Despite the fact that eighty percent of Americans believe the U.S. Constitution prohibits discrimination on the basis of sex, it does not. That is because the Equal Rights Amendment has never been ratified. Despite being introduced in 1923, the ERA was not passed by Congress until 1972. However, the amendment failed to be ratified by the required number of states before the deadline set by Congress, and therefore did not become part of the Constitution. Since then, efforts to pass the ERA have continued but legal and political obstacles remain, and the ERA has yet to be officially added to the U.S. Constitution. We are in the process of exploring the 5 C’s of history on the podcast this year and in this series we are exploring causality, meaning how historians evaluate multiple factors that shape past events. Today we will look at the Equal Rights Amendment and the reasons that –so far– it has not become law.
Transcription for The Equal Rights Amendment
Researched by Elizabeth Garner Masarik, PhD
Produced by Sarah Handley-Cousins, PhD and Elizabeth Garner Masarik, PhD
Elizabeth: The Equal Rights Amendment (ERA) was a proposed amendment to the United States Constitution that aimed to guarantee equal legal rights for all American citizens regardless of sex. The Equal Rights Amendment was first drafted in 1923 by two leaders of the women’s suffrage movement and founders of the National Women’s Party, Alice Paul and Crystal Eastman. They believed that without a constitutional amendment, women’s rights would always be at risk of being eroded by discriminatory laws and practices.
Sarah: However, despite the fact that eighty percent of Americans believe the U.S. Constitution prohibits discrimination on the basis of sex, it does not.[1] That is because the Equal Rights Amendment has never been ratified. Despite being introduced in 1923, the ERA was not passed by Congress until 1972. However, the amendment failed to be ratified by the required number of states before the deadline set by Congress, and therefore did not become part of the Constitution. Since then, efforts to pass the ERA have continued but legal and political obstacles remain, and the ERA has yet to be officially added to the U.S. Constitution.
Elizabeth: We are in the process of exploring the 5 C’s of history on the podcast this year and in this series we are exploring causality, meaning how historians evaluate multiple factors that shape past events. Today we will look at the Equal Rights Amendment and the reasons that –so far– it has not become law.
I’m Elizabeth
And I’m Sarah
And we are your historians for this episode of Dig.
Sarah: Patreon: Can you believe it’s been six years since we announced the launch of Dig?! We wouldn’t have come this far or kept at it if it wasn’t for you all, our listeners. We’re thankful for all of our listeners, new and returning, overseas and domestic, student in college or student of life. We’re especially thankful for the Patrons of this show, who’ve funded our presentations at conferences, the new equipment we’re recording on right now, and our endless book needs for research. A big thanks to our fabulous Auger and Excavator level patrons: Karl, Hanna, Lauren, Colin, Edward, Iris, Susan, Denise, Agnes, Jessy, Karen, Maria, and Audrey! We can’t thank you enough. Listener, if you’re not yet a patron of this show, it’s easy: just go to patreon.com/digpodcast to learn more.
Elizabeth: Our story begins at the 75th anniversary of the 1848 Woman’s Rights Convention in 1923, when Alice Paul first introduced the first version of the Equal Rights Amendment that her and fellow suffragist Crystal Eastman had drafted. It was initially called the “Lucretia Mott Amendment” and stated: “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” The amendment was introduced in Congress on December 10, 1923 by Republican Charles Curtis of Kansas.
Sarah: Alice Paul was an American suffragist and women’s rights activist born in 1885, in New Jersey in a Quaker family that valued education and equality. She earned a degree in biology from Swarthmore College in 1905 and then pursued graduate studies at the University of Pennsylvania and the University of Birmingham in England, where she became involved in the suffrage movement and met co-activist Lucy Burnes.
Elizabeth: Once back in the United States, Paul joined the National American Woman Suffrage Association (NAWSA) and with activists Lucy Burns and Crystal Eastman, headed the Congressional Committee. Paul and Burns injected a militancy into the American suffrage movement and attempted to switch NAWSA’s attention away from state by state voting rights toward a federal suffrage amendment. She organized large-scale demonstrations and protests, including a march on Washington, D.C. in 1913, where more than 5,000 women marched down Pennsylvania Avenue to demand the right to vote. You can hear more about this history in our episode, 100 Years of Woman Suffrage.
Sarah: Paul believed that NAWSA was not doing enough to push for women’s suffrage at the national level and that it was too focused on state-level campaigns. Conflict between the Congressional Committee and the NAWSA led Paul and Burns to form the Congressional Union (CU) for Woman Suffrage in April 1913 but soon NAWSA severed all ties with the CU. The CU continued its militant suffrage campaign by holding street meetings, they distributed thousands of pro-suffrage pamphlets, they petitioned and lobbied legislators, and they organized parades, pageants, and speaking tours. In March 1917 the CU joined with the Woman’s Party of Western Voters and became a single organization–the National Women’s Party (NWP).
Elizabeth: The NWP picketed the White House during World War I, demanding that President Woodrow Wilson support women’s suffrage. The picketers were arrested and jailed, and some of them went on a hunger strike to protest denied political prisoner status. Press coverage elevated the arrested suffragists’ status and soon public pressure, and the passage of suffrage in the nation’s most populous state at the time, New York, pressured President Wilson to support the suffrage amendment. Congress passed the Amendment in 1919 and the states ratified it in 1920.
Sarah: The 19th Amendment was ratified on August 26, 1920 but many feminists understood that the vote alone was not enough to bring true political, social, and economic freedom to American women. In a fiery speech entitled “Now We Can Begin,” Crystal Eastman named economic freedom as the starting point for women’s true freedom. She demanded that the world be arranged “so that women can be human beings, with a chance to exercise their infinitely varied gifts in infinitely varied ways, instead of being destined by the accident of their sex to one field of activity – housework and child-raising. And second, if and when they choose housework and child-raising, to have that occupation recognized by the world as work, requiring a definite economic reward and not merely entitling the performer to be dependent on some man.”[2]
Elizabeth: Eastman saw the passage of the 19th Amendment as a starting point, not an end result. She understood that birth control was an integral part of creating equality for American women and maintained that women and men who chose to raise children should be compensated for doing so, which would free women from the “dependent state” of performing unpaid labor in the home. Furthermore, she held a much more radical view than many mainstream feminists, even chastising Alice Paul who had “hushed up” subjects “like birth control and the rights of Negro women” during the fight for suffrage. She maintained that American feminists couldn’t just be “congratulating ourselves that the feminist movement had begun in America. As it is all we can say is that the suffrage movement is ended.”[3]
Sarah: Supporters in the NWP turned their attention toward securing broader legal protections for women and to remove all legal discrimination against women with another federal amendment. Together with Crystal Eastman, Alice Paul drafted the ERA which aimed to deem unconstitutional state laws that restricted women’s jury service, their rights to control their own property, enter contracts, sue, have guardianship over their children in cases of divorce, and other such laws that generally designated women as second-class citizens.
Sarah: Almost immediately after its introduction, the ERA divided women’s organizations. Reformers like Florence Kelley who had been active in the labor movement for years were worried that blanket “equality” would wipe out the special protective labor laws that she had been working for for years. Allies in the National Consumers’ League, the Women’s Trade Union League, and the League of Women Voters were concerned that the ERA would wipe out the gender-based limits on industrial capitalism that they had fought for. Examples were limiting hours that women could work each day, prohibiting night work for women, and removing women from some occupations altogether.
Elizabeth: Now you may hear all of those limitations and think, yeah, those laws actually held women back. But there were a few facets of these laws we should note. One: these protective labor laws for women, as historian Katherine Kish Sklar argues, were supposed to be an entering wedge to make it easier to pass laws that protected all workers, not just women workers. They were also intended to appreciate that bodies that were capable of carrying and feeding children needed special protections in the industrial economy.
Sarah: Many members of the NWP were supporters of these child labor laws and early versions of the ERA exempted these protective labor laws from coverage of the Amendment. However, Kelley remained adamant that the ERA would be detrimental to the progress that the women’s labor movement had achieved and Paul became worried that any exemptions to the ERA would open the door to universal exemptions.
Elizabeth: At the heart of the matter was a foundational difference in the meaning of equality. Paul and her supporters believed that all legal barriers to women’s equality and economic independence must be eradicated. In that way, she was singularly focused, just as she had been on suffrage before the passage of the 19th Amendment, and ignored any issues other than passage of the ERA. According to political scientist Jo Freeman, “Paul was a feminist visionary; she saw what women could be, undistracted by their current reality.” Others, like Kelley, were more pragmatic, basing their activism on the accepted role of the sexes as well as a biological understanding that bodies that could give birth needed special protections.
Sarah: Throughout the 1920s the NWP orchestrated non-partisan “Women for Congress” campaigns to encourage and support women candidates for national office. In fact Nina Otero-Warren who we did a podcast on a few months ago, a New Mexico Hispanic woman who ran for Congress in 1922 was endorsed by the NWP. Basically, the NWP pledged money and support to female candidates who supported the Equal Rights Amendment and other women’s issues.
Elizabeth: However, even though the Equal Rights Amendment was continually submitted to Congress, it was not brought up for debate throughout the 1920s and 1930s. In 1937 the Federation of Business and Professional Women (BPW) publicly supported the ERA and other groups soon followed. Additionally, World War II saw a renewed interest in both the ERA and working women as “Rosie the Riveters” worked in industrial jobs for the war effort.
Sarah: Twenty years after she first introduced it, Alice Paul rewrote the ERA in 1943. It was given a new title — the “Alice Paul Amendment — and the new version better reflected the language in the 15th and the 19th Amendments. The new version stated:
“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
Elizabeth: Both the Republican and Democratic parties added support for the Equal Rights Amendment to their political platforms in 1944. And in 1946, the ERA was finally brought to the Senate floor for debate. However, it failed to get the necessary votes. It came up again in 1950 but opponents of the Amendment added a “rider” to exempt all laws for the protection and benefit of women, which killed the proposal. The same “rider” was added to the ERA on the Senate floor in both 1950 and 1953. After these failures, the ERA did not leave committee for another two decades.
Sarah: Meanwhile, Alice Paul continued to work for women’s rights, playing a key role in the drafting of the 1948 United Nations Declaration of Human Rights and advocating for the inclusion of women’s rights in the declaration. The Declaration was the first international agreement to recognize the inherent dignity and equal rights of all human beings. It consists of 30 articles that outline a broad range of civil, political, economic, social, and cultural rights, including the right to life, liberty, and security of person; freedom of thought, conscience, and religion; and the right to education, work, and healthcare. It also prohibits discrimination and torture, and affirms the right to a fair trial and the presumption of innocence. Paul worked closely with other women’s rights advocates, including Eleanor Roosevelt, to ensure that the Declaration recognized the equal rights of women.
Elizabeth: However, conservatives in the U.S. complained that the Declaration could be used to promote socialism and all the other left leaning ideologies that kept them up at night. Conservatives argued that the Declaration placed too much emphasis on collective rights and not enough on individual rights, and that it could be used to justify government intervention in the economy and other aspects of society, inconsistent with conservative interventions. For example, they worried that the Declaration’s emphasis on social and economic rights could be used to promote government-run healthcare, education, and other social services. This is important because as the liberal U.S. state was in full effect, there were conservative grumblings that were gaining traction. So keep that in mind as we move forward.
Sarah: Throughout the 1950s and 1960s the Civil Rights Movement gained momentum. In turn, it inspired other groups to organize and demand civil rights, leading to what we sometimes call the “Rights Revolution” of the 1960s. These movements included the Gay Rights Movement, the Chicano Movement, and of course the Women’s Liberation Movement.
Elizabeth: The women’s liberation movement emerged full force in the 1960s but they were taking their cues from the Civil Rights Movement and the New Left, not from the first wave feminist movement of the suffragists. Also, the world had drastically changed since the ERA was first proposed in 1923. By 1967 women were ⅓ of the workforce. And so, for the most part, these second wave feminists were focused on eliminating discriminatory practices and sexist attitudes and the ERA was simply not on their radar. However, the NWP was still around and they convinced the National Organization of Women (NOW) to endorse the ERA.
Sarah: Women of color played a large role in bringing the ERA back to the forefront. Reformers who advocated for working mothers began to see the ERA as a help instead of a hindrance. Key women of color advocated for women’s rights through a broader lens of international cooperation and racial justice. Then, when Shirley Chisolm was elected to Congress as the first Black congresswoman, she took up the charge and advocated for the ERA.
Elizabeth: In 1970 Representative Martha Griffiths, a Democrat from Michigan reintroduced the ERA in the House. Chisholm took to the floor in support of the Amendment and delivered one of her most well-known speeches, “For the Equal Rights Amendment.”
This is what it comes down to: “artificial distinctions between persons must be wiped out of the law. Legal discrimination between the sexes is, in almost every instance, founded on outmoded views of society and the pre-scientific beliefs about psychology and physiology. It is time to sweep away these relics of the past and set further generations free of them….
The time is clearly now to put this House on record for the fullest expression of that equality of opportunity which our founding fathers professed. They professed it, but they did not assure it to their daughters, as they tried to do for their sons.
The Constitution they wrote was designed to protect the rights of white, male citizens. As there were no black Founding Fathers, there were no founding mothers — a great pity, on both counts. It is not too late to complete the work they left undone. Today, here, we should start to do so….”
Sarah: A massive lobbying campaign commenced in support of the ERA and within two years of its reintroduction, the ERA passed out of the House and the Senate with overwhelming majorities. The proposed 27th Amendment to the Constitution was then sent to the states for ratification and for most people it seemed like the ERA was a done deal. Nevertheless, Congress placed a seven-year deadline on the ratification process. This time limit was placed not in the words of the ERA itself, but in the proposing clause.
Elizabeth: Just like the 19th Amendment twenty-two years earlier, the ERA gained rapid state ratification at the onset. Within a year the Amendment had 22 of the 38 necessary states needed for ratification. However, the pace of state ratification slowed as time went on. There were eight ratifications in 1973, three in 1974, one in 1975, none in 1976 and one in 1977.
Sarah: So what was going on? Why did an Amendment that seemed “in the bag” all of the sudden become bogged down in the ratification process? The typical reason given as to why ratification slowed down in that period between 1972 and 1977 is that a groundswell of conservative opposition slowed the ERA’s passage. Many times you hear that Phyllis Schlafly and her STOP ERA campaign was the sole reason for squashing the ERA’s ratification. But as we love to say here on the pod, it’s a bit more complicated than that. So let’s dive in.
Elizabeth: Like those grumblings against the UN Declaration of Human Rights, some conservative groups feared that the ERA could lead to a loss of individual rights. There were some groups that worried the ERA could lead to a loss of states’ rights, as it would give the federal government the power to regulate matters related to gender discrimination. Some religious groups also opposed the ERA, viewing it as a threat to traditional gender roles and religious beliefs that they believed would lead to the breakdown of the “proper” family structure. Opponents also argued that the ERA would invalidate laws designed to protect women, such as those providing for alimony and child support. But these fears did not stem from the ERA itself, but had been floating around in conservative circles since the 1950s.
Sarah: Much of this far-right conservative activism came out of the post WWII Second Red Scare and the fear of communist influence on American politics and society. In 1958 businessman Robert Welch Jr. founded the John Birch Society, named after an American Baptist missionary and military intelligence officer who was killed by Chinese Communist forces shortly after the end of World War II and was viewed by Welch as a hero and martyr of the Cold War. In the 1960s, the John Birch Society gained a significant following among conservative activists who would hold Bircher meetings in their living rooms to discuss the creeping communism they saw in American society.
Elizabeth: The John Birch Society played a significant role in the 1964 presidential campaign of Barry Goldwater. Barry Goldwater, was a Republican senator from Arizona who ran as the party’s nominee for president. The John Birch Society members campaigned for Goldwater and organized grassroots efforts by distributing campaign materials and holding rallies in support of his candidacy. They saw Goldwater as a champion of their cause, someone who would fight against the growth of the federal government and uphold individual liberties. Goldwater was absolutely trounced in the 1964 election, losing to Lyndon Baines Johnson. However, the Birchers efforts during the Goldwater campaign showcased its organizational capabilities and highlighted its role as a significant force within the broader conservative movement in the United States.
Sarah: In the 1970s the John Birch Society became a vocal opponent of the Strategic Arms Limitation Talks (SALT), which were a series of negotiations between the United States and the Soviet Union aimed at limiting the number of nuclear weapons in each country’s arsenal. The negotiations began in the late 1960s and culminated in the signing of two agreements in 1972: the SALT I treaty and the Anti-Ballistic Missile (ABM) Treaty. The John Birch Society viewed the SALT treaties as a threat to U.S. national security, arguing that they would weaken America’s nuclear deterrent and embolden the Soviet Union to pursue its aggressive expansionist goals. The organization also saw the treaties as evidence of a broader conspiracy by globalists and communists to undermine American sovereignty and security. Instead, they believed that the United States should maintain a strong military posture and be prepared to defend itself against communist aggression, and it saw the SALT treaties as a betrayal of these principles.
Elizabeth: Republican Richard Nixon was president in 1972 and had won the presidency by his hard-right law and order stance in the 1968 election. You can hear more about that election year in our 1968 episode. Up to that point, Nixon had been to the right of the right as far as politics went. He was a known red-baiter since his first Senate run in 1948. So the fact that the John Birch Society is criticizing him from the right really shows how far-right the Birch Society was considered at the time and the organization faced criticism for its extreme views and association with conspiracy theories. Nevertheless, the John Birch Society’s opposition to the SALT treaties was part of its larger campaign against what it saw as the threat of international communism and globalism.
Sarah: Phyllis Schlafly was a member of the John Birch Society and agreed the SALT treaty was a threat to U.S. national security and would weaken America’s ability to defend itself against the Soviet Union. She also criticized the treaty’s verification procedures, which she believed would be ineffective at detecting Soviet cheating. Schlafly became a leading voice in the conservative movement’s opposition to détente, the policy of easing tensions between the United States and the Soviet Union that was pursued by the Nixon administration in the 1970s. Schlafly and other conservatives argued that détente was a sign of weakness and would only embolden the Soviet Union to pursue its expansionist goals. From this platform, Schlafly positioned herself to the right of the Republican party and began organizing conservative women in a grassroots movement.
Elizabeth: Schlafly was born on August 15, 1924, in St. Louis, Missouri. She grew up in a conservative family and attended college at Washington University in St. Louis, where she earned a degree in political science. She went on to earn a master’s degree in government from Radcliffe College, where she wrote a thesis on the U.S. Senate’s role in foreign policy. She made a failed bid for Congress in 1952 and she later earned a law degree from Washington University’s law school in 1978.
Sarah: In the 1950s and 1960s, Schlafly became deeply involved in conservative politics, advocating for limited government, a strong national defense, and traditional family values. Schlafly authored numerous books on conservative politics, including “A Choice, Not an Echo” (1964), which criticized the Republican Party’s leadership and advocated for conservative principles.
Elizabeth: Schlafly was a genius when it came to grassroots organizing and using the media for her benefit. In 1972 Schlafly founded the Eagle Forum, a conservative women’s advocacy group that focused on promoting traditional family values, limited government, and a strong national defense. The Eagle Forum published a quarterly magazine, “The Phyllis Schlafly Report,” which featured articles on conservative politics and culture. The Eagle Forum also had a radio program, “Eagle Forum Live,” which featured interviews and discussions on current events and political issues. Schlafly and The Eagle Forum became a key opponent of the ERA and played a significant role in rallying opposition to the amendment in the STOP ERA campaign. Schlafly and her supporters in the Eagle Forum and the STOP ERA campaign argued that the amendment would lead to the abolition of traditional gender roles, the drafting of women into the military, and the promotion of homosexuality.
Sarah: Richard Nixon initially supported the ERA, as most Republicans and Democrats did. Nixon spoke in favor of it in a 1970 message to Congress, believing that the ERA would help address discrimination against women and promote gender equality in the workplace and other areas of American society. However, as the conservative opposition to the ERA grew from conservative groups like the Eagle Forum and the John Birch Society, and as Nixon began to be criticized from the right on his policy of détente, Nixon began to distance himself from the Equal Rights Amendment. Despite Nixon’s initial support, he did not actively campaign for the amendment, and his administration did not make it a priority.
Elizabeth: Nixon’s initial support for the ERA and subsequent distancing from it reflect the complex and changing political dynamics of the 1970s. But not all Republicans were distancing themselves from the ERA. At least not yet… Betty Ford, the wife of President Gerald Ford and First Lady of the United States from 1974 to 1977, was a vocal supporter of the Equal Rights Amendment (ERA) and worked to promote its ratification during her time in the White House.
Ford believed that the ERA was an important step towards achieving gender equality and eliminating discrimination against women. She frequently spoke in favor of the amendment and used her position as First Lady to advocate for its passage.
Sarah: After the United Nations established International Women’s Year (IWY) in 1975, Congress mandated and funded state conferences to elect delegates to attend the National Women’s Conference in Houston in 1977. The gathering brought together leaders including Gloria Steinem, Coretta Scott King, Maya Angelou, first ladies Rosalynn Carter, Betty Ford, and Lady Bird Johnson, and lawmakers including Barbara Jordan and Shirley Chisholm. The conference brought together over 2,000 delegates, including representatives from all 50 states and various territories, as well as from numerous women’s organizations and advocacy groups. For four days, they debated issues of gender inequality and adopted a National Plan of Action, which outlined a series of goals and strategies for promoting gender equality in areas such as education, employment, and reproductive rights. Most importantly, they endorsed three highly charged issues: abortion rights, the Equal Rights Amendment, and gay rights.
Elizabeth: At the same time across town, conservative women like Phyllis Schlafly and Lottie Beth Hobbs held a counter rally they dubbed the Pro-Family Rally. Hobbs was vice president of the Eagle Forum and co-founder of the group Women Who Want to be Women (later the Association of the W’s) that sought to convince the Texas legislature to revoke its ratification of the ERA and to rescind the Texas Equal Rights Amendment, which voters approved in November 1972. The massive counter rally protested federally funded feminism in general and the passage of the ERA specifically.
Sarah: The ERA’s 1979 deadline loomed near and no other states had ratified after 1977. Some pro-ERA groups like the League of Women Voters wanted to use the deadline as a political strategy and ramp up the urgentness of ratification. However, NOW and other ERA supporters appealed to Congress to pass an indefinite extension for ratification. In July of 1978 NOW sponsored a march of over 100,000 supporters in Washington, DC and soon Congress granted an extension until June 30, 1982.
Elizabeth: But the unprecedented extension of the original seven-year deadline was not enough to gain a single state, and in June 1982 the ERA became the fifth Constitutional amendment passed by Congress to be rejected by the states.
Sarah: The groundswell of anti-ERA forces came from the right but were not a monolithic entity. Phyllis Schlafly wasn’t responsible for killing the ERA on her own. So let’s discuss some of the various causes as to why the ERA did not get passed.
Elizabeth: Schlafly continued to be a frequent commentator on television and radio and published the book,”The Power of the Positive Woman” in 1977, which urged women to embrace traditional gender roles and oppose feminist activism. Other conservative women such as Beverly LaHaye, founded more conservative advocacy groups like Concerned Women for America in 1979, also opposed to the ERA.
Sarah: Conservative women definitely spear-headed the anti-ERA movement. However, there were lots of factions in opposition of the ERA. Religious conservatives, particularly evangelical Christians, organized politically and became increasingly active in the Republican Party, which had previously been dominated by moderate and liberal Republicans. They formed groups such as the Moral Majority and the Christian Coalition, which sought to promote conservative social values and support conservative candidates for office.
Elizabeth: The Southern Baptist Convention (SBC) became increasingly conservative and played a significant role in the rise of the Religious Right in the 1970s and was a major organization against the ERA. The SBC’s opposition to the ERA was based on its interpretation of the Bible, which teaches that men and women have distinct roles in marriage and family life. The SBC also feared that the ERA would lead to a greater acceptance of abortion and homosexuality and argued that the ERA would blur the “traditional” distinctions of family structures, which it saw as the foundation of society.
Sarah: The National Association of Evangelicals (NAE) became increasingly politically active in the 1970s, and began to advocate for conservative social policies. Additionally, the Moral Majority was founded in 1979 by the Baptist minister Jerry Falwell, which became one of the most influential religious conservative organizations of the time. It sought to promote conservative social values and support conservative candidates for office and was against passage of the ERA. By 1980 — the year Ronald Reagan was elected president, and who owed much of his success to evangelical voters— the Republican Party removed their support for the Equal Rights Amendment from its platform.
Elizabeth: The rise of the Religious Right in the late 1970s and early 1980s was a significant factor in the defeat of the ERA but there were other elements that led to the defeat of the ERA. A major one is, it’s just plain hard to pass a Constitutional amendment! There have been over 5,000 proposed amendments to the U.S. Constitution. Out of over 5,000 amendments that have been proposed, only 27 of them have ever passed, and of course the first ten (the Bill of Rights) were passed shortly after the Constitution’s ratification. So, passing an amendment to the Constitution is not an easy battle. Historian Mary Frances Berry concludes that the amending process is very complex and if there is not, what she called a feeling of national necessity, then an amendment will not pass. Essentially, she argues that there has to be a collective feeling that change cannot occur, or wrongs cannot be righted by the government if there is no amendment, in order for one to pass.[4] In a lot of ways, opponents of the ERA actually had an easier job, as all they had to do was stop ratification, not convince people of any kinds of changes to nebulous “rights.”
Sarah: A number of historians argue that feminists in the 70s and 80s that supported the ERA were just outmaneuvered and that failure was based on strategic errors and poor planning by ERA activists. High on the quick congressional success between the ERA’s reintroduction in 1970 and passage out of Congress in 1972, they failed to galvanize grassroots efforts in states and cities, and instead were only focused on national politics. Riding on a wave of congressional passage, activists ignored the efforts of conservative women opposing the amendment. NOW and other ERA activists eventually launched boycotts of unratified states and launched a massive television advertising campaign, but by the time these were launched it was too late.
Elizabeth: And of course women’s control over their own reproductive capacities contributed to the conversation about the ERA. In the 1970s, the Republican Party was largely divided over the issue of abortion. At the time, the party was composed of both conservative and moderate factions, with different views on social issues like abortion. In lock-step with the rise of the Religious Right, the Republican Party became increasingly identified with the conservative position on abortion and began to take a more anti-choice stance. After 1976 opponents of ERA claimed that the “Hyde” amendments to appropriations bills prohibiting funds for the abortions of poor women would be endangered if the ERA were ratified because the courts would find them a sex-based denial of equal protection.
Sarah: Another contributing factor is just good ol’ backlash. As students of history we see this often, the pendulum swings to the left and in response it swings back right. It could be argued that this was the case in the mid to late 1970s. The sixties saw major transformations in American society, which upset the white, patriarchal status quo and spurred a backlash that encompassed civil rights and anti-segregation measures like bussing and quickly spread to the newer issues of feminism, abortion, and gay rights, all of which were interpreted as an attack on the patriarchal family and the “American” way of life.
Elizabeth: But of course all of these causes don’t follow the money. Major opposition to the ERA came from the insurance industry and other corporate interests that would face regulations and stood to lose billions if the ERA passed. Eleanor Smeal, president of NOW in the late 70s and 80s said, “‘Women’s equality’ is not just words, it means real things, especially in the area of money. It means you have to stop discriminating against women in employment and in annuities, life insurance and health insurance. It involves billions and billions of dollars.”[5]
Sarah: An article in The Washington Post from 1982 entitled “NOW Concedes Defeat in ERA Battle, But Vows to Make a Strong Comeback” layed out steps for moving forward. Smeal stated that a major focus moving forward would be changing the makeup of Congress and those in power, stating: “We will not again seriously pursue the ERA until we’ve made a major dent in changing the composition of Congress as well as the state legislatures.”
Elizabeth: So what has happened since? Well, even though the ERA has still not been added to the U.S. Constitution, many of the discriminatory practices outlined in the Amendment have been rectified by the courts. According to the Brennan Center for Justice, “A significant portion of the credit goes to Ruth Bader Ginsburg, who as the founding director of the American Civil Liberties Union (ACLU) Women’s Rights Project found success in arguing for a jurisprudence of gender equality under the 14th Amendment’s Equal Protection Clause.” And we should just point out, Crystal Eastman -one of the drafters of the original ERA- was a co-founder of the ACLU back in 1920.
Sarah: However, without a Constitutional amendment, those rights can be revoked. In the 2010s in response to Trump’s election and the #MeToo movement, the fight for women’s rights, specifically equal pay for equal work and freedom from sexual harassment, gained momentum and renewed the work for the ratification of the Equal Rights Amendment.
Elizabeth: In March of 2017 Nevada became the 36th state to ratify the ERA. Illinois quickly followed suit in April of 2018. And finally, on January 27, 2020, Virginia became the 38th state to ratify the Equal Rights Amendment, carrying ratification over the ⅔ necessary for ratification. AND…
[cricket noises]
Sarah: Welp. So far the ERA has not become the 29th Amendment to the Constitution, the argument being that the deadline has passed. Additionally, since 1977 four states have rescinded their ratification of the Amendment- Idaho, Kentucky, Nebraska and Tennessee. And South Dakota has stated that its ratification lapsed after 1979. But this argument doesn’t hold up to historical precedent. After the Civil War, two states rescinded their ratification of the 14th Amendment, but Congress refused to recognize those rescissions and the 14th Amendment was added to the Constitution.
Elizabeth: Regarding the deadline, many legal scholars are quick to point out that the deadline was not written into the Amendment itself, but just in the preamble before the text of the amendment. So if Congress can set the deadline, and give it an extension (which they did), why can’t they change the deadline again?
Sarah: Even the Justice Department has weighed in on the matter, releasing a statement arguing that Congress has the authority under Article 5 of the Constitution to set and change deadlines for the ratification of constitutional amendments, and has done so in the past.
Elizabeth: In an attempt to change that deadline, in 2020 Democratic Representative Jackie Speier of California introduced a joint resolution to remove the arbitrary timeline for the ERA. The House, then under Speaker Nancy Pelosi, voted in favor of the resolution with a bipartisan 232–183 vote (five Republicans voted with Democrats in favor of the legislation).
Sarah: Senators Ben Cardin, Democrat of Maryland and Lisa Murkowski, Republican of Alaska introduced a similar resolution in the Senate. However, the Senate majority leader at the time, Republican Mitch McConnell, blocked the resolution.
Elizabeth: However, we’ve had an election since then and in April of 2023 the new Senate majority leader Chuck Schumer brought the resolution to change the deadline date up before the Senate. The Senate voted 51-47 against removing the deadline that prevents the Equal Rights Amendment from being ratified.
Sarah: Opponents brought up abortion as one reason for rejecting the proposal, with Republican Lindsey Graham saying he feared it would hurt anti-abortion laws. But of course the newest Republican freakout over transgender people played a large role too, with opponents claiming that the ERA would give transgender people rights that would “hurt” women.
Elizabeth: The vote in the Senate happened just a few weeks ago as of this recording, so this episode brings us up to literally today. That usually doesn’t happen here on the pod. But I guess this gives us an opportunity to pose a question to leave you, our listeners, with.
Sarah: Why, 100 years later, is an Amendment to the Constitution that guarantees Equal Rights based on sex still an unpassable issue? Even when 85% of Americans polled agree that the passage of the ERA is past due? In fact, 93 percent of Democrats, 79 percent of Independents, and 79 percent of Republicans say they would support Congress passing the ERA again.
Elizabeth: And we’ll leave you with that to mull over, talk to your friends about, discuss in your classes, and ask your elected representatives.
Thanks for listening.
Further Reading
Berry, Mary Frances, Why ERA Failed. Indianapolis: Indiana University Press, 1986.
Critchlow, Donald. Phyllis Schlafly and Grassroots Conservatism. Princeton University Press, 2005.
Freeman, Jo. A Room at a Time: How Women Entered Party Politics (Rowman and Littlefield, 2002).
Griffith, Elisabeth. Formidable: American Women and the Fight for Equality: 1920-2020. Pegasus Books, 2022.
Kempker, Erin. Big Sister: Feminism, Conservatism, and Conspiracy in the Heartland. University of Illinois Press, 2018.
McGirr, Lisa, Suburban Warriors: The Origins of the New American Right. Princeton University Press, 2015.
Rupp, Leila J. and Verta Taylor, American Women’s Rights Movement, 1945 to the 1960s. New York: Oxford University Press, 1987.
Rymph, Catherine. Republican Women: Feminism and Conservatism from Suffrage through the Rise of the New Right. The University of North Carolina Press, 2006.
Spuill, Marjorie. Divided We Stand: The Battle Over Women’s Rights and Family Values that Polarized American Politics. Bloomsbury, 2017.
Sklar, Katherin Kish. Florence Kelley and the Nation’s Work: The Rise of Women`s Political Culture, 1830-1900. Yale University Press, 2007.
Suk, Julie. We the Women: The Unstoppable Mothers of the Equal Rights Amendment. Skyhorse Publishing, 2020.
Notes
[1] Samantha Gagnon, “Giving the Equal Rights Amendment Teeth: A Proposal for Gender Equality Legislation Modeled after the Civil Rights Act of 1964,” St. John’s Law Review, Winter 2022, Vol. 94 Issue 4):1013-1032.
[2] Crystal Eastman, “Now We Can Begin,” 1920. https://awpc.cattcenter.iastate.edu/2017/03/09/now-we-can-begin-1920/
[3] Crystal Eastman, “Alice Paul’s Convention,” The Liberator, Vol. 4, No. 4 (1921): 9-10.
[4] Mary Frances Perry, Why ERA Failed, 4.
[5] https://msmagazine.com/2020/04/22/equal-rights-amendment-reports-of-the-eras-death-have-been-greatly-exaggerated-part-2/
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