The Equal Rights Amendment (ERA), first proposed in 1923, represents a persistent ideal in American legal and social history: the explicit constitutional guarantee of equality regardless of sex. While seemingly straightforward, its journey toward ratification has been a protracted and complex struggle, highlighting deep societal divisions and legal interpretations. The amendment’s core text, stating simply, "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex," belies the fierce opposition it has encountered, delaying its full constitutional entrenchment for nearly a century. This essay will explore the primary arguments for and against the ERA, examine the historical context of its ratification efforts, and consider the ongoing implications of its incomplete status.
Proponents of the ERA argue that it is a necessary and overdue measure to solidify gender equality at the highest level of American law. They contend that existing legal protections, while important, are subject to legislative change and judicial interpretation, leaving them vulnerable. For instance, the Supreme Court’s ruling in Reed v. Reed (1971) was the first time the Court recognized sex as a suspect classification, requiring heightened scrutiny for sex-based discrimination. However, proponents like the National Organization for Women (NOW), founded in 1966, saw this as insufficient. They believed an amendment was crucial because it would provide an unambiguous constitutional foundation, making it harder for future courts or legislatures to chip away at women's rights. Furthermore, advocates pointed to the lingering wage gap, workplace discrimination, and issues of sexual assault and domestic violence as evidence that de facto equality had not been achieved, and that a constitutional amendment would serve as a powerful symbol and legal tool to address these persistent inequalities. The ERA, they argued, would ensure that women were treated as full citizens with equal rights and opportunities in all spheres of life.
Conversely, opponents raised a variety of concerns that contributed to the amendment's stalled ratification. A prominent voice against the ERA was Phyllis Schlafly, who, in the 1970s, argued that the amendment would undermine traditional family structures and women's existing legal protections. Schlafly and her supporters, often associated with conservative religious and social groups, claimed the ERA could lead to women being drafted into the military, the elimination of alimony and child support, and the erosion of protections for homemakers. They believed that the existing legal framework, which they saw as already providing for women's needs and recognizing their distinct roles, was sufficient. This opposition framed the ERA not as a tool for empowerment but as a radical social experiment that threatened the established social order. The campaign against the ERA successfully tapped into fears about changing gender roles and the potential disruption of societal norms, resonating with a significant portion of the American public.
The ratification process itself became a major battleground. Proposed by Congress in 1972 with overwhelming bipartisan support, the ERA was sent to the states for ratification, needing approval from 38 of them. A seven-year deadline was initially set, later extended to 1982. While initially gaining momentum, with 30 states ratifying it within the first two years, the anti-ERA movement gained traction, leading to a slowdown. States like Alabama, Arkansas, and Florida, swayed by Schlafly's arguments, rescinded their ratification votes, a move later deemed legally dubious by many. By the 1982 deadline, only 35 states had ratified the amendment. Since then, a renewed effort has emerged, with several more states ratifying the ERA in recent years, pushing the total to 38. However, the validity of these later ratifications remains a subject of legal debate, given the expired deadline and the earlier rescinded votes.
The ERA's incomplete ratification leaves a significant void in the U.S. Constitution regarding gender equality. While advancements in legal protections for women have occurred through legislation and court decisions since the ERA's proposal, the absence of a constitutional amendment means these protections are not as firmly established or universally applied as they could be. The ongoing debate reflects a broader societal conversation about the nature of equality, the role of government in ensuring it, and the interpretation of constitutional rights. Whether the ERA will ultimately be recognized as part of the Constitution remains uncertain, but its history serves as a powerful case study in the enduring struggle for full legal and social equality.