Equal Rights for All

The Equal Rights Amendment states, “Equality of rights under the law shall not be denied or abridged by the United Sates or by any state on account of sex.”While many people want to believe that women no longer experience inequality, the recent #MeToo movement has illuminated there is still serious issues women face every day. An Equal Rights Amendment (ERA) would be a big step toward ending discriminatory practices bases on gender or sex. The ERA’s simple wording would provide equality for both men and women.

History of the ERA

In 1972 the U.S. Congress voted that the Equal Rights Amendment should be added to the U.S. Constitution (354–24 in the House and 84–8 in the Senate). As American law dictates this Amendment then needed to be ratified by three-fourths of the states, or 38 states out of 50.

Over the next several years 35 of the 38 needed states ratified the ERA. However, a strong, focused movement against the ERA prevented it from getting the 38 states needed for its ratification. One of the key activists against the ERA was Phyllis Schlafly who believed it would take away “dependent wife” benefits under Social Security, separate restrooms for males and females, and the exemption for women from the Selective Service (the Army draft).

One other barrier the ERA had to being ratified was a deadline imposed upon the ratification of the Amendment. The ERA is one of only two Amendments ever proposed that has had a deadline. Indeed, in the 27th Amendment having to do with Congressional salaries was ratified 202 years after it was passed by Congress. Individuals fighting to get the ERA argue that this deadline is false and can be challenged legally once 38 states have ratified the ERA.

Indeed in just the past couple of years two additional states have ratified the ERA, Nevada and Illinois, bringing the total ratification to 37 states, just one away from the required number to ratify an amendment. Here is a little more history on the ERA:

  • Alice Paul, one of the key drivers of the 19th Amendment which gave women the vote, drafted the ERA, and it was introduced to Congress in 1923.
  • Initially it was opposed by progressives who worried about losing hard-won labor rights.
  • The Republican Party added it to the platform in 1940 and Democrats added in 1944.
  • It came to the Senate floor for the first time in 1946 and won a majority of votes.
  • March 22, 1972 it was passed decisively with a seven-year ratification for deadline.
  • Hawaii was the first state to ratify it less than one hour after it was passed.
  • Minnesota was the 26th state to ratify the federal ERA in 1973.
  • In the first year 22 states ratified it.
  • Eight more states ratified it in the second year
  • Three more states ratified it by 1974 and 1 state ratified it in 1975.
  • In 1979 legislation was passed to extend the ratification deadline of the ERA to 1982.
  • In 1980 the Republican party dropped it from their platform.
  • In 1982 the deadline was enacted and the Amendment was claimed to be dead.

Where is the ERA today?

Oddly, many people today believe the ERA was passed into the U.S. Constitution in the 1970s and feel like they are being protected by it. Other people believe that the ERA would do little to give women equality, so it is not worth pursing. This is a false belief. Court case after court case shows that without an ERA in our Constitution, the courts, including our highest Court, the Supreme Court, will ignore gender inequality.

Indeed, in 2010 Supreme Court Justice Antonin Scalia, in an address to the University of California’s Hastings College of the Law stated, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.”

If this isn’t enough to concern you, if you think it is just an off-the-cuff remark of a Supreme Court Justice who is no longer on the Court, then you may want to look up the following Supreme Court cases that have systematically taken away the rights of people based on sex or gender over the past couple of decades:

  • Gedulidg v. Aiello
  • Kouba vs Allstate
  • Young vs United Parcel Services, Inc.
  • Ward’s Cove Packing vs Antonio
  • Wal-Mart Stores, Inc. vs Dukes
  • Ledbetter vs Goodyear Tire and Rubber Co
  • Burwell vs Hobby Lobby
  • Tuan Anh Nguyen vs Immigration and Nationalization Services
  • Grove City vs Bell
  • Castle Rock v Gonzales

These are just some of the Supreme Court cases that have set back sex and gender equality for both men and women. There are even more that ensure that individuals, women and men, are not given equality under the law.

One of the ways the Supreme Court ensures inequality based on gender is by reviewing cases of discrimination based on sex and gender under a different scrutiny. For sex discrimination claims the Court uses intermediate scrutiny, while under the Fourteenth Amendment, which protect individuals bases on race or religion, the Court use strict scrutiny. This means those who discriminate on the basis of sex or gender are held to a lower standard than those who discriminate on the basis of race or religion. The individual bringing the case must prove it is INTENTIONAL discrimination. The idea of intention is notoriously hard to prove in the courts. After all, how do you show someones intent? However, for other cases of discrimination, strict scrutiny requires only action to show discrimination. Intent is not a consideration. There are other laws which use this standard. For instance, if someone is driving recklessly or drunk and kills another individual, their intent is not considered, only their action.

For all these reasons an Equal Rights Amendment is not just a reasonable action, but an extremely important one. On top of the need to add an ERA to our Federal Constitution, individuals in Minnesota are still not protected from discrimination based on sex or gender, since Minnesota had never added this to the Minnesota Constitution. To learn more about getting the ERA added into the Minnesota Constitution, visit ERAMN.org.