By Fletcher McClellan and Caitlin Olivas
Section 1 of the proposed Equal Rights Amendment to the U.S. Constitution reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Last week the Virginia state legislature ratified the ERA, setting in motion a battle over whether the proposal should become the 28th Amendment.
According to Article V of the Constitution, approval from three-quarters of all states – 38 of 50 – is required for ratification of amendments formally proposed by two-thirds of both houses of Congress. Virginia is the 38th state to approve ERA.
Responding during the heyday of the women’s movement, Congress sent the ERA to the states in 1972. Thirty-five states, including Pennsylvania, quickly ratified the amendment, but conservatives, led by the anti-feminist Phyllis Schlafly, counter-organized. Congress gave ERA supporters until 1982 to get to 38, but the deadline passed without any more adoptions.
The pro-ERA movement was reignited in 2017-18 when Nevada and Illinois approved the amendment, putting Virginia in line to cast its historic vote.
However, the U.S. Justice Department issued a memo stating the ERA could no longer be ratified because the deadline set by Congress expired decades ago. Further complicating matters were the actions of five states that ratified the amendment but subsequently withdrew their approval.
Additionally, Congress could reject states’ attempts to rescind ratification, as it did when Southern states tried to back out of approving the Civil War-era 14th Amendment.
But that puts ERA ratification in the hands of Senate Majority Leader Mitch McConnell.
McConnell’s home state of Kentucky is one of the states that rescinded earlier approval of the ERA.
So, it appears that we are in for a legal struggle that will extend at least until the November elections.
In the meantime, the debate over ERA has become more complex.
To some, the ERA is unnecessary. Nowadays courts tightly scrutinize laws that treat men and women differently. Changes that Schlafly feared the ERA would produce, such as same-sex marriage, are part of everyday life.
Others say ratifying ERA today is counter-productive to women’s progress. Men will file a wave of reverse discrimination lawsuits against policies giving women preference in employment and contracting.
ERA advocates claim that inequities in law and practice still exist, including unequal pay, violence against women, and sexual harassment. Furthermore, ERA would protect legal gains from politicians and judges wanting to turn back the clock.
Pennsylvania is one of 26 states that has an Equal Rights Amendment. States interpret their ERAs differently, though.
For example, the Pennsylvania courts upheld restrictions on abortion and abortion funding despite the state ERA. It is an open question what effect a national ERA would have on an U.S. Supreme Court ready to challenge abortion rights.
Whether the ERA would promote incremental or large-scale change depends on whether “sex” is defined in traditional binary terms or more broadly to apply to LGTBQ persons.
The U.S. Supreme Court is currently considering whether Title VII of the Civil Rights Act of 1964, which bars employment discrimination by sex, also protects workers on the basis of sexual orientation and gender identity. If the Court adopts the broader definition, ERA could be the vehicle that guarantees legal equality for gay and transgendered persons.
There is insufficient legal protection in Pennsylvania, despite initiatives by the Human Relations Commission and ordinances in over 50 communities that prohibit acts of discrimination on the basis of sexual orientation or gender identity in employment, housing, and public accommodations.
This would not be the first time that a constitutional amendment intended to protect one class of persons was interpreted to apply to other groups, as the history of the 14th Amendment shows.
Also, the ERA itself was reinterpreted. For decades after its introduction in 1923, the ERA was viewed as a pro-business measure that would invalidate government regulations protecting women in the workplace, such as allowing women to work fewer factory hours than did men.
However, the same protective laws were used to justify barring women from certain occupations. Breaking down special protections for women became the focus of 1960s ERA activists.
Nevertheless, it is likely that the Supreme Court will refuse to expand the scope of Title VII and, by extension, the ERA if it becomes part of the Constitution.
Ironically, on the eve of an end to a century-long struggle, ERA may no longer be the answer to bigotry.
Without new language and broader consciousness, time may have passed the ERA by.
Capital-Star Opinion contributor Fletcher McClellan is a political science professor at Elizabethtown College in Elizabethtown, Pa. His work appears biweekly on the Capital-Star’s Commentary Page. Caitlin Olivas is an Elizabethtown College senior majoring in political science and philosophy.