Gender discrimination and the United States of America have a long history with one another. From the exclusion of women from the U.S. Constitution to the arrest of Susan B. Anthony for trying to vote, America hasn't historically had the best record when it comes to how we treat women. Needless to say, there are plenty of countries that treat women far worse than ours does, but that's no excuse to treat women here poorly. That's like saying, "Oh, there are fewer cases of animal abuse in this town as there are in others so we don't need to enforce our animal cruelty laws as much." The difference here, though, is that the law supports those abused animals, but it doesn't always support women.
As I said above, the U.S. Constitution neglects to mention women and their rights in its extensive text. To say this is a major absence is an understatement. I am under the belief that all men, a phrase that can be restrictive and mean simply "only men," should be viewed as the inclusive "all people" are created equal. Believe it or not, women count as people, too. Shocking, I know, but it's true. Everyone, not just men, not just women, not just a particular race, or a particular religion, but everyone, is born equal, and each individual is entitled to certain rights that cannot, and should not, be abridged in any way, shape, or form.
As a society, it is my understanding that most Americans are under the same apprehension as myself, but to say our legal system accounts for this is to neglect some ugly facts. First off, we must deal with the fact that the Constitution does not incorporate women into equal protections. While the Constitution does attempt to protect all people in the United States with Article 14 of the Constitution. It reads "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; ... nor deny to any person within its jurisdiction the equal protection of the laws." However, as we saw with the rampant systemic racism of the South (and, to be fair, the North as well) following the ratification of this particular amendment, it takes more legwork to enforce and prove this clause than just this.
That's what Congress attempted to with its passage of the Equal Rights Amendment in March of 1972, nearly 50 years after it was first proposed in Congress by Alice Paul. It was sent to the 50 states for ratification, meaning that if 38 of the 50, or two out of every three, states ratified the amendment then it would officially become an amendment. However, Congress took what is still a somewhat controversial approach and placed a time limit for ratification on the amendment. Now, prior to the 20th Century, no proposed amendments ever came coupled with a time limit.
In fact, the first proposed amendment to have a time limit on it for ratification was what would eventually become the 18th Amendment, which established the prohibition of alcohol in the US. From then on, every proposed amendment, with the exception of the Child Labor Amendment, Congress set a time limit of, usually, seven years for ratification. This didn't appear to be an issue for the Equal Rights Amendment, for, by the one year anniversary of the Amendment being sent to the states, 30 of the required 38 ratifications had been passed.
However, over the next four years, only five more states would ratify the amendment, putting it just three shy of becoming officially part of the Constitution. What went wrong? How did an amendment, which easily passed through Congress as a bipartisan measure, and received so much public support, died out seemingly out of nowhere?
For the most part, historians point to just one person. That person was Phyllis Schlafly. A conservative Republican at a time when Rockefeller Republicans were still the norm in the party, Mrs. Schlafly of Illinois campaign aggressively against the ratification of the Equal Rights Amendment. Her arguments against it, which resonated with many conservative voters, reflected the beginning of a shift in the politics of the Republican Party that would eventually culminate in the presidency of Ronald Reagan. She argued that if the Equal Rights Amendment was passed, women across the country would suffer. For starters, she argued that the ERA would block the rules stating that widows would continue to receive their husband's Social Security benefits. On top of that, she stated that the ERA would block the rules keeping women from registering for the draft, as well as make abortion easily accessible to women and essentially making it an on-demand service rather than something society was against.
Many conservatives, both in power and in the voting booths, reacted positively to Schlafly's arguments, and, seemingly overnight, the Equal Rights Amendment went from being a rallying point for all Americans to one of the most controversial points in US politics. Ratifications, once surging and nonstop, became exceedingly rare until, following Washington state's ratification on January 18, 1977, no more states would ratify it before the deadline. Congress even tried to extend the deadline to 1982 to try to get the amendment added to the Constitution, but with no further ratifications, coupled with the states of Nebraska, Tennessee, Idaho, South Dakota, and Kentucky rescinding their ratifications, the Equal Rights Amendment was seemingly dead in the water.
America would leave the ERA as a footnote in its long history. A quirk in the Constitution, something that came so close but will never be part of it. While Congress has, on several occasions, attempted to revive the amendment in different ways over the now four decades since it was sent to the states, the Equal Rights Amendment seemed to be out of steam, stuck forever as simply just a trivia question, a "what-could-have-been."
That all changed, however, on March 22, 2017, the 35th anniversary of the amendment being sent to the states, when Nevada, seemingly from nowhere, ratified the amendment, bringing the total number of ratifications (not including the rescinding) to 36. Now, after decades of lying dormant, the amendment seemed to have some momentum. This was seemingly fleeting, however, as the odds were stacked against it too high.
First off, you'd have to deal with the fact that Congress included a time limit of ratification which has already come and gone (not to mention they tried to extend it, although whether or not the extension counted is up to debate as well). Not only that, but it would have to overcome the four ratifications it lost, which would require an answer to the question of whether or not a state could, in fact, rescind its ratification of a proposed amendment.
Despite the hurdles in the way, though, on May 30, 2018, just over a year and a month from Nevada's historic ratification of the amendment, Illinois, the home state of the ERA's most boisterous enemy, ratified it as well, bringing the total number of ratifications (with the rescinded ones included) to 37, just one short of ratification. The legislatures of the 13 states that hadn't worked to ratify it yet began to work hard, and, under the new term, many states, including Virginia, Georgia, and many others have begun.
Will it work? Well, that's hard to tell. The Virginia effort has already turned up short, with the amendment not even coming to a vote in the full House of Delegates, instead of being rejected in a committee vote. Georgia's effort seems to be wavering as well, as one of the Republican co-sponsors of the resolution to ratify it has already pulled his name from it over concerns about abortion. On top of all of that, though, the amendment would still have to hurdle the constitutional questions of whether or not Congress can place time limits on amendment ratification and whether or not states can rescind their ratifications of an amendment.
Not all people are pessimistic about the amendment's abilities to conquer these obstacles. As reported by the Independent, Carol Jenkins of the ERA Coalition/Fund for Women's Equality said, "Our lawyers tell us that it is possible to remove the deadline." On top of that, she noted that it is, as she felt, likely that the five states that rescinded their ratifications would not be able to support the legality of that action, stating "Courts have not looked kindly on efforts to undo what a whole state has voted to support."
So, does the ERA have hope? Can this long-waiting proposal finally join the other 27 amendments that have been ratified to become part of the Constitution? Well, there's plenty of activity in the states to indicate that at least one more will move to ratify it, potentially by the end of this year. Whether or not it can defeat it's imposed a time limit and rescinding, though, is another story. First, let's focus on the time limit.
It can be argued that Congress putting time limits on the ratification of an amendment to the Constitution is unconstitutional. While the arguments are wide in range, the one that seemingly has the best legs to stand on is that a time limit on ratifications is a violation of the equal protection clause of the 14th Amendment we spoke about at the very beginning of this article. The argument is that by not allowing future votes on the amendment, Congress has deprived the right of the people unable to vote at the time (including people too young to vote and people who weren't born yet) to vote for members of their state's legislature who would vote for or against the ratification of the amendment.
Take me for example. If I'm in support of the amendment and I lived in, say, Arizona, it wouldn't matter since the deadline has passed so I wouldn't get the chance for my voice to be heard in the state legislature through my vote for members who'd support the amendment. Already ratified amendments don't have to worry about this issue since subsequent amendments can be ratified to repeal already-existing amendments, as is what happened with the 21st Amendment repealing the 18th.
Other amendments sent to the states that weren't ratified don't have this problem either, as they're technically still pending, as is the case with the previously-mentioned Child Labor Amendment. However, this argument may not matter since, as is stated in Article 5 of the Constitution, the ability to send amendments to the states belongs only to Congress. As such, any lawsuit to remove the time limit from the amendment would be, as it's put in constitutional law, a political question, which is a type of trial the US court system, especially the Supreme Court, has historically tried to stay away from.
For such an important case as this, the Court may still consider hearing it, but it's far more likely they'd refuse on the grounds that they have no jurisdiction over the actions of Congress in regards to amendments. Furthermore, the Supreme Court, in one way or another, has already kind of decided that time limits on ratifications are constitutional. According to legal scholars, this question first came up in the Supreme Court case Dillon v. Gloss in 1921, where the Court decided if Congress so chooses to it may attach a time limit to the ratification of an amendment. This decision was later affirmed in the case Coleman v. Miller in 1939. In all fairness, the Supreme Court is no stranger to reversing its own decisions, but whether or not this is one they'd reverse, or even consider reversing, is a question in and of itself.
Even if everything went perfectly (one more state ratified it and the Supreme Court struck down the time limits) the Equal Rights Amendment likely wouldn't make it, and it would most likely be for the same reason the time limits are unconstitutional. If the argument is made and accepted that time limits violate the Equal Protections clause, then not allowing for the rescinding ratification would fall into the same boat, at least theoretically. If your state ratified an amendment that, today, you wouldn't want to have that ratification, if rescinding ratifications wasn't allowed then you would have no choice but to accept that the state did this.
Such examples don't have to be hypothetical, either, as several states, including Ohio, Rhode Island, Kentucky, Maryland, Illinois, and the temporary government of West Virginia, ratified the "Corwin Amendment," which would have made it so that no amendment could be passed that would end slavery in the United States. To be fair, the amendment, which was adopted in March of 1861, was an attempt by Congress to prevent the outbreak of the Civil War, an eventually fruitless effort. However, even today, these five states, and, technically, West Virginia, all have officially voted that they want the Corwin Amendment to become part of the Constitution. I know if I were a citizen of any of those states I would want the right to rescind the ratification of the amendment, and I figure a lot of you would, too.
So, is there a chance for the Equal Rights Amendment? Well, so long as there are living, breathing, freedom-loving Americans, anything's possible, and I do mean anything. Good, bad, ugly, etc., Americans are capable of doing it. Whether or not we do is up to the people, which is what makes this country so great. So if the people came together and decided that we needed the Equal Rights Amendment, then we'd get the Equal Rights Amendment. The only question is when we'd get it.
If another state ratifies it and the Supreme Court strikes down the time limit and doesn't allow the rescinding of ratification, then that would be the soonest we get the ERA. That's also probably the least likely scenario, so I wouldn't get your hopes up. Equality for all people is a central tenet of the ideology of most, if not all Americans. While that may sound idealistic, maybe it's just being me having the highest hopes for our country.
I love my country, and, as such, I want to see it at its best. Whether or not it's with the ERA isn't up to me, but whether or not I'll still live by the central idea of the USA, that all people are created equal, is entirely up to me. Whether or not you believe it is entirely up to you. I hope that there will be a day in the near future where something like the ERA is completely unnecessary, but until that day comes, I will continue to live by and fight for my beliefs, the beliefs of millions of Americans today and yesterday, because we decided that tomorrow needs to be free, and the only way to do that is by working together.