What happened to the Equal Rights Amendment?

by [deleted]

I know it failed to ratify in 1979 and again in 1982. What killed the amendment and was there any historical precedent for rescinding ratification as a few states did?

tayaravaknin

So, let's talk a bit about the history.

The Equal Rights Amendment (ERA) was proposed by Congress for state ratification for the first time in 1972. However, it was introduced to Congress 49 years earlier, in 1923. It was a long and hard fight to get it sent to the states. At this point, it might be necessary to review why they had to do this: a quick review on amendments may be in order.

In order to amend the U.S. Constitution, you have to follow the procedure laid out in the Constitution itself, under Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

In layman's terms, you can either get state Legislatures to call for a constitutional convention that would allow amendments to be proposed, or have two thirds of each house of Congress propose an amendment. After the amendment is proposed, 3/4 of the states' Legislatures have to ratify it, or 3/4 of the Conventions must ratify it.

This is a high threshold...but then, the idea is that if you're going to propose something be the "law of the land", it should be something so important that it's not a fleeting whim. Otherwise, the Constitution could be used by either party to impose restrictions on future governments, which is what happens in many states. But that's another story.

So they introduce the ERA in Congress in 1923. What happens next?

Nothing.

Supporters had to build huge lines of support, and this was a very uphill battle. When Alice Paul drafted the first ERA proposed in 1923, it said only this:

Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.

Congress shall have power to enforce this article by appropriate legislation.

Today, this would be hardly controversial. Unnecessary, is what most would say, arguing that it won't do or change anything. However, the House and Senate did what they normally do, and did nothing. They held hearings in almost every Congress, but never acted on the actual amendment. Indeed, it didn't come to the floor in either house of Congress (first, the Senate) until 1946, when there had been 32 committee actions on the ERA between 1923 and 1946 (mostly hearings). So you could tell there was little political will to deal with it, at first. In 1943, the Senate Judiciary Committee reported a bill with the following text instead:

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Congress and the several states shall have power, within their respective jurisdictions, to enforce this article by appropriate legislation

The ERA would remain in this form until 1971, a quarter of a century. In opposition to it this whole time were traditionalists, unions, and some women's group leaders. Why? Well, organized labor was the biggest hurdle, and they and women's groups in opposition argued that the ERA would wipe out protections for women in business. They argued that these protections to give women a special place in industry would be destroyed if women were forced to be equal to men.

Former Secretary of Labor Frances Perkins and First Lady Eleanor Roosevelt wrote that such legislation would:

make it possible to wipe out the legislation which has been enacted in many states for the special needs of women in industry.

Even so, momentum did grow between 1923 and 1946, and the first floor vote showed a tally of 39 in favor and 35 against. That tally was shy of the 2/3 vote by a solid amount, but it was still a great symbolic victory. In order to help, Carl Hayden added to the ERA, with a proposal stating:

The provisions of this article shall not be construed to impair any rights, benefits, or exemptions conferred by law upon persons of the female sex.

However, some argue that this was meant to divide the movement over whether or not to accept this, and the supporters of the ERA ultimately rejected it. The ERA was passed in the Senate twice in the 1950s, once in 1950 by a vote of 63-19, and again by 73-11 in 1953. However, it included what is called the "Hayden rider", the portion I mentioned ERA supporters rejecting above. By 1964, the Hayden rider lost support and was removed, but until then the Senate continued hearings and discussion.

In the House, support was blocked in the Judiciary committee this entire time, by Representative Emanuel Celler of New York. Some theories as to why include his strong ties with organized labor, especially since he championed immigration reform, civil rights legislation, etc..

The 1960s revived the ERA and the women's rights movement, making it once more a national issue. So, it was inevitable that by the early 1970s, it would pop up again. A CBS poll in 1970 found that 56% of Americans were in favor of the ERA, and union opposition began to fade as the United Auto Workers union even endorsed the concept. And this wasn't the first action Congress took; it had approved the Equal Pay Act of 1963 prohibiting gender discrimination in wages, and the Civil Rights Act of 1964 included a prohibition on gender discrimination in employment. Both parties and every president from Eisenhower to Nixon had endorsed the amendment, so the time was ripe for change.

In 1970 was the first vote in the House on the ERA, which was introduced there by Martha Griffiths of Michigan. She proposed it in January 1969, and it moved (again) to the Judiciary Committee, where nothing happened as usual. In 1970, though, she filed a discharge petition. This meant that the bill could come to the floor even without a committee referral and leadership scheduling. However, a discharge petition is unusual, and requires that half of the members of the House sign on to it in the first place. The procedure had only existed since 1910, and had only been used 24 times in the 60 years since, further highlighting how unusual it was. But she managed to get the signatures, which got the discharge bringing it to the floor supported by a vote of 332-22, and the ERA passed by a vote of 334-26.

The Senate was working on doing the same that year, but debate revolved around amendments that would exempt women from the draft and permit non-denominational prayer in public schools, as well as alternative language for the final amendment. These tacked-on things slowed it down, so it didn't pass the Senate before they adjourned in October 1970.

In the House, Griffiths proposed the ERA again in 1971. This time, Congressman Celler did not block it in committee, though he did continue to oppose it. It passed the House, amendment free, by a vote of 354-24 in October 1971.

The Senate then took up the House version of the ERA, in March 1972. The Judiciary Committee approved it without any amendments, and it went to debate with President Nixon reaffirming his support and a friendly floor manager. The House version ended up approved in the Senate by a vote of 84-8, that same month.

The amendment said:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or 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.”

Because it was passed by more than 2/3 in both chambers of Congress, it went to the states for ratification. There needed to be 38 ratifications, and Congress set a deadline: 7 years. The first time such a deadline had been used was 1917, with the 18th amendment, and this time limit has been the same for all amendment ratifications since then (excluding the Child Labor Amendment and the 19th amendment).