Earlier this month, the Trump administration asked a federal court to throw out a lawsuit from attorneys general in Virginia, Illinois, and Nevada aiming to add an Equal Rights Amendment to the Constitution. The clash came just weeks after Hulu debuted Mrs. America, a series charting the push for an ERA in the ’70s.
With renewed interest in the amendment’s fate, The Inquirer turned to executives at the Women’s Law Project to debate a board member of the Pennsylvania Conference for Women: Does the U.S. need an Equal Rights Amendment?
By Tara Murtha and David S. Cohen
As we approach the century mark since the Equal Rights Amendment was introduced, the United States is still openly debating the merits of enshrining the basic idea of sex equality in the Constitution.
Currently, the word “sex” appears in the Constitution once, in the 19th Amendment, the guarantee of women’s right to vote, which celebrates its 100th anniversary this year. Yet full citizenship and participation in society begins, not ends, with casting a ballot.
Practically speaking, the ERA could help eliminate the sex-based discrimination still rampant in federal and state institutions. It’s not a magic bullet, but it would add a useful tool to a limited toolbox.
It could also help further LGBTQ+ equality. Though the ERA, first proposed in 1923, uses the language of “sex” rather than “gender,” our modern understanding and legislative history of “sex-based” includes discrimination based on sexual orientation and gender identity.
If you’re watching Mrs. America, the Hulu series about the push to ratify the ERA in the 1970s, you already know anti-ERA rhetoric. The talking points have stayed about the same over the years while a vigorous factual record has evolved that disproves them.
ERA opponents have claimed it would spell doom for women’s sports teams, such as the World Cup champion soccer team, and force everyone to share unisex restrooms.
It doesn’t take a big match to burn these straw man arguments down.
Twenty-five states, including Pennsylvania, have incorporated an ERA into their state constitutions. Yet even with half the country under ERA protections, we still get to cheer on women’s and girls’ teams. As for bathrooms, the wildest thing to happen is that gender-neutral bathrooms, like those typically in homes, sometimes exist alongside single-sex bathrooms for people who prefer that option.
Such fearmongering rhetoric is used, like the nostalgic retro-sexism of “Make America Great Again,” to cynically encourage people to view rights as a zero-sum game so they’ll blame their struggles on neighbors rather than the government elites who actually have the power to improve their lives.
In reality, equality liberates us all. Under Pennsylvania’s ERA, the Women’s Law Project successfully challenged gender-based car insurance rates, for example, that unfairly charged men more than women.
Perhaps the most compelling argument for the ERA is to protect the constitutional rights we’ve already earned through judicial interpretation.
The Trump administration has confirmed a record number of judges, and President Donald Trump has been explicit about selecting judges who espouse a legal philosophy called “originalism,” meaning examining cases through the lens of what people long deceased may have understood the constitutional provision to mean at the time it was adopted.
An originalist will say the challenge is discerning, meaning guessing, the Framers’ intentions for modern problems, such as online harassment. Less discussed is the (white, male, property-owning) Framers’ discriminatory intentions toward people they had assumed power over through slavery and laws of overture — a legal doctrine that forced women to cede their rights and property to a man upon marriage.
Well, the latter point was discussed at least once, when the late Supreme Court Justice Antonin Scalia, a famous originalist, was asked about it by a reporter.
“The Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it,” responded Scalia. “It doesn’t.”
We need the ERA to protect against originalist judges who will refuse to recognize sex equality unless it is explicitly written into the Constitution.
Tara Murtha is the director of strategic communications at the Women’s Law Project. David S. Cohen is a professor of law at Drexel University’s Kline School of Law and a WLP board member.
By Alison Young
The Equal Rights Amendment (ERA), as it is written and commonly understood, can never legally be ratified. Nor should it be. Rather than codifying equality, it has the potential to create public backlash against a women’s movement that is increasingly elitist and favoring highly educated feminists over lower-income women or those with more conservative values.
In January of this year, with great pomp and circumstance, Virginia claimed to be the 38th state to ratify the ERA. Virginia then joined with Nevada and Illinois to sue the federal government, hoping to convince the Supreme Court to determine the validity of the ratification.
But for an equal rights amendment to become part of the United States Constitution, and truly represent equality in a 21st-century America, a new amendment would need to be proposed and ratified by three-fourths of states (currently 38) while properly pending.
Meanwhile, President Donald Trump’s Justice Department has issued a 38-page opinion declaring the ERA dead.
Legal scholars disagree on whether earlier decisions by five states to rescind their ratifications are binding, and whether the ratification by Virginia meets the threshold for the ERA to be adopted. But regardless of where you stand on whether the ERA can be ratified, the most compelling argument against the ERA is that it shouldn’t be.
When the ERA was proposed in 1972, women were in a very different position than in 2020. In U.S. v. Virginia, the Supreme Court ruled that women already have claim to equal rights through the 14th Amendment. In the past four decades, equality has been gained through numerous rulings in virtually all areas of American life: employment and pay, education, credit eligibility, housing, public accommodations, etc. And since 2015, women can legally marry one another.
In case after case, the Supreme Court rejects gender-based discrimination. But ERA advocates are proposing just that by pursuing an amendment that needlessly singles out women.
In 2020, we also live in a time of gender fluidity. In some states, you no longer have to designate male or female gender on a birth certificate or driver’s license. The time has long passed for a gender-based constitutional amendment. Creating special circumstances for women is most likely to denote them as inferior.
Women in 2020 don’t have to have their husband’s signature to open a bank account. We aren’t fighting for the right to vote. Instead, women are serving in public office in record numbers and leading some of the nation’s most successful businesses. Six women were running for president in the 2020 race. The ERA does not give women any more rights than they currently have. Rather, it is political grandstanding at its loudest. While women cannot be considered a monolith when voting, we are smart enough to see through the election year pandering.
The ERA cannot and should not be ratified. Rather than fighting for a dead-on-the-vine amendment that sounds good on cable news and social media, advocates for women can work to elect female judges, to make sure that when these cases come before the courts, female judges will be the ones advancing equality. And they can build a united movement of progress and advocacy for women of all backgrounds and income levels that refrains from using narrow criteria like views on abortion as a litmus test for inclusion. That’s how we can make sure gains aren’t lost in the fires of today’s divisive political discourse.
Alison Young is a managing partner of Red, White and Blue Strategies.