The Equal Rights Amendment

1. The Equal Rights Amendment 1920-1982

2. The Equal Rights Amendment • 1920 – 2/3rds of states ratify the 19th amendment giving women the right to vote. • Alice Paul and the National Woman’s Party proposed the next logical step: equal rights for women under the law. • The Equal Rights Amendment is drafted and introduced to Congress in 1923

3. ERA -- History “Men and Women shall have equal rights throughout the United States and in every place subject to its jurisdiction. Congress shall have the power to enforce this article by appropriate legislation.”

4. Problems? • ERA would have made unconstitutional protective legislation for women • Ex: labor laws protecting women and children in factories • Florence Kelly, a social reformer for the working class movement, opposed ERA. • If progressive and union feminists opposed ERA; other union and progressive organizations would oppose it as well.

5. ERA and Republicans • Republicans party put ERA on its political platform in 1940. • Democratic party put ERA on its political platform in 1944. • Why did liberals work to defeat ERA and conservatives to promote it in the 1940s? • Republican conservatives wanted to end special protections – Democrat liberals to preserve them.

6. ERA and labor legislation • Proponents and opponents of ERA in the 1940s were grouped around the labor issue • Current law protected women laborers as a group – protections included 8 hour work days; age limits on children. • Economic class and place in the work force (wealthier Republicans versus blue collar Democrats) determined sides on the labor issue and therefore on ERA.

7. The Hayden Rider • The Hayden Rider was an attempt to modify the ERA sufficiently to give women equal rights while preserving existing protections. • The rider provided that the amendment: “shall not be construed to impair any rights, benefits, or exemptions now or hereinafter conferred by law upon persons of the female sex”.

8. Problems with Hayden? • Gave women more than equal rights • Opponents felt it would render the amendment meaningless…how can you have equal rights and still gain special protections? • During 1950s support for ERA widens among Republicans • Some Democrats drop domestic support in favor of a United Nations declaration affirming the equal rights of women and men.

9. 1960 Democratic Convention • Esther Peterson – labor union activist – proposes: • Specific bills for specific ills • The ERA would nullify laws that protected women • The ERA would threaten to bring confusion to family law (e.g.: responsibilities of men and women in families).

10. Women’s Bureau • Created 1920 by Congress to represent needs of wage earning women in the public policy process. • Esther Peterson appointed head by Kennedy in 1960 • National commission on women’s status: Presidential Commission on the Status of Women – formed to study the issue.

11. Presidential Commission on the Status of Women • PCSW report indicates that women are already guaranteed equal rights under the U.S. Constitution. • These rights can be found in the 5th and 14th amendments. • This effectively shifted the burden of decision making about sex differences from the legislature (elected, can be held accountable) to the courts (appointed for extensive or life terms, limited accountability).

12. Women’s Rights in the 5th Amendment • 5th Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…nor be deprived of life, liberty, or property, without due process of law…” • Women were “persons” and could claim due process rights.

13. Women’s Rights in the 14th Amendment • 14th Amendment, section 1: “All persons born or naturalized in the United States…are citizens of the United States…No state shall make…any law which shall abridge the privileges and immunities of citizens of the United States; nor deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” • And we would have to ignore section 2 which explicitly links citizenship rights to sex.

14. 1960s-1970s • Importance of biology in determining people’s lives downplayed. • Just as race had little impact on abilities neither did sex • Feminists set out to change many laws at the time which categorized people by sex (family law, education policy, social security, military). • Women’s physical abilities assumed inferior to men’s • Venus and Serena Williams??

15. Congress and the Courts 1970-73 • Goseart v Cleary 1948 • Michigan law prohibited women tending bar unless women were wife or daughter of owner • Unequal treatment not unconstitutional if it was not arbitrary – “reasonableness” standard • Hoyt v Florida 1961 • General female population exempt from jury duty • Women had to specially register to serve • SC upholds the absolute exemption for women

16. Congress and the Courts 1970-73 • Reed v Reed 1971 • Idaho statute giving automatic preference to males as executors of estates when there are two people of equal relation to the deceased. • First case to use equal protection clause to outlaw sex discrimination. • Frontiero v Richardson 1973 • Extended benefits to male spouses of deceased military wives without having to prove they had depended on their wives for more than half their support.

17. Support for ERA – Title 7 CRA • Title 7 of the Civil Rights Act of 1964. • T7 prohibits job discrimination on the basis of sex. • First step in bringing progressives to support ERA. • By 1970 both federal courts and EEOC had interpreted T7 as invalidating protective legislation. • The solution was to extend most traditional protections to men rather than removing them for women.

18. ERA and Congress: 1970-73 • 1970 ERA support in Congress is at its highest level • Discharge petition forces the legislation out of committee • ERA vote on floor of House 350 to 15. • ERA comes to Senate months later

19. ERA and Congress: 1970-73 • Senate adds provision exempting women from draft – ERA proponents opposed this. • Senator Bayh rewords the amendment: • Neither the US nor any state shall, on account of sex, deny to any person within its jurisdiction equal protection of the laws” • Bayh claims this wording flexible enough to address concerns about the exclusion of women from the draft • ERA proponents again opposed this…

20. ERA and Congress: 1970-73 • House 1971 – back to original ERA but with Wiggins Amendment • “the ERA would not impair the validity of any law of the US which exempts a person from compulsory military service or any other law of the US or any state which reasonably promotes the health and safety of its people”. • Reasonable standard used here no different from SC application allowing sex discrimination. • Wiggins rejected; 354 to 23 to adopt original ERA

21. ERA and Congress: 1970-73 • In the Senate more attempts to amend the legislation were proposed and defeated. • Final vote in 1972 in the US Senate was 84 to 8. • State Ratification began immediately: • Alaska, California, Colorado, Delaware, Hawaii, Idaho, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Nebraska, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Tennessee, Texas, Wisconsin, West Virginia

22. ERA and Ratification • By late 1973 ERA proponents had lost control of the ratification process • 36 states ratified by 1977 • 38 states must ratify (3/4ths). • 1982 despite citizen support it fails with 35 of 38 states having ratified.

23. Stop ERA • Phyllis Schafly • ERA scare campaign • Draft • Divorce • Unisex bathrooms • ERA = Abortion • ERA unnecessary campaign (identified legislative changes and argued constitutional amendment now redundant) • Women were rejecting motherhood and embracing immorality (Roe v Wade)

24. Equal Protection, Sex & the Courts • Old Stereotypes are dead • Separate sphere argument gone • Helping Women • Compensating women for past discrimination MAY be allowable. • Middle-level scrutiny • In between ordinary and suspect scrutiny • Laws that have adverse effects • Laws with discriminatory effect but not intent are ok • Women are different from Men • Biologically, legally, social responsibilities