June 20, 2012 – Essay #88 – A Look At Another Proposed Amendment: Women’s Equal Rights – Guest Essayist: Allison R. Hayward, political and ethics attorney
Another Proposed Amendment: Women’s Equal Rights:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
This history of the Equal Rights Amendment (ERA) is best understood in context with other great efforts as securing equality before the law for all. But the ERA has also been used as a political tool in efforts to secure electoral advantage. As with most social initiatives, the story offers a complicated mix of high purpose, low tactics, compromise, and for ERA supporters, frustration that extends to this day.
The roots of the ERA trace to 1848, when a group of activist social reformers and abolitionists met in Seneca Falls, New York, to discuss the rights of women. This meeting produced a statement, which among other things called for the elimination of the subjugation of women, voting rights, and absolute equality. But the immediate battle then raging was over slavery, and despite their efforts, women’s rights activists could not broaden the equal rights guarantees of the post-Civil War Amendments to protect women from discrimination as well as African Americans.
But other social reformers saw women’s rights as a tool. Anti-liquor activists believed the women’s vote would support “dry” candidates for state and federal office, and ultimately would secure a constitutional amendment prohibiting the manufacture, transport or sale of alcoholic beverages. A coordinated campaign began around the turn of the 20th century to secure women’s voting rights at the state level, in conjunction with the election of prohibitionist candidates and passage of state prohibition laws. The impact is evident in this timeline – only four states (Wyoming, Colorado, Utah and Idaho) had guaranteed women the right to vote before 1910. Eleven states and the territory of Alaska enacted women’s suffrage laws between 1910 and the ratification of the 19th Amendment in 1920. Twelve more allowed women to vote for President – eleven extending this right in 1917-19, which not coincidentally was the period when both women’s suffrage and Prohibition underwent Constitutional ratification.
In 1923, Alice Paul wrote what became the modern Equal Rights Amendment at a second Seneca Falls meeting commemorating the meeting of 1848. By this time, women had secured the right to vote and had been instrumental in the passage of Prohibition, and understandably women’s rights activists believed it was time to complete a constitutional guarantee of rights for women.
As with suffrage rights, a number of states adopted their own “ERA” type constitutional guarantees. Some state laws were enacted independent of the ERA campaign, but a number of others were adopted during the decade of debate over the ERA when it came before the states in 1972. Most state adopted ERA amendments between 1971 and 1978, when the campaign to adopt the federal Equal Rights Amendment (ERA) was at its height. The effort eventually failed, three states short of its final goal.
Even so, twenty states have adopted constitutions or constitutional amendments providing that equal rights under the law shall not be denied because of sex. Some read like the ERA, but others are narrower. For example California 1879 law (the nation’s earliest), guarantees equal rights to “entering or pursuing a business, profession, vocation, or employment.”
Supporters of ERA continue to argue its necessity, pointing out, among other things, continued pay inequities between men and women. But others argue that a constitutional amendment could be both too broad and ineffective. Larger social phenomena, such as the fact many women raise children, care for other family members, and for other reasons do not follow general male career trajectories go far to explain pay inequities. ERA would bar discrimination based obstacles women face in the workplace, but labor laws, corporate policies, and negotiated conditions of employment already provide existing means to address those.
What laws and practices would ERA abolish? Could there be unintended consequences? Interestingly, labor reformers in the early part of the 20th century thought so. They opposed efforts to abolish discrimination based on sex, because they believed it would jeopardize women’s gains in workplace conditions and hours.
Reasonable laws should recognize that women and men are physically different, and these differences can sometimes matter. Pretending as if there were no differences in life expectancy, strength, metabolism, or estrogen would be irrational, even if in a strict sense “equal.” If our legal regime protects men and women’s choices consistent with the rights of others — recognizing that those choices will not be identical — equality is better served than by imposing a flat guarantee of equal rights.
Allison R. Hayward is a political and ethics attorney in California