s Party first introduced the ERA in 1923 [2]; it was then reintroduced every proceeding year until 1972 when it passed Congress but failed to generate the necessary number of state ratifications. [3]

Another female baby boomer currently making headlines  is  presidential candidate, Hillary Clinton. Clinton’s campaign has espoused a number of articles highlighting her supporters’ demographics. Clinton, it seems, is unable to generate excitement amongst younger female voters, however, for “women near her in age, Mrs. Clinton represents ‘the apex of that generation’s aspirations for itself.’”[4] Mary L. Shanley, a political science professor at Vassar College believes that “’they [millennial women] haven’t experienced the kind of barriers that their mothers and grandmothers did—the kind of exclusions from areas of accomplishment.”[5] Is it possible that women of recent generations have grown complacent, having forgotten how our mothers and grandmothers struggled to procure rights we now take for granted? Maybe. But what takes precedence is whether or not we believe we still need the ERA.

In 2016, it may seem odd that there are still those among us pushing for the ERA. After all, many gender discrimination laws are now encapsulated in legislation such as Title VII of the Civil Rights Act of 1964, which “prohibits employment discrimination based on race, color, religion, sex, and national origin”.[6] There’s also Title IX, the Equal Pay Act of 1963, and a good number of other federal laws that, together, cover the bases of gender discrimination in public schools, equal pay, credit, housing, medical leave, etc.[7] The ERA is composed of three short articles and is only 52 words long:

“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”[8]

My concern with the ERA is not that I disagree with its premise; gender equality, in all aspects of society, should be encouraged and discrimination, prohibited. However, its brevity and generality leaves space for different subsets of women to fall between the cracks. For example, the ERA does not take time to define what constitutes being a woman. This may allow for continued or even increased discrimination against transgender individuals or those who do not identify along the gender binary. Furthermore, there exist problems split along racial lines. Take the case of wage gap—a commonly cited statistic is that women make 77 cents to a man’s dollar. However, the pay gap is a pay chasm for most women of color. The National Partnership for Women and Families found that African American women and Latinas in the United States are paid 64 cents and 55 cents for every dollar a man earns, respectively.[9] Debate over the existence of the wage gap aside, this statistic highlights the issue that women of color often have fewer opportunities and fewer advantages compared to their white counterparts.

Some think, however, that the ERA could potentially ameliorate such issues and these others along similar divisions. But the ERA cannot fix what the Equal Pay Act and Title VII of the Civil Rights Act of 1964 could not (at least, not in its current form). It should not be seen as the end-all-be-all.

An argument for the ERA is that its passage could have expanded federal jurisdiction to more aspects of American life. In 1976, the Supreme Court decided Craig v. Boren, establishing intermediate scrutiny as the basis for cases dealing with gender discrimination.[10] Many believe that had the ERA passed, gender discrimination would be considered a suspect class requiring strict scrutiny. What is key in this argument is that the acknowledgment of gender in a Constitutional amendment would have been a factor decisive enough to legitimize a suspect classification. The criteria for suspect classification is “A class of individuals that have been historically subject to discrimination.”[11] This suspect classification would allow the Court to analyze issues under strict scrutiny, thereby forcing issues of gender discrimination to go through a more severe screening process. If the Fifteenth Amendment served as the basis for race being named a suspect class, then it seems like a no-brainer that the ERA would elevate gender issues to fall under issues requiring strict scrutiny. What this would do for current or previous issues, is unclear. Perhaps, however, gender being qualified as a suspect class would allow for fewer instances of gender inequality.

The ERA is important not just because of the history of gender discrimination it represents, but also of what it is still capable of doing for women today. Though it is not by any means a way to resolve all issues amongst different divisions of women, it may have the power to change the constitutional status quo.

Notes

[1] Walters, Joanna. “Meryl Streep Urges Congress to Back Equal Rights Amendment.” The Guardian. June 23, 2015. Accessed February 14, 2016. http://www.theguardian.com/film/2015/jun/23/meryl-streep-congress-equal-rights-amendment.

[2] Ushistory.org. “The Equal Rights Amendment.” U.S. History Online Textbook. Accessed February 14, 2016. http://www.ushistory.org/us/57c.asp.

[3] Walters, Joanna. “Meryl Streep Urges Congress to Back Equal Rights Amendment.” The Guardian. June 23, 2015. Accessed February 14, 2016. http://www.theguardian.com/film/2015/jun/23/meryl-streep-congress-equal-rights-amendment.

[4] Chozick, Amy, and Yamiche Alcindor. “Moms and Daughters Debate Gender Factor in Hillary Clinton’s Bid.” The New York Times. December 12, 2015. Accessed February 14, 2016. http://www.nytimes.com/2015/12/13/us/politics/moms-and-daughters-debate-gender-factor-in-hillary-clintons-bid.html?_r=0.

[5] Id. Chozick

[6] “Gender Discrimination: Applicable Laws – FindLaw.” Findlaw. Accessed February 13, 2016. http://civilrights.findlaw.com/discrimination/gender-discrimination-applicable-laws.html.

[7] Id. “Gender Discrimination”

[8] “Home.” The Equal Rights Amendment. Accessed February 14, 2016. http://www.equalrightsamendment.org/.

[9] Kerby, Sophia. “How Pay Inequity Hurts Women of Color.” Center for American Progress. April 9, 2013. Accessed February 14, 2016. https://www.americanprogress.org/issues/labor/report/2013/04/09/59731/how-pay-inequity-hurts-women-of-color/.

[10] “Justice for Beer Drinkers – Craig v. Boren, 429 U.S. 190 (1976).” The Supreme Court Historical Society. Accessed February 14, 2016. http://supremecourthistory.org/lc_justice_for_beer_drinkers.html.

[11] “Suspect Classification.” Legal Information Institute. Accessed February 14, 2016. https://www.law.cornell.edu/wex/suspect_classification.

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