Next in the Series: “How Would the ERA Impact Our Daily Lives?”

ABOUT THE SERIES: “A few months ago, journalist Rachel Leventhal had a conversation with three young women of color about gender equality and the Equal Rights Amendment. It was one of those conversations that yielded more questions than answers, namely: Why don’t women already have constitutional equality, and what would it really mean if we did? In this series, through interviews with lawyers, scholars, activists, and the young women themselves, Rachel sets out to uncover answers to the question many of us have: “How Would the ERA Impact Our Daily Lives?” Hoping to keep her young friends empowered and engaged in the face of rollbacks and uncertainty, this print and podcast series is her “love letter” to them.

Chapter III: “Why Do We Still Not Have The ERA and What To Do About It?” – A conversation with Professor Julie Suk, Academic Advisor to The ERA Project

Dear Summer, Izzy and Shilla,  

Before I get into answering your question about how the whole ERA thing will actually work, first up is to reframe the story of the ERA (the nine-round fight for gender equality) into one you can relate to and that will inspire you, even when the outlook seems bleak.

I can understand why the Equal Rights Amendment wouldn’t seem relevant to you.  It’s frequently described as merely a failed campaign from the past (usually attributed to the 70’s alongside jokes about bell bottoms and macrame), a rallying cry of the women’s movement of that era, with little connection to today. To those few who even know that the ERA reawakened in the last few years, the discussion generally focuses mainly on whether it’s alive or dead.  (Even though the American public nearly unanimously supports it, with around 80% believing gender equality is already guaranteed in the Constitution.)

If you’ve heard the story at all, it probably goes something like this “just the facts, Ma’am” version: 

  • The ERA was proposed in 1923 just after women got the vote.
    • It didn’t gain traction until 1970.
    • It was passed by both houses of Congress and sent to the states for ratification in 1972.
    • It contained a customary deadline of seven years, which expired with only 35 of the required 38 states ratifying.
    • Congress extended the deadline until 1982.
    • An opposition movement, led by Phyllis Schlafly, ultimately tanked the amendment.

If the story goes on, it usually reads:

  • Nevada (2017), Illinois (2018), and Virginia (2020) ratified decades after the amendment expired, bringing the number to the required 38.
    • Legal and congressional efforts are in progress to have it recorded in the Constitution and the deadline lifted.
    • Attorney General Bill Barr’s Justice Department issued a memo after Virginia ratified, confirming the ERA was dead, preventing the Archivist from recording it in the Constitution.
    • A large number of lawsuits and congressional actions are still pending.

Altogether, it leaves you with a feeling that all was lost, and that its failure was an accident of history at best, death by procedural rules.  At worst, it died at the hands of a conservative backlash, led by Phyllis Schlafly and her “STOP ERA” campaign.  Either way, there is a subtext of “can’t these women play by the rules and just let it go?”

            In the Boston Globe, conservative columnist Jeff Jacoby wrote of the deadline: “The ERA was dead. Yet some of its ardent proponents insisted that, like Monty Python’s parrot, it was merely resting.”  Of its revival in 2014, CTV (a Canadian news channel) wrote, “advocates in Hollywood and Washington are battling the notion that the ERA is an artifact whose time has passed.”

         And it’s not just the conservative pundits that tell this story: In 2018, even after the resurgence in support for the ERA (and ratification by Nevada in 2017), NPR still referred to the ERA as one of the “Zombie Amendments To The Constitution You’ve Probably Never Heard Of,” a list which includes such relics as the “Titles of Nobility Amendment” which sought to prevent American citizens from accepting foreign royal titles, and the “Slavery Amendment,” which would have guaranteed the federal government would not abolish slavery.

            But, my friends, the truth I want you to know is that the story of the ERA is more than a simple story of wins and losses. Rather, it is a heroine’s journey in which women, across generations, work to claim equal power in a system designed to keep them out.  Navigating through and around a fundamentally non-democratic process like ninja warriors on an obstacle course, it is ultimately the story of women steadily, brilliantly, increasing their power and representation, and making gains for everyone along the way.  

            According to Julie Suk, Professor of Law at Fordham University School of Law in New York City, expert on gender equality and constitutions, author of We the Women: The Unstoppable Mothers of the Equal Rights Amendment, and member of the Academic Advisory Council for the ERA Project at Columbia Law School, we need to think of the ERA, “not just as constitutional text, but as the trans-generational movements of women to empower themselves, and to seek recognition of their empowerment.”  A movement that begins “even before the Civil War, culminating in the 19th Amendment.”

            Similar to the battle for the ERA, which is now on its hundredth year, changing the Constitution to allow women to vote, took a full 70 years.  And for the same reasons.  “If you don’t have power, it’s hard to get power, when the people who decide who has power don’t include women,” says Professor Suk. 

            Shortly after women won their battle for the vote, they wanted other legal rights of full citizenship. So, in 1923, the fight for the ERA was born – but without enough women in power to upset the status quo.  “Even if every woman in Congress had supported it in the 1920’s, that would have been just a handful of people.”

First Congresswoman’s Caucus April, 1977.  There were finally enough women in Congress, bolstered by the larger women’s movement, to extend the ERA ratification deadline.  Credit: Alice Paul Institute   

            

First Congresswoman’s Caucus April, 1977.  There were finally enough women in Congress, bolstered by the larger women’s movement, to extend the ERA ratification deadline.  Credit: Alice Paul Institute   

Beginning in 1955, when there were slightly more women lawmakers to support it, the ERA’s annual introduction in Congress (which has occurred every year since 1923) was made by Congresswoman Martha Griffiths.  But every year, the Chair of the House Judiciary Committee, (a man who staunchly opposed the ERA) refused to bring it to the floor, so it would just die in committee.

Shirley Chisolm

            But by the 1970’s, there were now approximately ten women in Congress, and “almost all of them support it and are very active in pushing it forward,” says Suk.  Bolstered by other feminist women in congress such as Shirley Chisholm, and the growing second-wave feminist movement, Griffiths decided it was time to get it out of committee and to the floor.  She studied up on her parliamentary procedure jiu-jitsu and found a little-used rule to get it to the floor by obtaining a majority of signatures.  “She took three months to corner 218 people in order to get their signatures, and that’s how it went up for a vote. And when it went up for a vote it got 96%.” Link to the full text of Shirley Chisolm’s speech introducing the ERA in Congress May 21, 1969

But while the ERA also had nearly unanimous support in the Senate, it remains, on its face, the story of men leveraging the system to maintain power (bolstered by corporate interests, such as insurance companies, who stood to lose money if the ERA had passed). Says Suk, a few vocal detractors, “including Sam Ervin, a segregationist from North Carolina, who everyone knew was part of the group that filibustered the Civil Rights Act in 1964,” did not want to give women equality under the Constitution.

            “They never said the F word. But they were talking long and long and long and preventing the thing from coming to a vote,” says Suk. They demanded changes in the text about things like women serving in the military and working outside the home.  But the intention was to tank the amendment itself.  “These are all delay tactics.  Because if you change the text, that means that it has to go back to the House. And if you’re running out of time before the legislative session ends, it’s not going to go back to the House, and it dies, right?”                         

            To get it to move at all, Griffiths agreed to adding a seven-year deadline to the amendment, which was added in the preamble. (It was hardly a “customary” addition, as the story is usually told, and was claimed at the time. Deadlines didn’t appear in amendments until the 20th Century, beginning with Prohibition, and then were included only sporadically.)

   And segregationist and known-filibusterer Sam Ervin knew that attaching a deadline to the ERA was strategic, not customary.  As evidenced by his later coordination with Phyllis Schlafly, who led the “STOP ERA” movement, the plan had always been to run out the clock.  Erwin, along with his allies, in the face of a supermajority that supported passage of the ERA, twisted his anti-democratic mustache and leveraged his minority power to tank the amendment – and the will of the people.   

            In fact, on March 22, 1972, (a full 50 years ago) when it came up for a vote the next session, the Senate vote was 84 to 8.  “And it’s really clear that there was enough support for the ERA in the Senate,” argues Suk.  “if it had just come up for a vote, without some few people dragging out debate and preventing it from coming to a vote without the deadline, it would have passed by two thirds, no question,”

Thirty states ratified in the first year, but only five more before Sam Ervin’s deadline expired, falling short of the 38 needed, even with the extension granted by Congress (championed by the newly-formed bi-partisan Congresswomen’s Caucus, another example of women’s growing political power, and rarely mentioned in accounts of the story).  Many states, such as Virginia, fell prey to similar structures protecting the status quo where, “the men who controlled the Committee on Privileges and Elections in one house of the Virginia Legislature kept it bottled up in committee,”

            That a tiny minority opposition wanting to deny equal power to women was able to derail something so popular as the ERA is a feature, not a bug of the Constitution, which was written to uphold the power of white, male slaveholders.  According to Suk, “If you think about the fact that 35 states ratified the ERA, between 1972 and 1977, we focus on the fact that that was not enough to send it over the edge in the US. But think about that. 35 out of 50 states, that’s a clear supermajority of the states. And it’s a clear supermajority of the people who live in this country who supported the ERA. So that’s yet another example of how we have structures in the Constitution that prevent the people from democratically deciding our fate.”

“If you don’t have power, it’s hard to get power, when the people who decide who has power don’t include women.”

Professor Julie Suk, Academic Advisor to The ERA Project at Columbia Law School

Watch the full interview with Professor Julie Suk below:

NEXT IN THE SERIES: “The ERA’s Power, Momentum, and Impact – and that’s WITHOUT it even being in the Constitution – yet. 

About the Author: Rachel Leventhal is an award-winning documentary journalist focusing on stories about women’s leadership and empowerment, frequently collaborating with women and girls to tell their own stories using their own voices.  Examples of Rachel’s projects include: a long-term multimedia collaboration with women caught in the US criminal justice system, restavecs (girl-child slaves) in Haiti for NPR, photo essays and audio features documenting grassroots women in Liberia and across West Africa, who mobilized across borders to stop the civil wars in the region and elect Ellen Johnson Sirleaf as Africa’s first woman president.  She is also the founder of Women’s P2P Network, an organization that leverages technology to help women connect and organize across borders in support of justice movements and women’s political leadership.

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The Sy Syms Journalistic Excellence program at Women’s eNews launched was launched in 2014 with support from the Sy Syms Foundation. The fellowship provides support and development opportunities for editorial interns in the pursuit of journalistic excellence. “For a democracy to flourish all voices must be heard.” said Marcy Syms, a founding Trustee and President of the Sy Syms Foundation. “Through its investigative reporting Women’s eNews gets at the essence of good journalism. The Sy Syms Foundation is proud of this collaboration to support today’s newest women journalists.” The Sy Syms Foundation has been supporting progress in education, science and the arts since 1885. As part of it’s mission to create social change for women and girls through investigative reporting, Women’s eNews helps foster, train, and support the career development of new journalists with a focus on social justice and women’s rights.

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