Will the Equal Rights Amendment Finally Be Added to the US Constitution?

The Equal Rights Amendment, which would codify gender equality in the U.S. Constitution, has been introduced in every session of Congress since 1923. It was finally passed in 1972, and yet never ratified. This week, the ERA will get its first hearing in 40 years when, on Tuesday, the Senate Judiciary Committee meets to discuss a joint resolution to finally affirm the ERA. We speak to Zakiya Thomas and Linda Coberly of the ERA Coalition for more on the historic significance of this hearing and the century-long fight for constitutional protections against sex discrimination.

TRANSCRIPT

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AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.

We look now at what may be a historic next step in the push to codify gender equality in the U.S. Constitution. The Equal Rights Amendment has been introduced in every session of Congress since 1923, finally passed in 1972, more than half a century ago. But it was never ratified by the states. This comes as women continue to face discrimination throughout their lives. In one of the most clear examples, women today are still paid 83 cents for every dollar men earn.

Well, on Tuesday, the ERA will get its first hearing in 40 years when the Senate Judiciary Committee meets to discuss a joint resolution to finally affirm it, after removing an arbitrary seven-year deadline on the ratification process. The House voted in 2020 to remove the deadline when Virginia became the 38th, and potentially pivotal, state to ratify the ERA, but the Senate didn’t pick up the measure. This is Democratic Congressmember Ayanna Pressley speaking at a press conference in support of the ERA, which was introduced by Democratic Senator Dick Durbin.

REP. AYANNA PRESSLEY: It’s not lost on me that the first time the Equal Rights Amendment was put forward was 100 years ago. The coalition was not as diverse nor as inclusive, so I’m especially encouraged and emboldened to demonstrate today we are leading and working in an intersectional and inclusive way to advance this priority. Our resolution will help address centuries of gender discrimination in America by removing the unnecessary barriers that have prevented us from enshrining the dignity, the humanity and equality of women into our United States Constitution.

AMY GOODMAN: That’s Congressmember Ayanna Pressley.

Well, for more, we go to Washington, D.C., to speak with Zakiya Thomas, president and CEO of the ERA Coalition, and Linda Coberly, who’s chair of the Legal Task Force at the ERA Coalition, also a partner at Winston & Strawn.

We welcome you both to Democracy Now! Zakiya Thomas, let’s begin with you. I’m sure a lot of people are scratching their heads and saying, “Oh my gosh! The ERA, what ever happened with that?” Why don’t you explain further its history and why Tuesday is so significant?

ZAKIYA THOMAS: Thank you so much for having us.

So, the Equal Rights Amendment would be an amendment to the Constitution that would enshrine protections against sex discrimination in the U.S. So, it was first introduced in Congress about a hundred years ago. And since then, it’s been passed by both houses of Congress. And in 2020, it was ratified by the 38th state, Virginia, the 38th state needed to — for ratification purposes. So now it is the law of the land. We just need to make sure that Congress affirms that, and we will have equality enshrined in our Constitution.

AMY GOODMAN: Now, can you explain more how the ERA came about to begin with, and how many decades this has been going on?

ZAKIYA THOMAS: So, as I said, this is the 100th anniversary of Equal Rights Amendment being introduced in Congress. And it was originally introduced at the Seneca Falls Convention by suffrage — leaders of the suffragette movement in the United States. So, this is a progression from the earning the right to vote, now earning the equality under the law, because, as we’ve seen, we are not — we do not consider women as part of the Constitution, and having the Equal Rights Amendment would allow us to have protections against discrimination for anyone on the basis of sex.

AMY GOODMAN: So, Linda Coberly, you’ve been working on this for many years, chair of the Legal Task Force at the ERA Coalition. Explain this whole issue of the seven-year deadline. What happened in 1972, that incredible moment, but then, not only its passage, but the fact that it had to be ratified by the states, and what all that means?

LINDA COBERLY: Sure. Good to be with you this morning.

The process for amending the Constitution is set forth in Article 5, and it has some very specific requirements, which have been met by the ERA. The first requirement is that Congress must pass the amendment and propose it to the states by a two-thirds vote. And that’s what happened in the early ’70s. And the second is that three-quarters of the states ratify it. And there are a couple of different ways that that can happen. In this event, Congress chose to have the legislatures of the different states do the ratification.

There’s nothing in Article 5 that talks about a time limit. And for the first 150 years or so of our republic, there were no time limits on proposed amendments. In fact, the last amendment added to the Constitution, the 27th Amendment, took 203 years to ratify. It was proposed by James Madison, and it became part of the Constitution only recently. In the early 20th century, Congress began to use time limits for ratification. And initially, it proposed those time limits as part of the text of the amendment itself. But in the middle of the 20th century, for a short period of time, those time limits were moved into the preamble or the proposing clause. And that’s where the time limit is for the Equal Rights Amendment. The proposing clause says that the amendment will become valid as part of the Constitution when ratified by the states within seven years.

So, what does that mean? Well, because the time limit was placed in the proposing clause to the amendment, it’s something that Congress can change. And Congress has already changed that amendment and that time limit once. In the late 1970s, it voted by simple majority to extend the time limit by another three years. And what we’re asking Congress to do now is to declare that notwithstanding any time limit included in the original joint resolution, the ERA is valid and part of the Constitution today.

AMY GOODMAN: And explain what happened. So, it’s ratified. It’s passed. But then talk about the states, the history of the states approving it, and how it was Virginia was only recently.

LINDA COBERLY: So, the ERA was very widely supported in the early ’70s, and state after state ratified very quickly after the amendment was originally proposed. But by the end of the 1970s, the number of ratifying states stayed at 35, which is not quite enough. In order to get three-fourths of the states, we needed 38. And all we had at the end of the 1970s was 35. So, then the time limit passed, and decades past.

And the support for the ERA continued. Bills supporting the ERA and new versions of the ERA were proposed every year in Congress for decades. But it wasn’t until 2017 that the states began to ratify the original ERA one more time. So, the state of Nevada ratified in 2017, shortly after the Women’s March and as part of the #MeToo movement and the kind of renewed attention to the issue of sex equality. The state of Illinois, where I’m from, ratified in 2018. And then Virginia ratified in 2020. So we now have the last three states, and we have the number required under Article 5 for the Constitution to be amended.

AMY GOODMAN: I want to turn to opposition to the Equal Rights Amendment, especially from the right. This is Independent Women’s Forum senior policy analyst Inez Stepman speaking to C-SPAN’s Jesse Holland on Washington Journal.

INEZ STEPMAN: We already have legal equality. The question then is: What changes with the ERA? And what changes is we move from legal equality to the law being rigid and unable to recognize situations in which the differences between men and women matter. Right? So, and I’m sure we’ll get into a lot of these different examples. But, fundamentally, I worry that this ERA will replace the equality under the law that women already enjoy in this country with a sort of sameness or interchangeability between men and women that could actually put women in harm’s way.

JESSE HOLLAND: Give us an example of what you’re talking about.

INEZ STEPMAN: Sure. So, for example, we have laws, spousal Social Security benefits, right? If you stay home — and the vast majority of those who stay home are women who stay home to take care of their kids — that law amounts to a subsidy, according to some proponents of the ERA, for stay-at-home mothers, and therefore is a violation of the equality principle, even though it no longer says men and women, it just says spousal Social Security support.

AMY GOODMAN: So, Linda Coberly, if you can respond?

LINDA COBERLY: So, first of all, I think there are a lot of critiques of the ERA that started in the 1970s that don’t make a lot of sense anymore. In the ’70s, there were legal distinctions based on sex, for example, in WIC benefits and alimony and palimony and that sort of thing, where women and men were treated differently, including in child custody, for example. A lot of those changes have — a lot of those differences have already been eliminated in last three years, because the law recognizes — and we recognized in shaping the law — that distinctions on the basis of sex are often arbitrary.

I think the important thing, though, is that the ERA is not a rigid law in the sense like laws are passed by Congress. The ERA is a principle, like all of the principles reflected in our Constitution. And courts will interpret that principle if it becomes part of the Constitution, and will look for instances where the government has a very strong interest in drawing a sex distinction, and it will weigh them. I mean, no constitutional right is absolute. We see that in the extensive case law around the First Amendment, for example.

The other thing I wanted to mention is that the ERA is not — it is not something that would replace or eradicate the existing constitutional order. Now, Inez mentioned that there is constitutional equality already, and maybe she’s — legal equality, and maybe she’s referring to the 14th Amendment. Having read the Dobbs decision, I’m concerned about that, about that authority that finds protection against sex discrimination in the 14th Amendment. A majority of the Supreme Court has made clear that it will interpret the Constitution based only on the words that it contains, and it will interpret those words based only on the understanding of the people who included those words in the Constitution originally. And that means that according to this Supreme Court, the meaning of the 14th Amendment is frozen in time in 1868, at a time when no one understood that the 14th Amendment would protect against discrimination on the basis of sex. So, to the extent that we already have legal equality, there is a real risk that that equality will be eroded. And, of course, statutes can be changed. And a lot of the other sources of legal equality that we have in our system today are vulnerable to political change. So, for that reason, we think it’s critically important to have an amendment in the Constitution that recognizes a principle of constitutional equality.

AMY GOODMAN: So, Zakiya Thomas, can you talk about the organizing that’s going on and what specifically is going to be happening in the Senate Judiciary Committee on Tuesday?

ZAKIYA THOMAS: So, on Tuesday, we will have the chance to discuss the importance of the Equal Rights Amendment and why it is the law of the land and why Congress should affirm it as such. And so you’ll hear from constitutional scholars, you’ll hear from the lieutenant governor of Illinois, and you’ll hear from advocates about the work that’s been done, but also how the ERA impacts everyday life. And so, on Tuesday, we are excited to have the opportunity to talk about the importance of the Equal Rights Amendment, why it’s still relevant and why it’s so important for all of us to be protected under the Constitution with constitutional equality.

AMY GOODMAN: Let me play a clip of Democratic Senator Dick Durbin, and then we’re going to come back to you.

SEN. DICK DURBIN: Nothing in the Constitution prohibits us from declaring the ERA as law of the land, as it should be, so we’re going to get the job done. We’re going to start in the Senate Judiciary Committee with a hearing, so the people of America know what’s at stake here and what we’re really fighting for. And then we’re going to bring it to the floor, and we’re going to get a vote and people on the record, as it should be. It’s time for us to vote for equality.

AMY GOODMAN: So, that’s Senator Dick Durbin. Then they’ll take it to the floor of the Democratic-controlled Senate, but then there’s the House, Zakiya.

ZAKIYA THOMAS: Yes. And so, we also have the identical legislation being put forth in the House, as well. And Ayanna Pressley is leading that effort as the main sponsor of the resolution in the House. And so, once we get through this fight in the Senate to make sure that we have the support — which we think we do — to get the Equal Rights Amendment affirmed, then we take the battle to the House, and we’ll do the same there. We do have bipartisan support for both bills, which is a wonderful occurrence for all of us to have. And it just shows that there is extreme — there is a large amount of support for the Equal Rights Amendment in both parties and in both houses.

AMY GOODMAN: I want to go to a quote of the Columbia Law professor Katherine Franke, who wrote in The Hill in November, quote, “The leaked Supreme Court opinion the Dobbs v. Jackson Women’s Health case serves as a potent reminder of how weak the protections against sex discrimination are in the current U.S Constitution. A resolution now pending in the Senate could change that.

“The measure, already passed by the House, would lift the last hurdle for ratification of the Equal Rights Amendment. Of course, a vote on the resolution must overcome a potential filibuster by Senate Republicans.

“While it may seem counterintuitive, holding and losing the vote to lift the filibuster on the ERA may be just what we need to push it over the finish line.”

Linda Coberly, if you could continue from there, and your response to what she’s saying?

LINDA COBERLY: Yes, and I think Professor Franke addressed the issue that I mentioned in Dobbs, where a current majority of the Supreme Court has said that it will limit its reading of equality to the meaning that those who ratified the 14th Amendment had in their minds when they voted to ratify. You know, the late Justice Ginsburg advocated for a very long time, both as an advocate and then, ultimately, as a Supreme Court justice, for finding some protection against discrimination on the basis of sex in the 14th Amendment. And she was successful. But given the move within the Supreme Court, I think that win, that protection is vulnerable. The late Justice Scalia was very explicit about that, and he said that he did not recognize any protection against discrimination on the basis of sex in the Constitution. And that’s exactly why we need to amend it.

AMY GOODMAN: And what would it mean, if the Equal Rights Amendment were actually ratified, were passed, in the case of, for example, what’s about to come down any day now, that Texas judge’s decision that could block access to the common abortion medication mifepristone? This abortion pill, medication abortions are used in more than half the abortions in the United States. So how would it affect this and, overall, reproductive healthcare, reproductive rights in this country, Linda?

LINDA COBERLY: Well, that’s a great question. And ultimately, it’s a question that’s going to be decided by the courts. But we certainly think that reproductive health is part of equality. And if there is a statute or a state regulation or something like that that prevents access to healthcare on the basis of sex, then the ERA would stand in the way of that. I think the exact permutations of how that works is something that’s going to be resolved by courts, probably over many years.

But remember, the fact that this is going to be in the courts is not a surprise. All the constitutional provisions are in the courts. And we have ongoing litigation and court decisions interpreting amendments. That’s why we have — the Constitution is something you can put in your pocket, unlike the U.S. Code, which requires a whole room of books to capture. So, the principles in the Constitution are designed to be high-level. They’re designed to be principles that are interpreted by courts. But certainly we believe that reproductive healthcare is an important aspect of equality, and the ERA would help to shore that up.

AMY GOODMAN: And finally, Zakiya Thomas, what is your sense, especially among younger women, of their awareness of what’s going on right now around the ERA? 2026 is the 250th anniversary of the U.S. Constitution, which the government is planning to mark with major events. What would it mean if the ERA were the law of the land and in the Constitution?

ZAKIYA THOMAS: Well, imagine a world or a country in which women and men were paid equally for the work that they do. Imagine a country in which LGBTQ+ individuals were actually protected against discrimination because of who they are. And, you know, imagine a world where we can all be sure that we have equality and that our rights will not be infringed upon because someone thinks that we’re different. And that’s the foundation and the principle, really, that Linda was talking about, that the Equal Rights Amendment provides.

And we see overwhelming support in this country for the Equal Rights Amendment. About 78% of the country thinks that we should have an Equal Rights Amendment in our Constitution and that men and women should be treated equally under the law. It’s unfortunate that about 73% think that we already have an ERA in our Constitution. But that’s why this is so important and so imperative for us to get the word out about the Equal Rights Amendment, about this moment in history, that we have the opportunity to change the future for this country and all of our people.

AMY GOODMAN: Zakiya Thomas, we want to thank you for being with us, president and CEO of the ERA Coalition, and Linda Coberly, chair of the Legal Task Force at the ERA Coalition. I’m Amy Goodman. Thanks so much for joining us.